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Exhibit 4.14
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REFUNDING AGREEMENT
[GPA 1989 BN-12]
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. 82
Registration No. N633AW
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......................... 5
SECTION 2. Equipment Notes................................................ 7
SECTION 3. Conditions Precedent........................................... 7
SECTION 4. Certain Conditions Precedent to the
Obligations of the Original Head Lessee
and the Parent Guarantor; Certain
Conditions Precedent to the Obligations
of the Lessee; Conditions Precedent
with respect to the Pass Through
Trustee...................................................... 15
SECTION 5. Amendment and Restatement of the
Original Indenture........................................... 19
SECTION 6. Amendment and Restatement of the
Original Lease............................................... 19
SECTION 7. Termination of the Participation
Agreement; Termination of Sublease,
etc.......................................................... 19
SECTION 8. Representations and Warranties of the
Lessee....................................................... 19
SECTION 9. Representations and Warranties................................. 24
SECTION 10. Transfer of Owner Participant's
Interest..................................................... 41
SECTION 11. Re-Registration of the Aircraft................................ 44
SECTION 12. Quiet Enjoyment................................................ 47
SECTION 13. Liens ......................................................... 47
SECTION 14. Certain Additional Provisions Relating
to Original Head Lessee, Parent
Guarantor, Trust Company, Owner Trustee
and Owner Participant........................................ 49
SECTION 15. Certain Retained Rights and Releases........................... 52
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Page
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SECTION 16. Certain Additional Obligations of the
Lessee, the Owner Trustee, the Owner
Participant and the Indenture Trustee........................ 54
SECTION 17. Lessee Protection of Title..................................... 54
SECTION 18. Jurisdictional and Related Matters............................. 55
SECTION 19. Limitation on Recourse......................................... 56
SECTION 20. Notices .................................................... 56
SECTION 21. Expenses .................................................... 56
SECTION 22. Reliance of Liquidity Provider................................. 57
SECTION 23. Miscellaneous.................................................. 58
SECTION 24. Governing Law.................................................. 59
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
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-12]
REFUNDING AGREEMENT [GPA 1989 BN-12] (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, the Original Head Lessee, the Parent Guarantor, the
Owner Participant, Manufacturers Hanover Trust Company and The Mitsubishi Trust
and Banking Corporation, Grand Cayman Branch, as Lenders (collectively, the
"Lenders"), the Owner Trustee and the Indenture Trustee entered into the
Participation Agreement [GPA 1989 BN-12], dated as of December 19, 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-12], dated as of
December 19, 1989, as supplemented by Trust Indenture Supplement No. 1 dated
December
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28, 1989 (as amended, supplemented or otherwise modified to the date hereof, the
"Original Indenture"), pursuant to which the Owner Trustee issued loan
certificates substantially in the form set forth in Section 2.02 thereof (the
"Original Certificates") to the Lenders as evidence of the indebtedness then
being made by the Owner Trustee to finance a portion of the purchase price of
the Aircraft;
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-12], dated as of December 19,
1989, as supplemented by Lease Supplement [GPA 1989 BN-12] No. 1 dated December
28, 1989, and as further supplemented by Lease Supplement No. 2 dated as of
December 31, 1991 (as so supplemented, the "Original Lease"), whereby, subject
to the terms and conditions set forth therein, the Owner Trustee agreed to lease
to the Original Head Lessee, and the Original Head Lessee agreed to lease from
the Owner Trustee, the 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-12] dated as of December 19, 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-12], dated as of December 19, 1989, as
supplemented by Trust Agreement Supplement [GPA 1989 BN-12] No. 1 dated December
28, 1989 (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-12],
dated as of December 19, 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,
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the "Sublessee") entered into the Aircraft Sublease Agreement [GPA 1989 BN-12]
dated as of September 21, 1990, as supplemented by Sublease Supplement No. 1
[GPA 1989 BN-12] dated September 28, 1990, and as amended by Amendment No. 1 to
Aircraft Sublease Agreement [GPA 1989 BN-12] dated as of June 25, 1991, and as
further amended by Amendment No. 2 to Aircraft Sublease Agreement [GPA 1989
BN-12] 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-12] dated as of September 21, 1990 (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-12], 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 [GPA 1989 BN-12] dated as of September 21, 1990 (as amended, modified
or otherwise supplemented to the date hereof, the "Assignment of Sublease");
WHEREAS, at the Closing (as defined below), the Owner Trustee
and the Indenture Trustee will amend and restate the Original Indenture as the
First Amended and Restated Trust Indenture and Security Agreement [GPA 1989
BN-12], dated as of the Restatement Date, as supplemented by Trust Indenture
Supplement No. 2 dated the Restatement Date (the "First Amended and Restated
Indenture" and, the First Amended and Restated Indenture as so amended and
restated, the "Indenture"), under which Indenture the Owner Trustee will issue
secured equipment notes substantially in the form set forth in Section 2.01
thereof (the "Equipment Notes") in four series, the proceeds from the issuance
and sale of which will be applied in part to the prepayment in full of the
Original Certificates;
WHEREAS, at the Closing, the Owner Trustee, the Original Head
Lessee, the Sublessee and the Indenture Trustee will enter into Assignment and
Amendment No. 1 and Sublease Termination Agreement dated as of the Restatement
Date ("Lease
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Amendment No. 1") containing assignments, modifications and terminations
necessary to give effect to the transactions described herein and providing,
inter alia, for the amendment and restatement in its entirety of the Original
Lease as the Amended and Restated Lease (as so amended and restated, the
"Lease");
WHEREAS, at the Closing, the Owner Participant and the Owner
Trustee will enter into Trust Agreement Supplement [GPA 1989 BN-12] No. 2
("Trust Supplement No. 2"), amending the Original Trust Agreement (as so amended
and as further amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof and hereof, the "Trust Agreement");
WHEREAS, at the Closing, the Owner Participant and the
Original Head Lessee will enter into the Amended and Restated Head Lease Tax
Indemnification Agreement, amending and restating the Head Lease TIA (as so
amended and restated, the "Amended and Restated Head Lease TIA") and the
Sublessor and the Sublessee will enter into the Amended and Restated Sublease
Tax Indemnification Agreement amending and restating the Sublease TIA (as so
amended and restated, the "Amended and Restated Sublease TIA");
WHEREAS, pursuant to the Pass Through Trust Agreement and each
of the Pass Through Trust Supplements set forth in Schedule I hereto
(collectively, the "Pass Through Trust Agreements"), on the Restatement Date,
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,
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dated as of the Restatement Date (the "Intercreditor Agreement"); and
WHEREAS, the Equipment Notes will be held by the Subordination
Agent pursuant to the Intercreditor Agreement on behalf of the Pass Through
Trusts;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Purchase of Equipment Notes; Refunding. (a) Subject
to the satisfaction or waiver of the conditions set forth herein, on November
26, 1996 or on such other date agreed to by the parties hereto (the "Restatement
Date"), the following actions shall take place simultaneously:
(i) (A) the Sublessee shall pay to the Sublessor as a
payment of Supplemental Rent under the Sublease all accrued and unpaid
Rent under the Sublease up to the Restatement Date, if any, (less any
amounts for which Sublessee is indemnified by Sublessor) and (B) the
Original Head Lessee shall pay to the Owner Trustee, as a payment of
Supplemental Rent under the Original Lease, an amount equal to the
accrued and unpaid interest on the Original Certificates up to but not
including the Restatement Date plus an amount (the "Prepayment Amount")
equal to all other amounts due to the holders of the Original
Certificates under the Original Indenture, the Original Certificates
and the other Operative Documents (as defined in the Original
Indenture) payable on the Restatement Date under Section 2.13 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 (xii) below;
(iii) the Owner Trustee (to the extent of proceeds received
under clauses (i) and (ii)) shall pay to the Indenture Trustee for the
benefit of the holders of the Original Certificates an amount equal to
the aggregate principal amount of the Original Certificates outstanding
on the Restatement Date, together with accrued and unpaid interest on
the Original Certificates up to but not including the Restatement Date
plus the Prepayment Amount;
(iv) the Indenture Trustee shall disburse to the holders
of the Original Certificates the amounts of
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principal, interest, Break Funding Cost, if any, described in clause
(iii) above, owing to them on the Restatement Date with respect to the
Original Certificates as a prepayment of the Original Certificates;
(v) the Indenture Trustee shall receive the Original
Certificates for cancellation;
(vi) the Owner Trustee and the Indenture Trustee shall enter
into the Indenture (including Trust Indenture Supplement No. 2);
(vii) the Original Head Lessee, the Sublessee, the Owner
Trustee and the Indenture Trustee shall enter into Lease Amendment No.
1;
(viii) the Owner Participant and the Trust Company shall
enter into Trust Supplement No. 2;
(ix) the Original Head Lessee and the Owner Participant shall
enter into the Amended and Restated Head Lease TIA and the Sublessor
and the Sublessee shall enter into the Amended and Restated Sublease
TIA;
(x) 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");
(xi) the Parent Guarantor and/or one or more of its
affiliates and the Lessee will enter into an agreement (the "Deed of
Indemnity") pursuant to which the Parent Guarantor and/or one or more
of its affiliates, on the one hand, and the Lessee, on the other, will
indemnify each other with respect to certain information included in
the Prospectus and the Registration Statement (as such terms are
defined in the Underwriting Agreement) (the "Prospectus" and the
"Registration Statement", respectively); and
(xii) the Owner Trustee shall issue, pursuant to Article II of
the Indenture, to the Subordination Agent on behalf of the Pass Through
Trustee for each of the Pass Through Trusts, Equipment Notes of the
maturity and aggregate principal amount, bearing the interest rate and
for the purchase price set forth on Schedule II hereto opposite the
name of such Pass Through Trust.
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(b) The Owner Participant, by its execution and delivery
hereof, requests and directs the Owner Trustee to execute and deliver this
Agreement and, subject to the terms hereof, to take the actions contemplated
herein.
(c) The closing (the "Closing") of the transactions described
in this Agreement shall take place at the offices of Milbank, Tweed, 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
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transactions contemplated by this Agreement on the Restatement Date are subject
to the fulfillment, prior to or on the Restatement Date, of the following
conditions precedent (except that paragraphs (a), (f) and (j) shall not be
conditions precedent to the obligations of the Owner Trustee hereunder,
paragraphs (g) and (l) shall not be conditions precedent to the obligations of
the Owner Participant hereunder and paragraphs (e) and (k) shall not be
conditions precedent to the obligations of the Indenture Trustee hereunder):
(a) The Owner Trustee shall have tendered the Equipment Notes
to the Indenture Trustee for authentication, and the Indenture Trustee
shall have authenticated such Equipment Notes and shall have tendered
the Equipment Notes to the Subordination Agent on behalf of the Pass
Through Trustee in accordance with Section 1.
(b) The Pass Through Trustee, the Owner Trustee and the Owner
Participant each shall have received executed counterparts of each of
the following documents and the Indenture Trustee shall have received
executed counterparts of items (1) through (7):
(1) this Agreement;
(2) Lease Amendment No. 1, the Amended and
Restated Lease and Lease Supplement No. 3;
(3) Trust Supplement No. 2;
(4) the First Amended and Restated Indenture and
Trust Indenture Supplement No. 2;
(5) each of the Pass Through Trust Agreements
and each Pass Through Trust Supplement set
forth in Schedule I hereto;
(6) the Intercreditor Agreement; and
(7) the Liquidity Facility for each of the
Class A, Class B and Class C Trusts (as
defined in the Intercreditor Agreement).
(c) The Pass Through Trustee, the Indenture Trustee,
the Owner Trustee and the Owner Participant each shall have
received the following:
(1) an incumbency certificate of each of the Original
Head Lessee, the Lessee and the Parent Guarantor as to the
person or persons authorized to execute and deliver this
Agreement and each of the
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other documents to be executed on behalf of such Person in
connection with the transactions contemplated hereby
(including, without limitation, each of the documents referred
to herein) and as to the signatures of such person or persons;
(2) a copy of the resolutions of the board of
directors of each of the Original Head Lessee, the Lessee and
the Parent Guarantor or the applicable committee thereof,
certified by the Secretary or an Assistant Secretary of such
Person, duly authorizing the transactions contemplated hereby
and the execution, delivery and performance of each of the
documents required to be executed and delivered on behalf of
such Person in connection with the transactions contemplated
hereby;
(3) a copy of the certificate of incorporation of
each of the Original Head Lessee and the Lessee, certified by
the Secretary of State of its state of incorporation, a copy
of the by-laws of each of the Original Head Lessee and the
Lessee, certified by the Secretary or Assistant Secretary of
such Person, and a certificate or other evidence from the
Secretary of State of its state of incorporation, dated as of
a date reasonably near the Restatement Date, as to its due
incorporation and good standing in such state; and
(4) a copy of the Memorandum and Articles of
Association of the Parent Guarantor certified to be true and
correct by the Secretary or an Assistant Secretary of the
Parent Guarantor.
(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 Aircraft FAA Bill of Sale (as defined in
the Participation Agreement), the Original Lease
(excluding Lease Supplement No. 2) and the Original
Indenture have each been duly recorded, and the
Original Trust Agreement has been duly filed, with the
FAA pursuant to the sections of Title 49 of the United
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States Code relating to aviation (the "Federal Aviation
Act");
(3) Lease Amendment No. 1, the Amended and
Restated Lease, Lease Supplement No. 3, the First
Amended and Restated Indenture, Trust Indenture
Supplement No. 2 and Trust Supplement No. 2 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
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(4) a certificate signed by an authorized officer of
the Indenture Trustee, dated the Restatement Date, certifying
that the representations and warranties contained herein of
the Indenture Trustee are correct as though made on and as of
the Restatement Date, except to the extent that such
representations and warranties relate solely to an earlier
date (in which case such representations and warranties are
correct on and as of such earlier date).
(f) The Pass Through Trustee, the Indenture Trustee and the
Owner Participant each shall have received the following:
(1) an incumbency certificate of the Owner Trustee as
to the person or persons authorized to execute and deliver
this Agreement and each of the other documents to be executed
on behalf of the Owner Trustee in connection with the
transactions contemplated hereby (including, without
limitation, each of the documents referred to herein) and as
to the signatures of such person or persons;
(2) a copy of the resolutions of the board of
directors of the Owner Trustee, certified by the Secretary or
an Assistant Secretary of the Owner Trustee, duly authorizing
the transactions contemplated hereby and the execution,
delivery and performance of each of the documents required to
be executed and delivered on behalf of the Owner Trustee in
connection with the transactions contemplated hereby;
(3) a copy of the articles of association and by-
laws of the Owner Trustee, each certified by the
Secretary or an Assistant Secretary of the Owner
Trustee; and
(4) a certificate signed by an authorized officer of
the Owner Trustee, dated the Restatement Date, certifying that
the representations and warranties contained herein of the
Owner Trustee are correct as though made on and as of the
Restatement Date, except to the extent that such
representations and warranties relate solely to an earlier
date (in which case such representations and warranties are
correct on and as of such earlier date).
(g) The Pass Through Trustee, the Indenture Trustee and the
Owner Trustee each shall have received the following:
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(1) an incumbency certificate of the Owner
Participant as to the person or persons authorized to execute
and deliver this Agreement and each of the other documents to
be executed on behalf of the Owner Participant in connection
with the transactions contemplated hereby (including, without
limitation, each of the documents referred to herein) and as
to the signatures of such person or persons;
(2) a copy of the resolutions of the board of
directors of the Owner Participant or the applicable authority
designated by the board of directors thereof, certified by the
Secretary or an Assistant Secretary of the Owner Participant,
duly authorizing the transactions contemplated hereby and the
execution, delivery and performance of each of the documents
required to be executed and delivered on behalf of the Owner
Participant in connection with the transactions contemplated
hereby;
(3) a copy of the certificate of incorporation of the
Owner Participant, certified by the Secretary of State of its
state of incorporation, a copy of the by-laws of the Owner
Participant, certified by the Secretary or Assistant Secretary
of the Owner Participant, and a certificate or other evidence
from the Secretary of State of its state of incorporation,
dated as of a date reasonably near the Restatement Date, as to
its due incorporation and good standing in such state; and
(4) a certificate signed by an authorized
representative of the Owner Participant, dated the Restatement
Date, certifying that the representations and warranties
contained herein of the Owner Participant are correct as
though made on and as of the Restatement Date, except to the
extent that such representations and warranties relate solely
to an earlier date (in which case such representations and
warranties are correct on and as of such earlier date).
(h) The Pass Through Trustee, the Indenture Trustee, the Owner
Trustee and the Owner Participant each shall have received from the
Lessee a report from 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
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Senior Vice President-Legal 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 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) Hunton & Williams, 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.
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(q) The Original Head Lessee, the Lessee, GPA Leasing USA I,
Inc. and the Parent Guarantor shall have entered into the Underwriting
Agreement and the Lessee shall have entered into each of the Pass
Through Trust Agreements, the Certificates shall have been issued and
sold pursuant to the Underwriting Agreement and the Pass Through Trust
Agreements, and the Underwriters shall have transferred to the Pass
Through Trustee in immediately available funds an amount equal to the
aggregate purchase price of the Equipment Notes to be purchased from
the Owner Trustee.
(r) The Original Head Lessee and the Owner Participant shall
each have executed and delivered to the other the Amended and Restated
Head Lease TIA.
(s) The Sublessor and the Sublessee shall each have
executed and delivered to the other the Amended and Restated
Sublease TIA.
(t) No change shall have occurred after the date of this
Agreement in applicable law or regulations thereunder or
interpretations thereof by appropriate regulatory authorities or any
court that would make it illegal for the Pass Through Trustee to make
the payments described in Section 1(a)(ii) or for the Lessee, the
Indenture Trustee, the Owner Trustee or the Owner Participant or any
other party hereto to participate in the transactions contemplated by
this Agreement on the Restatement Date.
(u) All approvals and consents of any trustee or holder of any
indebtedness or obligations of the Lessee which are required in
connection with the Pass Through Trustee's making of the payments
described in Section 1(a)(ii) or the Owner Trustee's or the Owner
Participant's participation in the transactions contemplated by this
Agreement on the Restatement Date shall have been duly obtained.
(v) Uniform Commercial Code financing, termination, amendment
and continuation statement or statements covering all of the security
interests created by or pursuant to the Indenture that are not covered
by the recording system established by the Federal Aviation Act shall
have been executed and delivered by the Original Head Lessee, the
Lessee, the Indenture Trustee and the Owner Trustee, as the case may
be, and such financing, termination, amendment and continuation
statement or statements or documents to the same purposes shall have
been duly filed in all places necessary or advisable, and any
additional Uniform Commercial Code financing, termination, amendment
and continuation statements deemed advisable by the Original
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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.
(w) No change shall have occurred after the date of this
Agreement in applicable law or regulations thereunder or
interpretations thereof by appropriate regulatory authorities or any
court that would adversely affect the tax consequences of the
transactions contemplated by this Agreement to the Owner Participant,
the Owner Trustee or any of their respective Affiliates.
(x) The Owner Trustee shall have received a letter of credit
in the amount of $1,000,000 from the Lessee in the form of Exhibit D-2
to the Lease.
(y) The Owner Participant shall have received any
other documents and evidence as the Owner Participant or its
counsel may request.
Promptly following the recording of Lease Amendment No. 1, the
Amended and Restated Lease (including Lease Supplement No. 3) and the First
Amended and Restated Indenture (including Trust Indenture Supplement No. 2)
pursuant to the Federal Aviation Act, the Original Head Lessee will cause
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 Amended and Restated Lease, Lease Supplement No. 3,
the First Amended and Restated Indenture, Trust Indenture Supplement No. 2 and
Trust Supplement No. 2.
SECTION 4. Certain Conditions Precedent to the Obligations of
the Original Head Lessee and the Parent Guarantor; Certain Conditions Precedent
to the Obligations of the Lessee; Conditions Precedent with respect to the Pass
Through Trustee. (a) The obligations of the Original Head Lessee and the Parent
Guarantor to participate in the transactions contemplated by this Agreement on
the Restatement Date, and to execute and deliver this Agreement are subject to
the fulfillment, prior to or on the Restatement Date, of the following
conditions precedent:
(i) Each of the Original Head Lessee and the Parent Guarantor
shall have received counterparts of the following documents executed by
each of the parties thereto other than the Original Head Lessee and the
Parent Guarantor:
(1) this Agreement;
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(2) Lease Amendment No. 1, the Amended and
Restated Lease and Lease Supplement No. 3;
(3) the 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; and
(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").
(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
relating to and described in the Prospectus,
in each case addressed to the Original Head
Lessee and the Parent Guarantor and in form
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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 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.
(ii) The Lessee shall have received originals of the
following documents:
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21
(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 them, and (iii) such other documents and evidence with respect to the Pass
Through Trustee as it may reasonably request in order to
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establish the due consummation of the transactions contemplated by this
Agreement, the taking of all necessary action in connection therewith and
compliance with the conditions herein set forth.
SECTION 5. Amendment and Restatement of the Original
Indenture. Subject to the satisfaction or waiver of the conditions precedent set
forth herein, the Owner Participant, by execution and delivery hereof, requests,
authorizes and directs the Owner Trustee to execute and deliver the First
Amended and Restated Indenture, and the Owner Trustee and the Indenture Trustee,
by execution and delivery hereof, agree to execute and deliver the First Amended
and Restated Indenture. Each of the Original Head Lessee, the Parent Guarantor
and the Lessee, by execution and delivery hereof, consent to such execution and
delivery of the First Amended and Restated Indenture. The First Amended and
Restated Indenture shall be effective as of the Restatement Date.
SECTION 6. Amendment and Restatement of the Original Lease.
Subject to the satisfaction or waiver of the conditions precedent set forth
herein, the Indenture Trustee, the Pass Through Trustee, the Parent Guarantor
and the Owner Participant, by execution and delivery hereof, consent to the
assignments, delegations, and releases set forth in, and to the amendment and
restatement of the Original Lease effected by, and the Owner Participant
requests and instructs the Owner Trustee to execute and deliver, Lease Amendment
No. 1, and the Owner Trustee, the Original Head Lessee, the Indenture Trustee
and the Sublessee agree, by execution and delivery hereof, to execute and
deliver Lease Amendment No. 1. The Amended and Restated Lease shall be effective
as of the Restatement Date.
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 from and including 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.
SECTION 8. Representations and Warranties of the Lessee. The
Lessee represents and warrants, as of the
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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 obliga-
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24
tions of the Lessee under the Lessee Documents nor the consummation by
the Lessee of any of the transactions contemplated by the Lessee
Documents, requires the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, the Department of Transportation, the FAA, or any other federal,
state, local or foreign governmental authority having jurisdiction,
other than those which have already been received and which the Lessee
is in compliance with and (i) the registration of the Certificates
under the Securities Act of 1933, as amended (the "Securities Act") and
the securities laws of any state in which the Certificates may be
offered for sale if the laws of such state require such action, (ii)
the qualification of the Pass Through Trust Agreements under the Trust
Indenture Act of 1939, as amended, (iii) (A) the orders, permits,
waivers, exemptions, authorizations and approvals of the regulatory
authorities having jurisdiction 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
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materially adversely affect the ability of Lessee to enter
into or perform its obligations under the Lessee Documents;
(g) the Lessee is not an "investment company" or a
company controlled by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(h) on the Restatement Date, the Trust Estate shall be
free and clear of any and all Liens (other than Permitted
Liens) created by or through the Lessee;
(i) except for the 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 Amended and Restated Lease, Lease Supplement
No. 3, Trust Supplement No. 2, 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 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;
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26
(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;
(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
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27
such reserves as are required under GAAP) so long as such proceedings
or the non-payment of such Taxes 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 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
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28
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
organized, 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 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 pertaining to its banking, trust and fiduciary
powers to execute and deliver each of this Agreement, the
Indenture and each other Operative Document to which it is a
party and to carry out its obligations under this Agreement,
the Indenture and each other Operative Document to which it is
a party;
(2) neither the execution and delivery by the
Indenture Trustee of this Agreement, the Indenture, Lease
Amendment No. 1 and each other Operative Document to which it
is a party, 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
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29
permitted under the Operative Documents) upon its property
under, any indenture, mortgage, chattel mortgage, deed of
trust, conditional sale contract, bank loan or credit
agreement, license or other agreement or instrument to which
it is a party or by which it is bound, or contravenes or will
contravene any law, governmental rule or regulation or any
judgment or order applicable to or binding on it of any United
States governmental authority or agency governing the trust
powers of the Indenture Trustee;
(3) this Agreement constitutes, and the Indenture,
when executed and delivered by the Indenture Trustee, will
constitute, the legal, valid and binding obligations of the
Indenture Trustee enforceable against it in accordance with
their respective terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a
proceeding at law or in equity;
(4) there are no pending or, to its knowledge,
threatened actions or proceedings against the Indenture
Trustee, either in its individual capacity or as Indenture
Trustee, before any court or administrative agency which, if
determined adversely to it, would materially adversely affect
the ability of the Indenture Trustee, in its individual
capacity or as Indenture Trustee, as the case may be, to
perform its obligations under the Operative Documents to which
it is a party;
(5) 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 of New York or any
United States of America governmental authority or agency
regulating the trust powers of the Indenture Trustee is
required for the execution and delivery of, or the carrying
out by, the Indenture Trustee of any of the transactions
contemplated hereby or by the Indenture, Lease Amendment No. 1
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;
(6) 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
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(7) it has possession of the chattel paper original
counterpart of the Original Lease, Lease Amendment No. 1 and
the 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. 2, has the corporate power and authority to
carry out the terms of the Trust Agreement, and each of the
Trust Company and the Owner Trustee has, or had on the
respective dates of execution thereof (assuming the
authorization, execution and delivery of Trust Supplement No.
2 by the Owner Participant), the corporate power and authority
to execute and deliver and to carry out the terms of this
Agreement, the Indenture, the Equipment Notes, Lease Amendment
No. 1, the Lease and each other Operative Document (other than
the Trust Agreement) to which it is a party;
(2) (i) each of the Trust Company and the Owner
Trustee has duly authorized, executed and delivered the Trust
Agreement and this Agreement and (assuming the due
authorization, execution and delivery of Trust Supplement No.
2 by the Owner Participant) the Trust Agreement constitutes a
legal, valid and binding obligation of the Owner Trustee, 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, executed and delivered this
Agreement and (assuming the due authorization, execution and
delivery of Trust Supplement No. 2 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
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31
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. 2 by the Owner Participant,
the Owner Trustee has duly authorized, and on the Restatement
Date shall have duly issued, executed and delivered to the
Indenture Trustee for authentication, the Equipment Notes
pursuant to the terms and provisions hereof and of the
Indenture, and each Equipment Note on the Restatement Date
will constitute the valid and binding obligation of the Owner
Trustee and will be entitled to the benefits and security
afforded by the Indenture in accordance with the terms of such
Equipment Note and the Indenture;
(4) neither the execution and delivery by the Owner
Trustee or the Trust Company, as the case may be, of this
Agreement, the Original Trust Agreement, Trust Supplement No.
2, the Original Indenture, the Indenture, the Original Lease,
Lease Amendment No. 1, the Lease, the Equipment Notes, or any
other Operative Document to which it is a party, nor the
consummation by it of any of the transactions contemplated
hereby or thereby, nor the compliance by it with any of the
terms and provisions hereof and thereof, (A) requires or will
require any approval of its stockholders, or approval or
consent of any trustees or holders of any indebtedness or
obligations of it, or (B) violates or will violate its
articles of association or by-laws, or contravenes or will
contravene any provision of, or constitutes or will constitute
a default under, or results or will result in any breach of,
or results or will result in the creation of any Lien (other
than as permitted under the Operative Documents) upon its
property under, any indenture, mortgage, chattel mortgage,
deed of trust, conditional sale contract, bank loan or credit
agreement, license or other agreement or instrument to which
it is a party or by which it is bound, or contravenes or will
contravene any law, governmental rule or regulation of the
State of Delaware or any United States governmental authority
or agency governing the trust powers of the Owner Trustee, or
any judgment or order applicable to or binding on it;
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32
(5) no consent, approval, order or authorization of,
giving of notice to, or registration with, or taking of any
other action in respect of, any state or local governmental
authority or agency or any State of Delaware or any United
States of America governmental authority or agency regulating
the trust powers of the Trust Company is required for the
execution and delivery of, or the carrying out by, the Trust
Company or the Owner Trustee, as the case may be, of any of
the transactions contemplated hereby or by the Trust
Agreement, the Indenture, the Lease, Lease Amendment No. 1,
the Equipment Notes or any other Operative Document to which
it is a party or by which it is bound, other than any such
consent, approval, order, authorization, registration, notice
or action as has been duly obtained, given or taken or which
is described in Section 8(d);
(6) there exists no Lessor's Lien or Head Lessor's
Lien (each as defined in the Lease) (including for this
purpose Liens that would be Lessor's Liens but for the first
proviso in the definition of Lessor's Liens) attributable to
the Owner Trustee;
(7) there exists no Lessor's Lien or Head Lessor's
Lien (including for this purpose Liens that would be Lessor's
Liens but for the first proviso in the definition of Lessor's
Liens) attributable to the Trust Company;
(8) there are no Taxes payable by the Owner Trustee
or the Trust Company imposed by the State of Delaware or any
political subdivision thereof in connection with the
prepayment of the Original Certificates or the issuance of the
Equipment Notes, or the execution and delivery by it of any of
the instruments referred to in clauses (1), (2), (3) and (4)
above, that, in each case, would not have been imposed if the
Trust Estate were not located in the State of Delaware and the
Trust Company had not (a) had its principal place of business
in, (b) performed (in its individual capacity or as Owner
Trustee) any or all of its duties under the Operative
Documents in, and (c) engaged in any activities unrelated to
the transactions contemplated by the Operative Documents in,
the State of Delaware;
(9) there are no pending or, to its knowledge,
threatened actions or proceedings against the Owner Trustee,
either in its individual capacity or as Owner Trustee, before
any court or administrative agency
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33
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 jurisdiction of its
incorporation, 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 Amended and Restated Head Lease TIA; this Agreement, the
SLV Letter Agreement and Trust Supplement No. 2 have been duly
authorized, executed and delivered by it; and, assuming the
due authorization, execution and delivery hereof and thereof
by the other parties hereto and thereto, this Agreement, the
Trust Agreement, the SLV Letter Agreement and the Amended and
Restated Head Lease TIA constitute the legal, valid and
binding obligations of the Owner Participant enforceable
against it in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at
law or in equity;
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34
(2) neither (A) the execution and delivery by the
Owner Participant of this Agreement, the Trust Agreement, the
SLV Letter Agreement, the Amended and Restated Head Lease TIA
or any other Operative Document to which it is a party nor (B)
compliance by it with all of the provisions hereof or thereof,
(x) will contravene any law or order of any court or
governmental authority or agency applicable to or binding on
the Owner Participant (it being understood that no
representation or warranty is made with respect to laws, rules
or regulations relating to aviation or to the nature of the
equipment owned by the Owner Trustee 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, 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 it of this Agreement, the Trust
Agreement and the Amended and Restated Head Lease TIA (it
being understood that no representation or warranty is made
with respect to laws, rules or regulations relating to
aviation or to the nature of the equipment owned by the Owner
Trustee 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
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35
SLV Letter Agreement or the Amended and Restated Head
Lease TIA;
(5) 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
(6) 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 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 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
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36
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 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
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37
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 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
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38
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:
(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
- 35 -
39
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, 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
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40
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 Agent is not in default under any Liquidity
Facility; and
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41
(8) the Subordination Agent is not directly or
indirectly controlling, controlled by or under common control
with the Owner Participant, the Owner Trustee, the
Underwriters or the Lessee.
(f) The Original Head Lessee represents and warrants
that:
(1) it is duly incorporated, validly existing and in
good standing under the laws of the State of Connecticut and
has the corporate power and authority to carry on its present
business and operations and to own or lease its properties,
has the corporate power and authority to enter into and to
perform its obligations under this Agreement, Lease Amendment
No. 1, the Amended and Restated Head Lease TIA, 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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42
(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 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 to the Owner Trustee 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 Amended and Restated Lease, Lease
Supplement No. 3, Trust Supplement No. 2, 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
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43
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
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; this Agreement has been duly authorized and
constitutes the legal, valid and binding obligations of the
Parent Guarantor enforceable against it in accordance with its
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;
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44
(2) neither (A) the execution and delivery by the
Parent Guarantor of this Agreement nor (B) compliance by it
with all of the provisions hereof (x) will contravene any law
or order of any court or governmental authority or agency
applicable to or binding on the Parent Guarantor, or (y) will
contravene the provisions of, or constitutes or has
constituted or will constitute a default under, its Memorandum
and Articles of Association or any indenture, mortgage,
contract or other agreement or instrument to which the Parent
Guarantor is a party or by which it or any of its property may
be bound or affected, except where such contravention or
default would not result in any liability to any other party
hereto or have a material adverse effect on the rights or on
the remedies of the other parties hereto or on its ability to
perform its obligations hereunder or thereunder;
(3) no authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body (other than as required by the Federal
Aviation Act or the regulations promulgated thereunder) is or
was required, as the case may be, for the due execution,
delivery or performance by the Parent Guarantor of this
Agreement;
(4) except as set forth in the Parent Guarantor's
most recent Form 20-F filed with the Commission, there are no
pending or, to its knowledge, threatened actions or
proceedings against the Parent Guarantor before any court or
administrative agency or arbitrator which, if determined
adversely to the Parent Guarantor, would materially adversely
affect the Parent Guarantor's ability to perform its
obligations under this Agreement;
(5) on the Restatement Date, the Trust Estate, the
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 with respect to Section 9(f)(8)
shall be only for the benefit of the Lessee).
SECTION 10. Transfer of Owner Participant's Interest. Owner
Participant shall not directly or indirectly sell, assign, convey or otherwise
transfer (whether by operation of law, con-
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45
solidation, 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 Amended and Restated Head Lease TIA or any other
Operative Document or any proceeds therefrom or permit the transfer of any of
its stock in any transaction which has the practical effect of any of the
foregoing; provided that, and subject to the conditions set forth below, Owner
Participant may transfer to a Transferee (as defined below) all (but not less
than all) of its right (except for such rights accruing prior to transfer),
title and interest as an entirety in and to the Trust Estate, the Aircraft, this
Agreement, the Trust Agreement, the Amended and Restated Head Lease TIA and each
other Operative Document to which Owner Participant is a party or by which Owner
Participant is bound. Each such transfer shall be subject to the following
conditions, and Owner Participant agrees for the express benefit of each party
hereto that any such transfer will comply with such conditions:
(i) the Person to whom such transfer is to be made (a
"Transferee") is either (A) a bank, trust company or other like
regulated financial institution with a combined capital, surplus and
undivided profits of, or a corporation with a tangible net worth of, in
either case at least $60,000,000, (B) any wholly-owned subsidiary of
such bank, trust company, financial institution or corporation if such
bank, trust company, financial institution or corporation furnishes to
Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee an
agreement or agreements of such bank, financial institution or
corporation guaranteeing such subsidiary's obligations as Owner
Participant contained in this Agreement, the Trust Agreement, the
Amended and Restated Head Lease TIA and each other Operative Document
to which Owner Participant is a party or by which it is bound, which
guarantee shall be substantially in the form attached as Exhibit A
hereto or (C) a subsidiary of Owner Participant if Owner Participant
furnishes to Owner Trustee, Indenture Trustee, Original Head Lessee and
Lessee an agreement whereby Owner Participant will guarantee such
subsidiary's obligations as Owner Participant contained in this
Agreement, the Trust Agreement, the Amended and Restated Head Lease TIA
and each other Operative Document to which Owner Participant is a party
or by which it is bound, which guarantee shall be substantially in the
form attached as Exhibit A hereto;
(ii) Owner Trustee, Indenture Trustee, Original Head Lessee
and Lessee shall have received at least 15 days' prior written notice
of such transfer specifying the name and address of any proposed
transferee and specifying the facts necessary to determine whether such
proposed trans-
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46
feree qualifies as a "Transferee" under clause (i) above and does not
violate clause (viii) below; provided that if such Transferee is a
subsidiary of Owner Participant, such notice may be given promptly
following rather than prior to such transfer if such Transferee meets
the net worth requirement set forth above on its own account without a
guaranty and otherwise meets the requirements of this Section 10;
(iii) upon giving effect to such transfer, such Transferee is
a Citizen of the United States and such Transferee shall deliver to
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 Amended and Restated Head Lease TIA and each
other Operative Document to which Owner Participant is a party or by
which Owner Participant is bound, and in which the transferee shall
agree to be bound by and undertake the obligations of Owner Participant
in the Operative Documents and shall make representations and
warranties comparable to those of Owner Participant contained herein;
(vi) such transfer does not violate any provision of the
Federal Aviation Act or any rules or regulations promulgated
thereunder, or create a relationship that would be in violation
thereof, or violate any provisions of the Securities Act or any other
applicable Federal, state or other law, rule or regulation;
(vii) such transfer does not violate any provision of ERISA
or any rules or regulations thereunder;
(viii) such Transferee is not an airline, a commercial air
carrier, an air freight forwarder, any Person engaged in the business
of parcel transport by air or a subsidiary or an Affiliate of such an
airline, a commercial air carrier, an air freight forwarder, Person
engaged in the business of parcel transport by air or other similar
Person;
(ix) an opinion of counsel of the Transferee confirming the
matters referred to in clauses (iv) and (vi) above (with appropriate
reliance on certificates of corporate officers or public officials as
to matters of fact) and confirming that the agreement referred to in
clause (v) above is the
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47
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 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 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 Amended and Restated Head Lease TIA and each other Operative
Document to "Owner Participant" shall thereafter be deemed to include such
Transferee as provided in this Section 10. No transfer shall release Owner
Participant from its obligations hereunder, under the Amended and Restated Head
Lease TIA and under the other Operative Documents, except to the extent
expressly assumed by the Transferee in accordance with this Section 10,
provided, that notwithstanding such an assumption, in no event shall Owner
Participant be released from its obligations hereunder or under any of the other
Operative Documents with respect to claims under this Agreement or under the
Amended and Restated Head Lease TIA by or against Owner Participant which have
accrued or been made prior to the date of such transfer. The transferor Owner
Participant shall pay the reasonable expenses of each party hereto related to
any such transfer.
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 (6) 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 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
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48
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) 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 jurisdiction,
(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 jurisdiction (or the laws of the
jurisdiction to which the laws of such jurisdiction 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 and the
Owner Trustee's ownership interest in the Aircraft shall have been
accomplished (or, if such opinion cannot be given at the time of such
proposed change in registration because such change in registration is
not yet effective, (1) the opinion shall detail what filing, recording
or other action is necessary and (2) the Owner Trustee and the
Indenture Trustee shall have received a certificate from Lessee that
all possible preparations to accomplish such filing, recording and
other action shall have been done, and such filing, recording and other
action shall be accomplished and a supplemental opinion to that effect
shall be delivered to
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49
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 jurisdiction,
(E) there is no tort liability of the owner of an aircraft not
in possession thereof under the laws of such jurisdiction (it being
agreed that, in the event such latter opinion cannot be given in a form
satisfactory to the Owner Participant, such opinion shall be waived if
insurance reasonably satisfactory to the Owner Participant is provided
to cover such risk),
(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
jurisdiction so long as such Aircraft is registered under the laws of
such jurisdiction) the laws of such jurisdiction require fair
compensation by the government of such jurisdiction payable in currency
freely convertible into Dollars for the loss of use of such Aircraft in
the event of the requisition by such government of such use.
In addition, as a condition precedent to any such change in registration, (i)
the insurance required by Section 12 of the Lease shall be in full force and
effect at the time of such change in registration after giving effect to such
change in registration and the Owner Trustee and the Indenture Trustee shall
have received a certificate of the type described in Section 12(f) of the Lease
and (ii) the aircraft maintenance standards of the new country of registry shall
not be materially less stringent from those of the United States of America or
not materially less stringent from those of the United Kingdom and the Owner
Trustee and the Indenture Trustee shall have received a certificate to such
effect signed by the President, any Executive Vice President or any Senior Vice
President of Lessee which certificate shall, as among the parties hereto, be
presumed to be correct as to the matters stated therein absent conclusive
evidence to the contrary. Lessee shall pay all reasonable costs, expenses, fees,
and recording and registration taxes, including the reasonable fees and expenses
of counsel to the Owner Trustee, the Owner Participant and the Indenture
Trustee, and other charges in connection with any such change in registration.
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50
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 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
lawfully 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
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51
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 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
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52
attributable to it or other Lien or disposition of title created by or through
Original Head Lessee, Parent Guarantor or any Affiliate of either thereof which
would have constituted a Sublessor's Lien had the Sublease remained in effect
and to make restitution to the Trust Estate and the Indenture Estate for any
diminution of the assets thereof resulting therefrom and will indemnify and hold
harmless Lessee and each Indemnitee against any claims incurred or suffered by
any such Person and any reduction in amounts payable out of, or diminution in
the assets of, the Trust Estate or the Indenture Estate resulting from any 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 except in accordance with the terms thereof, provided that any such
amendment, supplement or modification shall not adversely affect the Lessee, and
(iii) not to terminate or revoke the Trust Agreement except in accordance with
the terms thereof, provided that any such termination or revocation shall not
adversely affect the Lessee.
(b) Notwithstanding anything to the contrary in the Trust
Agreement or Section 14(a) hereof, 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
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53
Trustee, the Original Head Lessee and Lessee shall have been given 30 days'
prior notice thereof and (B) if, within 15 days after notice of such a proposed
change is given to Lessee and the Original Head Lessee, either (1) Lessee or
Original Head Lessee delivers to Owner Participant and Owner Trustee (at the
expense of Owner Participant) an opinion of counsel, which counsel shall be
reasonably satisfactory to Owner Participant and Owner Trustee, to the effect
that such proposed change in the situs of the Trust Estate would have an adverse
effect on the rights or obligations of Lessee or Original Head Lessee or (2)
Lessee or Original Head Lessee delivers to Owner Participant and Owner Trustee
(at the expense of Owner Participant) an opinion of counsel, which counsel shall
be reasonably satisfactory to Owner Participant and Owner Trustee, to the effect
that such proposed change in the situs of the Trust Estate would cause an
increase in the amount for which Lessee may be required to indemnify any Person
pursuant to the provisions of Section 10 of the Lease or for which Original Head
Lessee is required to indemnify any Person pursuant to the provisions of the
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 Amended and Restated Head Lease TIA shall waive indemnification under
Section 10 of the Lease or applicable provision of the Amended and Restated Head
Lease TIA for any adverse tax or other consequences to it of such a change in
the situs of the Trust Estate, (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 (subject to the exclusions set forth in Section 10(b) of the Lease and
the exclusions in the Amended and Restated Head Lease TIA) may reasonably
request, (B) promptly after notice thereof Owner Participant has not notified
Lessee
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54
and provided reasonable evidence of an adverse effect on Owner Participant's
rights or obligations under the Trust Agreement, (C) Indenture Trustee shall
have received an opinion of counsel selected by Lessee, which counsel shall be
reasonably satisfactory to Indenture Trustee, to the effect that the validity
and priority of the Lien of the Indenture Estate will not be adversely affected
by such action, and that such Uniform Commercial Code and FAA filings as are
required to maintain the validity and the priority of the Lien of the Indenture
have been made, (D) Owner Participant and Indenture Trustee shall have received
an opinion or opinions of counsel selected by Owner Participant to the effect
that, with customary exceptions, (I) the trust, as thus removed, shall remain a
validly established trust, (II) any amendments to the Trust Agreement or the
Indenture necessitated by such removal shall have been duly authorized, executed
and delivered by the parties thereto and shall constitute the legal, valid and
binding obligations of such parties, enforceable in accordance with their terms,
(III) if such removal involves the replacement of Owner Trustee, an opinion of
counsel to such successor Owner Trustee in form and substance reasonably
satisfactory to Indenture Trustee and to Owner Participant covering the matters
described in the 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
(subject to the exclusions set forth in Section 10(b) of the Lease and the
Amended and Restated Sublease TIA) from and against any increase in Taxes borne
by such Person that results from such change in situs. In no event shall any
change in situs of the trust affect Original Head Lessee's rights or obligations
under the Amended and Restated Head Lease TIA.
(d) Owner Trustee or any successor may resign or be removed by
Owner Participant, a successor Owner Trustee may be appointed, and a corporation
may become Owner Trustee under the Trust Agreement, only in accordance with the
provisions of Article X of the Trust Agreement. Owner Participant agrees
promptly to appoint a successor Owner Trustee in the event that Owner
Participant has actual knowledge that Owner Trustee is not in compliance with
its covenants contained herein. No successor Owner Trustee shall be appointed
unless Lessee and Indenture Trustee shall have given written consent thereto,
which consent
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55
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 on an after tax basis relating to the resignation or, if requested by
Lessee, the removal of Owner Trustee, provided that the Owner Participant shall
pay expenses relating to the removal of the Owner Trustee, if such removal was
solely at the request of the Owner Participant.
(e) The 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 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 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
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56
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 termination of the Sublease: Lessee, and Owner
Trustee, Owner Participant and the other "Indemnitees" (as such term is defined
in the Sublease) other than 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 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 (but excluding) the
Restatement Date and excluding the Head Lease TIA
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57
(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 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 Amended and Restated Head Lease TIA, the
"Obligations" in respect of which shall continue in full force and effect in
accordance with the Parent Head Lease Guaranty and are hereby ratified and
confirmed by the Parent Guarantor.
SECTION 16. Certain Additional Obligations of the Lessee, the
Owner Trustee, the Owner Participant and the Indenture Trustee. Each of Lessee,
Owner Trustee, Owner Participant and Indenture Trustee hereby covenants and
agrees for the benefit of each other that it will be bound by the terms of the
other Operative Documents to which it or its applicable trustee is a party, and
comply with and perform its agreements, covenants and indemnities set forth in
the other Operative Documents to which it or its applicable trustee is a party,
as amended, supplemented or otherwise modified from time to time as permitted
hereby.
SECTION 17. Lessee Protection of Title. Each of the Owner
Trustee and the Indenture Trustee agrees to execute and deliver such documents
or other instruments as the Lessee may reasonably request to enable the Lessee
to perform its obliga-
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58
tions under Section 15 of the Lease for the benefit of such Person.
SECTION 18. Jurisdictional and Related Matters.
(a) Jurisdiction. Each of Owner Participant, Owner Trustee,
Trust Company, Indenture Trustee, Original Head Lessee, Parent Guarantor and
Lessee (i) hereby irrevocably submits for itself and its property to the
nonexclusive jurisdiction of the courts of the State of New York in New York
County, and to the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York, for the purposes of any suit, action or
other proceeding arising out of this Agreement, the Lease or any other Operative
Document or any of the transactions contemplated hereby or thereby, and (ii)
hereby waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, to the extent permitted by
applicable law, any immunity (including, without limitation, sovereign
immunity), that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper, or that
this Agreement, the Lease or any other Operative Document or any of the
transactions contemplated hereby or thereby may not be enforced in or by such
courts.
(b) Service of Process. Lessee generally consents to service
of process by registered mail, return receipt requested, addressed to it at 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
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59
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 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 777 Main Street CTMO 0238, Hartford,
Connecticut 06115 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
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60
the transactions contemplated by this Agreement, the other Operative Documents,
the Lease, the Pass Through Trust Agreements, the Intercreditor Agreement, the
Liquidity Facilities and the Underwriting Agreement (except, in each case, as
otherwise provided therein) shall be paid on or prior to the 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
Hunton & Williams, 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
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61
warranties to the same extent as if such representations and warranties were
made to the Liquidity Provider directly. The terms of this Agreement shall inure
to the benefit of the Liquidity Provider, its successors and permitted assigns.
SECTION 23. Miscellaneous. (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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62
(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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63
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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64
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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65
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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66
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.
67
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 $ 12,089,958 02-Jan-2009 6.85% $ 12,089,958
Class B $ 4,533,177 02-Jan-2008 6.93% $ 4,533,177
Class C $ 4,532,787 02-Jul-2004 6.86% $ 4,532,787
Class D $ 1,711,069 02-Jan-98 8.16% $ 1,711,069
68
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.
69
EXHIBIT A to
REFUNDING AGREEMENT
TRANSFEREE'S PARENT GUARANTEE
[GPA 1989 BN-12]
TRANSFEREE'S PARENT GUARANTEE [GPA 1989 BN-12], 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-12], 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,
70
by acceleration or otherwise) of, and the faithful performance of, and
compliance with, all payment obligations of Transferee under the Refunding
Agreement, the Amended and Restated Head 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
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71
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.
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,
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72
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 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
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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
therefor, the sums that would have otherwise been due from the Transferee had
such remedies been able to be exercised.
7. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by any beneficiary upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Transferee or the Guarantor,
or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Transferee or the
Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made. The Guarantor shall not commence any "case" (as
defined in Title 11 of the United States Code) against the Transferee.
8. Payments. The Guarantor hereby guarantees that payments
hereunder shall be paid without set-off, counterclaim, deduction or withholding,
and shall be made in U.S. Dollars. 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.
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;
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(b) the Guarantor has the corporate power and authority and
the legal right to execute and deliver, and to perform its obligations
under, this Guarantee, and has taken all necessary corporate action to
authorize its execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally;
(d) the execution, delivery and performance of this Guarantee
will not violate any provision of any requirement of law or contractual
obligation of the Guarantor and will not result in or require the
creation or imposition of any lien on any of the properties or revenues
of the Guarantor pursuant to any requirement of law or contractual
obligation of the Guarantor;
(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
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75
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]1
(h) the Guarantor is [type of legal personality] with a
[combined capital, surplus and undivided profits] [tangible net worth]
of at least $60,000,000.
10. Severability. Any provision of this Guarantee that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11. No Waiver; Cumulative Remedies. No Beneficiary shall by
any act (except by a written instrument pursuant to Section 13 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of any
Beneficiary, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or 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
- --------
1 This is not applicable if Transferee is a wholly-owned subsidiary of the
Owner Participant.
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76
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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77
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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78
EXHIBIT B to
REFUNDING AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
[GPA 1989 BN-12]
ASSIGNMENT AND ASSUMPTION AGREEMENT [GPA 1989 BN-12]
("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 Amended and Restated Head Lease TIA
identified in the Refunding Agreement, (v) the proceeds therefrom and (vi) the
Indenture (as defined in the Refunding Agreement) and (b) the assumption by
Assignee of the obligations of Assignor accruing thereunder;
NOW, THEREFORE, it is hereby agreed as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the meaning ascribed thereto in the Refunding Agreement.
For purposes of this Assignment, the defined term "Operative Document" shall
have the meaning ascribed thereto in the Refunding Agreement and shall be deemed
to include the Amended and Restated Head Lease TIA.
2. Assignment. Assignor has sold, conveyed, assigned,
transferred and set over, and does hereby sell, convey, assign, transfer and set
over, unto Assignee, as of the date hereof, all of its right, title and interest
in, under and with respect to the Refunding Agreement, the Trust Agreement, the
Trust Estate, the Amended and Restated Head Lease TIA, the Indenture, all of the
other Operative Documents to which Assignor is a party or any other contract,
agreement, document or instrument relating to the Trust Estate by which Assignor
is bound, and any proceeds therefrom, together with all other documents and
instruments evidencing any of such right, title and interest, except such
79
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 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
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80
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.
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
without 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 [combined capital, surplus
and undivided profits] [tangible net worth] of not less than
$60,000,000.
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81
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.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment and Assumption Agreement as of the day and year first above written.
[ASSIGNOR]
By:____________________________________
Title:
[ASSIGNEE]
By:____________________________________
Title:
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EXHIBIT C to
REFUNDING AGREEMENT
LIST OF COUNTRIES
Australia
Canada
Denmark
Finland
France
Germany
Iceland
Ireland
Japan
Luxembourg
Netherlands
New Zealand
Norway
Singapore
South Korea
Sweden
Switzerland
United Kingdom
83
EXHIBIT D to
REFUNDING AGREEMENT
FORM OF INSURANCE BROKER'S REPORT
[see attached]
84
ANNEX A to
REFUNDING AGREEMENT
FAA DOCUMENTS
Documents Filed on the Restatement Date
(a) Trust Agreement Supplement [GPA 1989 BN-12] No. 2 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
with the FAA at 12:20 p.m., C.S.T. on November 26, 1996;
(b) First Amended and Restated Trust Indenture and Security
Agreement [GPA 1989 BN-12] 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. 2 [GPA 1989 BN-12] 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) Amended and Restated Aircraft Lease Agreement [GPA 1989 BN-12]
dated as of December 19, 1989 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-12] 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.
Trust Agreement
Trust Agreement [GPA 1989 BN-12] dated as of December 19, 1989 between
[___________________________], formerly
85
[________________________], as owner participant, and Wilmington Trust Company,
as owner trustee, as supplemented by Trust Supplement [GPA 1989 BN-12] No. 1
dated December 28, 1989.
Original Indenture
Trust Indenture and Security Agreement [GPA 1989 BN-12] dated as of
December 19, 1989 between Wilmington Trust Company, as trustee under Trust
Agreement [GPA 1989 BN-12] dated as of December 19, 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 January 2, 1990 and assigned Conveyance No. V78636,
as supplemented by the following described instrument:
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- -------------- --------------
Trust Indenture
Supplement No. 1 12/28/89 01/02/90 V78636
Original Head Lease
Aircraft Lease Agreement [GPA 1989 BN-12] dated as of December 19, 1989
between Wilmington Trust Company, as trustee under Trust Agreement [GPA 1989
BN-12] dated as of December 19, 1989, as lessor, and GPA Leasing USA Sub I,
Inc., as lessee, which was recorded by the Federal Aviation Administration on
January 2, 1990 and assigned Conveyance No. V78637, as supplemented by the
following described instrument:
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- -------------- --------------
Lease Supplement
[GPA 1989 BN-12]
No. 1 12/28/89 01/02/90 V78637
Lease Supplement
[GPA 1989 BN-12]
No. 2 12/31/91 (which was not filed for recordation
with the FAA)
Sublease
Aircraft Sublease Agreement [GPA 1989 BN-12] 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 2, 1990 and assigned Conveyance No. E10203,
as supplemented and amended by the following described instruments:
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86
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- -------------- --------------
Sublease Supplement
No. 1 09/28/90 10/02/90 E10203
Amendment No. 1 to
Aircraft Sublease
Agreement [GPA 1989 as of
BN-12] 06/25/91 07/10/91 M27023
Amendment No. 2 to
Aircraft Sublease
Agreement [GPA 1989 as of
BN-12] 08/26/91 10/02/91 DD001725
Sublease Collateral Assignment
Assignment of Sublease [GPA 1989 BN-12] dated as of September
21, 1990 between GPA Leasing USA Sub I, Inc., as assignor, and Wilmington Trust
Company, as trustee under Trust Agreement [GPA 1989 BN-12] dated as of December
19, 1989, as assignee, which was attached to and recorded as one instrument with
the Sublease on October 2, 1990 and assigned Conveyance No. E10203.
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