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Exhibit 4.15
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REFUNDING AGREEMENT
[GPA 1990 AWA-13]
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
FLEET NATIONAL 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. 091
Registration No. N634AW
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..................................................... 20
SECTION 9. Representations and Warranties................................. 25
SECTION 10. Transfer of Owner Participant's
Interest................................................... 42
SECTION 11. Re-Registration of the Aircraft............................... 45
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.................................... 55
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................................ 58
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 1990 AWA-13]
REFUNDING AGREEMENT [GPA 1990 AWA-13] (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 five 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) FLEET NATIONAL
BANK (formerly known as Fleet National Bank of Connecticut, Shawmut Bank
Connecticut, National Association, and The Connecticut National Bank), a
national banking association, 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, Sanwa International PLC, as Lender (and predecessor in interest to
the Mitsubishi Trust and Banking Corporation, New York Branch, and The Hachijuni
Bank, Ltd., New York Branch, collectively, the "Lenders"), the Owner Trustee and
the Indenture Trustee entered into the Participation Agreement [GPA 1990
AWA-13], dated as of September 21, 1990, as amended by the Letter Agreement
dated as of July 29, 1993 (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
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Indenture Trustee entered into the Trust Indenture and Security Agreement [GPA
1990 AWA-13], dated as of September 21, 1990, as supplemented by Trust Indenture
Supplement No. 1 dated September 28, 1990, as amended by Amendment No. 1 to
Trust Indenture and Security Agreement dated March 27, 1992, and as further
amended by Amendment No. 2 to Trust Indenture and Security Agreement dated as of
July 29, 1993 (as so 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 1990 AWA-13], dated as of September 21,
1990, as supplemented by Lease Supplement [GPA 1990 AWA-13] No. 1 dated
September 28, 1990, 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 1990 AWA-13] dated as of September 21, 1990 (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 1990 AWA-13], dated as of September 21, 1990, as
supplemented by Trust Agreement Supplement [GPA 1990 AWA-13] No. 1 dated
September 28, 1990 (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 1990 AWA-13],
dated as of
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September 21, 1990 (as amended, supplemented or otherwise modified to the date
hereof, the "Head Lease TIA");
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Original Head Lessee in its capacity as sublessor
(in such capacity, the "Sublessor") and America West Airlines, Inc. in its
capacity as sublessee (in such capacity, the "Sublessee") entered into the
Aircraft Sublease Agreement [GPA 1990 AWA-13] dated as of September 21, 1990, as
supplemented by Sublease Supplement No. 1 [GPA 1990 AWA-13] dated September 28,
1990, and as amended by Amendment No. 1 to Aircraft Sublease Agreement [GPA 1990
AWA-13] 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 1990
AWA-13] 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 1990 AWA-13], 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 1990 AWA-13] 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 1990 AWA-13],
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 five series, the proceeds from the
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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 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 1990 AWA-13] 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, five 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
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credit agreements (each, a "Liquidity Facility"), for the benefit of the Holders
of Equipment Notes of each of three Pass Through Trusts, with the Subordination
Agent, as agent for the Pass Through Trustee on behalf of each such Pass Through
Trust; and (ii) the Pass Through Trustee, the Liquidity Provider and the
Subordination Agent will enter into the Intercreditor Agreement, dated as of the
Restatement Date (the "Intercreditor Agreement"); and
WHEREAS, the Equipment Notes will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trusts;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of 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 and
the other Operative Documents (as defined in the Original Indenture)
payable on the Restatement Date under Section 2.12 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
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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 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
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principal amount, bearing the interest rate and for the purchase price set
forth on Schedule II hereto opposite the name of such Pass Through Trust.
(b) The Owner Participant, by its execution and delivery hereof,
requests and directs the Owner Trustee to 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
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Section 1(a)(ii) and the obligations of the Owner Trustee to make the payments
described in Section 1(a)(iii) and the obligations of each of the Pass Through
Trustee, the Owner Trustee, the Owner Participant and the Indenture Trustee to
participate in the transactions contemplated by this Agreement on the
Restatement Date are subject to the fulfillment, prior to or on the Restatement
Date, of the following conditions precedent (except 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:
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(1) an incumbency certificate of each of the Original Head
Lessee, the Lessee and the Parent Guarantor as to the person or
persons authorized to execute and deliver this Agreement and each of
the other documents to be executed on behalf of such Person 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
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(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 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;
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(3) a copy of the articles of association and by-laws of the
Indenture Trustee, each certified by the Secretary, an Assistant
Secretary or other appropriate officer of the Indenture Trustee; and
(4) a certificate signed by an authorized officer of the
Indenture Trustee, dated the Restatement Date, 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).
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(g) The Pass Through Trustee, the Indenture Trustee and the Owner
Trustee each shall have received the following:
(1) an incumbency certificate of the Owner Participant as to
the person or persons authorized to execute and deliver this
Agreement and each of the other documents to be executed on behalf
of the Owner Participant in connection with the transactions
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.
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(i) The Pass Through Trustee, the Indenture Trustee, the Owner
Trustee and the Owner Participant each shall have received an opinion
addressed to it from (i) Latham & Watkins, special counsel for the Lessee,
(ii) Andrews & Kurth L.L.P., special counsel for the Lessee, (iii) the
Senior Vice 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
Shipman & Goodwin LLP, special counsel for the Indenture Trustee, 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.
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(p) The Pass Through Trustee, the Owner Trustee, the Owner
Participant and the Indenture Trustee each shall have received an opinion
addressed to it from McCann FitzGerald, special Irish counsel for the
Parent Guarantor, in form and substance satisfactory to each of them.
(q) The 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
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case may be, and such financing, termination, amendment and continuation
statement or statements or documents to the same purposes shall have been
duly filed in all places necessary or advisable, and any additional
Uniform Commercial Code financing, termination, amendment and continuation
statements deemed advisable by the Original Head Lessee, the Lessee, the
Owner Participant or the Indenture Trustee shall have been executed and
delivered by the Original Head Lessee, the Lessee, the Indenture Trustee
or the Owner Trustee, as the case may be, and duly filed in all places
advisable.
(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:
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(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;
(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;
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(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 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;
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(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:
(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
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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 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
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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 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,
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or result in the creation of any Lien (other than Permitted Liens) upon
the property of the Lessee under, any indenture, mortgage, contract, lease
or other agreement in each case having payment obligations in excess of
$500,000 to which the Lessee is a party or by which it may be bound or
affected;
(d) neither the execution and delivery by the Lessee of the Lessee
Documents nor the performance of the obligations of the Lessee under the
Lessee Documents nor the consummation by the Lessee of any of the
transactions contemplated by the Lessee 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
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the Lease, which laws, however, do not make the remedies provided in the
Lease inadequate for the practical realization of the benefits intended to
be afforded thereby;
(f) except as disclosed in the Prospectus, there are no pending or,
to its knowledge, threatened actions or proceedings before any court or
administrative agency or regulatory commission or other governmental
agency against or affecting the Lessee that are reasonably expected to
materially adversely affect the ability of Lessee to enter into or perform
its obligations under the Lessee Documents;
(g) the Lessee is not an "investment company" or a company
controlled by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended;
(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
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other document (including any financing statement under Article 9 of the
UCC of the State of Delaware, New York or Arizona) and no further action
is necessary, under the laws of the United States of America or the States
of Delaware, New York and Arizona in order to perfect the Owner Trustee's
interest in the Aircraft as against the Lessee and any third parties, or
to perfect the security interest in favor of the Indenture Trustee in the
Owner Trustee's interest in the Aircraft and in the Lease;
(j) all obligations of the Lessee owing to the Lessor in connection
with the Lease are at least pari passu with all unsecured and
unsubordinated debt obligations of the Lessee;
(k) no event has occurred and is continuing which constitutes a
Lease Event of Default or would constitute a Lease Event of Default but
for the requirement that notice be given or time lapse or both;
(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
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any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading;
(o) on the Restatement Date, all sales, use, documentary, duties or
other similar Taxes then due and for which the Lessee is responsible
pursuant to the Lessee Documents, shall have been paid, other than such
Taxes which are being contested by the Lessee in good faith and by
appropriate proceedings (and for which the Lessee shall have established
such reserves as are required under GAAP) so long as such proceedings 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
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the Lease, and the Indenture Trustee, as assignee of the Owner Trustee's
rights under the Lease pursuant to the Indenture, would be entitled to the
benefits of Section 1110 of the Bankruptcy Code with respect to the
Aircraft.
SECTION 9. Representations and Warranties. Each of the parties below
represents and warrants, as of the Restatement Date, to each of the other
parties to this Agreement and to the Liquidity Provider (except that the
representation and warranty set forth in Section 9(f)(8) shall be a
representation and warranty of the Original Head Lessee to the Lessee only) as
follows:
(a) The Indenture Trustee in its individual capacity (and as
Indenture Trustee to the extent provided in clause (6) below) represents
and warrants that:
(1) the Indenture Trustee is a banking association duly
organized, validly existing and in good standing under the federal
laws of the United States of America, 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
Connecticut 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
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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 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 Connecticut 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
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30
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
(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
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31
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 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
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32
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;
(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
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33
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 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
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34
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;
(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
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35
citizenship requirements of the Owner Participant under the Federal
Aviation Act);
(4) there are no pending or, to its knowledge, threatened
actions or proceedings against the Owner Participant before any
court or administrative agency or arbitrator which, if determined
adversely to the Owner Participant, would materially adversely
affect the Owner Participant's ability to perform its obligations
under this Agreement, the Trust Agreement, the SLV Letter Agreement
or the 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
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36
America and to prevent Indenture Trustee, the Holders of the
Equipment Notes, the Lessee or any Permitted Sublessee from being
adversely affected as a result thereof and (B) indemnify the Lessee,
the Indenture Trustee, the Holders of the Equipment Notes and any
Permitted Sublessee, from and against any and all Claims incurred or
suffered as a result of Owner Participant's failure to be such a
citizen or loss of such citizenship, including, without limitation,
as a result of the Aircraft's becoming ineligible or ceasing to
remain eligible for such registration.
(d) The Pass Through Trustee represents, warrants and covenants
that:
(1) the Pass Through Trustee is duly organized, validly
existing and in good standing under the federal laws of the United
States of America, and has the full corporate power, authority and
legal right under the federal laws of the United States of America
pertaining to its banking, trust and fiduciary powers to execute and
deliver each of the Pass Through Trust Agreements, the Intercreditor
Agreement, and this Agreement and to perform its obligations under
this Agreement, the Pass Through Trust Agreements and the
Intercreditor Agreement;
(2) this Agreement has been, and when executed and delivered
by the Pass Through Trustee, each of the Pass Through Trust
Agreements and the Intercreditor Agreement will have been, duly
authorized, executed and delivered by the Pass Through Trustee; this
Agreement constitutes, and when executed and delivered by the Pass
Through Trustee, each of the Pass Through Trust Agreements and the
Intercreditor Agreement, will constitute, the legal, valid and
binding obligations of the Pass Through Trustee enforceable against
it in accordance with their respective terms, except as the same may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether considered in
a proceeding at law or in equity;
(3) none of the execution, delivery and performance by the
Pass Through Trustee of any of the Pass Through Trust Agreements,
the Intercreditor Agreement or this Agreement, the purchase by the
Pass Through Trustee of the Equipment Notes pursuant to this
Agreement, or the issuance of the Certificates pursuant to the Pass
Through Trust Agreements, contravenes any
- 33 -
37
law, rule or regulation of the State of Connecticut or any United
States governmental authority or agency regulating the Pass Through
Trustee's banking, trust or fiduciary powers or any judgment or
order applicable to or binding on the Pass Through Trustee and does
not contravene or result in any breach of, or constitute a default
under, the Pass Through Trustee's articles of association or by-laws
or any agreement or instrument to which the Pass Through Trustee is
a party or by which it or any of its properties may be bound;
(4) neither the execution and delivery by the Pass Through
Trustee of any of the Pass Through Trust Agreements, the
Intercreditor Agreement or this Agreement, nor the consummation by
the Pass Through Trustee of any of the transactions contemplated
hereby or thereby, requires the consent or approval of, the giving
of notice to, the registration with, or the taking of any other
action with respect to, any State of Connecticut governmental
authority or agency or any federal governmental authority or agency
regulating the Pass Through Trustee's banking, trust or fiduciary
powers;
(5) assuming that the trusts created by the Pass Through Trust
Agreements will not be taxable as corporations, but, rather, each
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Code for federal income tax purposes, there are
no Taxes payable by the Pass Through Trustee imposed by the State of
Connecticut or any political subdivision or taxing authority thereof
in connection with the acquisition, possession or ownership by the
Pass Through Trustee of any of the Equipment Notes (other than
franchise or other taxes based on or measured by any fees or
compensation received by the Pass Through Trustee for services
rendered in connection with the transactions contemplated by any of
the Pass Through Trust Agreements), and prior to the exercise of
remedies upon the occurrence of an Indenture Event of Default, there
are no Taxes payable by the Pass Through Trustee imposed by the
State of Connecticut or any political subdivision or taxing
authority thereof in connection with the execution, delivery and
performance by the Pass Through Trustee of this Agreement, any of
the Pass Through Trust Agreements or the Intercreditor Agreement
(other than franchise or other Taxes based on or measured by any
fees or compensation received by the Pass Through Trustee for
services rendered in connection with the transactions contemplated
by any of
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38
the Pass Through Trust Agreements), and such trusts will not be
subject to any Taxes imposed by the State of Connecticut or any
political subdivision or taxing authority thereof; upon the exercise
of remedies following the occurrence of an Indenture Event of
Default, there will be no Taxes payable by the Pass Through Trustee
imposed by the State of Connecticut or any political subdivision or
taxing authority thereof in connection with the execution, delivery
and performance by the Pass Through Trustee of this Agreement, any
of the Pass Through Trust Agreements or the Intercreditor Agreement
(other than franchise or other Taxes based on or measured by any
fees or compensation received by the Pass Through Trustee for
services rendered in connection with the transactions contemplated
by any of the Pass Through Trust Agreements), and the trusts created
by the Pass Through Trust Agreements will not be subject to any
Taxes imposed by the State of Connecticut or any political
subdivision thereof, solely because the Pass Through Trustee
maintains an office in, and administers the trusts created by the
Pass Through Trust Agreements in, the State of Connecticut;
(6) there are no pending or threatened actions or proceedings
against the Pass Through Trustee before any court or administrative
agency which individually or in the aggregate, if determined
adversely to it, would materially adversely affect the ability of
the Pass Through Trustee to perform its obligations under this
Agreement, the Intercreditor Agreement or any Pass Through Trust
Agreement;
(7) except for the issue and sale of the Certificates
contemplated hereby, the Pass Through Trustee has not directly or
indirectly offered any Equipment Notes for sale to any Person or
solicited any offer to acquire any Equipment Notes from any Person,
nor has the Pass Through Trustee authorized anyone to act on its
behalf to offer directly or indirectly any Equipment Notes for sale
to any Person, or to solicit any offer to acquire any Equipment
Notes from any Person; and the Pass Through Trustee is not in
default under any Pass Through Trust Agreement; and
(8) the Pass Through Trustee is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee, the Underwriters or the Lessee.
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39
(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 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,
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40
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 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
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41
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
(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
- 38 -
42
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
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
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43
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.
(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,
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44
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 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
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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, consolidation, merger, sale of assets or
otherwise) any of its right, title or interest in and to the Trust Estate, the
Aircraft, the Lease, this Agreement, the Trust Agreement, the 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;
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(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
transferee 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;
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(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 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
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eligibility for registration by restricting the use of the Aircraft.
SECTION 11. Re-Registration of the Aircraft. The Indenture Trustee
agrees, that if the Owner Participant consents thereto, which consent shall not
be unreasonably withheld, at any time after the Restricted Use Period, Lessee
may, in connection with effecting a Permitted Sublease elect to effect a change
in registration of the Aircraft, at Lessee's cost and expense, so long as (a)
the country of registry of the Aircraft is a country listed on Exhibit C hereto
(or such other country as the Owner Participant approves) 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
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Trustee shall have received a certificate from Lessee that all possible
preparations to accomplish such filing, recording and other action shall
have been done, and such filing, recording and other action shall be
accomplished and a supplemental opinion to that effect shall be delivered
to the Owner Trustee and the Indenture Trustee on or prior to the
effective date of such change in registration),
(D) it is not necessary, solely as a consequence of such change in
registration and without giving effect to any other activity of the Owner
Trustee, the Owner Participant or the Indenture Trustee (or any Affiliate
thereof), as the case may be, for the Owner Trustee, the Owner Participant
or the Indenture Trustee to qualify to do business in such 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,
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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.
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.
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Each of the Indenture Trustee, Pass Through Trustee and
Subordination Agent severally covenants and agrees with each other party hereto
that it shall not cause or permit to exist a Trustee's Lien (as defined below)
attributable to it with respect to the Aircraft or any other portion of the
Trust Estate or the Indenture Estate. Each of Indenture Trustee, Pass Through
Trustee and Subordination Agent severally agrees that it will promptly, at its
own expense (and without any right of 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
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Original Head Lessee and Parent Guarantor severally agrees that it will
promptly, at its own expense (and without any right of indemnification or
reimbursement from Lessee), take such action as may be necessary duly to
discharge any such Sublessor's Lien attributable to it or other Lien or
disposition of title created by or through Original Head Lessee, Parent
Guarantor or any Affiliate of either thereof which would have constituted a
Sublessor's Lien had the Sublease remained in effect and to make restitution to
the Trust Estate and the Indenture Estate for any 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
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not consent to or direct a change in the situs of the Trust Estate so long as a
successor Owner Trustee meeting the requirements of the Trust Agreement is
reasonably available at the present situs of the Trust Estate (A) unless the
Indenture Trustee, the Original Head Lessee and Lessee shall have been given 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
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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 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
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Owner Participant has actual knowledge that Owner Trustee is not in compliance
with its covenants contained herein. No successor Owner Trustee shall be
appointed unless Lessee and Indenture Trustee shall have given written consent
thereto, which consent shall not be unreasonably withheld. Owner Participant
will not instruct Owner Trustee to terminate any Operative Document or take any
action thereunder in violation of the terms thereof. Owner Participant shall not
transfer any interest in the Trust Estate except in compliance with Section 10
hereof and the Trust Company shall not permit Owner Trustee to engage in any
business other than owning and leasing the Aircraft as contemplated hereby.
Lessee shall pay expenses 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
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termination or expiration thereof (including, without limitation, any such
liability arising from and including the Restatement Date under the Sublease in
respect of the period up to (but excluding), or acts or omissions or
circumstances arising prior to (but excluding), the Restatement Date), (ii) all
rights, benefits, obligations and liabilities under the Sublease TIA (which
rights, benefits, obligations and liabilities are amended and restated as of the
Restatement Date) and (iii) Original Head Lessee and Parent Guarantor shall
remain liable to Sublessee under the Sublease and the Sublease Guaranty for
Sublessor's Liens (as therein defined); all of which rights, benefits,
obligations and liabilities shall expressly survive the termination of the
Sublease and the Sublease Guaranty. In furtherance of the foregoing, it is
agreed that (x) Original Head Lessee shall continue to be liable to the
Sublessee as and to the extent provided hereunder for removal of Sublessor's
Liens and (y) Parent Guarantor is hereby released from any and all obligations
and liabilities under the Sublease Guaranty, other than in respect of the
obligations and liabilities of the Original Head Lessee in respect of
Sublessor's Liens as provided above.
(c) Each of the Lessee, Owner Trustee and Owner Participant agree as
among themselves that the following rights, benefits, obligations and
liabilities shall survive the 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
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57
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 (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.
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58
SECTION 17. Lessee Protection of Title. Each of the Owner Trustee
and the Indenture Trustee agrees to execute and deliver such documents or other
instruments as the Lessee may reasonably request to enable the Lessee to perform
its obligations under Section 15 of the Lease for the benefit of such Person.
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,
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59
addressed to it at _____________________________ or such other office of Owner
Participant as from time to time may be designated by Owner Participant in
writing to Owner Trustee, Original Head Lessee, Lessee and Indenture Trustee.
Owner Trustee generally consents to service of process by registered mail,
return receipt requested, addressed to it at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-0001 or such other office of Owner
Trustee as from time to time may be 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-
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60
pocket costs, fees and expenses incurred by the Lessee, the Owner Trustee, the
Owner Participant, the Pass Through Trustee, the Subordination Agent, the
Liquidity Provider, the Indenture Trustee and the Original Certificate Holders
in connection with the transactions contemplated by this Agreement, the other
Operative Documents, the Lease, the Pass Through Trust Agreements, the
Intercreditor Agreement, the Liquidity Facilities and the Underwriting Agreement
(except, in each case, as otherwise 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, the Subordination Agent and
the Indenture Trustee, (B) Morris, James, Hitchens & Williams, special
counsel for the Owner Trustee, (C) Daugherty, Fowler & Peregrin, special
counsel in Oklahoma City, Oklahoma and (D) 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.
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61
SECTION 22. Reliance of Liquidity Provider. Each of the parties
hereto agrees and acknowledges that the Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that the Liquidity Provider may rely on such representations and
warranties to the same extent as if such representations and 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
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62
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.
(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:
FLEET NATIONAL BANK, not in its individual
capacity, except as otherwise provided
herein, but solely as Indenture 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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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.
5. 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. 1996-1E, 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 $11,897,518 02-Jan-2009 6.85% $11,897,518
Class B $ 4,413,774 02-Jul-2005 6.93% $ 4,413,774
Class C $ 4,552,621 02-Jan-2002 6.86% $ 4,552,621
Class D $ 4,249,113 02-Jan-2002 8.16% $ 4,249,113
Class E $ 2,541,597 02-Jul-2002 10.50% $ 2,541,597
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 1990 AWA-13]
TRANSFEREE'S PARENT GUARANTEE [GPA 1990 AWA-13], 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 1990 AWA-13], 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 representation 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 1990 AWA-13]
ASSIGNMENT AND ASSUMPTION AGREEMENT [GPA 1990 AWA-13] ("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 Fleet National 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 1990 AWA-13] 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 1990 AWA-13] 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 1990
AWA-13] 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 1990 AWA-13]
dated as of September 21, 1990 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 1990 AWA-13] 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 1990 AWA-13] dated as of September 21, 1990
between [__________________________], formerly
85
[________________________], as owner participant, and Wilmington Trust Company,
as owner trustee, as supplemented by Trust Agreement Supplement [GPA 1990
AWA-13] No. 1 dated September 28, 1990.
Original Indenture
Trust Indenture and Security Agreement [GPA 1990 AWA- 13] dated as
of September 21, 1990 between Wilmington Trust Company, as trustee under Trust
Agreement [GPA 1990 AWA-13] dated as of September 21, 1990, and Fleet National
Bank (formerly known as Fleet National Bank of Connecticut, Shawmut Bank
Connecticut, National Association, and The Connecticut National Bank), as
indenture trustee, which was recorded by the Federal Aviation Administration on
October 1, 1990 and assigned Conveyance No. E10187, as supplemented and amended
by the following described instruments:
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- ------------------------------------------
Trust Indenture
Supplement No. 1 09/28/90 10/01/90 E10187
Amendment No. 1 to
Trust Indenture and
Security Agreement
[GPA 1990 AWA-13] 03/27/92 05/18/92 EE003014
Amendment No. 2 to
Trust Indenture and
Security Agreement as of
[GPA 1990 AWA-13] 07/29/93 08/04/93 F59673
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86
Original Head Lease
Aircraft Lease Agreement [GPA 1990 AWA-13] dated as of September 21,
1990 between Wilmington Trust Company, as trustee under Trust Agreement [GPA
1990 AWA-13] dated as of September 21, 1990, as lessor, and GPA Leasing USA Sub
I, Inc., as lessee, which was recorded by the Federal Aviation Administration on
October 1, 1990 and assigned Conveyance No. E10188, as supplemented by the
following described instruments:
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- ------------------------------------------
Lease Supplement
[GPA 1990 AWA-13]
No. 1 09/28/90 10/01/90 E10188
Lease Supplement
[GPA 1990 AWA-13]
No. 2 12/31/91 (which was not filed for
recordation with the FAA)
Sublease
Aircraft Sublease Agreement [GPA 1990 AWA-13] 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 1, 1990 and assigned Conveyance No. E10189, as
supplemented and amended by the following described instruments:
Date of FAA FAA
Instrument Instrument Recording Date Conveyance No.
- ---------- ---------- ------------------------------------------
Sublease Supplement
No. 1 09/28/90 10/01/90 E10189
Amendment No. 1 to
Aircraft Sublease
Agreement [GPA 1990 as of
AWA-13] 08/26/91 09/11/91 261228
Sublease Collateral Assignment
Assignment of Sublease [GPA 1990 AWA-13] 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 1990 AWA-13] dated as of
September 21, 1990, as assignee, which was attached to and recorded as one
instrument with the Sublease on October 1, 1990 and assigned Conveyance No.
E10189.
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