1
Exhibit 4.12
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REFUNDING AGREEMENT
[GPA 1989 BN-6]
Dated as of November 20, 1996
among
AMERICA WEST AIRLINES, INC.,
as Lessee
GPA LEASING USA SUB I, INC.,
as Original Head Lessee
GPA GROUP plc,
as Parent Guarantor
WILMINGTON TRUST COMPANY,
not in its individual capacity
except as expressly provided herein
but solely as Owner Trustee
FLEET NATIONAL BANK,
not in its individual capacity
except as expressly provided herein
but solely as Pass Through Trustee under each of the
Pass Through Trust Agreements
[--------------------------],
as Owner Participant
FLEET NATIONAL BANK,
as Subordination Agent
and
THE CHASE MANHATTAN BANK,
not in its individual capacity
except as expressly provided herein
but solely as Indenture Trustee
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Secured Equipment Notes Covering
One Airbus A320-231 Aircraft
Manufacturer's Serial No. 65
Registration No. N626AW
Leased by America West Airlines, Inc.
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TABLE OF CONTENTS
Page
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SECTION 1. Purchase of Equipment Notes; Refunding.................................................... 8
SECTION 2. Equipment Notes........................................................................... 10
SECTION 3. Conditions Precedent...................................................................... 10
SECTION 4. Certain Conditions Precedent to the Obligations
of the Original Head Lessee and the Parent
Guarantor; Certain Conditions Precedent to the
Obligations of the Lessee; Conditions Precedent
with respect to the Pass Through Trustee............................................ 18
SECTION 5. Amendment and Restatement of the First Amended
and Restated Indenture.............................................................. 22
SECTION 6. Amendment and Restatement of the First Amended
and Restated Lease.................................................................. 22
SECTION 7. Termination of the Participation Agreement;
Termination of Sublease, etc........................................................ 22
SECTION 8. Representations and Warranties of the Lessee............................................. 23
SECTION 9. Representations and Warranties........................................................... 27
SECTION 10. Transfer of Owner Participant's Interest................................................. 42
SECTION 11. Re-Registration of the Aircraft.......................................................... 46
SECTION 12. Quiet Enjoyment.......................................................................... 49
SECTION 13. Liens.................................................................................... 50
SECTION 14. Certain Additional Provisions Relating to
Original Head Lessee, Parent Guarantor, Trust
Company, Owner Trustee and Owner Participant........................................ 52
SECTION 15. Certain Retained Rights and Releases..................................................... 55
SECTION 16. Certain Additional Obligations of the Lessee,
the Owner Trustee, the Owner Participant and
the Indenture Trustee............................................................... 61
SECTION 17. Lessee Protection of Title............................................................... 61
SECTION 18. Jurisdictional and Related Matters....................................................... 61
SECTION 19. Limitation on Recourse................................................................... 63
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SECTION 20. Notices................................................................................... 63
SECTION 21. Expenses.................................................................................. 63
SECTION 22. Reliance of Liquidity Provider............................................................ 64
SECTION 23. Miscellaneous............................................................................. 64
SECTION 24. Governing Law............................................................................. 66
SECTION 25. Effectiveness............................................................................. 59
Schedules
Schedule I Pass Through Trust Agreements
Schedule II Equipment Notes, Pass Through Trusts and Purchase
Price
Schedule III Holders of Equipment Notes - Payment Instructions
Schedule IV OP SLV Amount
Schedule V GPA SLV Amount
Exhibits
Exhibit A Form of Transferee's Parent Guarantee
Exhibit B Form of Assignment and Assumption Agreement
Exhibit C List of Countries
Exhibit D Form of Insurance Broker's Report
Annex
Annex A FAA Documents
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REFUNDING AGREEMENT
[GPA 1989 BN-6]
REFUNDING AGREEMENT [GPA 1989 BN-6] (this "Agreement"), dated
as of November 20, 1996, among (i) AMERICA WEST AIRLINES, INC., a Delaware
corporation (the "Lessee"), (ii) GPA LEASING USA SUB I, INC., a Connecticut
corporation (the "Original Head Lessee"), (iii) GPA GROUP plc, an Irish public
limited company (the "Parent Guarantor"), (iv) [_______________________], a
Delaware corporation (the "Owner Participant"), (v) WILMINGTON TRUST COMPANY, a
Delaware banking corporation (the "Trust Company"), not in its individual
capacity except as otherwise expressly provided herein, but solely as owner
trustee (the "Owner Trustee") under the Trust Agreement (as defined below), (vi)
FLEET NATIONAL BANK, a national banking association, not in its individual
capacity except as otherwise expressly provided herein, but solely as pass
through trustee (in such capacity, the "Pass Through Trustee") under each of the
four separate Pass Through Trust Agreements (as defined below), (vii) FLEET
NATIONAL BANK, not in its individual capacity, but solely as subordination agent
and trustee (in such capacity, the "Subordination Agent") under the
Intercreditor Agreement (as defined below), and (viii) THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank, successor by merger to Manufacturers Hanover
Trust Company), a New York corporation, not in its individual capacity except as
otherwise expressly provided herein, but solely as Indenture Trustee (the
"Indenture Trustee") under the Indenture (as defined below).
Except as otherwise defined in this Agreement, the terms used
herein in capitalized form shall have the meanings attributed thereto in the
Indenture (whether set forth therein or by reference to another document) as if
the Restatement Date had occurred.
W I T N E S S E T H:
WHEREAS, FG Vision Leasing Co., Ltd., a Japanese limited
purpose corporation (the "Japanese Lessor") and Air Tara Caymans II, Limited, a
Cayman Islands corporation wholly-owned by the Parent Guarantor ("GPA
Offshore"), entered into the Agreement to Purchase and Lease [GPA 1989 BN-6],
dated as of September 28, 1989 among GPA Offshore, the Parent Guarantor,
Barclays Bank plc, a public limited company organized under the laws of England
and acting through its Tokyo branch (the "Japanese Lender") and the Japanese
Lessor (the "Agreement to Purchase and Lease"), pursuant to which, among other
things, GPA Offshore agreed to sell to Japanese Lessor, and Japanese Lessor
agreed to purchase from GPA Offshore, the Aircraft (as defined below) on the
Delivery Date (as defined therein);
WHEREAS, concurrently with the execution and delivery
of the Agreement to Purchase and Lease, the Japanese Lessor and
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GPA Offshore entered into the Japanese Lease Agreement [GPA 1989 BN-6] dated as
of September 28, 1989, as supplemented by Lease Supplement No. 1, dated
September 29, 1989 (the "Japanese Lease Supplement") (as so supplemented, the
"Japanese Lease") pursuant to which the Japanese Lessor agreed to lease to GPA
Offshore (in its capacity as lessee thereunder, together with its successors and
assigns, the "Japanese Lessee"), and GPA Offshore agreed to lease from the
Japanese Lessor, the Aircraft;
WHEREAS, on September 29, 1989 GPA Offshore and the Grand
Cayman branch of the Japanese Lender (the "Defeasance Bank") entered into two
Assumption Agreements, dated as of September 28, 1989, for Yen payments and
Pounds Sterling payments, respectively (as amended, modified or supplemented
from time to time in accordance with the terms thereof and of the Operative
Documents, collectively, the "Assumption Agreements"), pursuant to which the
Defeasance Bank assumed certain of the obligations of GPA Offshore under the
Japanese Lease for certain rent, termination and deficiency payments to be made
thereunder (the portion thereof so assumed being herein called the "Defeased
Payments" and the Yen portion thereof not so assumed being herein called the
"Undefeased Yen Amount") in consideration of the unconditional and irrevocable
payment to it by GPA Offshore of the agreed amounts set forth therein;
WHEREAS, on September 29, 1989, the Parent Guarantor delivered
to the Japanese Lessor the Japanese Lease Guaranty dated as of September 28,
1989 (the "Japanese Lease Guaranty");
WHEREAS, on September 29, 1989, the Defeasance Bank and the
Japanese Lessor entered into two Confirmations and Agreements, dated as of
September 28, 1989 for Yen payments and Pounds Sterling payments, respectively,
(as amended, modified, or supplemented from time to time in accordance with the
terms thereof and of the Operative Documents, collectively, the "Confirmation
and Agreement"), pursuant to which the Defeasance Bank agreed to undertake
directly with the Japanese Lessor to make the Defeased Payments under the
Japanese Lease;
WHEREAS, concurrently with the execution and delivery of the
Agreement to Purchase and Lease, the Japanese Lessor and GPA Offshore entered
into the Supplemental Agreement dated as of September 28, 1989 (the
"Supplemental Agreement") pursuant to which the Japanese Lessor agreed with GPA
Offshore that the Japanese Lessor's interest in the Aircraft shall be subject
and subordinate to the security interest of the Indenture Trustee, and that the
Japanese Lessor shall relinquish to the Indenture Trustee any proceeds of a
disposition of the Aircraft in the case of a foreclosure proceeding;
WHEREAS, concurrently with the execution and delivery
of the Agreement to Purchase and Lease, GPA Offshore and the
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Original Head Lessee entered into a Lease Assignment, dated as of September 28,
1989 ("First Japanese Lease Assignment") pursuant to which GPA Offshore assigned
to the Original Head Lessee all of its right, title and interest (but not any of
its obligations) in the Aircraft under the Japanese Lease, the Japanese Lease
Supplement, the Assumption Agreement, the Confirmation and Agreement, the
Supplemental Agreement, the Japanese Security Agreement (as defined below), the
Omnibus Agreement, the FUYO Guaranty and the other Japanese Financing Documents,
and GPA Offshore remained solely liable for its obligations under the Japanese
Lease and such other agreements;
WHEREAS, concurrently with the execution and delivery of the
Original Participation Agreement (as defined below), the Original Head Lessee
and the Owner Trustee entered into the Lease Assignment dated as of December 15,
1989 (as amended, modified or supplemented from time to time in accordance with
the terms thereof and of the Operative Documents, the "Second Japanese Lease
Assignment"), pursuant to which the Original Head Lessee agreed to assign to the
Owner Trustee all of its right, title and interest (but not any of its
obligations) in the Aircraft under the Japanese Lease, the Japanese Lease
Supplement, the First Japanese Lease Assignment, the Japanese Security
Agreement, the Assumption Agreement, the Confirmation and Agreement, the
Supplemental Agreement, the Omnibus Agreement, the FUYO Guaranty and the other
Japanese Financing Documents in which it has an interest.
WHEREAS, the Original Head Lessee, the Parent Guarantor, the
Owner Participant, Manufacturers Hanover Trust Company and The Mitsubishi Trust
and Banking Corporation, as Lenders (the "Lenders"), the Owner Trustee and the
Indenture Trustee entered into the Participation Agreement [GPA 1989 BN-6],
dated as of December 15, 1989 (as amended, supplemented or otherwise modified
from time to time, the "Participation Agreement"), providing for the financing
of one Airbus A320-231 aircraft (the "Aircraft");
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Owner Trustee and the Indenture Trustee entered
into the Trust Indenture and Security Agreement [GPA 1989 BN-6], dated as of
December 15, 1989, as supplemented by Trust Indenture Supplement No. 1 [GPA 1989
BN-6], dated December 22, 1989 (as so supplemented, the "Original Indenture");
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Owner Trustee and the Original Head Lessee entered
into the Aircraft Lease Agreement [GPA 1989 BN-6], dated as of December 15,
1989, as supplemented by Lease Supplement [GPA 1989 BN-6] No. 1 dated December
22, 1989 (as so supplemented, the "Original Lease"), whereby, subject to
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the terms and conditions set forth therein, the Owner Trustee agreed to lease to
the Original Head Lessee, and the Original Head Lessee agreed to lease from the
Owner Trustee, the Aircraft commencing on the Delivery Date (as therein
defined);
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Parent Guarantor entered into the Parent Head Lease
Guaranty [GPA 1989 BN-6] dated as of December 15, 1989 (the "Parent Head Lease
Guaranty") for the benefit of the Owner Trustee pursuant to which the Parent
Guarantor guaranteed all of the obligations of the Original Head Lessee under
the Operative Documents (as defined in the Participation Agreement);
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Owner Participant and the Trust Company entered
into the Trust Agreement [GPA 1989 BN-6], dated as of December 15, 1989, as
supplemented by Trust Agreement Supplement [GPA 1989 BN-6] No. 1 dated December
22, 1989, and as further supplemented by Trust Agreement Supplement [GPA 1989
BN-6] No. 2 dated October 24, 1991 (as amended, supplemented or otherwise
modified to the date hereof, the "Original Trust Agreement"), pursuant to which
the Owner Trustee agreed, among other things, to hold the Trust Estate defined
in Section 1.1 thereof for the benefit of the Owner Participant thereunder;
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Owner Participant and the Original Head Lessee
entered into the Head Lease Tax Indemnification Agreement [GPA 1989 BN-6], dated
as of December 15, 1989 (as amended, supplemented or otherwise modified to the
date hereof, the "Head Lease TIA");
WHEREAS, the Original Head Lessee in its capacity as sublessor
(in such capacity, the "Sublessor") and America West Airlines, Inc. in its
capacity as sublessee (in such capacity, the "Sublessee") entered into the
Aircraft Sublease Agreement [GPA 1989 BN-6] dated as of September 21, 1990, as
supplemented by Sublease Supplement No. 1 [GPA 1989 BN-6] dated September 28,
1990, and as amended by Amendment No. 1 to Aircraft Sublease Agreement [GPA 1989
BN-6] dated as of June 25, 1991 and Amendment No. 2 to Aircraft Sublease
Agreement [GPA 1989 BN-6] dated as of August 26, 1991 (as amended, supplemented
or otherwise modified to the date hereof, the "Sublease"), whereby, subject to
the terms and conditions set forth therein, the Sublessor agreed to sublease to
the Sublessee, and the Sublessee agreed to sublease from the Sublessor, the
Aircraft commencing on the Delivery Date (as defined therein);
WHEREAS, concurrently with the execution and delivery of the
Sublease, the Parent Guarantor entered into the GPAG Sublease Guaranty [GPA 1989
BN-6] dated as of September 21, 1990
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(as amended, modified or otherwise supplemented to the date hereof, the
"Sublease Guaranty") for the benefit of the Sublessee pursuant to which the
Parent Guarantor guaranteed the obligations of the Original Head Lessee under
Section 21(f) of the Sublease;
WHEREAS, concurrently with the execution and delivery of the
Sublease, the Original Head Lessee and the Sublessee entered into the Sublease
Tax Indemnification Agreement [GPA 1989 BN-6], dated as of September 21, 1990
(as amended, modified or otherwise supplemented to the date hereof, the
"Sublease TIA");
WHEREAS, concurrently with the execution and delivery of the
Sublease, the Sublessor and the Owner Trustee entered into the Assignment of
Sublease and Sublessee Consent and Agreement [GPA 1989 BN-6] dated as of
September 21, 1990, as amended by Amendment No. 1 to Assignment of Sublease and
Sublessee Consent and Agreement [GPA 1989 BN-6] dated as of October 1, 1991 (as
amended, modified or otherwise supplemented to the date hereof, the "Assignment
of Sublease");
WHEREAS, in connection with the Term Refunding (as defined in
the Participation Agreement), the Original Head Lessee, the Parent Guarantor,
the Owner Participant, the Owner Trustee and the Indenture Trustee entered into
Amendment No. 1 to Participation Agreement [GPA 1989 BN-6], dated as of October
1, 1991 ("PA Amendment No. 1");
WHEREAS, concurrently with the execution and delivery of PA
Amendment No. 1, the Owner Trustee and the Indenture Trustee entered into the
Amended and Restated Trust Indenture and Security Agreement [GPA 1989 BN-6],
dated as of October 1, 1991, as supplemented by Trust Indenture Supplement No. 2
[GPA 1989 BN-6], dated October 24, 1991 (as so amended and restated,
supplemented or otherwise modified to the date hereof, the "First Amended and
Restated Indenture");
WHEREAS, pursuant to the First Amended and Restated Indenture,
the Owner Trustee issued equipment trust certificates substantially in the form
set forth in Exhibit C thereof (the "Original Certificates") to the holders
thereof (the "Original Certificate Holders") as evidence of the indebtedness
then being made by the Owner Trustee to refinance a portion of the purchase
price of the Aircraft;
WHEREAS, concurrently with the execution and delivery of PA
Amendment No. 1, the Owner Trustee and the Original Head Lessee entered into the
Amended and Restated Aircraft Lease Agreement [GPA 1989 BN-6], dated as of
October 1, 1991, as supplemented by Lease Supplement [GPA 1989 BN-6] No. 2,
dated October 24, 1991 (as so amended and restated, supplemented or otherwise
modified to the date hereof, the "First Amended and Restated Lease");
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WHEREAS, concurrently with the execution and delivery of PA
Amendment No. 1, the Owner Participant and the Original Head Lessee entered into
the Amended and Restated Head Lease Tax Indemnification Agreement [GPA 1989
BN-6], dated as of October 1, 1991 (as so amended and restated, supplemented or
otherwise modified to the date hereof, the "First Amended and Restated Head
Lease TIA");
WHEREAS, at the Closing (as defined below), the Owner Trustee
and the Indenture Trustee will further amend and restate the First Amended and
Restated Indenture as the Second Amended and Restated Trust Indenture and
Security Agreement [GPA 1989 BN-6], dated as of the Restatement Date, as
supplemented by Trust Indenture Supplement No. 3 dated the Restatement Date (the
"Second Amended and Restated Indenture" and, the First Amended and Restated
Indenture as so amended and restated, the "Indenture"), under which Indenture
the Owner Trustee will issue secured equipment notes substantially in the form
set forth in Section 2.01 thereof (the "Equipment Notes") in four series, the
proceeds from the issuance and sale of which will be applied in part to the
redemption in full of the Original Certificates;
WHEREAS, at the Closing, the Owner Trustee, the Original Head
Lessee, the Sublessee and the Indenture Trustee will enter into Assignment and
Amendment No. 1 and Sublease Termination Agreement dated as of the Restatement
Date ("Lease Amendment No. 1") containing assignments, modifications and
terminations necessary to give effect to the transactions described herein and
providing, inter alia, for the amendment and restatement in its entirety of the
First Amended and Restated Lease as the Second Amended and Restated Lease (as so
amended and restated, the "Lease");
WHEREAS, at the Closing, the Owner Participant and the Owner
Trustee will enter into Trust Agreement Supplement [GPA 1989 BN-6] No. 3 ("Trust
Supplement No. 3"), amending the Original Trust Agreement (as so amended and as
further amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof and hereof, the "Trust Agreement");
WHEREAS, at the Closing, the Owner Participant and the
Original Head Lessee will enter into the Second Amended and Restated Head Lease
Tax Indemnification Agreement, amending and restating the First Amended and
Restated Head Lease TIA (as so amended and restated, the "Second Amended and
Restated Head Lease TIA") and the Sublessor and the Sublessee will enter into
the Amended and Restated Sublease Tax Indemnification Agreement amending and
restating the Sublease TIA (as so amended and restated, the "Amended and
Restated Sublease TIA");
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WHEREAS, at the Closing, the Parent Guarantor and The Chase
Manhattan Bank (the "Deposit Bank") will enter into the Yen Deposit Agreement
("Yen Deposit Agreement"), providing for the Parent Guarantor to place on
deposit the Undefeased Yen Amount (as defined in the Yen Deposit Agreement) (the
"Cash Deposit") with the Deposit Bank;
WHEREAS, at the Closing, the Parent Guarantor and the
Indenture Trustee will enter into the Yen Deposit Charge Agreement (the "Yen
Deposit Charge Agreement") under which the Parent Guarantor shall charge and
assign to the Indenture Trustee all of its right, title and interest in and to
the Yen Deposit Agreement and the Cash Deposit to secure the Parent Guarantor's
obligations under Section 15(h) of this Agreement;
WHEREAS, pursuant to the Pass Through Trust Agreement and each
of the Pass Through Trust Supplements set forth in Schedule I hereto
(collectively, the "Pass Through Trust Agreements"), on the Restatement Date,
four separate grantor trusts (collectively, the "Pass Through Trusts" and,
individually, a "Pass Through Trust") will be created to facilitate certain of
the transactions contemplated hereby, including, without limitation, the
issuance and sale by each Pass Through Trust of pass through certificates
pursuant thereto (collectively, the "Certificates");
WHEREAS, the proceeds from the issuance and sale of the
Certificates by each Pass Through Trust will be applied by the Pass Through
Trustee at the Closing to purchase from the Owner Trustee, on behalf of each
Pass Through Trust, all of the Equipment Notes bearing the same interest rate as
the Certificates issued by such Pass Through Trust;
WHEREAS, at the Closing, (i) Kredietbank N.V., New York Branch
(the "Liquidity Provider") will enter into three revolving credit agreements
(each, a "Liquidity Facility"), for the benefit of the Holders of Equipment
Notes of each of three Pass Through Trusts, with the Subordination Agent, as
agent for the Pass Through Trustee on behalf of each such Pass Through Trust;
and (ii) the Pass Through Trustee, the Liquidity Provider and the Subordination
Agent will enter into the Intercreditor Agreement, dated as of the Restatement
Date (the "Intercreditor Agreement"); and
WHEREAS, the Equipment Notes will be held by the Subordination
Agent pursuant to the Intercreditor Agreement on behalf of the Pass Through
Trusts;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual agreements herein contained and other good and valuable
consideration, the receipt and adequacy of
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which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Purchase of Equipment Notes; Refunding. (a) Subject
to the satisfaction or waiver of the conditions set forth herein, on November
26, 1996 or on such other date agreed to by the parties hereto (the "Restatement
Date"), the following actions shall take place simultaneously:
(i) (A) the Sublessee shall pay to the Sublessor as
a payment of Supplemental Rent under the Sublease all accrued
and unpaid Rent under the Sublease up to the Restatement Date,
if any, (less any amounts for which Sublessee is indemnified
by Sublessor) and (B) the Original Head Lessee shall pay to
the Owner Trustee, as a payment of Supplemental Rent under the
Original Lease, an amount equal to the accrued and unpaid
interest on the Original Certificates to but not including the
Restatement Date plus an amount equal to all other amounts due
to the holders of the Original Certificates under the Original
Indenture and the other Operative Documents (as defined in the
Original Indenture) payable on the Restatement Date under
Section 2.16(b)(ii) of the Original Indenture;
(ii) the Pass Through Trustee for each Pass Through
Trust shall pay to the Owner Trustee the aggregate purchase
price of the Equipment Notes being issued to such Pass Through
Trustee as set forth in clause (xiii) below;
(iii) the Owner Trustee (to the extent of proceeds
received under clauses (i) and (ii)) shall pay to the
Indenture Trustee for the benefit of the holders of the
Original Certificates an amount equal to (A) the unpaid
principal amount of the Original Certificates and (B) the
amounts specified in clause (i)(B) of this Section 1
(collectively, the "Aggregate Redemption Amount");
(iv) the Indenture Trustee shall disburse to the
holders of the Original Certificates the Aggregate Redemption
Amount owing to them on the Restatement Date with respect to
the Original Certificates as a redemption of the Original
Certificates;
(v) the Indenture Trustee shall receive the Original
Certificates for cancellation;
(vi) the Parent Guarantor and the Deposit Bank shall
enter into the Yen Deposit Agreement and the Parent Guarantor
shall place the Cash Deposit with the Deposit Bank, and the
Parent Guarantor and the
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Indenture Trustee shall enter into the Yen Deposit Charge
Agreement securing the Parent Guarantor's obligations under
Section 15(h) of this Agreement;
(vii) the Owner Trustee and the Indenture Trustee
shall enter into the Indenture (including Trust Indenture
Supplement No. 3);
(viii) the Original Head Lessee, the Sublessee, the
Owner Trustee and the Indenture Trustee shall enter into Lease
Amendment No. 1;
(ix) the Owner Participant and the Trust Company
shall enter into Trust Supplement No. 3;
(x) the Original Head Lessee and the Owner
Participant shall enter into the Second Amended and Restated
Head Lease TIA and the Sublessor and the Sublessee shall enter
into the Amended and Restated Sublease TIA;
(xi) the Original Head Lessee, GPA Leasing USA I,
Inc., the Parent Guarantor and the Lessee shall enter into an
agreement in form and substance reasonably satisfactory to
each, inter alia, confirming the termination of certain rights
which the Parent Guarantor has to "put" aircraft to the Lessee
and the obligation of the Lessee to accept and lease such
aircraft (the "Put Termination Agreement");
(xii) the Parent Guarantor and/or one or more of its
affiliates and the Lessee will enter into an agreement (the
"Deed of Indemnity") pursuant to which the Parent Guarantor
and/or one or more of its affiliates, on the one hand, and the
Lessee, on the other, will indemnify each other with respect
to certain information included in the Prospectus and the
Registration Statement (as such terms are defined in the
Underwriting Agreement) (the "Prospectus" and the
"Registration Statement", respectively); and
(xiii) the Owner Trustee shall issue, pursuant to
Article II of the Indenture, to the Subordination Agent on
behalf of the Pass Through Trustee for each of the Pass
Through Trusts, Equipment Notes of the maturity and aggregate
principal amount, bearing the interest rate and for the
purchase price set forth on Schedule II hereto opposite the
name of such Pass Through Trust.
(b) The Owner Participant, by its execution and
delivery hereof, requests and directs the Owner Trustee to
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execute and deliver this Agreement and, subject to the terms hereof, to take the
actions contemplated herein.
(c) The closing (the "Closing") of the transactions described
in this Agreement shall take place at the offices of Milbank, Tweed, Hadley &
McCloy, 1 Chase Manhattan Plaza, New York, New York 10005, on the Restatement
Date, or at such other place as the parties hereto may agree.
(d) All payments pursuant to this Section 1 shall be made in
immediately available funds to such accounts and at such banks as the parties
hereto shall designate in writing not less than one Business Day prior to the
Restatement Date.
(e) In order to facilitate the transactions contemplated
hereby, the Original Head Lessee, GPA Leasing USA I, Inc., the Parent Guarantor
and the Lessee have entered into the Underwriting Agreement, dated as of
November 20, 1996 (the "Underwriting Agreement"), among such Persons and Morgan
Stanley & Co., Citicorp Securities, Inc., Lehman Brothers, Inc. and Salomon
Brothers Inc (collectively, the "Underwriters"), and, subject to the terms and
conditions hereof, the Lessee will enter into each of the Pass Through Trust
Agreements.
SECTION 2. Equipment Notes. The Equipment Notes shall be
payable as to principal in accordance with the terms of the Indenture, and the
Equipment Notes shall provide for a fixed rate of interest per annum and shall
contain the terms and provisions provided for the Equipment Notes in the
Indenture. The Owner Trustee shall execute, and the Indenture Trustee shall
authenticate and deliver to the Pass Through Trustee for each Pass Through
Trust, a principal amount of Equipment Notes bearing the interest rate set forth
opposite the name of such Pass Through Trust on Schedule II hereto, which
Equipment Notes in the aggregate shall be in the principal amounts set forth on
Schedule II hereto. Subject to the terms hereof, of the Pass Through Trust
Agreements and of the other Operative Documents, all such Equipment Notes shall
be dated and authenticated as of the Restatement Date and shall bear interest
therefrom, shall be registered in such names as shall be specified by the
Subordination Agent and shall be paid in the manner and at such places as are
set forth in the Indenture.
SECTION 3. Conditions Precedent. The obligations of the Pass
Through Trustee to make the payments described in Section 1(a)(ii) and the
obligations of the Owner Trustee to make the payments described in Section
1(a)(iii) and the obligations of each of the Pass Through Trustee, the Owner
Trustee, the Owner Participant and the Indenture Trustee to participate in the
transactions contemplated by this Agreement on the Restatement Date are subject
to the fulfillment, prior to or on the Restatement Date, of the following
conditions precedent (except
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that paragraphs (a), (f) and (j) shall not be conditions precedent to the
obligations of the Owner Trustee hereunder, paragraphs (g) and (l) shall not be
conditions precedent to the obligations of the Owner Participant hereunder and
paragraphs (e) and (k) shall not be conditions precedent to the obligations of
the Indenture Trustee hereunder):
(a) The Owner Trustee shall have tendered the Equipment Notes
to the Indenture Trustee for authentication, and the Indenture Trustee shall
have authenticated such Equipment Notes and shall have tendered the Equipment
Notes to the Subordination Agent on behalf of the Pass Through Trustee in
accordance with Section 1.
(b) The Pass Through Trustee, the Owner Trustee and the Owner
Participant each shall have received executed counterparts of each of the
following documents and the Indenture Trustee shall have received executed
counterparts of items (1) through (8):
(1) this Agreement;
(2) Lease Amendment No. 1, the Second Amended and
Restated Lease and Lease Supplement No. 3;
(3) Trust Supplement No. 3;
(4) the Second Amended and Restated Indenture and
Trust Indenture Supplement No. 3;
(5) each of the Pass Through Trust Agreements and each
Pass Through Trust Supplement set forth in
Schedule I hereto;
(6) the Intercreditor Agreement;
(7) the Liquidity Facility for each of the Class A,
Class B and Class C Trusts (as defined in the
Intercreditor Agreement); and
(8) the Yen Deposit Agreement and the Yen Deposit
Charge Agreement.
(c) The Pass Through Trustee, the Indenture Trustee,
the Owner Trustee and the Owner Participant each shall have
received the following:
(1) an incumbency certificate of each of the Original
Head Lessee, the Lessee and the Parent Guarantor as to the
person or persons authorized to execute and deliver this
Agreement and each of the other documents to be executed on
behalf of such Person
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in connection with the transactions contemplated hereby
(including, without limitation, each of the documents referred
to herein) and as to the signatures of such person or persons;
(2) a copy of the resolutions of the board of
directors of each of the Original Head Lessee, the Lessee and
the Parent Guarantor or the applicable committee thereof,
certified by the Secretary or an Assistant Secretary of such
Person, duly authorizing the transactions contemplated hereby
and the execution, delivery and performance of each of the
documents required to be executed and delivered on behalf of
such Person in connection with the transactions contemplated
hereby;
(3) a copy of the certificate of incorporation of
each of the Original Head Lessee and the Lessee, certified by
the Secretary of State of its state of incorporation, a copy
of the by-laws of each of the Original Head Lessee and the
Lessee, certified by the Secretary or Assistant Secretary of
such Person, and a certificate or other evidence from the
Secretary of State of its state of incorporation, dated as of
a date reasonably near the Restatement Date, as to its due
incorporation and good standing in such state; and
(4) a copy of the Memorandum and Articles of
Association of the Parent Guarantor certified to be true and
correct by the Secretary or an Assistant Secretary of the
Parent Guarantor.
(d) The Pass Through Trustee, the Indenture Trustee, the Owner
Trustee and the Owner Participant each shall have received, in the case of (1),
(5) and (6) below, a certificate signed by an authorized officer of the Lessee
and, in the case of (2), (3) and (4) below, a certificate signed by an
authorized officer of the Original Head Lessee, dated the Restatement Date,
certifying that:
(1) the Aircraft has been duly certified by the
FAA as to type and airworthiness and has a current,
valid certificate of airworthiness;
(2) the Second Aircraft FAA Bill of Sale (as defined
in the Participation Agreement), the Original Lease, the First
Amended and Restated Lease, the Original Indenture and the
First Amended and Restated Indenture have each been duly
recorded, and the Original Trust Agreement has been duly
filed, with the FAA pursuant to the sections of Title 49 of
the United
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16
States Code relating to aviation (the "Federal Aviation
Act");
(3) Lease Amendment No. 1, the Second Amended and
Restated Lease, Lease Supplement No. 3, the Second
Amended and Restated Indenture, Trust Indenture
Supplement No. 3 and Trust Supplement No. 3 covering
the Aircraft shall have been duly filed for recordation
with the FAA pursuant to the Federal Aviation Act;
(4) the Aircraft has been registered with the FAA
in the name of the Owner Trustee;
(5) the Lessee has authority to operate the
Aircraft; and
(6) the representations and warranties contained
herein of the Lessee are correct as of the Restatement Date,
except to the extent that such representations and warranties
relate solely to an earlier date (in which case such
representations and warranties were correct on and as of such
earlier date).
(e) The Pass Through Trustee, the Owner Trustee and the Owner
Participant each shall have received the following:
(1) an incumbency certificate of the Indenture
Trustee as to the person or persons authorized to execute and
deliver this Agreement and each of the other documents to be
executed on behalf of the Indenture Trustee in connection with
the transactions contemplated hereby (including, without
limitation, each of the documents referred to herein) and as
to the signatures of such person or persons;
(2) a copy of the resolutions of the board of
directors of the Indenture Trustee, certified by the
Secretary, an Assistant Secretary or other appropriate officer
of the Indenture Trustee, duly authorizing the transactions
contemplated hereby and the execution, delivery and
performance of each of the documents required to be executed
and delivered on behalf of the Indenture Trustee in connection
with the transactions contemplated hereby;
(3) a copy of the articles of association and by-laws
of the Indenture Trustee, each certified by the Secretary, an
Assistant Secretary or other appropriate officer of the
Indenture Trustee; and
(4) a certificate signed by an authorized officer
of the Indenture Trustee, dated the Restatement Date,
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17
certifying that the representations and warranties contained
herein of the Indenture Trustee are correct as though made on
and as of the Restatement Date, except to the extent that such
representations and warranties relate solely to an earlier
date (in which case such representations and warranties are
correct on and as of such earlier date).
(f) The Pass Through Trustee, the Indenture Trustee and the
Owner Participant each shall have received the following:
(1) an incumbency certificate of the Owner Trustee as
to the person or persons authorized to execute and deliver
this Agreement and each of the other documents to be executed
on behalf of the Owner Trustee in connection with the
transactions contemplated hereby (including, without
limitation, each of the documents referred to herein) and as
to the signatures of such person or persons;
(2) a copy of the resolutions of the board of
directors of the Owner Trustee, certified by the Secretary or
an Assistant Secretary of the Owner Trustee, duly authorizing
the transactions contemplated hereby and the execution,
delivery and performance of each of the documents required to
be executed and delivered on behalf of the Owner Trustee in
connection with the transactions contemplated hereby;
(3) a copy of the articles of association and by-laws
of the Owner Trustee, each certified by the Secretary or an
Assistant Secretary of the Owner Trustee; and
(4) a certificate signed by an authorized officer of
the Owner Trustee, dated the Restatement Date, certifying that
the representations and warranties contained herein of the
Owner Trustee are correct as though made on and as of the
Restatement Date, except to the extent that such
representations and warranties relate solely to an earlier
date (in which case such representations and warranties are
correct on and as of such earlier date).
(g) The Pass Through Trustee, the Indenture Trustee and the
Owner Trustee each shall have received the following:
(1) an incumbency certificate of the Owner
Participant as to the person or persons authorized to execute
and deliver this Agreement and each of the other documents to
be executed on behalf of the Owner Participant in connection
with the transactions
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18
contemplated hereby (including, without limitation,
each of the documents referred to herein) and as to the
signatures of such person or persons;
(2) a copy of the resolutions of the board of
directors of the Owner Participant or the applicable committee
thereof, certified by the Secretary or an Assistant Secretary
of the Owner Participant, duly authorizing the transactions
contemplated hereby and the execution, delivery and
performance of each of the documents required to be executed
and delivered on behalf of the Owner Participant in connection
with the transactions contemplated hereby;
(3) a copy of the certificate of incorporation of the
Owner Participant, certified by the Secretary of State of its
state of incorporation, a copy of the by-laws of the Owner
Participant, certified by the Secretary or Assistant Secretary
of the Owner Participant, and a certificate or other evidence
from the Secretary of State of its state of incorporation,
dated as of a date reasonably near the Restatement Date, as to
its due incorporation and good standing in such state; and
(4) a certificate signed by an authorized officer of
the Owner Participant, dated the Restatement Date, certifying
that the representations and warranties contained herein of
the Owner Participant are correct as though made on and as of
the Restatement Date, except to the extent that such
representations and warranties relate solely to an earlier
date (in which case such representations and warranties are
correct on and as of such earlier date).
(h) The Pass Through Trustee, the Indenture Trustee, the Owner
Trustee and the Owner Participant each shall have received from the Lessee a
report from Willis Corroon in substantially the form of Exhibit D attached
hereto.
(i) The Pass Through Trustee, the Indenture Trustee, the Owner
Trustee and the Owner Participant each shall have received an opinion addressed
to it from (i) Latham & Watkins, special counsel for the Lessee, (ii) Andrews &
Kurth L.L.P., special counsel for the Lessee, (iii) the Senior Vice
PresidentLegal Affairs of Lessee and (iv) Lewis & Roca, special Arizona counsel
for the Lessee, in each case in form and substance satisfactory to each of them.
(j) The Pass Through Trustee, the Indenture Trustee and the
Owner Participant each shall have received an opinion addressed to it from
Morris, James, Hitchens & Williams, special
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19
counsel for the Owner Trustee, in form and substance satisfactory
to each of them.
(k) The Pass Through Trustee, the Owner Trustee and the Owner
Participant each shall have received an opinion addressed to it from (i) Kelley
Drye & Warren LLP, special counsel for the Indenture Trustee, and (ii) Shipman &
Goodwin LLP, special counsel for the Subordination Agent and the Pass Through
Trustee, in each case in form and substance satisfactory to each of them.
(l) The Pass Through Trustee, the Indenture Trustee and the
Owner Trustee each shall have received an opinion addressed to it from (i)
Morgan, Lewis & Bockius LLP, special counsel for the Owner Participant and (ii)
in-house counsel for the Owner Participant, in each case in form and substance
satisfactory to each of them.
(m) The Pass Through Trustee, the Owner Trustee and the Owner
Participant shall have received an opinion from (i) White & Case, special
counsel for the Liquidity Provider, and (ii) in-house counsel for the Liquidity
Provider, in each case in form and substance satisfactory to the Pass Through
Trustee, the Owner Trustee and the Owner Participant.
(n) The Pass Through Trustee, the Owner Trustee, the Owner
Participant and the Indenture Trustee each shall have received an opinion
addressed to it from Daugherty, Fowler & Peregrin, special counsel in Oklahoma
City, Oklahoma, in form and substance satisfactory to each of them.
(o) The Pass Through Trustee, the Owner Trustee, the Owner
Participant and the Indenture Trustee each shall have received an opinion
addressed to it from Paul, Hastings, Janofsky & Walker LLP, special New York
counsel for the Original Head Lessee and the Parent Guarantor, in form and
substance satisfactory to each of them.
(p) The Pass Through Trustee, the Owner Trustee, the Owner
Participant and the Indenture Trustee each shall have received an opinion
addressed to it from McCann FitzGerald, special Irish counsel for the Parent
Guarantor, in form and substance satisfactory to each of them.
(q) The Pass Through Trustee, the Owner Trustee and the
Indenture Trustee each shall have received an opinion addressed to it from
Freshfields, special English counsel for the Parent Guarantor, in form and
substance satisfactory to each of them.
(r) The Original Head Lessee, the Lessee, GPA Leasing
USA I, Inc. and the Parent Guarantor shall have entered into the
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20
Underwriting Agreement and the Lessee shall have entered into each of the Pass
Through Trust Agreements, the Certificates shall have been issued and sold
pursuant to the Underwriting Agreement and the Pass Through Trust Agreements,
and the Underwriters shall have transferred to the Pass Through Trustee in
immediately available funds an amount equal to the aggregate purchase price of
the Equipment Notes to be purchased from the Owner Trustee.
(s) The Original Head Lessee and the Owner Participant shall
each have executed and delivered to the other the Second Amended and Restated
Head Lease TIA.
(t) The Sublessor and the Sublessee shall each have executed
and delivered to the other the Amended and Restated Sublease TIA.
(u) No change shall have occurred after the date of this
Agreement in applicable law or regulations thereunder or interpretations thereof
by appropriate regulatory authorities or any court that would make it illegal
for the Pass Through Trustee to make the payments described in Section 1(a)(ii)
or for the Lessee, the Indenture Trustee, the Owner Trustee or the Owner
Participant or any other party hereto to participate in the transactions
contemplated by this Agreement on the Restatement Date.
(v) All approvals and consents of any trustee or holder of any
indebtedness or obligations of the Lessee which are required in connection with
the Pass Through Trustee's making of the payments described in Section 1(a)(ii)
or the Owner Trustee's or the Owner Participant's participation in the
transactions contemplated by this Agreement on the Restatement Date shall have
been duly obtained.
(w) Uniform Commercial Code financing, termination, amendment
and continuation statement or statements covering all of the security interests
created by or pursuant to the Indenture that are not covered by the recording
system established by the Federal Aviation Act shall have been executed and
delivered by the Original Head Lessee, the Lessee, the Indenture Trustee and the
Owner Trustee, as the case may be, and such financing, termination, amendment
and continuation statement or statements or documents to the same purposes shall
have been duly filed in all places necessary or advisable, and any additional
Uniform Commercial Code financing, termination, amendment and continuation
statements deemed advisable by the Original Head Lessee, the Lessee, the Owner
Participant or the Indenture Trustee shall have been executed and delivered by
the Original Head Lessee, the Lessee, the Indenture Trustee or the Owner
Trustee, as the case may be, and duly filed in all places advisable.
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21
(x) No change shall have occurred after the date of this
Agreement in applicable law or regulations thereunder or interpretations thereof
by appropriate regulatory authorities or any court that would adversely affect
the tax consequences of the transactions contemplated by this Agreement to the
Owner Participant, the Owner Trustee or any of their respective Affiliates.
(y) The Owner Trustee shall have received a letter of credit
in the amount of $1,000,000 from the Lessee in the form of Exhibit D-2 to the
Lease.
(z) The Owner Participant shall have received any other
documents and evidence as the Owner Participant or its counsel may request.
Promptly following the recording of Lease Amendment No.
1, the Second Amended and Restated Lease (including Lease
Supplement No. 3) and the Second Amended and Restated Indenture
(including Trust Indenture Supplement No. 3) pursuant to the
Federal Aviation Act, the Original Head Lessee will cause
Daugherty, Fowler & Peregrin, special counsel in Oklahoma City,
Oklahoma, to deliver to the Pass Through Trustee, the Lessee, the
Indenture Trustee, the Owner Participant and the Owner Trustee an
opinion as to the due recording of Lease Amendment No. 1, the
Second Amended and Restated Lease, Lease Supplement No. 3, the
Second Amended and Restated Indenture, Trust Indenture Supplement
No. 3 and Trust Supplement No. 3. Promptly following the
execution and delivery of the Yen Deposit Charge Agreement (and
in no event later than the deadline prescribed by law), the
Parent Guarantor shall cause the prescribed particulars in
respect of the Yen Deposit Charge Agreement and the Yen Deposit
Charge Agreement itself to be delivered to the registrar of
companies in the United Kingdom and Ireland for filing.
SECTION 4. Certain Conditions Precedent to the Obligations of
the Original Head Lessee and the Parent Guarantor; Certain Conditions Precedent
to the Obligations of the Lessee; Conditions Precedent with respect to the Pass
Through Trustee. (a) The obligations of the Original Head Lessee and the Parent
Guarantor to participate in the transactions contemplated by this Agreement on
the Restatement Date, and to execute and deliver this Agreement are subject to
the fulfillment, prior to or on the Restatement Date, of the following
conditions precedent:
(i) Each of the Original Head Lessee and the Parent Guarantor
shall have received counterparts of the following documents executed by
each of the parties thereto other than the Original Head Lessee and the
Parent Guarantor:
(1) this Agreement;
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(2) Lease Amendment No. 1, the Second Amended
and Restated Lease and Lease Supplement No.
3;
(3) the Second Amended and Restated Head Lease
TIA;
(4) the Amended and Restated Sublease TIA;
(5) the Put Termination Agreement;
(6) the Deed of Indemnity;
(7) the Underwriting Agreement;
(8) Uniform Commercial Code termination
statements relating to the Original Head
Lease executed by the Owner Trustee and/or
the Indenture Trustee and such other
releases and terminations as it may
reasonably request;
(9) that certain letter agreement dated as of
the Restatement Date relating to Stipulated
Loss Values with respect to the Amended and
Restated Lease (the "SLV Letter Agreement");
and
(10) the Yen Deposit Agreement and the Yen
Deposit Charge Agreement.
(ii) Each of the Original Head Lessee and the Parent Guarantor
shall have received originals of the following documents:
(1) the incumbency certificate of the Lessee
referred to in Section 3(c)(1);
(2) the resolutions of the Lessee referred to in
Section 3(c)(2);
(3) the documents referred to in Section 3(e),
Section 3(f) and Section 3(g);
(4) the opinions referred to in Section 3(i),
Section 3(j), Section 3(k), Section 3(l),
Section 3(m) and Section 3(n), in each case
addressed to each of the Original Head
Lessee and the Parent Guarantor and in form
and substance satisfactory to each of them;
(5) the opinions of Paul, Hastings, Janofsky &
Walker LLP and Milbank, Tweed, Hadley &
McCloy with respect to certain matters
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23
relating to and described in the Prospectus,
in each case addressed to the Original Head
Lessee and the Parent Guarantor and in form
and substance reasonably satisfactory to
each of them; and
(6) the report referred to in Section 3(h)
addressed to each of the Original Head
Lessee and the Parent Guarantor.
(iii) Each of the Original Head Lessee and the Parent
Guarantor shall have received such other documents and evidence with
respect to each other party hereto as each of them or its counsel may
reasonably request in order to establish the due consummation of the
transactions contemplated by this Agreement and the "Refunding
Agreements" (as defined in the Registration Statement), the taking of
all necessary action in connection therewith and compliance with the
conditions herein or therein set forth.
(b) The obligations of the Lessee to make the payment
described in Section 1(a)(i)(A) (if any), to participate in the transactions
contemplated by this Agreement on the Restatement Date, and to execute and
deliver each of the Pass Through Trust Agreements are subject to the
fulfillment, prior to or on the Restatement Date, of the following conditions
precedent:
(i) The Lessee shall have received counterparts of the
following documents executed by each of the parties thereto other than
Lessee:
(1) this Agreement;
(2) Lease Amendment No. 1, the Second Amended
and Restated Lease and Lease Supplement No.
3;
(3) the Amended and Restated Sublease TIA;
(4) the Put Termination Agreement;
(5) the Deed of Indemnity;
(6) the Pass Through Trust Agreements;
(7) the Underwriting Agreement;
(8) Uniform Commercial Code termination
statements relating to the Sublease executed
by the Original Head Lessee; and
(9) the SLV Letter Agreement.
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(ii) The Lessee shall have received originals of the following
documents:
(1) the incumbency certificate of the Original
Head Lessee and Parent Guarantor referred to
in Section 3(c)(1);
(2) the resolutions of the Original Head Lessee
and Parent Guarantor referred to in
Section 3(c)(2);
(3) the documents referred to in Section 3(e),
Section 3(f) and Section 3(g);
(4) the opinions referred to in Section 3(j),
Section 3(k), Section 3(l), Section 3(m),
Section 3(n), Section 3(o) and Section 3(p),
in each case addressed to Lessee and in form
and substance satisfactory to Lessee; and
(5) the opinions of Paul, Hastings, Janofsky &
Walker LLP and Milbank, Tweed, Hadley &
McCloy with respect to certain matters
relating to and described in the Prospectus,
in each case addressed to Lessee and in form
and substance reasonably satisfactory to
Lessee.
(iii) The Lessee shall have received such other documents and
evidence with respect to each other party hereto as Lessee or its
counsel may reasonably request in order to establish the due
consummation of the transactions contemplated by this Agreement and the
"Refunding Agreements" (as defined in the Registration Statement), the
taking of all necessary action in connection therewith and compliance
with the conditions herein and therein set forth.
(c) The respective obligations of each of the Lessee, the Pass
Through Trustee (solely as to clause (ii)), the Original Head Lessee, the Owner
Participant, the Owner Trustee and the Indenture Trustee to participate in the
transactions contemplated hereby is subject to the receipt by each of them of
(i) a certificate signed by an authorized officer of the Pass Through Trustee,
dated the Restatement Date, certifying that the representations and warranties
contained herein and in the Pass Through Trust Agreements of the Pass Through
Trustee are correct as of the Restatement Date, except to the extent that such
representations and warranties relate solely to an earlier date (in which case
such representations and warranties are correct on and as of such earlier date),
(ii) an opinion addressed to each of them of Shipman & Goodwin LLP, special
counsel for the Pass Through Trustee, in form and substance satisfactory to each
of
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them, and (iii) such other documents and evidence with respect to the Pass
Through Trustee as it may reasonably request in order to establish the due
consummation of the transactions contemplated by this Agreement, the taking of
all necessary action in connection therewith and compliance with the conditions
herein set forth.
SECTION 5. Amendment and Restatement of the First Amended and
Restated Indenture. Subject to the satisfaction or waiver of the conditions
precedent set forth herein, the Owner Participant, by execution and delivery
hereof, requests, authorizes and directs the Owner Trustee to execute and
deliver the Second Amended and Restated Indenture, and the Owner Trustee and the
Indenture Trustee, by execution and delivery hereof, agree to execute and
deliver the Second Amended and Restated Indenture. Each of the Original Head
Lessee, the Parent Guarantor and the Lessee, by execution and delivery hereof,
consent to such execution and delivery of the Second Amended and Restated
Indenture. The Second Amended and Restated Indenture shall be effective as of
the Restatement Date.
SECTION 6. Amendment and Restatement of the First Amended and
Restated Lease. Subject to the satisfaction or waiver of the conditions
precedent set forth herein, the Indenture Trustee, the Pass Through Trustee, the
Parent Guarantor and the Owner Participant, by execution and delivery hereof,
consent to the assignments, delegations, and releases set forth in, and to the
amendment and restatement of the First Amended and Restated Lease effected by,
and the Owner Participant requests and instructs the Owner Trustee to execute
and deliver, Lease Amendment No. 1, and the Owner Trustee, the Original Head
Lessee, the Indenture Trustee and the Sublessee agree, by execution and delivery
hereof, to execute and deliver Lease Amendment No. 1. The Second Amended and
Restated Lease shall be effective as of the Restatement Date.
SECTION 7. Termination of the Participation Agreement;
Termination of Sublease, etc. Subject to the satisfaction or waiver of the
conditions precedent set forth herein, the Owner Participant, the Owner Trustee,
the Original Head Lessee, the Parent Guarantor and the Indenture Trustee, by
execution and delivery hereof, agree that, with effect on and after the
Restatement Date and except as otherwise provided in Section 15 hereof, the
Participation Agreement shall terminate and forever be without force and effect,
conferring no rights and imposing no obligations on the parties thereto. Upon
the execution and delivery of Lease Amendment No. 1 by each of the parties
thereto, the Sublease, the Sublease Guaranty and the Assignment of Sublease
shall be terminated as and to the extent set forth herein and therein. Lease
Amendment No. 1 shall be effective as of the Restatement Date.
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SECTION 8. Representations and Warranties of the Lessee. The
Lessee represents and warrants, as of the Restatement Date, to the Original Head
Lessee (except as to the representation and warranty contained in Section 8(i)),
the Parent Guarantor (except as to the representation and warranty contained in
Section 8(i)), the Pass Through Trustee, the Owner Participant, the Owner
Trustee, the Liquidity Provider and the Indenture Trustee that:
(a) the Lessee is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, has the
corporate power and authority to own or hold under lease its properties, has, or
had on the respective dates of execution thereof, the corporate power and
authority to enter into and perform its obligations under this Agreement, Lease
Amendment No. 1, the Lease, the Pass Through Trust Agreements, the Amended and
Restated Sublease TIA, the SLV Letter Agreement and any certificate delivered by
the Lessee pursuant to the foregoing (the "Lessee Documents") and is duly
qualified to do business as a foreign corporation in each jurisdiction where the
failure to so qualify would have a material adverse effect on its business,
operations or condition (financial or otherwise), or on its ability to perform
its obligations under the Lessee Documents;
(b) the Lessee is a Certificated Air Carrier, and its chief
executive office (as such term is used in Article 9 of the Uniform Commercial
Code in effect in the State of Arizona) is located at 4000 East Sky Harbor
Boulevard, Phoenix, Arizona 85034;
(c) the execution and delivery by the Lessee of the Lessee
Documents and the performance of the obligations of the Lessee under the Lessee
Documents have been duly authorized by all necessary corporate action on the
part of the Lessee, do not require any stockholder approval, or approval or
consent of any trustee or holder of any material indebtedness or material
obligations of the Lessee, except such as have been duly obtained and are in
full force and effect, and do not contravene any law, governmental rule,
regulation, judgment or order binding on the Lessee or the certificate of
incorporation or by-laws of the Lessee, or contravene the provisions of, or
constitute a default under, or result in the creation of any Lien (other than
Permitted Liens) upon the property of the Lessee under, any indenture, mortgage,
contract, lease or other agreement in each case having payment obligations in
excess of $500,000 to which the Lessee is a party or by which it may be bound or
affected;
(d) neither the execution and delivery by the Lessee of the
Lessee Documents nor the performance of the obligations of the Lessee under the
Lessee Documents nor the consummation by the Lessee of any of the transactions
contemplated by the Lessee
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Documents, requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, the
Department of Transportation, the FAA, or any other federal, state, local or
foreign governmental authority having jurisdiction, other than those which have
already been received and which the Lessee is in compliance with and (i) the
registration of the Certificates under the Securities Act of 1933, as amended
(the "Securities Act") and the securities laws of any state in which the
Certificates may be offered for sale if the laws of such state require such
action, (ii) the qualification of the Pass Through Trust Agreements under the
Trust Indenture Act of 1939, as amended, (iii) (A) the orders, permits, waivers,
exemptions, authorizations and approvals of the regulatory authorities having
jurisdiction over the operation of the Aircraft by Lessee required to be
obtained on or prior to the Restatement Date, which orders, permits, waivers,
exemptions, authorizations and approvals have been duly obtained and are, or
will on the Restatement Date be in full force and effect, (B) the registration
of the Aircraft pursuant to the Federal Aviation Act and (C) such consents,
approvals, notices, registrations and other actions required by the terms of the
Lessee Documents to the extent required to be given or obtained only after the
Restatement Date and (iv) the registrations and filings referred to in Section
8(i);
(e) each Lessee Document has been duly executed and delivered
by the Lessee and, assuming the due authorization, execution and delivery
thereof by the other parties thereto, each Lessee Document constitutes, or when
executed will constitute, the legal, valid and binding obligations of the Lessee
enforceable against the Lessee in accordance with their respective terms, except
as the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors or lessors
generally and by general principles of equity, whether considered in a
proceeding at law or in equity, and except, in the case of the Lease, as may be
limited by applicable laws which may affect the remedies provided in the Lease,
which laws, however, do not make the remedies provided in the Lease inadequate
for the practical realization of the benefits intended to be afforded thereby;
(f) except as disclosed in the Prospectus, there are no
pending or, to its knowledge, threatened actions or proceedings before any court
or administrative agency or regulatory commission or other governmental agency
against or affecting the Lessee that are reasonably expected to materially
adversely affect the ability of Lessee to enter into or perform its obligations
under the Lessee Documents;
(g) the Lessee is not an "investment company" or a company
controlled by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended;
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(h) on the Restatement Date, the Trust Estate shall be free
and clear of any and all Liens (other than Permitted Liens) created by or
through the Lessee;
(i) except for the registration of the Aircraft pursuant to
the Federal Aviation Act, the filing for recordation pursuant to the Federal
Aviation Act (with confidential financial terms redacted) of Lease Amendment No.
1, the Second Amended and Restated Lease, Lease Supplement No. 3, Trust
Supplement No. 3, the First Amended and Restated Indenture and Indenture
Supplement No. 2, and each of the other documents referred to in Annex A hereto,
all with the FAA, the filing of a Uniform Commercial Code ("UCC") amended
financing statement with the Secretary of State of the State of Delaware with
regard to the Original Lease, the filing of UCC termination statements with
regard to the Original Head Lessee with the Secretary of State of the States of
New York, Connecticut and Arizona, the filing of a protective UCC financing
statement with the Secretary of State of the State of Arizona with respect to
the Lease, the filing of a UCC termination statement with the Secretary of State
of the State of Arizona with respect to the Sublease, and the filing of a UCC
termination statement with the Secretary of State of the State of Delaware with
respect to the Initial Sublease Assignment (as defined in the Original Lease)
all of which financing and termination statements shall have been duly effected
as of the Restatement Date (and assignments thereof and continuation statements
at periodic intervals), and other than the taking of possession by the Indenture
Trustee of the original counterparts of the Original Lease, Lease Amendment No.
1, the Second Amended and Restated Lease, and all Lease Supplements thereto (to
the extent the Lease constitutes chattel paper), and the placing of the Lease
identification required by Section 6(e) of the Lease, no further filing or
recording of the Lease or of any other document (including any financing
statement under Article 9 of the UCC of the State of Delaware, New York or
Arizona) and no further action is necessary, under the laws of the United States
of America or the States of Delaware, New York and Arizona in order to perfect
the Owner Trustee's interest in the Aircraft as against the Lessee and any third
parties, or to perfect the security interest in favor of the Indenture Trustee
in the Owner Trustee's interest in the Aircraft and in the Lease;
(j) all obligations of the Lessee owing to the Lessor in
connection with the Lease are at least pari passu with all unsecured and
unsubordinated debt obligations of the Lessee;
(k) no event has occurred and is continuing which constitutes
a Lease Event of Default or would constitute a Lease Event of Default but for
the requirement that notice be given or time lapse or both;
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(l) no event has occurred and is continuing which constitutes
an Event of Loss (as defined in the Lease) or would constitute an Event of Loss
with the lapse of time;
(m) the Lessee has filed or will file, or has caused or will
cause to be filed, all federal and state tax returns which are required to be
filed and has paid or will pay or has caused or will cause to be paid all taxes
shown to be due or payable on said returns and on any assessment received by the
Lessee, to the extent such taxes have become due and payable, except for taxes
and returns with respect thereto the nonpayment or nonfiling of which, either in
any case or in the aggregate, could have no material adverse effect on the
Lessee, its condition (financial or otherwise), business, operations or
prospects, or on its ability to perform its obligations under the Lease or which
are being diligently contested by the Lessee in good faith by appropriate
proceedings and with appropriate reserves;
(n) the financial statements together with the notes related
thereto contained in the Registration Statement are complete in all material
respects and fairly present the Lessee's financial condition as of September 30,
1996 and the results of its operations for the period covered in conformance
with GAAP (except as otherwise noted therein and with which any such change the
independent auditors of the Lessee have agreed), since September 30, 1996, there
has been no material adverse change in the Lessee's business, operations,
condition (financial or otherwise) or prospects which has not been disclosed in
writing to the Owner Participant and the Indenture Trustee and does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading;
(o) on the Restatement Date, all sales, use, documentary,
duties or other similar Taxes then due and for which the Lessee is responsible
pursuant to the Lessee Documents, shall have been paid, other than such Taxes
which are being contested by the Lessee in good faith and by appropriate
proceedings (and for which the Lessee shall have established such reserves as
are required under GAAP) so long as such proceedings do not involve any material
danger to the sale, forfeiture or loss of the Aircraft;
(p) the Lessee is not a "national" of any designated foreign
country within the meaning of the Foreign Assets Control Regulations or the
Cuban Assets Control Regulations of the United States Treasury Department, 31
Code of Federal Regulations, Subtitle B, Chapter V, as amended, or of any
regulations, interpretations or rulings issued thereunder, and the Lessee is
not, and is not acting on behalf of or for the benefit of, an "Iranian Entity"
within the meaning of the Iranian Assets Control
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Regulations of the United States Treasury Department, 31 Code of Federal
Regulations, Subtitle B, Chapter V, as amended, and the transactions
contemplated by this Agreement are not prohibited by Executive Order 12170, the
above-mentioned Iranian Assets Control Regulations or any regulations,
interpretations or rulings issued under any thereof;
(q) no part of the Rent or other payments made by the Lessee
under the Lease or under the other Operative Documents will be made out of the
assets of any "employee benefit plan" as defined in Section 3(3) of ERISA;
(r) no representation or warranty of the Lessee contained in
any Lessee Document or other information in writing furnished to the Owner
Participant or the Indenture Trustee by the Lessee in connection herewith
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein or therein not
misleading. There is no fact known to the Lessee (other than matters of a
general economic nature) which the Lessee has not disclosed in writing to the
Owner Participant or the Indenture Trustee which could impair its ability to
perform its obligations under the Lessee Documents; and
(s) if the Lessee were to become a debtor under the Bankruptcy
Code, the Lessor as lessor of the Aircraft under the Lease, and the Indenture
Trustee, as assignee of the Owner Trustee's rights under the Lease pursuant to
the Indenture, would be entitled to the benefits of Section 1110 of the
Bankruptcy Code with respect to the Aircraft.
SECTION 9. Representations and Warranties. Each of the parties
below represents and warrants, as of the Restatement Date, to each of the other
parties to this Agreement and to the Liquidity Provider (except that the
representation and warranty set forth in Section 9(f)(8) shall be a
representation and warranty of the Original Head Lessee to the Lessee only) as
follows:
(a) The Indenture Trustee in its individual capacity (and as
Indenture Trustee to the extent provided in clause (6) below) represents and
warrants that:
(1) the Indenture Trustee is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of New York, is a "citizen of the United
States" as defined in Section 40102(a)(15) of the Federal
Aviation Act and the rules and regulations of the FAA
thereunder (as so defined, a "Citizen of the United States")
(without making use of a voting trust, voting powers agreement
or similar arrangement), will notify promptly all parties to
this
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Agreement if in its reasonable opinion its status as a Citizen
of the United States (without making use of a 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 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 New York and the federal laws of the United
States of America pertaining to its banking, trust and
fiduciary powers to execute and deliver each of this
Agreement, the Indenture, the Yen Deposit Charge Agreement and
each other Operative Document to which it is a party and to
carry out its obligations under this Agreement, the Indenture
and each other Operative Document to which it is a party;
(2) the execution and delivery by the Indenture
Trustee of this Agreement, the Indenture, Lease Amendment No.
1, the Yen Deposit Charge Agreement and each other Operative
Document to which it is a party and the performance by the
Indenture Trustee of its obligations under this Agreement, the
Indenture and each other Operative Document to which it is a
party have been duly authorized by the Indenture Trustee and
will not violate its articles of association or by-laws or the
provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it is bound;
(3) this Agreement constitutes, and the Indenture and
the Yen Deposit Charge Agreement, when executed and delivered
by the Indenture Trustee, will constitute, the legal, valid
and binding obligations of the Indenture Trustee enforceable
against it in accordance with their respective terms, except
as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at
law or in equity;
(4) there are no pending or, to its knowledge,
threatened actions or proceedings against the Indenture
Trustee, either in its individual capacity or as Indenture
Trustee, before any court or administrative agency which, if
determined adversely to it, would materially adversely affect
the ability of the Indenture Trustee, in its individual
capacity or as Indenture Trustee, as the case may be, to
perform its
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obligations under the Yen Deposit Charge Agreement and
the Operative Documents to which it is a party;
(5) there are no Lenders' Liens (as defined in the
Lease) on the Aircraft or any portion of the Trust Estate
created by or through the Indenture Trustee in its individual
capacity; and
(6) it has possession of the chattel paper original
counterpart of the Original Lease, the First Amended and
Restated Lease, Lease Amendment No. 1 and the Second Amended
and Restated Lease.
(b) Each of the Trust Company (except with respect to clauses
(2)(ii), (3), (6) and (8) below, which representations and warranties are made
solely by the Owner Trustee) and the Owner Trustee represents and warrants that:
(1) the Trust Company is a banking corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware, has full corporate power and
authority to carry on its business as now conducted, has, or
had on the respective dates of execution thereof, the
corporate power and authority to execute and deliver Trust
Supplement No. 3, has the corporate power and authority to
carry out the terms of the Trust Agreement, and each of the
Trust Company and the Owner Trustee has, or had on the
respective dates of execution thereof (assuming the
authorization, execution and delivery of Trust Supplement No.
3 by the Owner Participant), the corporate power and authority
to execute and deliver and to carry out the terms of this
Agreement, the Indenture, the Equipment Notes, Lease Amendment
No. 1, the Lease and each other Operative Document (other than
the Trust Agreement) to which it is a party;
(2) (i) each of the Trust Company and the Owner
Trustee has duly authorized, executed and delivered the Trust
Agreement and this Agreement and (assuming the due
authorization, execution and delivery of Trust Supplement No.
3 by the Owner Participant) the Trust Agreement constitutes a
legal, valid and binding obligation of the Owner Trustee, in
its individual capacity or as Owner Trustee and the Trust
Company, as the case may be, enforceable against it in
accordance with its terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether
considered in a proceeding at law or in equity, (ii) the Owner
Trustee has duly authorized,
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executed and delivered this Agreement and (assuming the due
authorization, execution and delivery of Trust Supplement No.
3 by the Owner Participant) this Agreement and the Trust
Agreement constitute, and the Indenture and the Lease, when
entered into, will constitute, a legal, valid and binding
obligation of the Owner Trustee, in its individual capacity or
as Owner Trustee and the Trust Company, as the case may be,
enforceable against it in accordance with its terms, except as
the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of
equity, whether considered in a proceeding at law or in
equity;
(3) assuming the due authorization, execution and
delivery of Trust Supplement No. 3 by the Owner Participant,
the Owner Trustee has duly authorized, and on the Restatement
Date shall have duly issued, executed and delivered to the
Indenture Trustee for authentication, the Equipment Notes
pursuant to the terms and provisions hereof and of the
Indenture, and each Equipment Note on the Restatement Date
will constitute the valid and binding obligation of the Owner
Trustee and will be entitled to the benefits and security
afforded by the Indenture in accordance with the terms of such
Equipment Note and the Indenture;
(4) neither the execution and delivery by the Owner
Trustee or the Trust Company, as the case may be, of this
Agreement, the Original Trust Agreement, Trust Supplement No.
3, the Original Indenture, the First Amended and Restated
Indenture, the Indenture, the Original Lease, the First
Amended and Restated Lease, Lease Amendment No. 1, the Lease,
the Equipment Notes or any other Operative Document to which
it is a party, nor the consummation by it of any of the
transactions contemplated hereby or thereby, nor the
compliance by it with any of the terms and provisions hereof
and thereof, (A) requires or will require any approval of its
stockholders, or approval or consent of any trustees or
holders of any indebtedness or obligations of it, or (B)
violates or will violate its articles of association or
by-laws, or contravenes or will contravene any provision of,
or constitutes or will constitute a default under, or results
or will result in any breach of, or results or will result in
the creation of any Lien (other than as permitted under the
Operative Documents) upon its property under, any indenture,
mortgage, chattel mortgage, deed of trust, conditional sale
contract, bank loan or credit agreement, license or other
agreement or instrument to
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34
which it is a party or by which it is bound, or contravenes or
will contravene any law, governmental rule or regulation of
the State of Delaware or any United States of America
governmental authority or agency governing the trust powers of
the Owner Trustee, or any judgment or order applicable to or
binding on it;
(5) no consent, approval, order or authorization of,
giving of notice to, or registration with, or taking of any
other action in respect of, any state or local governmental
authority or agency or any State of Delaware or any United
States governmental authority or agency regulating the trust
powers of the Trust Company is required for the execution and
delivery of, or the carrying out by, the Trust Company or the
Owner Trustee, as the case may be, of any of the transactions
contemplated hereby or by the Trust Agreement, the Indenture,
the Lease, Lease Amendment No. 1, the Equipment Notes, or any
other Operative Document to which it is a party or by which it
is bound, other than any such consent, approval, order,
authorization, registration, notice or action as has been duly
obtained, given or taken or which is described in Section
8(d);
(6) there exists no Lessor's Lien or Head Lessor's
Lien (each as defined in the Lease) (including for this
purpose Liens that would be Lessor's Liens but for the first
proviso in the definition of Lessor's Liens) attributable to
the Owner Trustee;
(7) there exists no Lessor's Lien or Head Lessor's
Lien (including for this purpose Liens that would be Lessor's
Liens but for the first proviso in the definition of Lessor's
Liens) attributable to the Trust Company;
(8) there are no Taxes payable by the Owner Trustee
or the Trust Company imposed by the State of Delaware or any
political subdivision thereof in connection with the
redemption of the Original Certificates or the issuance of the
Equipment Notes, or the execution and delivery by it of any of
the instruments referred to in clauses (1), (2), (3) and (4)
above, that, in each case, would not have been imposed if the
Trust Estate were not located in the State of Delaware and the
Trust Company had not (a) had its principal place of business
in, (b) performed (in its individual capacity or as Owner
Trustee) any or all of its duties under the Operative
Documents in, and (c) engaged in any activities unrelated to
the transactions
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35
contemplated by the Operative Documents in, the State
of Delaware;
(9) there are no pending or, to its knowledge,
threatened actions or proceedings against the Owner Trustee,
either in its individual capacity or as Owner Trustee, before
any court or administrative agency which, if determined
adversely to it, would materially adversely affect the ability
of the Owner Trustee, in its individual capacity or as Owner
Trustee, as the case may be, to perform its obligations under
any of the instruments referred to in clauses (1), (2), (3)
and (4) above;
(10) 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 (other than such as may be maintained and held by the
Indenture Trustee pursuant to the Indenture), are located in
Wilmington, Delaware. Owner Trustee, in its individual
capacity or as Owner Trustee, agrees that it will not change
the location of such office to a location outside of Delaware,
without prior written notice to all parties hereto; and
(11) it is a Citizen of the United States (without
making use of a voting trust agreement, voting powers
agreement or similar arrangements).
(c) The Owner Participant represents and warrants
that:
(1) it is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, has the
corporate power and authority to carry on its present business
and operations and to own or lease its properties, has, or had
on the respective dates of execution thereof, as the case may
be, the corporate power and authority to enter into and to
perform its obligations under this Agreement, the Trust
Agreement, the SLV Letter Agreement and the Second Amended and
Restated Head Lease TIA; this Agreement, the SLV Letter
Agreement and Trust Supplement No. 3 have been duly
authorized, executed and delivered by it; and this Agreement,
the Trust Agreement, the SLV Letter Agreement and the Second
Amended and Restated Head Lease TIA constitute the legal,
valid and binding obligations of the Owner Participant
enforceable against it in accordance with their respective
terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or
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36
other similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a
proceeding at law or in equity;
(2) neither (A) the execution and delivery by the
Owner Participant of this Agreement, the Trust Agreement, the
SLV Letter Agreement, the Second Amended and Restated Head
Lease TIA or any other Operative Document to which it is a
party nor (B) compliance by it with all of the provisions
hereof or thereof, (x) will contravene any law or order of any
court or governmental authority or agency applicable to or
binding on the Owner Participant (it being understood that no
representation or warranty is made with respect to laws, rules
or regulations relating to aviation or to the nature of the
equipment owned by the Owner Trustee 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, its
certificate of incorporation or by-laws or any indenture,
mortgage, contract or other agreement or instrument to which
the Owner Participant is a party or by which it or any of its
property may be bound or affected;
(3) no authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body (other than as required by the Federal
Aviation Act or the regulations promulgated thereunder) is or
was required, as the case may be, for the due execution,
delivery or performance by it of this Agreement, the Trust
Agreement and the Second Amended and Restated Head Lease TIA
(it being understood that no representation or warranty is
made with respect to laws, rules or regulations relating to
aviation or to the nature of the equipment owned by the Owner
Trustee other than the laws, rules or regulations relating to
aircraft lease transactions generally or to the citizenship
requirements of the Owner Participant under the Federal
Aviation Act);
(4) there are no pending or, to its knowledge,
threatened actions or proceedings against the Owner
Participant before any court or administrative agency or
arbitrator which, if determined adversely to the Owner
Participant, would materially adversely affect the Owner
Participant's ability to perform its obligations under this
Agreement, the Trust Agreement, the SLV Letter Agreement or
the Second Amended and Restated Head Lease TIA;
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37
(5) neither the Owner Participant nor anyone
authorized by it to act on its behalf (it being understood
that in proposing, facilitating and otherwise taking any
action in connection with the refinancing contemplated hereby
and agreed to herein by the Owner Participant, the Lessee has
not acted as agent of the Owner Participant) has directly or
indirectly offered any Equipment Notes or Certificates or any
interest in and to the Trust Estate, the Trust Agreement or
any similar interest for sale to, or solicited any offer to
acquire any of the same from, more than ten Persons; the Owner
Participant's interest in the Trust Estate and the Trust
Agreement was acquired for its own account and was purchased
for investment and not with a view to any resale or
distribution thereof;
(6) on the Restatement Date, the Trust Estate shall
be free of Lessor's Liens and Head Lessor's Liens attributable
to the Owner Participant (including for this purpose Liens
that would be Lessor's Liens but for the first proviso in the
definition of Lessor's Liens); and
(7) it is a Citizen of the United States (without
making use of a voting trust agreement, voting powers
agreement or similar arrangement). If at any time Owner
Participant has ceased to be, or shall have actual knowledge
that it is likely to cease to be, such a citizen, and (i) the
Aircraft shall be or would thereupon become ineligible for
registration in the name of Owner Trustee under the Federal
Aviation Act as in effect at such time (without regard to the
"based and primarily used" provisions thereof) and the
regulations then applicable thereunder, or (ii) the Aircraft
is registered in a jurisdiction other than the United States
of America, in circumstances in which the preceding clause (i)
does not apply and the Lessee or any Permitted Sublessee at
any time proposes to register the Aircraft in the United
States of America, then Owner Participant shall (at its own
expense and without any reimbursement or indemnification from
the Lessee or any Permitted Sublessee) (A) immediately either
(1) transfer in accordance with Section 10 hereof all of its
right, title and interest in and to the Trust Agreement, the
Trust Estate, this Agreement and the Second Amended and
Restated Head Lease TIA or (2) take such other action,
including, without limitation, the establishment of a voting
trust or voting powers agreement (in which case Owner
Participant shall remain the beneficial owner of the Trust
Estate), as may be necessary to prevent the deregistration of
the
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Aircraft under the Federal Aviation Act or to maintain such
registration of the Aircraft or to make possible such
registration of the Aircraft in the United States of America
and to prevent Indenture Trustee, the Holders of the Equipment
Notes, the Lessee or any Permitted Sublessee from being
adversely affected as a result thereof and (B) indemnify the
Lessee, the Indenture Trustee, the Holders of the Equipment
Notes and any Permitted Sublessee, from and against any and
all Claims incurred or suffered as a result of Owner
Participant's failure to be such a citizen or loss of such
citizenship, including, without limitation, as a result of the
Aircraft's becoming ineligible or ceasing to remain eligible
for such registration.
(d) The Pass Through Trustee represents, warrants and
covenants that:
(1) the Pass Through Trustee is duly organized,
validly existing and in good standing under the federal laws
of the United States of America, and has the full corporate
power, authority and legal right under the federal laws of the
United States of America pertaining to its banking, trust and
fiduciary powers to execute and deliver each of the Pass
Through Trust Agreements, the Intercreditor Agreement, and
this Agreement and to perform its obligations under this
Agreement, the Pass Through Trust Agreements and the
Intercreditor Agreement;
(2) this Agreement has been, and when executed and
delivered by the Pass Through Trustee, each of the Pass
Through Trust Agreements and the Intercreditor Agreement will
have been, duly authorized, executed and delivered by the Pass
Through Trustee; this Agreement constitutes, and when executed
and delivered by the Pass Through Trustee, each of the Pass
Through Trust Agreements and the Intercreditor Agreement, will
constitute, the legal, valid and binding obligations of the
Pass Through Trustee enforceable against it in accordance with
their respective terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a
proceeding at law or in equity;
(3) none of the execution, delivery and performance
by the Pass Through Trustee of any of the Pass Through Trust
Agreements, the Intercreditor Agreement or this Agreement, the
purchase by the Pass Through Trustee of the Equipment Notes
pursuant to this
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39
Agreement, or the issuance of the Certificates pursuant to the
Pass Through Trust Agreements, contravenes any law, rule or
regulation of the State of Connecticut or any United States
governmental authority or agency regulating the Pass Through
Trustee's banking, trust or fiduciary powers or any judgment
or order applicable to or binding on the Pass Through Trustee
and does not contravene or result in any breach of, or
constitute a default under, the Pass Through Trustee's
articles of association or by-laws or any agreement or
instrument to which the Pass Through Trustee is a party or by
which it or any of its properties may be bound;
(4) neither the execution and delivery by the Pass
Through Trustee of any of the Pass Through Trust Agreements,
the Intercreditor Agreement or this Agreement, nor the
consummation by the Pass Through Trustee of any of the
transactions contemplated hereby or thereby, requires the
consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with
respect to, any State of Connecticut governmental authority or
agency or any federal governmental authority or agency
regulating the Pass Through Trustee's banking, trust or
fiduciary powers;
(5) assuming that the trusts created by the Pass
Through Trust Agreements will not be taxable as corporations,
but, rather, each will be characterized as a grantor trust
under subpart E, Part I of Subchapter J of the Code for
federal income tax purposes, there are no Taxes payable by the
Pass Through Trustee imposed by the State of Connecticut or
any political subdivision or taxing authority thereof in
connection with the acquisition, possession or ownership by
the Pass Through Trustee of any of the Equipment Notes (other
than franchise or other taxes based on or measured by any fees
or compensation received by the Pass Through Trustee for
services rendered in connection with the transactions
contemplated by any of the Pass Through Trust Agreements), and
prior to the exercise of remedies upon the occurrence of an
Indenture Event of Default, there are no Taxes payable by the
Pass Through Trustee imposed by the State of Connecticut or
any political subdivision or taxing authority thereof in
connection with the execution, delivery and performance by the
Pass Through Trustee of this Agreement, any of the Pass
Through Trust Agreements or the Intercreditor Agreement (other
than franchise or other Taxes based on or measured by any fees
or compensation received by the Pass Through Trustee for
services rendered in connection with the
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40
transactions contemplated by any of the Pass Through Trust
Agreements), and such trusts will not be subject to any Taxes
imposed by the State of Connecticut or any political
subdivision or taxing authority thereof; upon the exercise of
remedies following the occurrence of an Indenture Event of
Default, there will be no Taxes payable by the Pass Through
Trustee imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by the Pass Through
Trustee of this Agreement, any of the Pass Through Trust
Agreements or the Intercreditor Agreement (other than
franchise or other Taxes based on or measured by any fees or
compensation received by the Pass Through Trustee for services
rendered in connection with the transactions contemplated by
any of the Pass Through Trust Agreements), and the trusts
created by the Pass Through Trust Agreements will not be
subject to any Taxes imposed by the State of Connecticut or
any political subdivision thereof, solely because the Pass
Through Trustee maintains an office in, and administers the
trusts created by the Pass Through Trust Agreements in, the
State of Connecticut;
(6) there are no pending or threatened actions or
proceedings against the Pass Through Trustee before any court
or administrative agency which individually or in the
aggregate, if determined adversely to it, would materially
adversely affect the ability of the Pass Through Trustee to
perform its obligations under this Agreement, the
Intercreditor Agreement or any Pass Through Trust Agreement;
(7) except for the issue and sale of the Certificates
contemplated hereby, the Pass Through Trustee has not directly
or indirectly offered any Equipment Notes for sale to any
Person or solicited any offer to acquire any Equipment Notes
from any Person, nor has the Pass Through Trustee authorized
anyone to act on its behalf to offer directly or indirectly
any Equipment Notes for sale to any Person, or to solicit any
offer to acquire any Equipment Notes from any Person; and the
Pass Through Trustee is not in default under any Pass Through
Trust Agreement; and
(8) the Pass Through Trustee is not directly or
indirectly controlling, controlled by or under common control
with the Owner Participant, the Owner Trustee, the
Underwriters or the Lessee.
(e) The Subordination Agent represents and warrants
that:
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41
(1) the Subordination Agent is a duly organized
national banking association, validly existing and in good
standing with the Comptroller of the Currency under the laws
of the United States of America and has the full corporate
power, authority and legal right under the laws of the United
States of America pertaining to its banking, trust and
fiduciary powers to execute and deliver each of the Liquidity
Facilities, the Intercreditor Agreement and this Agreement and
to perform its obligations under this Agreement, the Liquidity
Facilities and the Intercreditor Agreement;
(2) this Agreement has been, and when executed and
delivered by the Subordination Agent, each of the Liquidity
Facilities and the Intercreditor Agreement will have been,
duly authorized, executed and delivered by the Subordination
Agent; this Agreement constitutes, and when executed and
delivered by the Subordination Agent, each of the Liquidity
Facilities and the Intercreditor Agreement, will constitute,
the legal, valid and binding obligations of the Subordination
Agent enforceable against it in accordance with their
respective terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a
proceeding at law or in equity;
(3) none of the execution, delivery and performance
by the Subordination Agent of each of the Liquidity
Facilities, the Intercreditor Agreement and this Agreement or
the performance by the Subordination Agent of this Agreement,
contravenes any law, rule or regulation of the State of
Connecticut or any United States governmental authority or
agency regulating the Subordination Agent's banking, trust or
fiduciary powers or any judgment or order applicable to or
binding on the Subordination Agent and do not contravene or
result in any breach of, or constitute a default under, the
Subordination Agent's articles of association or by-laws or
any agreement or instrument to which the Subordination Agent
is a party or by which it or any of its properties may be
bound;
(4) neither the execution and delivery by the
Subordination Agent of any of the Liquidity Facilities, the
Intercreditor Agreement or this Agreement nor the consummation
by the Subordination Agent of any of the transactions
contemplated hereby or thereby requires the consent or
approval of, the giving of notice to,
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42
the registration with, or the taking of any other action with
respect to, any State of Connecticut governmental authority or
agency or any federal governmental authority or agency
regulating the Subordination Agent's banking, trust or
fiduciary powers;
(5) there are no Taxes payable by the Subordination
Agent imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by the Subordination Agent
of this Agreement, any of the Liquidity Facilities or the
Intercreditor Agreement (other than franchise or other taxes
based on or measured by any fees or compensation received by
the Subordination Agent for services rendered in connection
with the transactions contemplated by the Intercreditor
Agreement or any of the Liquidity Facilities) solely because
the Subordination Agent maintains an office and administers
its trust business in the State of Connecticut, and there are
no Taxes payable by the Subordination Agent imposed by the
State of Connecticut or any political subdivision thereof in
connection with the acquisition, possession or ownership by
the Subordination Agent of any of the Equipment Notes solely
because the Subordination Agent maintains an office and
administers its trust business in the State of Connecticut
(other than franchise or other taxes based on or measured by
any fees or compensation received by the Subordination Agent
for services rendered in connection with the transactions
contemplated by the Intercreditor Agreement or any of the
Liquidity Facilities);
(6) there are no pending or threatened actions or
proceedings against the Subordination Agent before any court
or administrative agency which individually or in the
aggregate, if determined adversely to it, would materially
adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement, the
Intercreditor Agreement or any Liquidity Facility;
(7) the Subordination Agent has not directly or
indirectly offered any Equipment Note for sale to any Person
or solicited any offer to acquire any Equipment Note from any
Person, nor has the Subordination Agent authorized anyone to
act on its behalf to offer directly or indirectly any
Equipment Note for sale to any Person, or to solicit any offer
to acquire any Equipment Note from any Person; and the
Subordination
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43
Agent is not in default under any Liquidity Facility;
and
(8) the Subordination Agent is not directly or
indirectly controlling, controlled by or under common control
with the Owner Participant, the Owner Trustee, the
Underwriters or the Lessee.
(f) The Original Head Lessee represents and warrants
that:
(1) it is duly incorporated, validly existing and in
good standing under the laws of the State of Connecticut and
has the corporate power and authority to carry on its present
business and operations and to own or lease its properties,
has the corporate power and authority to enter into and to
perform its obligations under this Agreement, Lease Amendment
No. 1, the Second Amended and Restated Head Lease TIA, the
Amended and Restated Sublease TIA and the SLV Letter Agreement
(collectively, the "Original Head Lessee Transaction
Documents"); each Original Head Lessee Transaction Document
has been duly authorized, and upon the execution and delivery
thereof will constitute, the legal, valid and binding
obligations of the Original Head Lessee enforceable against it
in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
rights of creditors generally and by general principles of
equity, whether considered in a proceeding at law or in
equity;
(2) neither (A) the execution and delivery by the
Original Head Lessee of this Agreement and each of the other
Original Head Lessee Transaction Documents nor (B) compliance
by it with all of the provisions hereof or thereof, (x) will
contravene any law or order of any court or governmental
authority or agency applicable to or binding on the Original
Head Lessee, or (y) will contravene the provisions of, or
constitutes or has constituted or will constitute a default
under, its certificate of incorporation or by-laws or any
indenture, mortgage, contract or other agreement or instrument
to which the Original Head Lessee is a party or by which it or
any of its property may be bound or affected, except where
such contravention or default would not result in any
liability to any other party hereto or have a material adverse
effect on the rights or on the remedies of the other parties
hereto or on its ability to perform its obligations hereunder
or thereunder;
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44
(3) no authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body (other than as required by the Federal
Aviation Act or the regulations promulgated thereunder) is or
was required, as the case may be, for the due execution,
delivery or performance by the Original Head Lessee of this
Agreement and each of the other Original Head Lessee
Transaction Documents;
(4) except as set forth in the Parent Guarantor's
most recent Form 20-F filed with the Commission, there are no
pending or, to its knowledge, threatened actions or
proceedings against the Original Head Lessee before any court
or administrative agency or arbitrator which, if determined
adversely to the Original Head Lessee, would materially
adversely affect the Original Head Lessee's ability to perform
its obligations under this Agreement or any other Original
Head Lessee Transaction Documents;
(5) on the Restatement Date, the Trust Estate, the
Aircraft, the Airframe, each Engine and each Part shall be
free and clear of any and all Sublessor's Liens (as defined in
the Sublease);
(6) on the Delivery Date, the Owner Trustee received
good title to the Aircraft free and clear of all Liens, except
the rights of the parties to the Japanese Financing Documents,
the rights of the Original Head Lessee under the Original
Lease, the rights of the Sublessee under the Sublease, the
Lien of the Original Indenture, the beneficial interest of the
Owner Participant in the Aircraft, and Permitted Liens under
the Original Lease;
(7) title to the Buyer Furnished Equipment for the
Aircraft has been transferred in accordance with Section 8(y)
of the Participation Agreement. As of the Restatement Date,
there are no existing Claims against Parent Guarantor or
Original Head Lessee with respect to Buyer Furnished
Equipment; and
(8) except for the registration of the Aircraft
pursuant to the Federal Aviation Act, the filing for
recordation pursuant to the Federal Aviation Act (with
confidential financial terms redacted) of Lease
Amendment No. 1, the Second Amended and Restated Lease,
Lease Supplement No. 3, Trust Supplement No. 3, the
First Amended and Restated Indenture and Indenture
Supplement No. 2, and each of the other documents
referred to in Annex A hereto, all with the FAA, the
filing of a Uniform Commercial Code ("UCC") amended
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45
financing statement with the Secretary of State of the State
of Delaware with regard to the Original Lease, the filing of
UCC termination statements with regard to the Original Head
Lessee with the Secretary of State of the States of New York,
Connecticut and Arizona, the filing of a protective UCC
financing statement with the Secretary of State of the State
of Arizona with respect to the Lease, the filing of a UCC
termination statement with the Secretary of State of the State
of Arizona with respect to the Sublease, and the filing of a
UCC termination statement with the Secretary of State of the
State of Delaware with respect to the Initial Sublease
Assignment (as defined in the Original Lease) all of which
financing and termination statements shall have been duly
effected as of the Restatement Date (and assignments thereof
and continuation statements at periodic intervals), and other
than the taking of possession by the Indenture Trustee of the
original counterparts of the Original Lease, Lease Amendment
No. 1, the Second Amended and Restated Lease, and all Lease
Supplements thereto (to the extent the Lease constitutes
chattel paper), and the placing of the Lease identification
required by Section 6(e) of the Lease, no further filing or
recording of the Lease or of any other document (including any
financing statement under Article 9 of the UCC of the State of
Delaware, New York or Arizona) and no further action is
necessary, under the laws of the United States of America or
the States of Delaware, New York and Arizona in order to
perfect the Owner Trustee's interest in the Aircraft as
against the Lessee and any third parties, or to perfect the
security interest in favor of the Indenture Trustee in the
Owner Trustee's interest in the Aircraft and in the Lease.
(g) The Parent Guarantor represents and warrants that:
(1) it is duly organized and validly existing under
the laws of Ireland and has the corporate power and authority
to enter into and to perform its obligations under this
Agreement, the Yen Deposit Agreement and the Yen Deposit
Charge Agreement (collectively, the "Parent Guarantor
Transaction Documents"); each Parent Guarantor Transaction
Document has been duly authorized, and upon the execution and
delivery thereof, will constitute, the legal, valid and
binding obligations of the Parent Guarantor enforceable
against it in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors
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46
generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(2) neither (A) the execution and delivery by the
Parent Guarantor of this Agreement and each of the other
Parent Guarantor Transaction Documents nor (B) compliance by
it with all of the provisions hereof or thereof, (x) will
contravene any law or order of any court or governmental
authority or agency applicable to or binding on the Parent
Guarantor, or (y) will contravene the provisions of, or
constitutes or has constituted or will constitute a default
under, its Memorandum and Articles of Association or any
indenture, mortgage, contract or other agreement or instrument
to which the Parent Guarantor is a party or by which it or any
of its property may be bound or affected, except where such
contravention or default would not result in any liability to
any other party hereto or have a material adverse effect on
the rights or on the remedies of the other parties hereto or
on its ability to perform its obligations hereunder or
thereunder;
(3) no authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body (other than as required by the Federal
Aviation Act or the regulations promulgated thereunder) is or
was required, as the case may be, for the due execution,
delivery or performance by the Parent Guarantor of this
Agreement and each of the other Parent Guarantor Transaction
Documents;
(4) except as set forth in the Parent Guarantor's
most recent Form 20-F filed with the Commission, there are no
pending or, to its knowledge, threatened actions or
proceedings against the Parent Guarantor before any court or
administrative agency or arbitrator which, if determined
adversely to the Parent Guarantor, would materially adversely
affect the Parent Guarantor's ability to perform its
obligations under this Agreement or any other Parent Guarantor
Transaction Documents;
(5) on the Restatement Date, the Trust Estate, the
Aircraft, the Airframe, each Engine and each Part shall be
free and clear of any and all Sublessor's Liens (as defined in
the Sublease); and
(6) The representations and warranties of the
Original Head Lessee contained in this Agreement are true and
correct in all respects on the date made (provided that the
representation and warranty in
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47
Section 9(f)(8) shall be only for the benefit of Lessee).
SECTION 10. Transfer of Owner Participant's Interest. Owner
Participant shall not directly or indirectly sell, assign, convey or otherwise
transfer (whether by consolidation, merger, sale of assets or otherwise) any of
its right, title or interest in and to the Trust Estate, the Aircraft, the
Lease, this Agreement, the Trust Agreement, the Second Amended and Restated Head
Lease TIA or any other Operative Document or any proceeds therefrom; provided
that, subject to the conditions set forth below, Owner Participant may transfer
to a Transferee (as defined below) all (but not less than all) of its right
(except for such rights accruing prior to transfer), title and interest as an
entirety in and to the Trust Estate, the Aircraft, this Agreement, the Trust
Agreement, the Second Amended and Restated Head Lease TIA and each other
Operative Document to which Owner Participant is a party or by which Owner
Participant is bound. Each such transfer shall be subject to the following
conditions:
(i) the Person to whom such transfer is to be made (a
"Transferee") is either (A) a bank or other financial institution with
a combined capital, surplus and undivided profits of at least
$60,000,000, or a corporation whose consolidated tangible net worth is
at least $60,000,000, exclusive of goodwill, all of the foregoing
determined in accordance with U.S. generally accepted accounting
principles, (B) any wholly-owned subsidiary of such bank, financial
institution or corporation if such bank, financial institution or
corporation furnishes to Owner Trustee, Indenture Trustee, Original
Head Lessee and Lessee an agreement or agreements of such bank,
financial institution or corporation guaranteeing such subsidiary's
obligations as Owner Participant contained in this Agreement, the Trust
Agreement, the Second Amended and Restated Head Lease TIA and each
other Operative Document to which Owner Participant is bound, which
guarantee shall be substantially in the form attached as Exhibit A
hereto or (C) an Affiliate or a subsidiary of Owner Participant if
Owner Participant furnishes to Owner Trustee, Indenture Trustee,
Original Head Lessee and Lessee an agreement whereby Owner Participant
will guarantee such Affiliate's or subsidiary's obligations as Owner
Participant contained in this Agreement, the Trust Agreement, the
Second Amended and Restated Head Lease TIA and each other Operative
Document to which Owner Participant is bound, which guarantee shall be
substantially in the form attached as Exhibit A hereto;
(ii) Owner Trustee, Indenture Trustee, Original Head
Lessee and Lessee shall have received at least 15 days' prior written
notice of such transfer specifying the name and address of any proposed
transferee and specifying the
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48
facts necessary to determine whether such proposed transferee qualifies
as a "Transferee" under clause (i) above and does not violate clause
(viii) below; provided that if such Transferee is an Affiliate of Owner
Participant, such notice may be given promptly following rather than
prior to such transfer;
(iii) upon giving effect to such transfer, such Transferee
is a Citizen of the United States, and such Transferee shall deliver to
Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee an
affidavit to such effect;
(iv) such Transferee has the requisite power and
authority and legal right to enter into and carry out the
transactions contemplated hereby;
(v) such Transferee enters into an agreement in
substantially the form attached as Exhibit B hereto whereby such
Transferee confirms that it shall be deemed a party to this Agreement,
the Trust Agreement, the Second Amended and Restated Head Lease TIA and
each other Operative Document to which Owner Participant is a party or
by which Owner Participant is bound, and in which the transferee shall
agree to be bound by and undertake the obligations of Owner Participant
in the Operative Documents and shall make representations and
warranties comparable to those of Owner Participant contained herein;
(vi) such transfer does not violate any provision of the
Federal Aviation Act or any rules or regulations promulgated
thereunder, or create a relationship that would be in violation
thereof, or violate any provisions of the Securities Act or any other
applicable Federal, state or other law, rule or regulation;
(vii) such transfer does not and will not involve, either
directly or indirectly, the assets of any "employee benefit plan" as
defined in Section 3(3) of ERISA that would cause a violation of any
provision of ERISA or the imposition of an excise tax under the Code;
(viii) such Transferee is not an airline, a commercial air
carrier, an air freight forwarder, a freight transporter, any Person
engaged in the business of parcel transport by air, or a subsidiary or
an Affiliate thereof;
(ix) an opinion of counsel of the Transferee confirming
the matters referred to in clauses (iv) and (vi) above (with
appropriate reliance on certificates of corporate officers or public
officials as to matters of fact) and confirming that the agreement
referred to in
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49
clause (v) above is the legal, valid, binding and enforceable
obligation of the Transferee and that the guarantee referred to in
clause (i)(B) or (C) above, if any, is the legal, valid, binding and
enforceable obligation of the Transferee's guarantor shall be provided,
at least 3 days prior to such transfer, to Lessee, Owner Trustee,
Original Head Lessee and Indenture Trustee, which shall be in form and
substance reasonably satisfactory to each of them; and
(x) the terms of the Operative Documents and the
Second Amended and Restated Head Lease TIA shall not be
altered.
Upon any such transfer, except as the context otherwise requires, such
Transferee shall be deemed "Owner Participant" for all purposes hereof and of
the Trust Agreement, the Second Amended and Restated Head Lease TIA and each
other Operative Document to which Owner Participant is a party or by which Owner
Participant is bound, and shall be deemed to have made the original
participation in the Aircraft previously made by Owner Participant; and except
as the context otherwise requires, each reference in this Agreement, the Trust
Agreement, the Second Amended and Restated Head Lease TIA and each other
Operative Document to "Owner Participant" shall thereafter be deemed to include
such Transferee as provided in this Section 10. No transfer shall release Owner
Participant from its obligations hereunder, under the Second Amended and
Restated Head Lease TIA and under the other Operative Documents, except to the
extent expressly assumed by the Transferee in accordance with this Section 10,
provided, that notwithstanding such an assumption, in no event shall Owner
Participant be released from its obligations hereunder or under any of the other
Operative Documents with respect to claims under this Agreement or under the
Second Amended and Restated Head Lease TIA by or against Owner Participant which
have been made prior to the date of such transfer. The transferor Owner
Participant shall pay all expenses of each party hereto related to any such
transfer.
Owner Participant covenants and warrants that it shall not
transfer all or any portion of its interest in the Trust Estate except in
accordance with this Section 10 and that it shall not itself, or direct Owner
Trustee to, take any action in contravention of the Lessee's rights under the
Lease except in accordance with the provisions of the Lease.
Each party hereto agrees, upon the request of Owner
Participant, to use reasonable efforts to cooperate at no cost or expense to it
with Owner Participant in complying with its obligations under the provisions of
clause (A) of paragraph (7) of Section 9(c), provided that such cooperation
shall not be subject to the indemnity in Section 13 of the Lease. The Lessee
shall have no obligation to prevent any such deregistration or
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50
assist in maintaining or otherwise enhancing the Aircraft's eligibility for
registration by restricting the use of the Aircraft.
SECTION 11. Re-Registration of the Aircraft. The Indenture
Trustee agrees, that if the Owner Participant consents thereto, which consent
shall not be unreasonably withheld, at any time after the Restricted Use Period,
Lessee may, in connection with effecting a Permitted Sublease elect to effect a
change in registration of the Aircraft, at Lessee's cost and expense, so long as
(a) the country of registry of the Aircraft is a country listed on Exhibit C
hereto (or such other country as the Owner Participant approves) (each, an
"Eligible Country") and (b) the following conditions are met: (i) unless the
country of registry is Taiwan, the United States of America maintains normal
diplomatic relations with the country of registry of the Aircraft, and if the
country of registry is Taiwan, the United States of America maintains diplomatic
relations at least as good as those in effect on the Restatement Date; and (ii)
the Owner Trustee, the Owner Participant and the Indenture Trustee shall have
received favorable opinions (subject to customary exceptions) addressed to each
such party, from counsel of recognized reputation qualified in the laws of the
relevant jurisdiction and reasonably acceptable to the Owner Participant to the
effect of the following and as to such other matters as the Owner Participant
may reasonably request:
(A) the Owner Trustee's ownership interest in the Aircraft and
interest in the Lease and any Permitted Sublease shall be recognized
under the laws of such Eligible Country,
(B) 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 Eligible Country (or the laws of the
jurisdiction to which the laws of such Eligible Country would refer as
the applicable governing law),
(C) after giving effect to such change in registration, the
Lien of the Indenture on the Owner Trustee's right, title and interest
in and to the Aircraft, the Lease and any Permitted Sublease shall
continue as a valid and duly perfected 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
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51
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),
(D) 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 qualify to do
business in such Eligible Country,
(E) there is no tort liability of the owner of an aircraft not
in possession thereof under the laws of such Eligible Country (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),
(F) (unless Lessee shall have agreed, or pursuant to the Lease
shall have been required, to provide insurance covering the risk of
requisition of use of such Aircraft by the government of such Eligible
Country so long as such Aircraft is registered under the laws of such
Eligible Country) the laws of such jurisdiction require fair
compensation by the government of such Eligible Country 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,
(G) upon such change in registration, under the laws of such
Eligible Country, any import or export permits necessary to take the
Aircraft into or out of such Eligible Country and any foreign exchange
or other like permits or approvals necessary to allow all "basic rent",
"renewal rent" and casualty value payments provided for in such
Permitted Sublease, which are obtainable at the commencement of such
Permitted Sublease, will be in full force and effect,
(H) under the Laws of such Eligible Country, the remedies set
forth in such Permitted Sublease are effective to enable Lessee or its
assignee as sublessor to repossess, subject to compliance with
applicable Law in such Eligible Country in connection therewith, the
Aircraft following a valid termination thereof, and there is no
provision of such Laws which by its terms would prevent Lessee or its
assignee
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52
as sublessor, upon compliance with the provisions of applicable Law in
such Eligible Country, from de-registering the Aircraft under the laws
of such Eligible Country, and exporting the Aircraft from such Eligible
Country, without reference to any particular time period,
(I) upon such change in registration, the resulting
jurisdiction of one or more Governmental Entities of such Eligible
Country over Lessee, Owner Trustee, Indenture Trustee, the Permitted
Sublessee, the Aircraft or the operation or operator of the Aircraft
(or over any interest in any thereof), as the case may be, and the
consummation of the transactions contemplated by the Operative
Documents after giving effect to the proposed re-registration of the
Aircraft, do not violate any provision of the Trading with the Enemy
Act of 1917, as amended, or any Executive Orders of the President of
the United States of America or any regulations of the United States
Treasury Department (including, without limitation, the Foreign Assets
Control Regulations and the Transaction Control Regulations issued
thereunder) or of any other Governmental Entity of the United States of
America issued thereunder or otherwise violate any other like law or
regulation of the United States of America, after giving effect to any
licenses, permits or approvals thereunder obtained by, or on behalf of,
Lessee, the Permitted Sublessee, Owner Trustee or Indenture Trustee,
all of which are in full force and effect as of the date of such change
in registration. Owner Trustee, Owner Participant and Indenture Trustee
shall cooperate, at Lessee's expense and as it may reasonably request,
in obtaining any such licenses, permits or approvals,
(J) to such further effect with respect to such other matters
relating to the recognition of Owner Trustee's interest in the Aircraft
and perfection of the Lien of the Indenture if it has not been
discharged pursuant to the terms thereof, as Owner Trustee, Owner
Participant or Indenture Trustee may reasonably request, and
(K) the aircraft maintenance standards of the new country of
registry shall not be materially less stringent than those of the FAA
or not materially less stringent than those of the United Kingdom Civil
Aviation Authority.
The following statements shall be true and correct at the time
of the re-registration of the Aircraft:
(a) no unindemnified tax risks or Taxes affecting Owner
Participant or Owner Trustee will result from such reregistration; and
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53
(b) such re-registration shall not be in conflict with, and
all action shall have been taken as may be required by, the terms of
the Japanese Financing Documents in connection with such change in
registration.
Prior to the re-registration of the Aircraft as contemplated
by this Section 11, Lessee shall furnish to Owner Participant and Indenture
Trustee (1) an Officer's Certificate (as defined in the Indenture) stating that
(i) all conditions precedent provided for in this Agreement and the Lease
relating to the proposed re-registration of the Aircraft have been complied
with, (ii) that the re-registration is in conformity with the requirements of
this Agreement and the Lease, (iii) after giving effect to such re-registration,
no Event of Default shall have occurred and be continuing, and (iv) the
insurance required by Section 12 of the Lease is in full force and effect at the
time of such change in registration after giving effect to such change in
registration and (2) an opinion of counsel (which shall be by counsel other than
an employee of Lessee) addressed to Owner Trustee, Owner Participant and
Indenture Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
At any time during the Term of the Lease, the Owner Trustee,
Indenture Trustee and Owner Participant shall, subject to the terms and
conditions hereof, at the request and sole expense of Lessee cooperate with
Lessee to comply with all terms of Section 7(a) of the Japanese Lease. Except as
provided in this Section 11, Owner Trustee shall not cause any change in the
registration of the Aircraft pursuant to Section 7(a) of the Japanese Lease
during the Term of the Lease. Anything herein or in any other Operative Document
to the contrary notwithstanding, at no time during the term of the Japanese
Lease shall Lessee permit the Aircraft to be registered in Japan.
The Operative Documents shall be amended in a manner
reasonably satisfactory to Lessee, Owner Trustee and Indenture Trustee so as to
include such covenants as may be appropriate to establish, protect and preserve
the validity, priority and perfection of Owner Trustee's interest in the
Aircraft, Lessee's interest under the Lease and the Lien of the Indenture in
favor of Indenture Trustee.
Lessee shall pay all costs, expenses, fees and recording,
registration or any other 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.
SECTION 12. Quiet Enjoyment. Each of the Trust Company,
Owner Trustee, Owner Participant (as to itself and as to Owner Trustee),
Indenture Trustee in its individual capacity and
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54
as Indenture Trustee and on behalf of the Note Holders, the Pass Through Trustee
and the Subordination Agent severally covenants and agrees that during the Term,
so long as no Lease Event of Default shall have occurred and be continuing and
the Lease shall not have been declared or deemed in default, no action shall be
taken or caused to be taken by it or a Person lawfully claiming by, through or
on behalf of it to interfere with the right of Lessee or any Permitted Sublessee
to the possession, use, operation and quiet enjoyment of and other rights with
respect to the Aircraft under the Lease, and all rents, revenues, profits and
income therefrom, in accordance with the terms of the Lease; provided that the
Trust Company, Owner Trustee and Owner Participant shall not be liable for any
such interference by Indenture Trustee, Pass Through Trustee, holders of any
Equipment Notes, or any other Person claiming by, through or on behalf of them.
SECTION 13. Liens. Each of the Trust Company, Owner Trustee
and Owner Participant severally covenants and agrees with each other party
hereto that it shall not cause or permit to exist a Lessor's Lien or Head
Lessor's Lien attributable to it with respect to the Aircraft or any other
portion of the Trust Estate or the Indenture Estate. Each of Trust Company,
Owner Trustee and Owner Participant severally agrees that it will promptly, at
its own expense (and without any right of indemnification or reimbursement from
Lessee), take such action as may be necessary duly to discharge any such
Lessor's Lien or Head Lessor's Lien attributable to it and to make restitution
to the Trust Estate and the Indenture Estate for any diminution of the assets
thereof resulting therefrom and will indemnify and hold harmless Lessee and each
Indemnitee against any claims incurred or suffered by any such Person and any
reduction in amounts payable out of, or diminution in the assets of, the Trust
Estate or the Indenture Estate resulting from any such Lessor's Lien or Head
Lessor's Lien attributable to it. For all purposes of this Agreement and the
other Operative Documents, any Lessor's Lien or Head Lessor's Lien arising as a
result of the nonpayment of any Tax imposed on or measured by the net income of
the Trust Estate or the trust created by the Trust Agreement that is not
indemnifiable by Lessee or Original Head Lessee shall be deemed to be
attributable to Owner Participant, and Owner Participant shall be responsible
for all Lessor's Liens attributable to Owner Participant and Owner Trustee.
Each of the Indenture Trustee, Pass Through Trustee and
Subordination Agent severally covenants and agrees with each other party hereto
that it shall not cause or permit to exist a Trustee's Lien (as defined below)
attributable to it with respect to the Aircraft or any other portion of the
Trust Estate or the Indenture Estate. Each of Indenture Trustee, Pass Through
Trustee and Subordination Agent severally agrees that it will promptly, at its
own expense (and without any right of
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55
indemnification or reimbursement from Lessee), take such action as may be
necessary duly to discharge any such Trustee's Lien attributable to it and to
make restitution to the Trust Estate and the Indenture Estate for any diminution
of the assets thereof resulting therefrom and will indemnify and hold harmless
Lessee and each Indemnitee against any claims incurred or suffered by any such
Person and any reduction in amounts payable out of, or diminution in the assets
of, the Trust Estate or the Indenture Estate resulting from any such Trustee's
Lien attributable to it. For purposes of this paragraph, "Trustee's Lien" means
any Lien or disposition of title attributable to Indenture Trustee in its
individual capacity (and not as Indenture Trustee), Pass Through Trustee in its
individual capacity (and not as Pass Through Trustee) or Subordination Agent in
its individual capacity (and not as Subordination Agent) on or in respect of (as
the case may be) the Aircraft or any other portion of the Trust Estate or the
Trust Indenture Estate arising as a result of (i) Claims against such Person not
related to its interest in the Aircraft or the administration of the Trust
Estate or the Trust Indenture Estate pursuant to the Indenture, whether under
Section 9-207(2)(e) of the Uniform Commercial Code or otherwise, (ii) acts or
omissions of such Person not contemplated hereunder or under the other Operative
Documents, or acts or omissions of such Person which are in violation of any of
the Operative Documents, or (iii) Taxes imposed on or Claims against such Person
which are excluded from indemnification by Lessee, or (iv) Claims against such
Person arising out of the voluntary or involuntary transfer by such Person of
all or any portion of its interest in the Aircraft, the Airframe, any Engine,
the Trust Estate, the Trust Indenture Estate or the Operative Documents (except
a Claim resulting from the exercise of remedies under and in accordance with the
Indenture or for a transfer provided for in the Operative Documents).
Each of the Original Head Lessee and Parent Guarantor jointly
and severally covenants and agrees with each other party hereto that it shall
not cause or permit to exist a Sublessor's Lien (as defined in the Sublease)
attributable to it or other Lien or disposition of title created by or through
Original Head Lessee, Parent Guarantor or any Affiliate of either thereof which
would have constituted a Sublessor's Lien had the Sublease remained in effect
with respect to the Aircraft or any other portion of the Trust Estate or the
Indenture Estate. Each of the Original Head Lessee and Parent Guarantor
severally agrees that it will promptly, at its own expense (and without any
right of indemnification or reimbursement from Lessee), take such action as may
be necessary duly to discharge any such Sublessor's Lien attributable to it or
other Lien or disposition of title created by or through Original Head Lessee,
Parent Guarantor, or any Affiliate of either thereof which would have
constituted a Sublessor's Lien had the Sublease remained in effect and to make
restitution to the Trust Estate and the Indenture Estate for any
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diminution of the assets thereof resulting therefrom and will indemnify and hold
harmless Lessee and each Indemnitee against any claims incurred or suffered by
any such Person and any reduction in amounts payable out of, or diminution in
the assets of, the Trust Estate or the Indenture Estate resulting from any such
Sublessor's Lien attributable to it or other Lien or disposition of title
created by or through Original Head Lessee, Parent Guarantor, or any Affiliate
of either thereof which would have constituted a Sublessor's Lien had the
Sublease remained in effect.
In no event will Lessee be liable for any Claims resulting
from, pertaining to, arising from, or related to the granting, creation or
existence of a Lessor's Lien, a Head Lessor's Lien, a Lenders' Lien, or a
Sublessor's Lien (including, without limitation, Claims against Lessor and
Original Head Lessee with respect to Buyer Furnished Equipment) or other Lien or
disposition of title created by or through Original Head Lessee, Parent
Guarantor or any Affiliate of either thereof which would have constituted a
Sublessor's Lien had the Sublease remained in effect.
The Parent Guarantor covenants and agrees that it shall cause
the Original Head Lessee to perform its obligations under this Section 13.
SECTION 14. Certain Additional Provisions Relating to Original
Head Lessee, Parent Guarantor, Trust Company, Owner Trustee and Owner
Participant. (a) Each of Owner Participant and Trust Company hereby agrees with
Lessee and Indenture Trustee (i) to comply with the terms of the Trust
Agreement, (ii) not to amend, supplement, or otherwise modify the Trust
Agreement and (iii) not to terminate or revoke the Trust Agreement.
(b) Notwithstanding anything to the contrary in the Trust
Agreement, but subject always to the provisions of Section 14(c) hereof, Owner
Participant shall not consent to or direct a change in the situs of the Trust
Estate so long as a successor Owner Trustee meeting the requirements of the
Trust Agreement is reasonably available at the present situs of the Trust Estate
(A) unless the Indenture Trustee, the Original Head Lessee and Lessee shall have
been given 45 days' prior notice thereof and (B) if, within 45 days after notice
of such a proposed change is given to Lessee and the Original Head Lessee,
either (1) Lessee or Original Head Lessee delivers to Owner Participant and
Owner Trustee (at the expense of Owner Participant) an opinion of counsel, which
counsel shall be reasonably satisfactory to Owner Participant and Owner Trustee,
to the effect that such proposed change in the situs of the Trust Estate would
have an adverse effect on the rights or obligations of Lessee or Original Head
Lessee or (2) Lessee or Original Head Lessee delivers to Owner Participant and
Owner Trustee (at the expense of Owner
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Participant) an opinion of counsel, which counsel shall be reasonably
satisfactory to Owner Participant and Owner Trustee, to the effect that such
proposed change in the situs of the Trust Estate would cause an increase in the
amount for which Lessee may be required to indemnify any Person pursuant to the
provisions of Section 10 of the Lease or for which Original Head Lessee is
required to indemnify any Person pursuant to the provisions of the Second
Amended and Restated Head Lease TIA, unless any and all Persons entitled to
indemnification pursuant to Section 10 of the Lease or applicable provision of
the Second Amended and Restated Head Lease TIA shall waive indemnification under
Section 10 of the Lease or applicable provision of the Second Amended and
Restated Head Lease TIA for any adverse tax or other consequences to it of such
a change in the situs of the Trust Estate, (C) unless Indenture Trustee receives
from Owner Participant an opinion of counsel, which counsel shall be reasonably
satisfactory to Indenture Trustee, to the effect that such proposed change in
the situs of the Trust Estate would not have an adverse effect on the validity
or priority of the Lien of the Indenture and that such Uniform Commercial Code
and FAA filings as are required to maintain the validity and priority of the
Lien of Indenture have been made, and (D) such change does not affect the
registration of the Aircraft.
(c) Owner Participant agrees that if, at any time, the Trust
Estate has become, or in Lessee's good faith opinion will become, subject to any
Taxes for which it is indemnified pursuant to Section 10 of the Lease and if, as
a consequence thereof, Lessee should request that the situs of the trust be
moved to another state in the United States of America from the state in which
it is then located, the situs of the trust shall be moved and Owner Participant
will take whatever action may be requested by Lessee that is reasonably
necessary to accomplish such removal; provided that (A) Lessee shall provide
such additional tax indemnification with respect to such change of situs and
request of Lessee as Original Head Lessee, Owner Participant or the Indenture
Trustee may reasonably request, (B) promptly after notice thereof Owner
Participant has not notified Lessee and provided reasonable evidence of an
adverse effect on Owner Participant's rights or obligations under the Trust
Agreement, (C) Indenture Trustee shall have received an opinion of counsel
selected by Lessee, which counsel shall be reasonably satisfactory to Indenture
Trustee, to the effect that the validity and priority of the Lien of the
Indenture Estate will not be adversely affected by such action, and that such
Uniform Commercial Code and FAA filings as are required to maintain the validity
and the priority of the Lien of the Indenture have been made, (D) Owner
Participant and Indenture Trustee shall have received an opinion or opinions of
counsel selected by Owner Participant to the effect that, with customary
exceptions, (I) the trust, as thus removed, shall remain a validly established
trust, (II) any amendments to the Trust Agreement or the
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Indenture necessitated by such removal shall have been duly authorized, executed
and delivered by the parties thereto and shall constitute the legal, valid and
binding obligations of such parties, enforceable in accordance with their terms,
(III) if such removal involves the replacement of Owner Trustee, an opinion of
counsel to such successor Owner Trustee in form and substance reasonably
satisfactory to Indenture Trustee and to Owner Participant covering the matters
described in the opinion described in Section 3(j) hereof, and (IV) covering
such other matters as Owner Participant or the Indenture Trustee may reasonably
request, and (E) Lessee shall indemnify and hold harmless on an after tax basis
Owner Trustee, Owner Participant and their respective Affiliates and Indenture
Trustee against any and all reasonable and actual costs and expenses including
reasonable attorneys' fees and disbursements, registration, recording or filing
fees and other Taxes incurred by Owner Trustee, Owner Participant and their
respective Affiliates, or Indenture Trustee in connection with such change of
situs and shall indemnify and hold harmless Owner Participant, Owner Trustee and
their respective Affiliates, and Indenture Trustee on an after tax basis from
and against any increase in Taxes borne by such Person that results from such
change in situs.
(d) Owner Trustee or any successor may resign or be removed by
Owner Participant, a successor Owner Trustee may be appointed, and a corporation
may become Owner Trustee under the Trust Agreement, only in accordance with the
provisions of Article X of the Trust Agreement. Owner Participant agrees
promptly to appoint a successor Owner Trustee in the event that Owner
Participant has actual knowledge that Owner Trustee is not in compliance with
its covenants contained herein. No successor Owner Trustee shall be appointed
unless Lessee and Indenture Trustee shall have given written consent thereto,
which consent shall not be unreasonably withheld. Owner Participant will not
instruct Owner Trustee to terminate any Operative Document or take any action
thereunder in violation of the terms thereof. Owner Participant shall not
transfer any interest in the Trust Estate except in compliance with Section 10
hereof and the Trust Company shall not permit Owner Trustee to engage in any
business other than owning and leasing the Aircraft as contemplated hereby.
Lessee shall pay expenses relating to the resignation or, if requested by
Lessee, the removal of Owner Trustee, provided that the Owner Participant shall
pay expenses relating to the removal of the Owner Trustee, if such removal was
at the request of the Owner Participant.
(e) The Trust Company agrees that if at any time it shall
obtain actual knowledge that it has ceased to be or will likely cease to be a
Citizen of the United States, it will promptly resign as Owner Trustee (if and
so long as such citizenship is necessary under such Federal Aviation Act or any
other law to permit the continued registration of the Aircraft in the
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name of the Lessor or, if it is not necessary, if and so long as Owner Trustee's
citizenship would have any material adverse effect on any holder of Equipment
Notes, the Lessee or any Permitted Sublessee), effective upon the appointment of
the successor Owner Trustee in accordance with Section 10.1 of the Trust
Agreement.
SECTION 15. Certain Retained Rights and Releases. (a)
Each of Owner Trustee, Indenture Trustee, Lessee and Owner
Participant hereby agrees to and confirms that they are bound by
the terminations, assignments, delegations, releases and
amendments set forth in or contemplated by Lease Amendment No. 1
and the Second Amended and Restated Lease.
(b) Each of Parent Guarantor, Original Head Lessee and Lessee
agree as among themselves that the following rights, benefits, obligations and
liabilities (such rights, benefits, obligations and liabilities are,
collectively, the "Retained Sublease Rights and Obligations"), shall survive the
termination of the Sublease and the Sublease Guaranty: (i) Lessee, Original Head
Lessee and Parent Guarantor shall retain all rights, benefits, obligations and
liabilities under the Sublease, including that Sublessee shall remain liable for
all of its obligations under Sections 10 and 13 of the Sublease, with respect to
the period up to (but excluding) the Restatement Date and each of Parent
Guarantor, Original Head Lessee and Lessee shall retain all rights and
liabilities under any provision of the Sublease which by the express terms
thereof survives the termination or expiration thereof (including, without
limitation, any such liability arising from and including the Restatement Date
under the Sublease in respect of the period up to (but excluding), or acts or
omissions or circumstances arising prior to (but excluding), the Restatement
Date), (ii) all rights, benefits, obligations and liabilities under the Sublease
TIA (which rights, benefits, obligations and liabilities are amended and
restated as of the Restatement Date) and (iii) Original Head Lessee and Parent
Guarantor shall remain liable to Sublessee under the Sublease and the Sublease
Guaranty for Sublessor's Liens (as therein defined); all of which rights,
benefits, obligations and liabilities shall expressly survive the termination of
the Sublease and the Sublease Guaranty. In furtherance of the foregoing, it is
agreed that (x) Original Head Lessee shall continue to be liable to the
Sublessee as and to the extent provided hereunder for removal of Sublessor's
Liens and (y) Parent Guarantor is hereby released from any and all obligations
and liabilities under the Sublease Guaranty, other than in respect of the
obligations and liabilities of the Original Head Lessee in respect of
Sublessor's Liens as provided above.
(c) Each of the Lessee, Owner Trustee and Owner Participant
agree as among themselves that the following rights, benefits, obligations and
liabilities shall survive the termina-
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tion of the Sublease: (i) Owner Trustee, Owner Participant and the other
"Indemnitees" (as such term is defined in the Sublease) other than Original Head
Lessee and Parent Guarantor and (ii) the Lessee shall retain all rights,
benefits, obligations and liabilities under the Sublease, including that
Sublessee shall remain liable for all of its obligations under Sections 10 and
13 of the Sublease, with respect to the period up to (but excluding) the
Restatement Date and each of Lessee, Owner Trustee and Owner Participant shall
retain all rights and liabilities under any provision of the Sublease which by
the express terms thereof survives the termination thereof (including, without
limitation, any such liability arising on or after the Restatement Date under
the Sublease in respect of the period up to (but excluding), or acts or
omissions or circumstances arising prior to (but excluding) the Restatement
Date), all of which rights, benefits, obligations and liabilities shall
expressly survive the termination of the Sublease. In furtherance of the
foregoing, it is agreed by Sublessee that the indemnities contained in Sections
10 and 13 of the Sublease are expressly made for the benefit of and shall be
enforceable by each Indemnitee (as such term is defined in the Sublease).
(d) Except with respect to the Sublease and the Sublease TIA
to the extent provided in Section 15(b) and (c) hereof, it is expressly
understood and agreed by each of the parties hereto that the Original Head
Lessee and the Parent Guarantor shall, as of the Restatement Date, have no
liabilities or obligations under the "Operative Documents" (as defined in the
Original Head Lease as in effect immediately prior to the Restatement Date and
excluding the Head Lease TIA (which rights, benefits, obligations and
liabilities are amended and restated as of the Restatement Date)) and are
released from all such obligations and liabilities, except the Original Head
Lessee and the Parent Guarantor pursuant to the Parent Head Lease Guaranty (i)
shall continue to be liable to the parties hereto for the removal of any
Sublessor's Liens and (ii) (without releasing Sublessor as provided in the
Sublease) each of the Original Head Lessee, the Parent Guarantor, the Owner
Trustee, the Indenture Trustee and the Owner Participant agree as among
themselves and for the benefit of the other "Indemnitees" (as such term is
defined in the Original Head Lease) that all rights, benefits, obligations and
liabilities under Sections 7(c) and 7(d) of the Participation Agreement with
respect to the period up to (but excluding) the Restatement Date and under any
other provision of the Participation Agreement which by the express terms
thereof survives the termination thereof (including, without limitation, any
such liability arising from and including the Restatement Date under the
Participation Agreement in respect of the period up to (but excluding), or acts
or omissions or circumstances arising prior to (but excluding), the Restatement
Date) shall survive the termination of the Participation Agreement, the Original
Head Lease and the Parent Head Lease Guaranty (the
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foregoing surviving rights, benefits, obligations and liabilities of Parent
Guarantor and Original Head Lessee, are, collectively, the "Retained Head Lease
Rights and Obligations"). In furtherance of the foregoing, the parties hereto
consent and agree that the Parent Guarantor is hereby released from any and all
"Obligations" under and as defined in the Parent Head Lease Guaranty, except in
respect of the Retained Head Lease Rights and Obligations and except in respect
of the Second Amended and Restated Head Lease TIA, the "Obligations" in respect
of which shall continue in full force and effect in accordance with the Parent
Head Lease Guaranty and are hereby ratified and confirmed by the Parent
Guarantor.
(e) The Owner Participant hereby directs the Owner Trustee,
and the Owner Trustee hereby agrees for the benefit of the Owner Participant,
the Indenture Trustee, the Original Head Lessee, the Parent Guarantor, GPA
Offshore and, to the extent provided in paragraph (ii) below, Lessee, that it
shall, provided no Event of Default under the Lease shall have occurred and be
continuing and the Lease shall not have been declared or deemed in default:
(i)(A) with respect to the Japanese Financing
Documents (as defined in the Indenture) to which it is or is
made a party (or under which it has rights or obligations),
and subject to the terms and conditions thereof, comply with
all of the provisions with which it has undertaken to comply
pursuant to the Second Japanese Lease Assignment that impose
on Owner Trustee a duty or obligation, if and to the extent
not performed or complied with, or required to be performed or
complied with, by the Original Head Lessee or an Affiliate
thereof, and not take any affirmative action that is in
violation of any provisions (whether or not the Owner Trustee
is bound by such provisions) of such Japanese Financing
Documents or this Section 15, (B) observe and fulfill all
conditions to be fulfilled by it pursuant to any of the
Japanese Financing Documents in order to exercise rights under
such documents which are vested in it, and (C) except as
provided in paragraphs (iv), (v), (vi) and (vii) below and in
Section 15(f) and (h), not exercise any discretionary actions
under or with respect to the Japanese Financing Documents
except solely at the written direction or with written consent
of the Original Head Lessee or the Parent Guarantor or, if an
Event of Default under the Lease shall have occurred and be
continuing and the Lease shall have been declared or deemed to
be in default, of the Indenture Trustee (so long as the Lien
of the Indenture shall not have been discharged) or the Owner
Participant (thereafter) and the Trust Company
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shall comply with any such directions given in
accordance with the provisions of this Section 15;
(ii) not amend, supplement or otherwise modify or
waive any provision of the Japanese Financing Documents or
consent to any such amendment, supplement, modification or
waiver, or grant any consent requested under any provision
thereof, in any such case without the prior written consent of
the Original Head Lessee, the Parent Guarantor, the Owner
Participant, and (so long as the Lien of the Indenture shall
not have been discharged) the Indenture Trustee and, if any
obligation of the Lessee hereunder or under the Lease would be
increased thereby, the Lessee;
(iii) deliver promptly to the Original Head Lessee,
the Lessee and (so long as the Lien of the Indenture shall not
have been discharged) the Indenture Trustee, copies of all
notices and other documents given by the Owner Trustee or
received by it under any of the Japanese Financing Documents
and copies of all amendments, supplements and modifications
entered into from time to time to any Japanese Financing
Documents to which it is or is made a party (or under which it
possesses rights);
(iv) exercise the purchase option provided for in
Section 19 of the Japanese Lease effective (unless the
Japanese Lease has previously been terminated in accordance
with its terms) at the end of the scheduled Japanese Lease
term by giving, no later than 120 days prior to the end of
such scheduled Term, a written notice to the Japanese Lessor
of the Owner Trustee's election to exercise such purchase
option; provided that if the Owner Trustee shall fail to give
such notice to the Japanese Lessor on or prior to such 120th
day, each of the Owner Participant, the Original Head Lessee
and the Indenture Trustee may at any time thereafter cause
such purchase option to be exercised directly in the name of
and on behalf of the Owner Trustee;
(v) exercise the rights of termination provided for
in Sections 9(a), 9(b) and 9(c) and the related purchase
option provided for in Section 9(e) of the Japanese Lease,
effective as of any time when such rights of termination and
related purchase option are exercisable under said Sections
9(a), 9(b), 9(c) and 9(e), at the direction of the Original
Head Lessee (other than the end of the scheduled Japanese
Lease Term and other than as otherwise provided in this
Section 15); provided that, with respect to any right
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of termination effected pursuant to Section 9(b)(ii),
9(b)(iii), 9(b)(iv) and 9(d)(i) (for an acceleration of the
loan pursuant to subparagraphs (b), (c), (d), (e), (f) or (k)
of Section 5.1 of the Japanese Loan Agreement) of the Japanese
Lease, such right of termination and related purchase option
shall be exercisable at the direction of the Original Head
Lessee, the Parent Guarantor, the Owner Trustee or the Owner
Participant or (so long as the Lien of the Indenture shall not
have been discharged) the Indenture Trustee;
(vi) exercise the purchase options referred to in
Section 9 (upon the occurrence of a termination) and 10(a)(ii)
of the Japanese Lease (upon the occurrence of an Event of Loss
thereunder without replacement of the Airframe, under the
Lease), at the direction of the Original Head Lessee, the
Parent Guarantor, the Owner Trustee or (so long as the Lien of
the Indenture has not been discharged) the Indenture Trustee;
(vii) anything contained in this Section 15 to the
contrary notwithstanding, exercise the purchase option
referred to in Section 15(a) of the Japanese Lease, at the
direction of the Indenture Trustee (so long as the Lien of the
Indenture has not been discharged) and, if the Lien of the
Indenture shall have been discharged, the Owner Participant or
the Original Head Lessee; and
(viii) not exercise any right to terminate or revoke
any Japanese Financing Document, except as provided in this
Section 15.
(f) (i) Provided that no Event of Default under the Lease
shall have occurred and be continuing and the Lease shall not have been declared
or deemed in default, any rights or claims that the Owner Trustee or the
Indenture Trustee may have against the Japanese Lessor with respect to any of
its representations, warranties and covenants under the Japanese Lease or any of
the other Japanese Financing Documents may be enforced by the Original Head
Lessee or the Parent Guarantor on behalf of the Owner Trustee or the Indenture
Trustee, directly by the Original Head Lessee in its own name or in the name of
or by the Owner Trustee or the Indenture Trustee; provided that if such rights
or claims are exercised by the Owner Trustee or the Indenture Trustee (A) the
Original Head Lessee and the Parent Guarantor shall be subrogated to any such
rights of the Owner Trustee or the Indenture Trustee to the extent of any
recovery by the Owner Trustee in respect thereof and (B) no such right or claim
shall be enforced in a manner inconsistent with the provisions of this
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Section 15 specifying the party or parties entitled to take particular actions.
(ii) Notwithstanding any other provision of this Section 15,
should any provision of the Lease (including, without limitation, Sections 6, 9
and 11 thereof) require transfer of title to, or a release of the Lien of the
Indenture on, the Aircraft, the Airframe or an Engine at a time when the
Japanese Lease is in effect, after written notice thereof to and at the request
and sole expense of the Original Head Lessee, the Owner Participant shall direct
the Owner Trustee to use its reasonable best efforts to cause the Japanese
Lessor to transfer such title pursuant to the terms of the Japanese Lease to the
Owner Trustee free and clear of all Japanese Lessor Liens.
(g) The Indenture Trustee shall not exercise any of the Owner
Trustee's rights under the Japanese Financing Documents that have been assigned
to the Indenture Trustee pursuant to the Indenture except as provided therein
and in this Section 15. The Indenture Trustee consents to the performance by the
Owner Trustee of the Owner Trustee's obligations under Sections 15(e) and 15(f)
hereof and to the Original Head Lessee's and the Parent Guarantor's rights set
forth therein.
(h) Without limiting the foregoing, the Original Head Lessee
and the Parent Guarantor hereby jointly and severally agree to procure the
performance by the Japanese Lessee of its obligation to pay to the Japanese
Lessor the Special Termination Payment (as defined in the Japanese Lease) in
full when due upon any termination of the Japanese Lease pursuant to the
provisions thereof. In furtherance thereof the Parent Guarantor has charged in
favor of the Indenture Trustee an amount equal to the amount needed to fully
satisfy the Japanese Lessee's obligation to make such Special Termination
Payment to the Japanese Lessor, and authorizes and instructs the Indenture
Trustee to exercise the rights of the Chargee under and as defined in the Yen
Deposit Charge Agreement upon any termination of the Japanese Lease and the
Special Termination Payment becoming due. The Original Head Lessee and the
Parent Guarantor do hereby confirm to and agree with the Owner Trustee and the
Indenture Trustee that (i) the Lease is and shall be deemed to be an Affiliated
Sublease as defined in the Japanese Financing Documents and for the purpose of
Section 14(j) of the Japanese Lease and (ii) upon the occurrence of an Event of
Default under the Lease and the Lease having been declared or deemed in default
and the exercise of one or more remedies under the Lease, the Indenture Trustee
(so long as the Lien of the Indenture has not been discharged) and, if the Lien
of the Indenture shall have been discharged, the Owner Trustee is hereby
authorized, in their sole and absolute discretion, to deliver the certificate
referred to in such Section 14(j) of the Japanese Lease and/or effect a
voluntary termination of the Japanese Lease pursuant to the provisions
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thereof and in connection therewith to cause the Cash Deposit to be applied to
the payment due to the Japanese Lessor thereunder. The Indenture Trustee agrees
that upon the discharge of the Lien of the Indenture it shall, if the Yen
Deposit Agreement and the Yen Deposit Charge Agreement are still in effect,
assign to the Owner Trustee its rights as Chargee under the Yen Deposit Charge
Agreement. The Owner Trustee and Indenture Trustee hereby agree to release or
cause the release to the Parent Guarantor of any amounts consisting of the Cash
Deposit or otherwise covered by the Yen Deposit Agreement or Yen Deposit Charge
Agreement in excess of the Special Termination Payment amount from time to time
and acknowledge and agree that such charges and agreements will be deemed
released upon the expiration of the Japanese Lease, or the termination thereof
and payment of the Special Termination Payment.
(i) The Lessee agrees with the Original Head Lessee, the Owner
Trustee, the Indenture Trustee, GPA Offshore and the Parent Guarantor that the
Lessee will perform all of its covenants and obligations under the Lease,
including Section 12(a) thereof, for the purposes of ensuring compliance with
corresponding obligations under the Japanese Lease.
(j) The Owner Participant hereby directs the Owner Trustee,
and the Owner Trustee hereby agrees to pay to the Parent Guarantor, after
payment to the Owner Participant of the OP SLV Amount set forth in Schedule IV
hereto, the GPA SLV Amount set forth on Schedule V hereto from all and any
amounts paid payable to the Owner Trustee or the Owner Participant upon the
occurrence of an Event of Loss.
SECTION 16. Certain Additional Obligations of the Lessee, the
Owner Trustee, the Owner Participant and the Indenture Trustee. Each of Lessee,
Owner Trustee, Owner Participant and Indenture Trustee hereby covenants and
agrees for the benefit of each other that it will be bound by the terms of the
other Operative Documents to which it or its applicable trustee is a party, and
comply with and perform its agreements, covenants and indemnities set forth in
the other Operative Documents to which it or its applicable trustee is a party,
as amended, supplemented or otherwise modified from time to time as permitted
hereby.
SECTION 17. Lessee Protection of Title. Each of the Owner
Trustee and the Indenture Trustee agrees to execute and deliver such documents
or other instruments as the Lessee may reasonably request to enable the Lessee
to perform its obligations under Section 15 of the Lease for the benefit of such
Person.
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SECTION 18. Jurisdictional and Related Matters.
(a) Jurisdiction. Each of Owner Participant, Owner Trustee,
Trust Company, Indenture Trustee, Original Head Lessee, Parent Guarantor and
Lessee (i) hereby irrevocably submits for itself and its property to the
nonexclusive jurisdiction of the courts of the State of New York in New York
County, and to the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York, for the purposes of any suit, action or
other proceeding arising out of this Agreement, the Lease or any other Operative
Document or any of the transactions contemplated hereby or thereby, and (ii)
hereby waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, to the extent permitted by
applicable law, any immunity (including, without limitation, sovereign
immunity), that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper, or that
this Agreement, the Lease or any other Operative Document or any of the
transactions contemplated hereby or thereby may not be enforced in or by such
courts.
(b) Service of Process. Lessee generally consents to service
of process by registered mail, return receipt requested, addressed to it at 4000
East Sky Harbor Blvd., Phoenix, Arizona 85034 or such other office of Lessee as
from time to time may be designated by Lessee in writing to Owner Trustee,
Original Head Lessee, Owner Participant and Indenture Trustee. Parent Guarantor
hereby appoints Paul, Hastings, Janofsky & Walker LLP, Attention: John
Howitt/Leigh Ryan, located at 399 Park Avenue, New York, New York 10022, as its
agent for service of process, and covenants and agrees that service of process
in any suit, action or proceeding may be made upon it at the office of such
agent or such other office of Parent Guarantor or such other agent, as from time
to time may be designated by Parent Guarantor in writing to Owner Trustee, Owner
Participant and Indenture Trustee. Original Head Lessee hereby generally
consents to service of process by registered mail, return receipt requested,
addressed to it at c/o GPA Corporation, 83 Wooster Heights Road, Danbury,
Connecticut 06810 or such other office of Original Head Lessee as from time to
time may be designated by Original Head Lessee in writing to Owner Trustee,
Owner Participant and Indenture Trustee. Owner Participant generally consents to
service of process by registered mail, return receipt requested, addressed to it
at ____________________________________ or such other office of Owner
Participant as from time to time may be designated by Owner Participant in
writing to Owner Trustee, Original Head Lessee, Lessee and Indenture Trustee.
Owner Trustee generally consents to service of process by registered mail,
return receipt requested, addressed to it at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-0001 or such other office of Owner
Trustee as from time to time may be
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designated by Owner Trustee in writing to Owner Participant, Original Head
Lessee, Lessee and Indenture Trustee. Indenture Trustee generally consents to
service of process by registered mail, return receipt requested, addressed to it
at 450 West 33rd Street, New York, New York 10001 or such other office of
Indenture Trustee as from time to time may be designated in writing to Owner
Participant, Original Head Lessee, Owner Trustee and Lessee.
(c) Judgments. A final judgment (the enforcement of which has
not been stayed) against Owner Participant, Owner Trustee, Lessee, Original Head
Lessee, Parent Guarantor and Indenture Trustee obtained in any suit in the court
of the State of New York in New York County or in the United States District
Court for the Southern District of New York shall be conclusive, and, to the
extent permitted by applicable law, may be enforced in other jurisdictions by
suit on the judgment, a certified or true copy of which shall be conclusive
evidence of the fact and of the amount of any indebtedness or liability of
Lessee therein described; provided that the plaintiff at its option may bring
suit, or institute other judicial proceedings against, Lessee or any of its
assets in the courts of any country or place where Lessee or such assets may be
found.
SECTION 19. Limitation on Recourse. The provisions of Section
2.03(a) of the Indenture are hereby incorporated herein by reference mutatis
mutandis as fully and with the same force and effect as if set forth in full.
SECTION 20. Notices. Unless otherwise specifically provided
herein, all notices required or permitted by the terms of this Agreement shall
be in English and in writing, and shall be sent to the Original Head Lessee, the
Parent Guarantor, Lessee, the Owner Participant, the Owner Trustee, the Pass
Through Trustee, the Subordination Agent or the Indenture Trustee, at their
respective addresses or facsimile numbers set forth below the signatures of such
parties at the foot of this Agreement and any such notice shall become effective
when received.
SECTION 21. Expenses. (a) Subject to receipt by the Original
Head Lessee of invoices therefor in reasonable detail prior to the Restatement
Date, all of the reasonable out-of-pocket costs, fees and expenses incurred by
the Lessee, the Owner Trustee, the Owner Participant, the Pass Through Trustee,
the Subordination Agent, the Liquidity Provider, the Indenture Trustee and the
Original Certificate Holders in connection with the transactions contemplated by
this Agreement, the other Operative Documents, the Lease, the Pass Through Trust
Agreements, the Intercreditor Agreement, the Liquidity Facilities and the
Underwriting Agreement (except, in each case, as otherwise
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68
provided therein) shall be paid on or prior to the Closing by the Original Head
Lessee, including, without limitation:
(1) the reasonable fees, expenses and disbursements
allocable to the Equipment Notes issued under the Indenture of
(A) Shipman & Goodwin LLP, special counsel for the Pass
Through Trustee and the Subordination Agent, (B) Kelley Drye &
Warren LLP, special counsel for the Indenture Trustee, (C)
Morris, James, Hitchens & Williams, special counsel for the
Owner Trustee, (D) Daugherty, Fowler & Peregrin, special
counsel in Oklahoma City, Oklahoma and (E) Milbank, Tweed,
Hadley & McCloy, special counsel for the Underwriters;
(2) the reasonable fees, expenses and disbursements
of Morgan, Lewis & Bockius LLP, special counsel for the Owner
Participant;
(3) the fees, expenses and disbursements of
Andrews & Kurth L.L.P. and Latham & Watkins, special
counsel for the Lessee;
(4) underwriting fees and commissions;
(5) the initial fees and expenses of the
Liquidity Provider, the Pass Through Trustee, the
Indenture Trustee, the Owner Trustee and the
Subordination Agent;
(6) the costs of filing and recording documents with
the FAA and filing Uniform Commercial Code financing
statements in the United States of America; and
(7) the reasonable fees, expenses and disbursements
of White & Case, special counsel for the Liquidity Provider.
(b) In the event that the transactions contemplated by this
Section 21 and the agreements referred to herein are not consummated, the
Original Head Lessee shall bear and pay all costs, expenses and fees referred to
in this Section 21.
(c) The Lessee agrees to pay the amounts it is
obligated to pay under Section 21(j) of the Lease.
SECTION 22. Reliance of Liquidity Provider. Each of the
parties hereto agrees and acknowledges that the Liquidity Provider shall be a
third party beneficiary of each of the representations and warranties made
herein by such party, and that the Liquidity Provider may rely on such
representations and warranties to the same extent as if such representations and
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69
warranties were made to the Liquidity Provider directly. The terms of this
Agreement shall inure to the benefit of the Liquidity Provider, its successors
and permitted assigns.
SECTION 23. Miscellaneous. (a) Provided that the transactions
contemplated hereby have been consummated, and except as otherwise provided for
herein, the representations and warranties herein of the Original Head Lessee,
the Parent Guarantor, the Lessee, the Owner Trustee, the Indenture Trustee, the
Owner Participant, the Subordination Agent and the Pass Through Trustee shall
survive the execution and delivery of this Agreement. This Agreement may be
executed in any number of counterparts (and each of the parties hereto shall not
be required to execute the same counterpart). Each counterpart of this
Agreement, including a signature page executed by each of the parties hereto,
shall be an original counterpart of this Agreement, but all of such counterparts
together shall constitute one instrument. Neither this Agreement nor any of the
terms hereof may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by each party hereto; and no
such termination, amendment, supplement, waiver or modification shall be
effective unless a signed copy thereof shall have been delivered to each party
hereto. The index preceding this Agreement and the headings of the various
Sections of this Agreement are for convenience of reference only and shall not
modify, define, expand or limit any of the terms or provisions hereof. The terms
of this Agreement shall be binding upon, and shall inure to the benefit of, the
Original Head Lessee and its successors and permitted assigns, the Parent
Guarantor and its successors and permitted assigns, the Lessee and its
successors and permitted assigns, the Pass Through Trustee and its successors as
Pass Through Trustee (and any additional trustee appointed) under any of the
Pass Through Trust Agreements, the Indenture Trustee and its successors as
Indenture Trustee (and any additional Indenture Trustee appointed) under the
Indenture, the Subordination Agent and its successors as Subordination Agent
under the Intercreditor Agreement, the Owner Trustee and its successors as Owner
Trustee under the Trust Agreement, and the Owner Participant and its successors
and permitted assigns. No purchaser or holder of any Equipment Notes shall be
deemed to be a successor or assign of any holder of the Original Certificates.
(b) Upon the release of the Aircraft from the lien of the
Indenture and the termination of the Indenture pursuant to and in accordance
with Section 10.01 thereof, each requirement in the Operative Documents that the
consent of Indenture Trustee be obtained or that the Indenture Trustee be given
notice shall be of no further force and effect.
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70
(c) The Lessee agrees for the express benefit of the Indenture
Trustee to perform its obligations under Section 8(k) of the Lease.
(d) The parties hereto agree for the benefit of the Lessee
that the Lessee can rely on the options, elections, determinations, consents,
approvals, waivers and notices given, exercised or made by the Owner Trustee
under the Lease to the extent reserved to the Owner Trustee pursuant to Section
5.10(d) of the Indenture.
(e) Notwithstanding anything to the contrary in any Operative
Document, the parties hereto hereby agree that the Put Termination Agreement and
the Deed of Indemnity (as such terms are defined herein) shall not constitute
Operative Documents or Financing Documents.
SECTION 24. Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. THIS AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.
SECTION 25. Effectiveness. The parties hereto agree
that this Agreement shall be effective among all such parties on
and as of the Restatement Date.
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71
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers there unto duly
authorized as of the day and year first above written.
AMERICA WEST AIRLINES, INC.
By:______________________________
Name:
Title:
Address: 4000 East Sky Harbor Blvd.
Phoenix, Arizona 85034
Telex: 755089 (Answerback: AMERWEST)
Telephone: (602) 693-5785
Telecopier: (602) 693-5904
Attention: Senior Vice President -
Legal Affairs
GPA LEASING USA SUB I, INC.
By:______________________________
Name:
Title:
Address: c/o GPA Corporation
83 Wooster Heights Road
Danbury, Connecticut 06810
Telephone: (203) 830-4760
Telecopier: (203) 830-4764
Attention: Company Secretary
GPA GROUP plc
By:______________________________
Name:
Title:
Address: GPA House
Shannon, County Clare
Ireland
Telephone: 011-353-61360-051
Telecopier: 011-353-61360-000
Attention: Company Secretary
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72
WILMINGTON TRUST COMPANY,
not in its individual
capacity, except as
expressly provided herein,
but solely as Owner Trustee
By:______________________________
Name:
Title:
Address: Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
Attention: Corporate Trust
Administration
[-----------------------------]
By:______________________________
Name:
Title:
Address:
Telephone:
Telecopier:
Attention:
THE CHASE MANHATTAN BANK,
not in its individual
capacity, except as
otherwise provided herein,
but solely as Indenture
Trustee
By:_______________________________
Name:
Title:
Address: 450 West 33rd Street
New York, New York 10001
Telephone: (212) 946-3348
Telecopier: (212) 946-8160
Attention: Corporate Trust
Department
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73
FLEET NATIONAL BANK, not in
its individual capacity,
except as otherwise
provided herein, but solely
as Subordination Agent
By:______________________________
Name:
Title:
Address: 777 Main Street
CTMO 0238
Hartford, Connecticut 06115
Telephone: (860) 986-4545
Telecopier: (860) 986-7920
Attention: Corporate Trust
Administration
FLEET NATIONAL BANK, not in
its individual capacity,
except as otherwise
provided herein, but solely
as Pass Through Trustee
By:_______________________________
Name:
Title:
Address: 777 Main Street
CTMO 0238
Hartford, Connecticut 06115
Telephone: (860) 986-4545
Telecopier: (860) 986-7920
Attention: Corporate Trust
Administration
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74
SCHEDULE I to
Refunding Agreement
PASS THROUGH TRUST AGREEMENTS
1. Pass Through Trust Agreement, dated as of November 26, 1996,
between America West Airlines, Inc. and Fleet National Bank,
as supplemented by Trust Supplement No. 1996-1A, dated
November 26, 1996.
2. Pass Through Trust Agreement, dated as of November 26, 1996,
between America West Airlines, Inc. and Fleet National Bank,
as supplemented by Trust Supplement No. 1996-1B, dated
November 26, 1996.
3. Pass Through Trust Agreement, dated as of November 26, 1996,
between America West Airlines, Inc. and Fleet National Bank,
as supplemented by Trust Supplement No. 1996-1C, dated
November 26, 1996.
4. Pass Through Trust Agreement, dated as of November 26, 1996,
between America West Airlines, Inc. and Fleet National Bank,
as supplemented by Trust Supplement No. 1996-1D, dated
November 26, 1996.
75
SCHEDULE II to
Refunding Agreement
EQUIPMENT NOTES, PASS THROUGH TRUSTS AND PURCHASE PRICE
Pass Through Principal Maturity Interest Purchase
Trusts Amount Date Rate Price
------ ------ ---- ---- -----
Class A $ 11,936,662 02-Jan-2006 6.85% $ 11,936,662
Class B $ 4,476,246 02-Jul-2002 6.93% $ 4,476,246
Class C $ 4,476,247 02-Jan-2002 6.86% $ 4,476,246
Class D $ 3,575,831 02-Jul-98 8.16% $ 3,575,831
76
SCHEDULE III to
Refunding Agreement
HOLDERS OF EQUIPMENT NOTES
Payment Instructions
Fleet National Bank, 777 Main Street, Hartford, Connecticut
06115, Attn: Philip Kane, Corporate Trust Administration, Ref.
AWA, for the account of Fleet National Bank Account No. ABA
#011900445, ACCT. # 0067548290.
77
SCHEDULE IV to
Refunding Agreement
OP SLV AMOUNT
[to come]
78
SCHEDULE V to
Refunding Agreement
GPA SLV AMOUNT
[to come]
79
EXHIBIT A to
REFUNDING AGREEMENT
TRANSFEREE'S PARENT GUARANTEE
[GPA 1989 BN-6]
TRANSFEREE'S PARENT GUARANTEE [GPA 1989 BN-6], dated as of
____________ by _________________, a ________________________ corporation
("Guarantor") to and for the benefit of Indenture Trustee (individually and as
trustee), the Original Head Lessee, Owner Trustee and Lessee referred to in the
Refunding Agreement described below (collectively, together with their permitted
successors and assigns, "Beneficiaries" and, individually, a "Beneficiary").
WITNESSETH:
WHEREAS, [______________________], a Delaware corporation
("Transferor"), is the Owner Participant under that certain Refunding Agreement
[GPA 1989 BN-6], dated as of November 20, 1996 among Lessee, Original Head
Lessee, Parent Guarantor, Owner Trustee, Transferor, Pass Through Trustee,
Subordination Agent and Indenture Trustee, as amended, modified or supplemented
from time to time (the "Refunding Agreement");
WHEREAS, Transferor wishes to transfer, except to the extent
expressly reserved to Transferor, all of its right, title and interest in and to
the Refunding Agreement, the Trust Estate, the other Operative Documents to
which Transferor is a party, certain other agreements, instruments and documents
in its capacity as Owner Participant under the Refunding Agreement and all
proceeds therefrom as set forth in the Assignment and Assumption Agreement dated
the date hereof between Transferor and _____________________, a
________________________ corporation ("Transferee"); and
WHEREAS, the terms of the Refunding Agreement provide that the
aforementioned transfer is conditioned upon the execution and delivery of this
Guarantee by Guarantor;
NOW, THEREFORE, Guarantor hereby agrees with and for the
benefit of Beneficiaries as follows:
1. Definitions. As used in this Guarantee, terms defined in the
Refunding Agreement are used herein as therein defined, unless otherwise defined
herein.
2. Guarantee.
(a) Guarantor hereby unconditionally and irrevocably guarantees to
Beneficiaries and their respective successors, endorsees, transferees and
assigns, the prompt and complete payment by Transferee when due (whether at the
stated maturity, by acceleration or otherwise) of, and the faithful performance
of, and compliance with, all payment obligations of Transferee under the
Refunding Agreement, the Second Amended and Restated
80
Head Lease TIA and each other Operative Document to which Owner Participant is a
party and each other Operative Document to which Transferee is a party or by
which either is bound (collectively, the "Relevant Documents"), strictly in
accordance with the terms thereof and the timely performance of all other
obligations of Transferee thereunder (such payment and other obligations, the
"Obligations"), and Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) that may
be paid or incurred by Beneficiaries in enforcing, or obtaining advice of
counsel in respect of, any rights with respect to, or collecting, any or all of
the Obligations and/or enforcing any rights with respect to, or collecting
against, Guarantor under this Guarantee.
(b) No payment or payments made by Transferee, Guarantor, any other
guarantor or any other Person or received or collected by any Beneficiary from
Transferee, Guarantor, any other guarantor or any other person by virtue of any
action or proceeding or any set-off or appropriation or application at any time
or from time to time in reduction of or in payment of the Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of Guarantor
hereunder until the Obligations are paid and performed in full.
(c) If for any reason any Obligation to be performed or observed by
Transferee (whether affirmative or negative in character) shall not be observed
or performed, or if any amount payable by Transferee referred to in Section 1(a)
hereof shall not be paid promptly when due and payable, Guarantor shall promptly
perform or observe or cause to be performed or observed each such Obligation or
undertaking and shall forthwith pay such amount at the place and to the person
or entity entitled thereto pursuant to the Relevant Documents regardless of
whether or not Lessee, Original Head Lessee, Owner Trustee, Pass Through
Trustee, Subordination Agent, Indenture Trustee, or anyone on behalf of any of
them shall have instituted any suit, action or proceeding or exhausted its
remedies or taken any steps to enforce any rights against Transferee or any
other person or entity to compel any such performance or to collect all or any
part of such amount pursuant to the provisions of the Relevant Documents or at
law or in equity, or otherwise, and regardless of any other condition or
contingency.
3. No Subrogation. Notwithstanding any payment or payments made by
Guarantor hereunder or any setoff or application of funds of Guarantor by any
Beneficiary, Guarantor shall not be entitled to be subrogated to any of the
rights of any Beneficiary against Transferee or any collateral, security or
guarantee or right of set-off held by any Beneficiary for the payment of the
Obligations, nor shall Guarantor seek or be entitled to seek any reimbursement
from Transferee in respect of payments made by Guarantor hereunder, until all
amounts and performance owing to Beneficiaries by Transferee on account of the
Obligations are paid and performed in full.
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81
4. Amendments, etc., with respect to the Obligations; Waiver of Rights.
The Guarantor shall remain fully obligated hereunder notwithstanding that,
without any reservation of rights against the Guarantor and without notice to or
further assent by the Guarantor, any demand for payment or performance of any of
the Obligations made by any Beneficiary may be rescinded by such party and any
of the Obligations continued, and the Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by any Beneficiary and any Relevant
Document and/or any collateral security document or other guarantee or document
in connection therewith, may be amended, modified, supplemented or terminated,
in whole or in part, as the parties thereto may deem advisable from time to
time, and any collateral security, guarantee or right of offset at any time held
by any beneficiary for the payment or performance of the Obligations may be
sold, exchanged, waived, surrendered or released. No beneficiary shall have any
obligation to protect, secure, perfect or insure any lien at any time held by it
as security for the Obligations or for this Guarantee or any property subject
thereto. When making any demand hereunder against the Guarantor, a Beneficiary
may, but shall be under no obligation to, make a similar demand on the
Transferee or any other guarantor, and any failure by a Beneficiary to make any
such demand or to collect any payments from the Transferee or any such other
guarantor or any release of the Transferee or such other guarantor shall not
relieve the Guarantor of its obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of any Beneficiary against the Guarantor. For purposes hereof, "demand"
shall include the commencement and continuance of any legal proceedings. The
Guarantor represents and warrants that it owns, directly or indirectly, at least
the portion of the capital stock of the Transferee required by the Refunding
Agreement and that, except as otherwise provided in Section 5 hereof, its
obligations hereunder shall continue unimpaired, even if the Guarantor no longer
owns, directly or indirectly, such portion of the capital stock of the
Transferee.
5. Transfer of Interest in Transferee. Guarantor shall not assign,
convey or otherwise transfer to any person (a) any of its interest in Transferee
unless in connection therewith, Guarantor assigns its rights and obligations
hereunder to a guarantor which meets the requirements of Section 10 of the
Refunding Agreement; provided that nothing contained in this Section 5 shall be
construed to prohibit any merger, consolidation or other corporate restructuring
of Transferee or Guarantor so long as the resulting corporation meets the
requirements of Section 10 of the Refunding Agreement and assumes the
obligations of the corporation merged or consolidated into.
6. Guarantee Absolute and Unconditional. The Guarantor waives any and
all notice of the creation, renewal, extension or
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accrual of any of the Obligations and notice of or proof of reliance by any
Beneficiary upon this Guarantee or acceptance of this Guarantee; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee; and all dealings between the Transferee or the Guarantor
and any Beneficiary shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Guarantee. The Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Transferee or the Guarantor with respect to the Obligations. The
Guarantor understands and agrees that this Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment and performance (and
not merely of collectibility) without regard to (a) the validity, regularity or
enforceability of any Relevant Document, any of the Obligations or any
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by any Beneficiary, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) that may at any time be available to or be asserted by the
Transferee against any Beneficiary, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Transferee or the Guarantor) that
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Transferee for the Obligations, or of the Guarantor under this
Guarantee, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against the Guarantor, any Beneficiary may, but shall be
under no obligation to, pursue such rights and remedies as it may have against
the Transferee or any other person or entity or against any collateral security
or guarantee for the Obligations or any right of offset with respect thereto,
and any failure by any Beneficiary to pursue such other rights or remedies or to
collect any payments from the Transferee or any such other person or entity or
to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of the Transferee or any such other person
or entity or any such collateral security, guarantee or right of offset, shall
not relieve the Guarantor of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of any Beneficiary against the Guarantor. This Guarantee shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Guarantor and the successors and assigns thereof,
and shall inure to the benefit of the Beneficiaries, and their respective
successors, endorsees, transferees and assigns, until all of the Obligations and
the Obligations of the Guarantor under this Agreement shall have been satisfied
by payment and performance in full. The Guarantor further agrees that, without
limiting the generality of this Guarantee, if any Beneficiary (or any assignee
thereof) shall be prevented by applicable law from exercising its remedies (or
any of them) against the Transferee under any Operative Document, such
Beneficiary (or any assignee thereof) shall be entitled to receive hereunder
from the Guarantor, upon demand
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83
therefor, the sums that would have otherwise been due from the Transferee had
such remedies been able to be exercised.
7. Reinstatement. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
any beneficiary upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Transferee or the Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Transferee or the Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made. The
Guarantor shall not commence any "case" (as defined in Title 11 of the United
States Code) against the Transferee.
8. Payments. The Guarantor hereby guarantees that payments hereunder
shall be paid without set-off, counterclaim, deduction or withholding except as
required by law or regulation. If any payment hereunder is subject to deduction
or withholding, Guarantor shall pay an additional amount such that, after
deduction of all amounts required to be deducted or withheld, the net amount
actually received will equal the amount that would have been received had such
deduction or withholding not been required (provided that the recipients of any
payments hereunder shall not be entitled to receive any greater amount than if
Transferee had made such payment).
9. Representations and Warranties. The Guarantor hereby represents and
warrants that:
(a) the Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority and the legal
right to own and operate its property, to lease the property it
operates and to conduct the business in which it is currently engaged;
(b) the Guarantor has the corporate power and authority and
the legal right to execute and deliver, and to perform its obligations
under, this Guarantee, and has taken all necessary corporate action to
authorize its execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally;
(d) the execution, delivery and performance of this Guarantee
will not violate any provision of any requirement of law or contractual
obligation of the Guarantor and will not result in or require the
creation or imposition of any
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84
lien on any of the properties or revenues of the Guarantor
pursuant to any requirement of law or contractual obligation
of the Guarantor;
(e) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or governmental authority and no
consent of any other person (including, without limitation, any
stockholder or creditor of the Guarantor) is required in connection
with the execution, delivery, performance, validity or enforceability
of this Guarantee;
(f) no litigation, investigation or proceeding of or before
any arbitrator or governmental authority is pending or, to the
knowledge of the Guarantor, threatened by or against the Guarantor or
against any of its properties or revenues (i) with respect to this
Guarantee or any of the transactions contemplated hereby or (ii) that
could have a material adverse effect on the business, operations,
property or financial or other condition of the Guarantor;
(g) the balance sheet of the Guarantor as at _________________
and the related statement of income and retained earnings for the
fiscal year then ended (copies of which have heretofore been furnished
to each Beneficiary) have been prepared in accordance with generally
accepted accounting principles applied consistently throughout the
period involved, are complete and correct and present fairly the
financial condition of the Guarantor as at such date and the results of
its operations for such fiscal year; since such date there has been no
material adverse change in the business, operations, property or
financial or other condition of the Guarantor; the Guarantor has no
material contingent obligation, contingent liability or liability for
taxes, long-term lease or unusual forward or long-term commitment that
is not reflected in the foregoing statements or in the notes thereto;
and
(h) the Guarantor is [type of legal personality] with a net
worth of at least $60,000,000.
10. Severability. Any provision of this Guarantee that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11. No Waiver; Cumulative Remedies. No Beneficiary shall by any act
(except by a written instrument pursuant to Section 13 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of
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85
any Beneficiary, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by a Beneficiary of any right
or remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy that such Beneficiary would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
12. Integration. This Guarantee represents the entire agreement of
Guarantor with respect to the subject matter hereof and there are no promises or
representations by any Beneficiary relative to the subject matter hereof not
reflected herein.
13. Amendments and Waivers. None of the terms or provisions of this
Guarantee may be waived, amended or supplemented or otherwise modified except by
a written instrument executed by Guarantor and each Beneficiary.
14. Section Headings. The Section headings used in this Guarantee are
for convenience of reference only and not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
15. Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of Guarantor and shall inure to the benefit of
Beneficiaries and their respective successors and assigns.
16. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
17. Notices. All notices, requests and demands to or upon the Guarantor
or any Beneficiary to be effective shall be in writing or by telegraph, telex or
telecopy and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or, in the case of mail,
two days after deposit in the postal system, first class postage pre-paid, or,
in the case of telegraphic notice, when sent, answerback received, addressed to
(a) in the case of the Guarantor, the address provided on the signature page
hereof, and (b) in the case of any Beneficiary, the address provided for such
party in the Refunding Agreement.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and the year first above written.
[NAME OF GUARANTOR]
By: __________________________
Title:
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87
EXHIBIT B to
REFUNDING AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
[GPA 1989 BN-6]
ASSIGNMENT AND ASSUMPTION AGREEMENT [GPA 1989 BN-6]
("Assignment") dated as of _____________, between ______________, a ___________
corporation ("Assignor") and ________________, a __________ corporation
("Assignee") entered into for the benefit of Indenture Trustee, Owner Trustee,
Original Head Lessee and Lessee referred to in the Refunding Agreement mentioned
below.
WITNESSETH:
WHEREAS, the parties hereto desire to effect (a) the transfer
by Assignor to Assignee of all of the right, title and interest of the Assignor
(except as reserved below) in, under and with respect to, among other things,
(i) the Refunding Agreement, dated as of November 20, 1996, among American West
Airlines, Inc., Assignor, GPA Leasing USA Sub I, Inc., GPA Group plc, Wilmington
Trust Company, as Owner Trustee, Fleet National Bank, as Pass Through Trustee,
[___________________], Fleet National Bank, as Subordination Agent, and The
Chase Manhattan Bank, as Indenture Trustee, as amended, modified or supplemented
from time to time (the "Refunding Agreement"), (ii) the Trust Agreement
identified in the Refunding Agreement, (iii) the Trust Estate (as defined in the
Trust Agreement), (iv) the Second Amended and Restated Head Lease TIA identified
in the Refunding Agreement, (v) the proceeds therefrom and (vi) the Indenture
(as defined in the Refunding Agreement) and (b) the assumption by Assignee of
the obligations of Assignor accruing thereunder;
NOW, THEREFORE, it is hereby agreed as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the meaning ascribed thereto in the Refunding Agreement.
For purposes of this Assignment, the defined term "Operative Document" shall
have the meaning ascribed thereto in the Refunding Agreement and shall be deemed
to include the Second Amended and Restated Head Lease TIA.
2. Assignment. Assignor has sold, conveyed, assigned,
transferred and set over, and does hereby sell, convey, assign, transfer and set
over, unto Assignee, as of the date hereof, all of its right, title and interest
in, under and with respect to the Refunding Agreement, the Trust Agreement, the
Trust Estate, the Second Amended and Restated Head Lease TIA, the Indenture, all
of the other Operative Documents to which Assignor is a party or any other
contract, agreement, document or instrument relating to the Trust Estate by
which Assignor is bound, and any proceeds therefrom, together with all other
documents and instruments evidencing any of such right, title and interest,
except such rights of Assignor as have accrued to Assignor prior to the date
hereof (including specifically, but without limitation, the right to receive any
amounts due or accrued to Assignor under the Trust
88
Agreement as of a date prior to such date and the right to receive any indemnity
payment pursuant to the Refunding Agreement or the Lease with respect to events
occurring prior to such date).
3. Assumption. Assignee hereby undertakes all of the duties
and obligations of Assignor whenever accrued (other than duties and obligations
of Assignor required to be performed by it on or prior to the date hereof under
the Operative Documents to which Owner Participant is a party and any of the
other Operative Documents by which Assignor is bound or any other contract,
agreement, document or other instrument relating to the Trust Estate to which
Assignor is a party or by which it is bound), pursuant to the Trust Agreement
and any of the other Operative Documents by which Assignor is bound or any other
contract, agreement, document or other instrument relating to the Trust Estate
to which Assignor is a party or by which it is bound, and hereby confirms that
it shall be deemed a party to the Trust Agreement and shall be bound by each of
the other Operative Documents and each other contract, agreement, document or
other instrument relating to the Trust Estate to which Assignor is a party or by
which it is bound as if therein named as Trustor.
4. Release of Assignor. Except for liabilities not assumed as
provided in Section 3 hereof, upon the execution of this Assignment and
Assumption Agreement, Assignor shall have no further duty or obligation under
the Operative Documents to which Owner Participant is a party or under any of
the other Operative Documents by which Assignor is bound or under any other
contract, agreement, document or other instrument relating to the Trust Estate
to which Assignor is a party or by which it is bound; provided, however, that
Assignor shall in no event be released from any obligation under the Operative
Documents with respect to Claims or other claims thereunder by or against
Assignor which have accrued or been made prior to the date of transfer.
5. Appointment as Attorney-in-Fact. In furtherance of the
within assignment, Assignor hereby constitutes and appoints Assignee, and its
successors and assign, the true and lawful attorneys of Assignor, with full
power of substitution, in the name of Assignee or in the name of Assignor but on
behalf of and for the benefit of and at the expense of Assignee, to collect for
the account of Assignee all items sold, transferred or assigned to Assignee
pursuant hereto; to institute and prosecute, in the name of Assignor or
otherwise, but at the expense of Assignee, all proceedings that Assignee may
deem proper in order to collect, assert or enforce any claim, right or title of
any kind in or to the items sold, transferred or assigned; to defend and
compromise at the expense of Assignee any and all actions, suits or proceedings
as to title to or interest in any of the property acquired by Assignee; and to
do all such acts and things in relation thereto at the expense of Assignee as
Assignee shall reasonably deem advisable. Assignor hereby acknowledges that this
appointment is coupled with an interest and is irrevocable by Assignor in any
manner or for any reason.
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89
6. Payments. Assignor hereby covenants and agrees to pay over
to Assignee, if and when received following the date hereof, any amounts
(including any sums payable as interest in respect thereof) paid to or for the
benefit of Assignor that, under Section 2 hereof, belong to Assignee, and
Assignee hereby covenants and agrees to pay over to Assignor, if and when
received following the date hereof, any amounts (including any sums payable as
interest in respect thereof) paid to or for the benefit of Assignee that, under
Section 2 hereof, belong to Assignor.
7. Investment Purpose. Assignee hereby represents
that it is acquiring the Trust Estate interests and other
interests hereby assigned to it for its own account for the
purpose of investment and not with a view to the distribution or
resale of either thereof.
8. Representations and Warranties. Assignee
represents and warrants that:
(a) it has all requisite power and authority and legal right
to enter into and carry out the transactions contemplated hereby and to
carry out and perform the transactions of Owner Participant as
contemplated by the Operative Documents;
(b) on the date hereof it is a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Federal Aviation Act
and the rules and regulations of the FAA thereunder;
(c) on and as of the date hereof, the representations and
warranties of Owner Participant set forth in Section 9 of the Refunding
Agreement and as set forth in any other Agreement to which Owner
Participant is a party are true and correct as to Assignee;
(d) it is a permitted Transferee under Section 10 of
the Refunding Agreement;
(e) Assignee or its guarantor has a net worth of not
less than $60,000,000.
9. Governing Law. This Assignment and Assumption
Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
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90
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment and Assumption Agreement as of the day and year first above written.
[ASSIGNOR]
By:______________________________
Title:
[ASSIGNEE]
By:______________________________
Title:
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EXHIBIT C to
REFUNDING AGREEMENT
LIST OF COUNTRIES
Australia
Canada
Denmark
Finland
France
Germany
Iceland
Ireland
Luxembourg
Netherlands
New Zealand
Norway
Singapore
South Korea
Sweden
Switzerland
United Kingdom
92
EXHIBIT D to
REFUNDING AGREEMENT
FORM OF INSURANCE BROKER'S REPORT
[see attached]
93
ANNEX A to
REFUNDING AGREEMENT
FAA DOCUMENTS
Documents Filed on the Restatement Date
(a) Trust Agreement Supplement [GPA 1989 BN-6] No. 3 dated
November 26, 1996 (the "Trust Agreement Supplement")
between the Owner Trustee and the Owner Participant,
amending the Trust Agreement, which Trust Agreement
Supplement was filed at 12:20 p.m., C.S.T. on November
26, 1996;
(b) Second Amended and Restated Trust Indenture and
Security Agreement [GPA 1989 BN-6] dated as of November
26, 1996 (the "Amended and Restated Indenture") between
the Owner Trustee and the Indenture Trustee, amending
and restating the Original Indenture with attached
thereto Trust Agreement and Indenture Supplement No. 3
[GPA 1989 BN-6] dated November 26, 1996 (the "Indenture
Supplement"), with respect to the Aircraft, which
Amended and Restated Indenture with the Indenture
Supplement attached was filed with the FAA at 12:21
p.m., C.S.T. on November 26, 1996;
(c) Assignment and Amendment No. 1 and Sublease Termination
Agreement dated as of November 26, 1996 (the "Lease
Amendment") among the Original Head Lessee, as
assignor, the Owner Trustee, as lessor, the Lessee, as
successor lessee, and the Indenture Trustee, which (i)
assigns all right, title and interest of the Original
Head Lessee in and to the Original Head Lease to the
Lessee, (ii) terminates the Sublease and (iii) releases
the Sublease Collateral Assignment, which Lease
Amendment was filed with the FAA at 12:22 p.m., C.S.T.
on November 26, 1996; and
(d) Second Amended and Restated Aircraft Lease Agreement
[GPA 1989 BN-6] dated as of December 15, 1989, amended
and restated as of October 1, 1991 and amended and
restated as of November 26, 1996 (the "Amended and
Restated Lease") between the Owner Trustee, as lessor,
and the Lessee, as successor lessee, amending and
restating the Original Head Lease with Lease Supplement
[GPA 1989 BN-6] No. 3 dated November 26, 1996 (the
"Lease Supplement") between the Owner Trustee, as
lessor, and the Lessee, as successor lessee, with
respect to the Aircraft, attached thereto, which
Amended and Restated Lease with the Lease Supplement
attached was filed with the FAA at 12:23 p.m., C.S.T.
on November 26, 1996.
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94
Trust Agreement
Trust Agreement [GPA 1989 BN-6] dated as of December 15, 1989
between [_____________________], as owner participant, and Wilmington Trust
Company, as owner trustee, as supplemented by Trust Agreement Supplement [GPA
1989 BN-6] No. 1 dated December 22, 1989 and by Trust Agreement Supplement [GPA
1989 BN- 6] No. 2 dated October 24, 1991.
Japanese Lease, Japanese Lessor and Supplemental Agreement
Lease Agreement [GPA 1989 BN-6] dated as of September 28, 1989
between FG Vision Leasing Co., Ltd. (the "Japanese Lessor"), as lessor, and Air
Tara Caymans II, Limited, as original lessee, which was recorded by the Federal
Aviation Administration on September 29, 1989 and assigned Conveyance No.
G75383, as supplemented and assigned by the following described instruments:
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- -------------- --------------
Lease Supplement
No. 1 09/29/89 09/29/89 G75383
Supplemental Agree-
ment (the "Supple- as of
mental Agreement") 09/28/89 09/29/89 G75383
Lease Assignment
between Air Tara
Caymans II,
Limited, as
assignor, and
GPA Leasing USA
Sub I, Inc., as as of
assignee 09/28/89 09/29/89 G75383
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95
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- -------------- --------------
Lease Assignment
No. 2 between GPA
Leasing USA Sub I,
Inc., as assignor,
and Wilmington
Trust Company as
owner trustee under
Trust Agreement
[GPA 1989 BN-6]
dated as of
December 15, as of
1989, as assignee 12/15/89 04/02/90 V79846
Original Indenture
Trust Indenture and Security Agreement [GPA 1989 BN-6] dated
as of December 15, 1989 between Wilmington Trust Company, as trustee under Trust
Agreement [GPA 1989 BN-6] dated as of December 15, 1989, and The Chase Manhattan
Bank, as successor by merger to Chemical Bank, formerly Manufacturers Hanover
Trust Company, as indenture trustee, which was recorded by the Federal Aviation
Administration on April 2, 1990 and assigned Conveyance No. V79847, as
supplemented and amended by the following described instruments:
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- -------------- --------------
Trust Indenture
Supplement No. 1 12/22/89 04/02/90 V79847
Amended and Restated
Trust Indenture and
Security Agreement as of
[GPA 1989 BN-6] 10/01/91 11/12/91 Z91423
Trust Indenture
Supplement No. 2
[GPA 1989 BN-6] 10/24/91 11/12/91 Z91423
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96
Original Head Lease
Aircraft Lease Agreement [GPA 1989 BN-6] dated as of December
15, 1989 between Wilmington Trust Company, as trustee under Trust Agreement [GPA
1989 BN-6] dated as of December 15, 1989, as lessor, and GPA Leasing USA Sub I,
Inc., as lessee, which was recorded by the Federal Aviation Administration on
April 2, 1990 and assigned Conveyance No. V79848, as supplemented and amended by
the following described instruments:
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- -------------- --------------
Lease Supplement
[GPA 1989 BN-6]
No. 1 12/22/89 04/02/90 V79848
Amended and Restated
Aircraft Lease Agree- as of
ment [GPA 1989 BN-6] 10/01/91 11/12/91 Z91424
Lease Supplement
[GPA 1989 BN-6]
No. 2 10/24/91 11/12/91 Z91424
Sublease
Aircraft Sublease Agreement [GPA 1989 BN-6] dated as of
September 21, 1990 between GPA Leasing USA Sub I, Inc., as sublessor, and
America West Airlines, Inc., as sublessee, which was recorded by the Federal
Aviation Administration on October 12, 1990 and assigned Conveyance No. AA45592,
as supplemented and amended by the following described instruments:
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- -------------- --------------
Sublease Supplement
No. 1 09/28/90 10/12/90 AA45592
Amendment No. 1 to
Aircraft Sublease
Agreement [GPA 1989 as of
BN-6] 06/25/91 07/10/91 A43607
Amendment No. 2 to
Aircraft Sublease
Agreement [GPA 1989 as of
BN-6] 08/26/91 09/17/91 C24403
Sublease Collateral Assignment
Assignment of Sublease [GPA 1989 BN-6] dated as of September
21, 1990 between GPA Leasing USA Sub I, Inc., as
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97
assignor, and Wilmington Trust Company, as trustee under Trust Agreement [GPA
1989 BN-6] dated as of December 15, 1989, as assignee, which was attached to and
recorded as one instrument with the Sublease on October 12, 1990 and assigned
Conveyance No. AA45592, as amended by Amendment No. 1 to Assignment of Sublease
[GPA 1989 BN-6] dated as of October 1, 1991, which was recorded by the Federal
Aviation Administration on November 12, 1991 and assigned Conveyance No. Z91425.
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