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; (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; (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 - 44 - 48 eligibility for registration by restricting the use of the Aircraft.
Appears in 3 contracts
Samples: Refunding Agreement (America West Airlines Inc), Refunding Agreement (America West Airlines Inc), Refunding Agreement (America West Airlines Inc)
Transfer of Owner Participant's Interest. Owner Participant shall not (i) 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 (ii) sell, transfer or otherwise dispose of any (in one or more related transactions) all or more than 75% of its stock in any transaction which has property or assets (based on the practical effect book value of any such property and assets) unless such sale, transfer or other disposition is made at the end of the foregoinglease term for any such property or assets; provided that, and subject to the conditions set forth below, (1) 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 and (2) Owner Participant may sell, transfer or otherwise dispose of all or substantially all of its property or assets in a manner that would otherwise be prohibited by clause (ii) above if, prior to any such sale, transfer or other disposition, Owner Participant transfers 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; and provided further, that, so long as [________] shall be the Owner Participant hereunder, nothing in this Section 10 shall restrict the right of any partner of [________] to sell, assign, convey or otherwise transfer any of its right, title or interest in [_________]. 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;other
(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 (viiivii) below; provided that if such Transferee is an Affiliate or 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 guarantee and otherwise meets the requirements of this Section 10;
(iii) upon giving effect to such transfer, such Transferee is a Citizen of the United States and such Transferee shall deliver to Lessee an affidavit to such effect;
(iv) such Transferee has the requisite power and authority and legal right to enter into and carry out the transactions contemplated hereby;
(v) such Transferee enters into an agreement in substantially the form attached as Exhibit B hereto whereby such Transferee confirms that it shall be deemed a party to this Agreement, the Trust Agreement, the Amended and Restated Head Lease TIA and each other Operative Document to which Owner Participant is a party or by which Owner Participant is bound, and in which the transferee shall agree to be bound by and undertake the obligations of Owner Participant in the Operative Documents and shall make representations and warranties comparable to those of Owner Participant contained herein;
(vi) such transfer does not violate any provision of the Federal Aviation Act or any rules or regulations promulgated thereunder, or create a relationship that would be in violation thereof, or violate any provisions of the Securities Act or any other applicable Federal, state or other law, rule or regulation;
(vii) such transfer does not violate any provision of ERISA or any rules or regulations thereunder;
(viii) such Transferee is not an airline, a commercial air carrier, an air freight forwarder, any Person engaged in the business of parcel transport by air or a subsidiary or an Affiliate of such an airline, a commercial air carrier, an air freight forwarder, Person engaged in the business of parcel transport by air or other similar Person;
(ix) an opinion of counsel of the Transferee confirming the matters referred to in clauses (iv) and (vi) above (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact) and confirming that the agreement referred to in clause (v) above is the 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 - 44 - 48 eligibility for registration by restricting the use of the Aircraft.
Appears in 1 contract
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 Second 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:its
(i) the Person to whom such transfer is to be made (a "Transferee") is either (A) a bank, [trust company company] or [other like regulated regulated] financial institution institution, [or a corporation] with a combined capital, surplus and undivided profits of, or a corporation with a tangible net worth of, in either case of at least $60,000,00060,000,000 [exclude goodwill], (B) any wholly-owned subsidiary [or limited liability company] of such bank, [trust company, ,] financial institution [or corporation corporation] if such bank, [trust company, ,] financial institution [or corporation corporation] furnishes to Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee an agreement or agreements of such bank, financial institution [or corporation corporation] guaranteeing such subsidiary's [or limited liability company's] obligations as Owner Participant contained in this Agreement, the Trust Agreement, the Second Amended and Restated Head Lease TIA and each other Operative Document to which Owner Participant is a party or by which it is bound, which guarantee shall be substantially in the form attached as Exhibit A hereto or (C) [an Affiliate or] a subsidiary of Owner Participant if Owner Participant furnishes to Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee an agreement whereby Owner Participant will guarantee such subsidiary's [or Affiliate's] obligations as Owner Participant contained in this Agreement, the Trust Agreement, the Second Amended and Restated Head Lease TIA and each other Operative Document to which Owner Participant is a party or by which it is bound, which guarantee shall be substantially in the form attached as Exhibit A hereto;
; (ii) Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee shall have received at least 15 days' prior written notice of such transfer specifying the name and address of any proposed transferee and specifying the facts necessary to determine whether such proposed 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;
(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 - 44 - 48 eligibility for registration by restricting the use of the Aircraft.
Appears in 1 contract
Transfer of Owner Participant's Interest. Owner Participant shall not (i) 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 (ii) sell, transfer or otherwise dispose of any (in one or more related transactions) all or more than 75% of its stock in any transaction which has property or assets (based on the practical effect book value of any such property and assets) unless such sale, transfer or other disposition is made at the end of the foregoinglease term for any such property or assets; provided that, and subject to the conditions set forth below, (1) 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, bound and (2) Owner Participant agrees for the express benefit may sell, transfer or otherwise dispose of each party hereto all or substantially all of its property or assets in a manner that would otherwise be prohibited by clause (ii) above if, prior to any such sale, transfer will comply with or other disposition, Owner Participant transfers to a Transferee (as defined below) all (but not less than all) of its right (except for such conditions:rights accruing
(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 partnership in which such bank, trust company, financial institution, or corporation (or a direct or indirect subsidiary of such bank, trust company, financial institution or corporation) is a general partner 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, trust company, financial institution or corporation guaranteeing such partnership'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, (C) any direct or indirect 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, trust company, 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 (CD) an Affiliate or a subsidiary of Owner Participant if Owner Participant furnishes to Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee an agreement whereby Owner Participant will guarantee such Affiliate's or subsidiary's obligations as Owner Participant contained in this Agreement, the Trust Agreement, the 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;to
(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 (viiivii) below; provided that if such Transferee is an Affiliate or 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 guarantee 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 such 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 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 any thereof or other similar Person;
(ixviii) 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), (C) or (CD) 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 - 44 - 48 eligibility for registration by restricting the use of the Aircraft.
Appears in 1 contract
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 AircraftEngine, 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 AircraftEngine, 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 ofinstitution, or a corporation with a tangible net worth of, in either case of at least $60,000,000, (B) any wholly-owned subsidiary of such bank, trust company, financial institution or corporation if such bank, trust company, financial institution or corporation furnishes to Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee an agreement or agreements of such bank, financial institution or corporation guaranteeing such subsidiary's obligations as Owner Participant contained in this Agreement, the Trust Agreement, the Amended and Restated Head Lease TIA and each other Operative Document to which Owner Participant is a party or by which it is bound, which guarantee shall be substantially in the form attached as Exhibit A hereto or (C) a subsidiary of Owner Participant if Owner Participant furnishes to Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee an agreement whereby Owner Participant will guarantee such subsidiary's obligations as Owner Participant contained in this Agreement, the Trust Agreement, the Amended and Restated Head Lease TIA and each other Operative Document to which Owner Participant is a party or by which it is bound, which guarantee shall be substantially in the form attached as Exhibit A hereto;
(ii) Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee shall have received at least 15 days' prior written notice of such transfer specifying the name and address of any proposed transferee and specifying the facts necessary to determine whether such proposed 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[Reserved];
(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 Personair;
(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; and
(xi) such Transferee shall agree that Lessee and Original Head Lessee shall have no greater liability to such Transferee under the Operative Documents (other than under Section 10 of the Lease) than Lessee or Original Head Lessee would have had to Owner Participant on the date of the transfer to the Transferee. 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 Engine 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 covenants and warrants that it shall not transfer all or any portion of its interest in complying the Trust Estate except in accordance with its obligations this Section 10 and that it shall not itself, or direct Owner Trustee to, take any action in contravention of the Lessee's rights under the Lease except in accordance with the provisions of 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 - 44 - 48 eligibility for registration by restricting the use of the Aircraft.
Appears in 1 contract
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 ofinstitution, or a corporation with a tangible net worth of, in either case of 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 - 40 - 44 party or by which it is bound, which guarantee shall be substantially in the form attached as Exhibit A hereto;
(ii) Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee shall have received at least 15 days' prior written notice of such transfer specifying the name and address of any proposed transferee and specifying the facts necessary to determine whether such proposed transferee trans- feree qualifies as a "Transferee" under clause (i) above and does not violate clause (viii) below; provided that if such Transferee is a subsidiary of Owner Participant, such notice may be given promptly following rather than prior to such transfer if such Transferee meets the net worth requirement set forth above on its own account without a guaranty and otherwise meets the requirements of this Section 10;
(iii) upon giving effect to such transfer, such Transferee is a Citizen of the United States and such Transferee shall deliver to Lessee an affidavit to such effect;
(iv) such Transferee has the requisite power and authority and legal right to enter into and carry out the transactions contemplated hereby;
(v) such Transferee enters into an agreement in substantially the form attached as Exhibit B hereto whereby such Transferee confirms that it shall be deemed a party to this Agreement, the Trust Agreement, the Amended and Restated Head Lease TIA and each other Operative Document to which Owner Participant is a party or by which Owner Participant is bound, and in which the transferee shall agree to be bound by and undertake the obligations of Owner Participant in the Operative Documents and shall make representations and warranties comparable to those of Owner Participant contained herein;
(vi) such transfer does not violate any provision of the Federal Aviation Act or any rules or regulations promulgated thereunder, or create a relationship that would be in violation thereof, or violate any provisions of the Securities Act or any other applicable Federal, state or other law, rule or regulation;
(vii) such transfer does not violate any provision of ERISA or any rules or regulations thereunder;
(viii) such Transferee is not an airline, a commercial air carrier, an air freight forwarder, any Person engaged in the business of parcel transport by air or a subsidiary or an Affiliate of such an airline, a commercial air carrier, - 41 - 45 an air freight forwarder, Person engaged in the business of parcel transport by air or other similar Personair;
(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; and
(xi) such Transferee shall agree that Lessee and Original Head Lessee shall have no greater liability to such Transferee under the Operative Documents (other than under Section 10 of the Lease) than Lessee or Original Head Lessee would have had to Owner Participant on the date of the transfer to the Transferee. 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 - 42 - 46 pay the reasonable expenses of each party hereto related to any such transfer. Owner Participant covenants and warrants that it shall not transfer all or any portion of its interest in the Trust Estate except in accordance with this Section 10 and that it shall not itself, or direct Owner Trustee to, take any action in contravention of the Lessee's rights under the Lease except in accordance with the provisions of the Lease. Each party hereto agrees, upon the request of Owner Participant, to use reasonable efforts to cooperate at no cost or expense to it with Owner Participant in complying with its obligations under the provisions of clause (A) of paragraph (67) 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 - 44 - 48 eligibility for registration by restricting the use of the Aircraft.
Appears in 1 contract
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;
(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;
(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 - 44 - 48 eligibility for registration by restricting the use of the Aircraft.
Appears in 1 contract
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 Second 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 foregoingtherefrom; 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 Second Amended and Restated Head Lease TIA and each other Operative Document to which Owner Participant is a party or by which Owner Participant is bound. Each such transfer shall be subject to the following conditions, and Owner Participant agrees for the express benefit of each party hereto that any such transfer will comply with such conditions:and
(i) the Person to whom such transfer is to be made (a "Transferee") is either (A) a bank, trust company bank or other like regulated financial institution with a combined capital, surplus and undivided profits ofof at least $60,000,000, or a corporation with a whose consolidated tangible net worth of, in either case is at least $60,000,000, exclusive of goodwill, all of the foregoing determined in accordance with U.S. generally accepted accounting principles, (B) any wholly-owned subsidiary of such bank, 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 Second 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) an Affiliate or a subsidiary of Owner Participant if Owner Participant furnishes to Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee an agreement whereby Owner Participant will guarantee such Affiliate's or subsidiary's obligations as Owner Participant contained in this Agreement, the Trust Agreement, the Second Amended and Restated Head Lease TIA and each other Operative Document to which Owner Participant is a party or by which it is bound, which guarantee shall be substantially in the form attached as Exhibit A hereto;
(ii) Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee shall have received at least 15 days' prior written notice of such transfer specifying the name and address of any proposed transferee and specifying the facts necessary to determine whether such proposed transferee qualifies as a "Transferee" under clause (i) above and does not violate clause (viii) below; provided that if such Transferee is a subsidiary an Affiliate 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 10transfer;
(iii) upon giving effect to such transfer, such Transferee is a Citizen of the United States States, and such Transferee shall deliver to Owner Trustee, Indenture Trustee, Original Head Lessee and Lessee an affidavit to such effect;
(iv) such Transferee has the requisite power and authority and legal right to enter into and carry out the transactions contemplated hereby;
(v) such Transferee enters into an agreement in substantially the form attached as Exhibit B hereto whereby such Transferee confirms that it shall be deemed a party to this Agreement, the Trust Agreement, the Amended and Restated Head Lease TIA and each other Operative Document to which Owner Participant is a party or by which Owner Participant is bound, and in which the transferee shall agree to be bound by and undertake the obligations of Owner Participant in the Operative Documents and shall make representations and warranties comparable to those of Owner Participant contained herein;
(vi) such transfer does not violate any provision of the Federal Aviation Act or any rules or regulations promulgated thereunder, or create a relationship that would be in violation thereof, or violate any provisions of the Securities Act or any other applicable Federal, state or other law, rule or regulation;
(vii) such transfer does not violate any provision of ERISA or any rules or regulations thereunder;
(viii) such Transferee is not an airline, a commercial air carrier, an air freight forwarder, any Person engaged in the business of parcel transport by air or a subsidiary or an Affiliate of such an airline, a commercial air carrier, an air freight forwarder, Person engaged in the business of parcel transport by air or other similar Person;
(ix) an opinion of counsel of the Transferee confirming the matters referred to in clauses (iv) and (vi) above (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact) and confirming that the agreement referred to in clause (v) above is the 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 - 44 - 48 eligibility for registration by restricting the use of the Aircraft.
Appears in 1 contract
