Representations and Warranties of Owner Participant. Owner Participant represents and warrants to Owner Trustee, Trust Company, Indenture Trustee, Loan Participant and Lessee that, as of the date hereof and as of the Closing Date and each Delivery Date (unless any such representation is specifically made as of one date): (a) Owner Participant is a limited liability company duly organized, validly existing and in good standing under the laws of State of Delaware and has the power and authority to carry on its business as now conducted; (b) Owner Participant has the limited liability company power and authority to enter into the Owner Participant Agreements and to perform its obligations thereunder, and such execution, delivery and performance do not and will not contravene any law or any order of any court or governmental authority or agency applicable to or binding on Owner Participant, or contravene the provisions of, or constitute a default under, or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents or any material indenture, mortgage, contract or other agreement or instrument to which Owner Participant is a party or by which it or any of its property or the Equipment may be bound or affected; (c) the Owner Participant Agreements have been duly authorized by all necessary action on the part of Owner Participant, do not require any approval not already obtained of the members of Owner Participant or any approval or consent not already obtained of any trustee or holders of indebtedness or obligations of Owner Participant, have been duly executed and delivered by Owner Participant and (assuming the due authorization, execution and delivery by each other party thereto) constitute the legal, valid and binding obligations of Owner Participant, enforceable against Owner Participant in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws and by general principles of equity; (d) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust Agreement, the Tax Indemnity Agreement and this Agreement, it being understood that no representation or warranty is being made herein with respect to the ICC Termination Act or any other laws, governmental rules or regulations specific to the Equipment; (e) the Trust Estate is free of any Lessor’s Liens attributable to Owner Participant; (f) there are no pending or, to the knowledge of Owner Participant, threatened actions or proceedings before any court or administrative agency which would materially adversely affect Owner Participant’s financial condition or its ability to perform its obligations under the Trust Agreement, the Tax Indemnity Agreement, this Agreement or any other Owner Participant Agreement; (g) as of each Delivery Date, Owner Participant is purchasing the Beneficial Interest to be acquired by it on such Delivery Date for its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, to the right of Owner Participant at all times to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amended, or under an exemption from such registration available under such Act. Owner Participant acknowledges that its Beneficial Interest has not been registered under the Securities Act of 1933, as amended, and that neither Owner Trustee nor Lessee contemplates filing, or is legally required to file, any such registration statement; (h) with respect to the sources of the amount to be advanced by Owner Participant pursuant to Section 2.2(a), no part of such amounts constitutes assets of any employee benefit plan (other than a government plan exempt from the coverage of ERISA); and (i) OP Guarantor has a tangible net worth, as determined in accordance with generally accepted accounting principles, of not less than $75,000,000.
Appears in 1 contract
Representations and Warranties of Owner Participant. Owner Participant represents and warrants to each of Indenture Trustee, Owner Trustee, Trust Company, Indenture Trustee, Loan Participant Pass Through Trustee and Lessee that, as of the date hereof and as of the Closing Date and each Delivery Date (unless any such representation is specifically made as of one date)::
(ai) Owner Participant is a limited liability company national banking association duly organized, organized and validly existing and in good standing under the laws of State of Delaware the United States and has the corporate power and authority to carry on its business as now conducted;
(b) Owner Participant has the limited liability company power , to own or hold under lease its properties and authority to enter into the Owner Participant Agreements and to perform its obligations thereunderunder this Agreement and the other Relevant Operative Documents to which it is or is to be a party (the "OP Documents"), and such executionits execution and delivery of each of the OP Documents and
(ii) the execution and delivery by Owner Participant of the OP Documents, delivery the consummation of the transactions contemplated thereby by Owner Participant and performance compliance by it with the terms and provisions of the OP Documents do not and will not contravene any law United States federal or state law, judgment, governmental rule, regulation or any order of any court or governmental authority or agency applicable to or binding on it (it being understood that no representation or warranty is made with respect to (A) laws, rules or regulations relating to aviation or to the nature of the equipment owned by Owner ParticipantTrustee, other than such laws, rules or regulations relating to the citizenship requirements of Owner Participant under applicable aviation law or (B) ERISA or Section 4975 of the Code other than the representation set forth in paragraph (v) of this Section 4(c)) or contravene, or contravene the provisions result in any breach of, or constitute a any default under, its corporate charter or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents by-laws or any material indenture, mortgage, contract chattel mortgage, deed of trust, conditional sales contract, bank loan or other credit agreement or any agreement or instrument to which Owner Participant it is a party or by which it or any of its property or the Equipment may be bound or affected;
(c) the Owner Participant Agreements have been duly authorized by all necessary action on the part of Owner Participant, do not require any approval not already obtained of the members of Owner Participant or any approval or consent not already obtained of any trustee or holders of indebtedness or obligations of Owner Participant, have been duly executed and delivered by Owner Participant and (assuming the due authorization, execution and delivery by each other party thereto) constitute the legal, valid and binding obligations of Owner Participant, enforceable against Owner Participant in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws and by general principles of equity;
(d) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust Agreement, the Tax Indemnity Agreement and this Agreement, it being understood that no representation or warranty is being made herein with respect to the ICC Termination Act or any other laws, governmental rules or regulations specific to the Equipment;
(eiii) the Trust Estate is free of any Lessor’s Lessor Liens attributable to Owner Participant;
(fiv) there are no pending or, to it is a "citizen of the knowledge of Owner Participant, threatened actions or proceedings before any court or administrative agency which would materially adversely affect Owner Participant’s financial condition or its ability to perform its obligations under United States" as defined in the Trust Agreement, the Tax Indemnity Agreement, this Agreement or any other Owner Participant AgreementAct;
(gv) as no part of each Delivery Date, Owner Participant is purchasing the Beneficial Interest to be acquired funds used by it on such Delivery Date for to make its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, to the right of Owner Participant at all times to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amended, or under an exemption from such registration available under such Act. Owner Participant acknowledges that its Beneficial Interest has not been registered under the Securities Act of 1933, as amended, and that neither Owner Trustee nor Lessee contemplates filing, or is legally required to file, any such registration statement;
(h) with respect to the sources of the amount to be advanced by Owner Participant investment pursuant to Section 2.2(a), no part 1 of such amounts constitutes assets the Original Participation Agreement constituted "plan assets" of any "employee benefit plan (other than a government plan exempt from plan" within the coverage meaning of ERISA), or of any "plan" within the meaning of Section 4975(e)(1) of the Code, as interpreted by the Department of Labor; and
(ivi) OP Guarantor neither Owner Participant nor anyone authorized by it to act on its behalf (it being understood that, for purposes of this paragraph, in arranging and proposing the refinancing contemplated hereby and agreed to herein by Owner Participant, neither Lessee nor any of the Underwriters has a tangible net worth, acted as determined in accordance with generally accepted accounting principles, agent of not less than $75,000,000.Owner Participant) has directly
Appears in 1 contract
Representations and Warranties of Owner Participant. Owner Participant represents and warrants to Owner Trustee, Trust Company, Indenture Trustee, Loan Participant and Lessee that, as of the date hereof and as of the Closing Date and each the Delivery Date (unless any such representation is specifically made as of one date):
(a) Owner Participant is a limited liability company partnership duly organized, validly existing and in good standing under the laws of the State of Delaware and has the power and authority to carry on its business as now conducted;
(b) Owner Participant has the limited liability company partnership power and authority to enter into the Owner Participant Agreements and to perform its obligations thereunder, and such execution, delivery and performance do not and will not contravene any law or any order of any court or governmental authority or agency applicable to or binding on Owner Participant, or contravene the provisions of, or constitute a default under, or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents or any material indenture, mortgage, contract or other agreement or instrument to which Owner Participant is a party or by which it or any of its property or the Equipment may be bound or affected;
(c) the Owner Participant Agreements have been duly authorized by all necessary limited partnership action on the part of Owner Participant, do not require any approval not already obtained of the members partners of Owner Participant or any approval or consent not already obtained of any trustee or holders of indebtedness or obligations of Owner Participant, have been duly executed and delivered by Owner Participant and (assuming the due authorization, execution and delivery by each other party thereto) constitute the legal, valid and binding obligations of Owner Participant, enforceable against Owner Participant in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws and by general principles of equity;
(d) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust Agreement, the Tax Indemnity Agreement and this Agreement, it being understood that no representation or warranty is being made herein with respect to the ICC Termination Act or any other laws, governmental rules or regulations specific to the Equipment;
(e) the Trust Estate is free of any Lessor’s Liens attributable to Owner Participant;
(f) there are no pending or, to the knowledge of Owner Participant, threatened actions or proceedings before any court or administrative agency which would materially adversely affect Owner Participant’s financial condition or its ability to perform its obligations under the Trust Agreement, the Tax Indemnity Agreement, this Agreement or any other Owner Participant Agreement;
(g) as of each the Delivery Date, Owner Participant is purchasing the Beneficial Interest to be acquired by it on such the Delivery Date for its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, to the right of Owner Participant at all times to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amended, or under an exemption from such registration available under such Act. Owner Participant acknowledges that its Beneficial Interest has not been registered under the Securities Act of 1933, as amended, and that neither Owner Trustee nor Lessee contemplates filing, or is legally required to file, any such registration statement;
(h) with respect to the sources of the amount to be advanced by Owner Participant pursuant to Section 2.2(a), no part of such amounts constitutes assets of any employee benefit plan (other than a government plan exempt from the coverage of ERISA); and
(i) OP Guarantor Owner Participant has a tangible net worth, as determined in accordance with generally accepted accounting principles, of not less than $75,000,00075,000,000.00 (without regard to the transactions contemplated hereby).
Appears in 1 contract
Representations and Warranties of Owner Participant. Owner Participant represents and warrants to each of Indenture Trustee, Owner Trustee, Trust Company, Indenture Trustee, Loan Participant Pass Through Trustee and Lessee that, as of the date hereof and as of the Closing Date and each Delivery Date (unless any such representation is specifically made as of one date)::
(ai) Owner Participant is a limited liability company corporation duly organized, organized and validly existing and in good standing under the laws of the State of Delaware Alabama and has the corporate power and authority to carry on its business as now conducted;
(b) Owner Participant has the limited liability company power , to own or hold under lease its properties and authority to enter into the Owner Participant Agreements and to perform its obligations thereunderunder this Agreement and the other Relevant Operative Documents to which it is or is to be a party (the "OP Documents"), and such execution, its execution and delivery and performance do not and will not contravene any law or any order of any court or governmental authority or agency applicable to or binding on Owner Participant, or contravene each of the provisions of, or constitute a default under, or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease OP Documents and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents or any material indenture, mortgage, contract or other agreement or instrument to which Owner Participant is a party or performance by which it or any of its property or the Equipment may be bound or affected;
(c) the Owner Participant Agreements obligations thereunder have been duly authorized by all necessary corporate action on the part of Owner Participant, Participant and do not require any approval not already obtained of the members stockholders of Owner Participant or any approval or consent not already obtained of any trustee or holders of any indebtedness or obligations of Owner ParticipantParticipant and each of the OP Documents has been, or will on the Closing Date have been been, duly executed and delivered by Owner Participant it and (assuming that each of the due authorization, execution and delivery by each other party thereto) constitute OP Documents is the legal, valid and binding obligations obligation of each of the parties thereto (other than Owner Participant)) each of the OP Documents is the legal, valid and binding obligation of Owner Participant, Participant enforceable against Owner Participant it in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws and by general principles of equityits terms;
(dii) no authorization or approval or other action by, the execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust AgreementOP Documents, the Tax Indemnity Agreement consummation of the transactions contemplated thereby by Owner Participant and this Agreementcompliance by it with the terms and provisions of the OP Documents do not and will not contravene any United States federal or state law, judgment, governmental rule, regulation or any order of any court or governmental authority or agency applicable to or binding on it (it being understood that no representation or warranty is being made herein with respect to the ICC Termination Act or any other (A) laws, governmental rules or regulations specific relating to aviation or to the Equipment;nature of the equipment owned by Owner Trustee, other than such laws, rules or regulations relating to the citizenship requirements of Owner Participant under applicable aviation law or (B) ERISA or Section 4975 of the Code other than the representation set forth in paragraph (v) of this Section 4(c)) or contravene, or result in any breach of, or constitute any default under, its corporate charter or by-laws or any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract,
(eiii) the Trust Estate is free of any Lessor’s Lessor Liens attributable to Owner Participant;
(fiv) there are no pending or, to it is a "citizen of the knowledge of Owner Participant, threatened actions or proceedings before any court or administrative agency which would materially adversely affect Owner Participant’s financial condition or its ability to perform its obligations under United States" as defined in the Trust Agreement, the Tax Indemnity Agreement, this Agreement or any other Owner Participant AgreementAct;
(gv) as no part of each Delivery Date, Owner Participant is purchasing the Beneficial Interest to be acquired funds used by it on such Delivery Date for to make its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, to the right of Owner Participant at all times to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amended, or under an exemption from such registration available under such Act. Owner Participant acknowledges that its Beneficial Interest has not been registered under the Securities Act of 1933, as amended, and that neither Owner Trustee nor Lessee contemplates filing, or is legally required to file, any such registration statement;
(h) with respect to the sources of the amount to be advanced by Owner Participant investment pursuant to Section 2.2(a), no part 1 of such amounts constitutes assets the Original Participation Agreement constituted "plan assets" of any "employee benefit plan (other than a government plan exempt from plan" within the coverage meaning of ERISA), or of any "plan" within the meaning of Section 4975(e)(1) of the Code, as interpreted by the Department of Labor; and
(ivi) OP Guarantor neither Owner Participant nor anyone authorized by it to act on its behalf (it being understood that, for purposes of this paragraph, in arranging and proposing the refinancing contemplated hereby and agreed to herein by Owner Participant, neither Lessee nor any of the Underwriters has a tangible net worthacted as agent of Owner Participant) has directly or indirectly offered any Equipment Notes or any interest in or any similar interest for sale to, as determined in accordance with generally accepted accounting principlesor solicited any offer to acquire any of the same from, of not less than $75,000,000any Person.
Appears in 1 contract
Representations and Warranties of Owner Participant. Owner Participant represents and warrants to each of Indenture Trustee, Owner Trustee, Trust Company, Indenture Trustee, Loan Participant Pass Through Trustee and Lessee that, as of the date hereof and as of the Closing Date and each Delivery Date (unless any such representation is specifically made as of one date)::
(ai) Owner Participant is a limited liability company corporation duly organized, organized and validly existing and in good standing under the laws of the State of Delaware Arizona and has the corporate power and authority to carry on its business as now conducted;
(b) Owner Participant has the limited liability company power , to own or hold under lease its properties and authority to enter into the Owner Participant Agreements and to perform its obligations thereunderunder this Agreement and the other Relevant Operative Documents to which it is or is to be a party (the "OP Documents"), and such executionits execution and delivery of each of the OP Documents and the
(ii) the execution and delivery by Owner Participant of the OP Documents, delivery the consummation of the transactions contemplated thereby by Owner Participant and performance compliance by it with the terms and provisions of the OP Documents do not and will not contravene any law United States federal or state law, judgment, governmental rule, regulation or any order of any court or governmental authority or agency applicable to or binding on it (it being understood that no representation or warranty is made with respect to (A) laws, rules or regulations relating to aviation or to the nature of the equipment owned by Owner ParticipantTrustee, other than such laws, rules or regulations relating to the citizenship requirements of Owner Participant under applicable aviation law or (B) ERISA or Section 4975 of the Code other than the representation set forth in paragraph (v) of this Section 4(c)) or contravene, or contravene the provisions result in any breach of, or constitute a any default under, its corporate charter or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents by-laws or any material indenture, mortgage, contract chattel mortgage, deed of trust, conditional sales contract, bank loan or other credit agreement or any agreement or instrument to which Owner Participant it is a party or by which it or any of its property or the Equipment may be bound or affected;
(c) the Owner Participant Agreements have been duly authorized by all necessary action on the part of Owner Participant, do not require any approval not already obtained of the members of Owner Participant or any approval or consent not already obtained of any trustee or holders of indebtedness or obligations of Owner Participant, have been duly executed and delivered by Owner Participant and (assuming the due authorization, execution and delivery by each other party thereto) constitute the legal, valid and binding obligations of Owner Participant, enforceable against Owner Participant in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws and by general principles of equity;
(d) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust Agreement, the Tax Indemnity Agreement and this Agreement, it being understood that no representation or warranty is being made herein with respect to the ICC Termination Act or any other laws, governmental rules or regulations specific to the Equipment;
(eiii) the Trust Estate is free of any Lessor’s Lessor Liens attributable to Owner Participant;
(fiv) it is a "citizen of the United States" as defined in the Act;
(v) no part of the funds used by it to make its investment pursuant to Section 1 of the Original Participation Agreement constituted "plan assets" of any "employee benefit plan" within the meaning of ERISA, or of any "plan" within the meaning of Section 4975(e)(1) of the Code, as interpreted by the Department of Labor; and
(vi) neither Owner Participant nor anyone authorized by it to act on its behalf (it being understood that, for purposes of this paragraph, in arranging and proposing the refinancing contemplated hereby and agreed to herein by Owner Participant, neither Lessee nor any of the Underwriters has acted as agent of Owner Participant) has directly or indirectly offered any Equipment Notes or any interest in or any similar interest for sale to, or solicited any offer to acquire any of the same from, any Person. REFINANCING AGREEMENT [N603SW] -15- 18 (d) Representations and Warranties of Wilmington Trust Company, Indenture Trustee and Pass Through Trustee. Wilmington Trust Company, in its individual capacity ("WTC") and as Indenture Trustee and Pass Through Trustee, represents and warrants, to each of Owner Trustee, Owner Participant and Lessee that:
(i) WTC is a "citizen of the United States" as defined in the Act, that it will notify promptly all parties to this Agreement if in its reasonable opinion its status as a "citizen of the United States" is likely to change and that it will resign as Indenture Trustee as provided in Section 9.07 of the Indenture if it should cease to be a "citizen of the United States";
(ii) WTC is a banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into and perform its obligations under the Pass Through Trust Agreements and the Relevant Operative Documents to which WTC is or is to be a party (the "WTC Documents") and, as Indenture Trustee and Pass Through Trustee, to authenticate the Equipment Notes and the Pass Through Certificates to be delivered on the Closing Date;
(iii) the execution and delivery by WTC of the WTC Documents, by Indenture Trustee of the Relevant Operative Documents to which it is or is to be a party (the "IT Documents") and by Pass Through Trustee of the Relevant Operative Documents to which it is or is to be a party (the "PTT Documents") and the authentication by Indenture Trustee of the Equipment Notes and by Pass Through Trustee of the Pass Through Certificates to be delivered on the Closing Date have been duly authorized by all necessary corporate action on the part of WTC, Indenture Trustee and Pass Through Trustee, respectively, and neither the execution (or, in the case of such Equipment Notes and Pass Through Certificate, their authentication) and delivery thereof nor its performance of any of the terms and provisions thereof will violate any federal or Delaware law or regulation relating to the banking or trust powers of WTC or any judgment or order binding on it or contravene or result in any breach of, or constitute any default under the charter or by-laws of WTC or the provisions of any indenture, mortgage, contract or other agreement to which any of WTC, Indenture Trustee or Pass Through Trustee is a party or by which it or its properties may be bound or affected;
(iv) each of the WTC Documents, the IT Documents and the PTT Documents has been, or will on the Closing Date have been, duly executed (or, in the case of the Equipment Notes and the Pass Through Certificates, authenticated) and delivered by WTC, Indenture Trustee and Pass Through Trustee, respectively;
(v) assuming that each of the WTC Documents, the IT Documents and the PTT Documents is the legal, valid and binding obligation of each of the parties thereto (other than WTC, Indenture Trustee and Pass Through Trustee, respectively), each of the WTC Documents, the IT Documents and the PTT Documents is, or will on the Closing Date be, the legal, valid and binding obligation of WTC, Indenture Trustee or Pass Through Trustee, respectively, enforceable against it in accordance with its terms;
(vi) neither the execution and delivery by WTC, Indenture Trustee or Pass Through Trustee of any of the WTC Documents, the IT Documents or the PTT Documents, respectively, nor the consummation by WTC, Indenture Trustee or Pass Through Trustee of any of the transactions contemplated hereby or thereby, requires the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action with respect to, any governmental authority or agency pursuant to any law of the State of Delaware or the United States regulating WTC's banking, trust or fiduciary powers;
(vii) there are no pending or, to the knowledge of Owner Participant, or threatened actions or proceedings against any of WTC, Indenture Trustee or Pass Through Trustee before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would materially adversely affect Owner Participant’s financial condition the ability of WTC, Indenture Trustee or its ability Pass Through Trustee to perform its obligations under any of the Trust AgreementWTC Documents, the Tax Indemnity Agreement, this Agreement IT Documents or any other Owner Participant Agreementthe PTT Documents;
(gviii) as of each Delivery Date, Owner Participant is purchasing except for the Beneficial Interest to be acquired by it on such Delivery Date for its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, issuance and sale pursuant to the right respective Pass Through Trust Agreement of Owner Participant at all times the Pass Through Certificates contemplated hereby, neither WTC nor Pass Through Trustee has directly or indirectly offered any Equipment Note for sale to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amendedPerson, or under an exemption solicited any offer to acquire any Equipment Notes from such registration available under such Act. any Person other than Owner Participant acknowledges that its Beneficial Interest has not been registered under the Securities Act of 1933, as amendedTrustee and Owner Participant, and that neither WTC nor Pass Through Trustee has 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 other than Owner Trustee nor Lessee contemplates filingand Owner Participant, or and Pass Through Trustee is legally required to file, not in default under any such registration statement;
(h) with respect to the sources of the amount to be advanced by Owner Participant pursuant to Section 2.2(a), no part of such amounts constitutes assets of any employee benefit plan (other than a government plan exempt from the coverage of ERISA)Pass Through Trust Agreement; and
(iix) OP Guarantor has a tangible net worthPass Through Trustee is not directly or indirectly controlling, as determined in accordance controlled by or under common control with generally accepted accounting principlesany of Owner Participant, of not less than $75,000,000Owner Trustee, any Underwriter or Lessee.
Appears in 1 contract
Representations and Warranties of Owner Participant. Owner Participant represents and warrants to Owner Trustee, Trust Company, Indenture Trustee, Loan Participant and Lessee that, as each of the date hereof and as of the Closing Date and each Delivery Date (unless any such representation is specifically made as of one date):other parties hereto that:
(a) Owner Participant It is a limited liability company corporation duly organized, validly existing and in good standing under the laws of State of Delaware the jurisdiction in which it is incorporated and has the power and authority to carry on its business as now conducted;
(b) Owner Participant has the limited liability company all requisite corporate power and authority to enter into the Owner Participant Agreements and to perform its obligations thereunderunder this Agreement and the other Operative Documents to which it is a party.
(b) Each Operative Document to which Owner Participant is or will be a party has been duly authorized by all necessary corporate action on the part of, and such executionhas been or on or prior to the Delivery Date will have been duly executed and delivered by, Owner Participant and neither the execution and delivery thereof, nor the consummation by it of the transactions contemplated thereby, nor compliance by Owner Participant with any of the terms and performance do not provisions thereof, subject to and will not contravene in reliance upon the accuracy of the representations made by the Lessee in Sections 4.01(j) and 4.01(k) and by the Initial Note Purchaser ---------------- ------- set forth in Sections 4.08(a) and 4.08(b) and in the Notes (i) requires any law ---------------- ------- approval of its stockholders, or any order approval or consent of any court trustee or holders of any of its indebtedness or obligations; (ii) contravenes any law, judgment, governmental authority rule, regulation or agency order applicable to or binding on Owner Participantit or on any of its properties (except, however, that no representation is made as to communications law or contravene the provisions of, other Applicable Law relating to transponders or constitute a satellites); (iii) contravenes or results in any breach of or constitutes any default under, or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents or any material indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit agreement, contract or other agreement or instrument to which Owner Participant it is a party or by which it or any of its property or the Equipment properties may be bound or affected;; (iv) contravenes its corporate charter or by-laws; or (v) results in the creation of any Lien (other than the Lien of the Lease, the Lien of the Trust Agreement and the Lien under the Indenture) upon any of its property.
(c) Neither the Owner Participant Agreements have been duly authorized by all necessary action on the part of Owner Participant, do not require any approval not already obtained of the members of Owner Participant or any approval or consent not already obtained of any trustee or holders of indebtedness or obligations of Owner Participant, have been duly executed and delivered by Owner Participant and (assuming the due authorization, execution and delivery by each it of the Operative Documents to which it is or will be a party, nor the consummation by it of any of the transactions contemplated thereby, requires the consent, approval or authorization of, the giving of notice to, or the registration with, the recording or filing of any document with, or the taking of any other action in respect of, any Governmental Body, except for such of the foregoing as have been obtained, given or done (except, however, that no representation is made as to communications law or other Applicable Law relating to transponders or satellites or as to the matters referred to in clause (ii) of Section 4.01(g)). ---------------
(d) Each Operative Document to which Owner Participant is a party thereto) constitute the constitutes its legal, valid and binding obligations of Owner Participantobligation, enforceable against Owner Participant in accordance with their respective terms its terms, except as enforceability enforcement may be limited by applicable subject to bankruptcy, insolvency and insolvency, moratorium or other similar laws affecting creditors' rights generally, and by to general principles of equity;
(d) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust Agreement, the Tax Indemnity Agreement and this Agreement, it being understood that no representation or warranty is being made herein with respect to the ICC Termination Act or any other laws, governmental rules or regulations specific to the Equipment;.
(e) No Person acting on behalf of Owner Participant or any Affiliate thereof is or will be entitled to any brokerage fee, commission or finder's fee directly or indirectly from Lessee or any Affiliate thereof in connection with the Trust Estate is free of any Lessor’s Liens attributable to Owner Participant;transactions contemplated hereby.
(f) there There are no actions, suits or proceedings pending or(nor, to the knowledge of Owner Participant, threatened actions threatened) against or proceedings before affecting Owner Participant or any property of Owner Participant in any court or administrative agency before any arbitrator of any kind or before or by any Governmental Body which would materially adversely affect Owner Participant’s financial condition question the legality or its ability validity of any of the Operative Documents to perform its obligations under the Trust Agreement, the Tax Indemnity Agreement, this Agreement or any other which Owner Participant Agreement;is a party or the transactions contemplated thereby (except, however, that no representation is made as to communications law or other Applicable Law relating to transponders or satellites).
(g) The Transponders, as of each the Delivery Date, Owner Participant is purchasing the Beneficial Interest to will be acquired by it on such Delivery Date for its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, to the right free and clear of Owner Participant at all times to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amended, or under an exemption from such registration available under such Act. Owner Participant acknowledges that its Beneficial Interest has not been registered under the Securities Act of 1933, as amended, and that neither Owner Trustee nor Lessee contemplates filing, or is legally required to file, any such registration statement;Liens.
(h) with respect No Indenture Event of Default attributable to the sources of the amount to be advanced by Owner Participant pursuant to Section 2.2(a), no part of such amounts constitutes assets of any employee benefit plan (other than a government plan exempt from the coverage of ERISA); andhas occurred and is continuing.
(i) OP Guarantor has a tangible net worthEach of the trust created by the Trust Agreement and Owner Participant are United States Persons, as determined in accordance with generally accepted accounting principleswithin the meaning of Section 7701(a)(30) of the Code.
(j) Neither the trust created by the Trust Agreement nor Owner Participant are exempt organizations within the meaning of Subchapter F, Chapter I of not less than $75,000,000Subtitle A of the Code.
Appears in 1 contract
Samples: Participation Agreement (Magellan International Inc)
Representations and Warranties of Owner Participant. Owner Participant represents and warrants to each of Indenture Trustee, Owner Trustee, Trust Company, Indenture Trustee, Loan Participant Pass Through Trustee and Lessee that, as of the date hereof and as of the Closing Date and each Delivery Date (unless any such representation is specifically made as of one date)::
(ai) Owner Participant is a limited liability company corporation duly organized, organized and validly existing and in good standing under the laws of State the Commonwealth of Delaware Massachusetts and has the corporate power and authority to carry on its business as now conducted;
(b) Owner Participant has the limited liability company power , to own or hold under lease its properties and authority to enter into the Owner Participant Agreements and to perform its obligations thereunderunder this Agreement and the other Relevant Operative Documents to which it is or is to be a party (the "OP Documents"), and such executionits execution and delivery of each of the OP Documents and the performance by it of its obligations thereunder have been duly authorized by all necessary corporate action on the part of Owner Participant and do not require any
(ii) the execution and delivery by Owner Participant of the OP Documents, delivery the consummation of the transactions contemplated thereby by Owner Participant and performance compliance by it with the terms and provisions of the OP Documents do not and will not contravene any law United States federal or state law, judgment, governmental rule, regulation or any order of any court or governmental authority or agency applicable to or binding on it (it being understood that no representation or warranty is made with respect to (A) laws, rules or regulations relating to aviation or to the nature of the equipment owned by Owner ParticipantTrustee, other than such laws, rules or regulations relating to the citizenship requirements of Owner Participant under applicable aviation law or (B) ERISA or Section 4975 of the Code other than the representation set forth in paragraph (v) of this Section 4(c)) or contravene, or contravene the provisions result in any breach of, or constitute a any default under, its corporate charter or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents by-laws or any material indenture, mortgage, contract chattel mortgage, deed of trust, conditional sales contract, bank loan or other credit agreement or any agreement or instrument to which Owner Participant it is a party or by which it or any of its property or the Equipment may be bound or affected;
(c) the Owner Participant Agreements have been duly authorized by all necessary action on the part of Owner Participant, do not require any approval not already obtained of the members of Owner Participant or any approval or consent not already obtained of any trustee or holders of indebtedness or obligations of Owner Participant, have been duly executed and delivered by Owner Participant and (assuming the due authorization, execution and delivery by each other party thereto) constitute the legal, valid and binding obligations of Owner Participant, enforceable against Owner Participant in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws and by general principles of equity;
(d) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust Agreement, the Tax Indemnity Agreement and this Agreement, it being understood that no representation or warranty is being made herein with respect to the ICC Termination Act or any other laws, governmental rules or regulations specific to the Equipment;
(eiii) the Trust Estate is free of any Lessor’s Lessor Liens attributable to Owner Participant;
(fiv) there are although it is not a "citizen of the United States" as defined in 49 U.S.C. Section 40102(a)(15)(C) it has, however, entered into the Trust Agreement, pursuant to Article XII of which it has transferred to Owner Trustee the Control Rights (as such term is defined in the Trust Agreement) to assure that such Control Rights will be controlled by a "citizen of the United States" within the meaning of 49 U.S.C. Section 40102(a)(15)(C) and that Owner Participant shall have no pending or, power to influence or limit the knowledge exercise of Owner Participant, threatened actions or proceedings before any court or administrative agency which would materially adversely affect Owner Participant’s financial condition or its ability to perform its obligations Trustee's authority in respect thereof under the Trust Agreement, ; and Article XII of the Tax Indemnity Agreement, this Trust Agreement or any other complies with the provisions of Section 47.7(c) of the FAA Regulations and the affidavit of Owner Participant AgreementTrustee in the form attached as Exhibit 1 to the Trust Agreement and submitted to the FAA in connection therewith is true and correct in all material respects;
(gv) as no part of each Delivery Date, Owner Participant is purchasing the Beneficial Interest to be acquired funds used by it on such Delivery Date for to make its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, to the right of Owner Participant at all times to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amended, or under an exemption from such registration available under such Act. Owner Participant acknowledges that its Beneficial Interest has not been registered under the Securities Act of 1933, as amended, and that neither Owner Trustee nor Lessee contemplates filing, or is legally required to file, any such registration statement;
(h) with respect to the sources of the amount to be advanced by Owner Participant investment pursuant to Section 2.2(a), no part 1 of such amounts constitutes assets the Original Participation Agreement constituted "plan assets" of any "employee benefit plan (other than a government plan exempt from plan" within the coverage meaning of ERISA), or of any "plan" within the meaning of Section 4975(e)(1) of the Code, as interpreted by the Department of Labor; and
(ivi) OP Guarantor has a tangible net worthneither Owner Participant nor anyone authorized by it to act on its behalf (it being understood that, as determined for purposes of this paragraph, in accordance with generally accepted accounting principles, of not less than $75,000,000.arranging and proposing the
Appears in 1 contract
Representations and Warranties of Owner Participant. Owner Participant represents and warrants to Owner Trustee, Trust Company, Indenture Trustee, Loan Participant and Lessee that, as of the date hereof and as of the Closing Date and each Delivery Date (unless any such representation is specifically made as of one date):
(a) Owner Participant is a limited liability company banking corporation duly organized, validly existing and in good standing under the laws of State of Delaware Germany and has the power and authority to carry on its business as now conducted;
(b) Owner Participant has the limited liability company corporate power and authority to enter into the Owner Participant Agreements and to perform its obligations thereunder, and such execution, delivery and performance do not and will not contravene any law or any order of any court or governmental authority or agency applicable to or binding on Owner Participant, or contravene the provisions of, or constitute a default under, or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents or any material indenture, mortgage, contract or other agreement or instrument to which Owner Participant is a party or by which it or any of its property or the Equipment may be bound or affected;
(c) the Owner Participant Agreements have been duly authorized by all necessary corporate action on the part of Owner Participant, do not require any approval not already obtained of the members stockholders of Owner Participant or any approval or consent not already obtained of any trustee or holders of indebtedness or obligations of Owner Participant, have been duly executed and delivered by Owner Participant and (assuming the due authorization, execution and delivery by each other party thereto) constitute the legal, valid and binding obligations of Owner Participant, enforceable against Owner Participant in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws and by general principles of equity;
(d) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust Agreement, the Tax Indemnity Agreement and this Agreement, it being understood that no representation or warranty is being made herein with respect to the ICC Termination Act or any other laws, governmental rules or regulations specific to the Equipment;
(e) the Trust Estate is free of any Lessor’s Liens attributable to Owner Participant;
(f) there are no pending or, to the knowledge of Owner Participant, threatened actions or proceedings before any court or administrative agency which would materially adversely affect Owner Participant’s financial condition or its ability to perform its obligations under the Trust Agreement, the Tax Indemnity Agreement, this Agreement or any other Owner Participant Agreement;
(g) as of each Delivery the Closing Date, Owner Participant is purchasing the Beneficial Interest to be acquired by it on such Delivery the Closing Date for its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, to the right of Owner Participant at all times to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amended, or under an exemption from such registration available under such Act. Owner Participant acknowledges that its Beneficial Interest has not been registered under the Securities Act of 1933, as amended, and that neither Owner Trustee nor Lessee contemplates filing, or is legally required to file, any such registration statement;
(h) with respect to the sources of the amount to be advanced by Owner Participant pursuant to Section 2.2(a), no part of such amounts constitutes assets of any employee benefit plan (other than a government plan exempt from the coverage of ERISA); and
(i) OP Guarantor Owner Participant has a tangible net worth, as determined in accordance with generally accepted accounting principles, worth of not less than $75,000,000.
Appears in 1 contract
Representations and Warranties of Owner Participant. Owner Participant represents and warrants to each of Indenture Trustee, Owner Trustee, Trust Company, Indenture Trustee, Loan Participant Pass Through Trustee and Lessee that, as of the date hereof and as of the Closing Date and each Delivery Date (unless any such representation is specifically made as of one date)::
(ai) Owner Participant is a limited liability company corporation duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to carry on its business as now conducted;
(b) Owner Participant has the limited liability company power , to own or hold under lease its properties and authority to enter into the Owner Participant Agreements and to perform its obligations thereunderunder this Agreement and the other Relevant Operative Documents to which it is or is to be a party (the "OP Documents"), and such execution, its execution and delivery and performance do not and will not contravene any law or any order of any court or governmental authority or agency applicable to or binding on Owner Participant, or contravene each of the provisions of, or constitute a default under, or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease OP Documents and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents or any material indenture, mortgage, contract or other agreement or instrument to which Owner Participant is a party or performance by which it or any of its property or the Equipment may be bound or affected;
(c) the Owner Participant Agreements obligations thereunder have been duly authorized by all necessary corporate action on the part of Owner Participant, Participant and do not require any approval not already obtained of the members stockholders of Owner Participant or any approval or consent not already obtained of any trustee or holders of any indebtedness or obligations of Owner ParticipantParticipant and each of the OP Documents has been, or will on the Closing Date have been been, duly executed and REFINANCING AGREEMENT [N397SW] -16- 19 delivered by Owner Participant it or USL Capital Corporation as its agent and (assuming that each of the due authorization, execution and delivery by each other party thereto) constitute OP Documents is the legal, valid and binding obligations obligation of each of the parties thereto (other than Owner Participant) and that the consummation of the transactions contemplated by the Relevant Operative Documents and the Pass Through Trust Agreements, including, without limitation, the redemption of the Original Certificate and the issuance of the Equipment Notes and the issuance, holding or transfer of the Pass Through Certificates will not involve any "prohibited transaction" within the meaning of Section 406 or 407 of ERISA or Section 4975 of the Code) each of the OP Documents is the legal, valid and binding obligation of Owner Participant, Participant enforceable against Owner Participant it in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws and by general principles of equityits terms;
(dii) no authorization or approval or other action bysubject to and in reliance upon the representation of Lessee and its assumption set forth in clauses (x) and (y) of Section 4(a)(xiv), the execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust AgreementOP Documents, the Tax Indemnity Agreement consummation of the transactions contemplated thereby by Owner Participant and this Agreementcompliance by it with the terms and provisions of the OP Documents do not and will not contravene any United States federal or state law, judgment, governmental rule, regulation or any order of any court or governmental authority or agency applicable to or binding on it (it being understood that no representation or warranty is being made herein with respect to (A) laws, rules or regulations relating to aviation or to the ICC Termination Act nature of the equipment owned by Owner Trustee, other than the representation set forth in paragraph (iv) of this Section 4(c), (B) securities laws other than the representation set forth in paragraph (vi) of this Section 4(c) or (C) ERISA or Section 4975 of the Code other than the representation set forth in paragraph (v) of this Section 4(c)) or contravene, or result in any breach of, or constitute any default under, its corporate charter or by-laws or any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit agreement or any other laws, governmental rules agreement or regulations specific instrument to the Equipment;which it is a party or by which it or any of its property may be bound or affected;\
(eiii) the Trust Estate is free of any Lessor’s 's Liens attributable to Owner Participant;
(fiv) there are no pending or, to it is a "citizen of the knowledge of Owner Participant, threatened actions or proceedings before any court or administrative agency which would materially adversely affect Owner Participant’s financial condition or its ability to perform its obligations under United States" as defined in the Trust Agreement, the Tax Indemnity Agreement, this Agreement or any other Owner Participant AgreementAct;
(gv) as of each Delivery Date, Owner Participant is purchasing the Beneficial Interest to be acquired by it on such Delivery Date for its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, to the right of Owner Participant at all times to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amended, or under an exemption from such registration available under such Act. Owner Participant acknowledges that its Beneficial Interest has not been registered under the Securities Act of 1933, as amended, and that neither Owner Trustee nor Lessee contemplates filing, or is legally required to file, any such registration statement;
(h) with respect to the sources of the amount to be advanced by Owner Participant pursuant to Section 2.2(a), no part of such amounts constitutes assets the funds used by it to acquire its interest in the Trust Estate constituted "plan assets" of any "employee benefit plan (other than a government plan exempt from plan" within the coverage meaning of ERISA), or of any "plan" within the meaning of Section 4975(e)(1) of the Code, as interpreted by the Department of Labor; and
(ivi) OP Guarantor neither Owner Participant nor anyone authorized by it to act on its behalf (it being understood that, for purposes of this paragraph, in arranging and proposing the refinancing contemplated hereby and agreed to herein by Owner Participant, neither Lessee nor any of the Underwriters nor any other Person taking any action contemplated by any Operative Agreement in connection with refinancing the Original Certificate has a tangible net worth, acted as determined in accordance with generally accepted accounting principles, agent of not less than $75,000,000.Owner Participant) has directly or indirectly offered any Equipment Notes or any similar securities relating to the
Appears in 1 contract
Representations and Warranties of Owner Participant. Owner Participant represents and warrants to Owner Trustee, Trust Company, Indenture Trustee, Loan Participant Participants and Lessee that, as of the date hereof and as of the each Closing Date and each Delivery Date (unless any such representation is specifically made as of one date):
(a) Owner Participant is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has the power and authority to carry on its business as now conducted;
(b) Owner Participant has the limited liability company power and authority to enter into the Owner Participant Agreements and to perform its obligations thereunder, and such execution, delivery and performance do not and will not contravene any law or any order of any court or governmental authority or agency applicable to or binding on Owner Participant, or contravene the provisions of, or constitute a default under, or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents or any material indenture, mortgage, contract or other agreement or instrument to which Owner Participant is a party or by which it or any of its property or the Equipment may be bound or affected;
(c) the Owner Participant Agreements have been duly authorized by all necessary action on the part of Owner Participant, do not require any approval not already obtained of the members of Owner Participant or any approval or consent not already obtained of any trustee or holders of indebtedness or obligations of Owner Participant, have been duly executed and delivered by Owner Participant and (assuming the due authorization, execution and delivery by each other party thereto) constitute the legal, valid and binding obligations of Owner Participant, enforceable against Owner Participant in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws and by general principles of equity;
(d) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust Agreement, the Tax Indemnity Agreement and this Agreement, it being understood that no representation or warranty is being made herein with respect to the ICC Termination Act or any other laws, governmental rules or regulations specific to the Equipment;
(e) the Trust Estate is free of any Lessor’s Liens attributable to Owner Participant;
(f) there are no pending or, to the knowledge of Owner Participant, threatened actions or proceedings before any court or administrative agency which would materially adversely affect Owner Participant’s financial condition or its ability to perform its obligations under the Trust Agreement, the Tax Indemnity Agreement, this Agreement or any other Owner Participant Agreement;
(g) as of each Delivery Closing Date, Owner Participant is purchasing the Beneficial Interest to be acquired by it on such Delivery Closing Date for its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, to the right of Owner Participant at all times to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amended, or under an exemption from such registration available under such Act. Owner Participant acknowledges Participation Agreement (KCSR 2005-1) - 18- that its Beneficial Interest has not been registered under the Securities Act of 1933, as amended, and that neither Owner Trustee nor Lessee contemplates filing, or is legally required to file, any such registration statement;
(h) with respect to the sources of the amount to be advanced by Owner Participant pursuant to Section 2.2(a), no part of such amounts constitutes assets of any employee benefit plan (other than a government plan exempt from the coverage of ERISA); and
(i) OP Guarantor has a tangible net worth, as determined in accordance with generally accepted accounting principles, worth of not less than $75,000,000.
Appears in 1 contract
Representations and Warranties of Owner Participant. Owner Participant represents and warrants to each of Indenture Trustee, Owner Trustee, Trust Company, Indenture Trustee, Loan Participant Pass Through Trustee and Lessee that, as of the date hereof and as of the Closing Date and each Delivery Date (unless any such representation is specifically made as of one date)::
(ai) Owner Participant is a limited liability company corporation duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to carry on its business as now conducted;
(b) Owner Participant has the limited liability company power , to own or hold under lease its properties and authority to enter into the Owner Participant Agreements and to perform its obligations thereunderunder this Agreement and the other Relevant Operative Documents to which it is or is to be a party (the "OP Documents"), and such execution, its execution and delivery and performance do not and will not contravene any law or any order of any court or governmental authority or agency applicable to or binding on Owner Participant, or contravene each of the provisions of, or constitute a default under, or result in the creation of any Lien (other than the leasehold interest of Lessee under the Lease OP Documents and the security interest of Indenture Trustee under the Indenture) upon the Equipment under, its organization documents or any material indenture, mortgage, contract or other agreement or instrument to which Owner Participant is a party or performance by which it or any of its property or the Equipment may be bound or affected;
(c) the Owner Participant Agreements obligations thereunder have been duly authorized by all necessary corporate action on the part of Owner Participant, Participant and do not require any approval not already obtained of the members stockholders of Owner Participant or any approval or consent not already obtained of any trustee or holders of any indebtedness or obligations of Owner ParticipantParticipant and each of the OP Documents has been, or will on the Closing Date have been been, duly executed and delivered by Owner Participant it or USL Capital Corporation as its agent and (assuming that each of the due authorization, execution and delivery by each other party thereto) constitute OP Documents is the legal, valid and binding obligations obligation of each of the parties thereto (other than Owner Participant) and that the consummation of the transactions contemplated by the Relevant Operative Documents and the Pass Through Trust Agreements, including, without limitation, the redemption of the Original Certificate and the issuance of the Equipment Notes and the issuance, holding or transfer of the Pass Through Certificates will not involve any "prohibited transaction" within the meaning of Section 406 or 407 of ERISA or Section 4975 of the Code) each of the OP Documents is the legal, valid and binding obligation of Owner Participant, Participant enforceable against Owner Participant it in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws and by general principles of equityits terms;
(dii) no authorization or approval or other action bysubject to and in reliance upon the representation of Lessee and its assumption set forth in clauses (x) and (y) of Section 4(a)(xiv), the execution and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery or performance by Owner Participant of the Trust AgreementOP Documents, the Tax Indemnity Agreement consummation of the transactions contemplated thereby by Owner Participant and this Agreementcompliance by it with the terms and provisions of the OP Documents do not and will not contravene any United States federal or state law, judgment, governmental rule, regulation or any order of any court or governmental authority or agency applicable to or binding on it (it being understood that no representation or warranty is being made herein with respect to (A) laws, rules or regulations relating to aviation or to the ICC Termination Act nature of the equipment owned by Owner Trustee, other than the representation set forth in paragraph (iv) of this Section 4(c), (B) securities laws other than the representation set forth in paragraph (vi) of this Section 4(c) or (C) ERISA or Section 4975 of the Code other than the representation set forth in paragraph (v) of this Section 4(c)) or contravene, or result in any breach of, or constitute any default under, its corporate charter or by-laws or any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit agreement or any other laws, governmental rules agreement or regulations specific instrument to the Equipmentwhich it is a party or by which it or any of its property may be bound or affected;
(eiii) the Trust Estate is free of any Lessor’s 's Liens attributable to Owner Participant;
(fiv) there are no pending or, to it is a "citizen of the knowledge of Owner Participant, threatened actions or proceedings before any court or administrative agency which would materially adversely affect Owner Participant’s financial condition or its ability to perform its obligations under United States" as defined in the Trust Agreement, the Tax Indemnity Agreement, this Agreement or any other Owner Participant AgreementAct;
(gv) as of each Delivery Date, Owner Participant is purchasing the Beneficial Interest to be acquired by it on such Delivery Date for its account with no present intention of distributing such Beneficial Interest or any part thereof in any manner which would violate the Securities Act of 1933, as amended, but without prejudice, however, to the right of Owner Participant at all times to sell or otherwise dispose of all or any part of such Beneficial Interest under a registration statement under the Securities Act of 1933, as amended, or under an exemption from such registration available under such Act. Owner Participant acknowledges that its Beneficial Interest has not been registered under the Securities Act of 1933, as amended, and that neither Owner Trustee nor Lessee contemplates filing, or is legally required to file, any such registration statement;
(h) with respect to the sources of the amount to be advanced by Owner Participant pursuant to Section 2.2(a), no part of such amounts constitutes assets the funds used by it to acquire its interest in the Trust Estate constituted "plan assets" of any "employee benefit plan (other than a government plan exempt from plan" within the coverage meaning of ERISA), or of any "plan" within the meaning of Section 4975(e)(1) of the Code, as interpreted by the Department of Labor; and
(ivi) OP Guarantor neither Owner Participant nor anyone authorized by it to act on its behalf (it being understood that, for purposes of this paragraph, in arranging and proposing the refinancing contemplated hereby and agreed to herein by Owner Participant, neither Lessee nor any of the Underwriters nor any other Person taking any action contemplated by any Operative Agreement in connection with refinancing the Original Certificate has a tangible net worthacted as agent of Owner Participant) has directly or indirectly offered any Equipment Notes or any similar securities relating to the Aircraft for sale to, as determined in accordance with generally accepted accounting principlesor solicited any offer to acquire any of the same from, of not less than $75,000,000any Person.
Appears in 1 contract
