Transfers of Equity Interests; Rights of Owner Participant and Owner Trustee. So long as the Aircraft shall be leased to Lessee under the Lease and so long as the Certificates are outstanding, the Owner Participant will not sell, assign, convey or otherwise transfer any of its right, title or interest in and to this Agreement, the Trust Estate or the Trust Agreement to any Person unless (i) the proposed transferee is a "Transferee" (as defined below) and (ii) the Owner Participant shall have delivered to the Owner Trustee, Lessee and the Indenture Trustee an opinion (in form, scope and substance reasonably satisfactory to the Indenture Trustee and Lessee) of counsel reasonably satisfactory to the Indenture Trustee and Lessee to the effect that the agreement referred to in clause (O) below and any guaranty required by clause (B) or (C) below, are the legal, valid, binding and enforceable obligations of the Transferee and the guarantor, if any, as the case may be. A "Transferee" shall mean either (A) a U.S. bank or other financial institution with a combined capital, surplus and undivided profits of at least $75,000,000 or a limited partnership or corporation whose net worth is at least $75,000,000, (B) any subsidiary of such a bank, financial institution, limited partnership or corporation; provided, that such bank, financial institution, limited partnership or corporation furnishes to the Owner Trustee, the Indenture Trustee and Lessee a guaranty in the form attached as Exhibit A hereto with respect to the Owner Participant's obligations, in the case of the Owner Trustee, under the Trust Agreement and, in the case of the Indenture Trustee and Lessee, the Owner Participant's obligations hereunder, or (C) any other corporation or limited partnership, provided such obligations are guaranteed by the transferor Owner Participant; provided, however, that unless otherwise consented to by Lessee any Transferee shall not be an air carrier, an air freight forwarder or other similar Person or a corporation controlling, controlled by or under common control with such an air carrier, an air freight forwarder or other similar Person. Each such transfer to a Transferee shall be subject to the conditions that (M) upon giving effect to such transfer, the Transferee is a "citizen of the United States" within the meaning of 49 U.S.C. Section 40102(a)(15)(C) or the Transferee, at its sole cost and expense on an after-tax basis (including any continuing costs of any voting trust), shall have entered into a voting trust or similar arrangement which permits the registration of the Aircraft under the Act in the name of the Owner Trustee without any restriction on the operation of the Aircraft, (N) the Transferee has the full power and authority to enter into and carry out the transactions contemplated hereby, (O) the Transferee enters into an agreement or agreements, in form and substance reasonably satisfactory to the Owner Trustee, Lessee and the Indenture Trustee, whereby the Transferee confirms that it shall be deemed a party to this Agreement and a party to the Trust Agreement and agrees to be bound by all of the terms of, and to undertake all of the obligations of the transferor Owner Participant contained in the Owner Participant Agreements and makes representations of the scope provided for as to the Owner Participant in each of the Operative Agreements, (P) such transfer does not result in a nonexempt prohibited transaction under Section 4975 of the Code or Section 406 of ERISA with respect to such Holders about which the Owner Participant shall have received such information as may be reasonably necessary in making such determination (and Owner Participant shall request such information and each of Lessee, the Original Loan Participant and the Indenture Trustee shall cooperate in providing such information as PARTICIPATION AGREEMENT [N604SW] -32- 38 may be available), (Q) such transfer does not violate any applicable law including, without limitation, the Act, or any rules or regulations promulgated thereunder, the Securities Act or the Trust Indenture Act of 1939, (R) after giving effect to such transfer, there shall be no more than one Owner Participant of record at that time, and (S) such transfer will not give rise to an Indenture Default or Indenture Event of Default; and Lessee or the Indenture Trustee may request such Transferee to provide an opinion of counsel (who shall be reasonably satisfactory to Lessee and the Indenture Trustee) in form, scope and substance reasonably satisfactory to Lessee and the Indenture Trustee as to any matter set forth in clause (Q) and as to such other matters as Lessee or the Indenture Trustee may reasonably request. Upon any such transfer by the Owner Participant as above provided, the Transferee shall be deemed the Owner Participant for all purposes hereof and of the other Operative Agreements and each reference herein to the transferor Owner Participant shall be deemed for all purposes, with respect to circumstances existing and requirements arising thereafter, to be to the Transferee and the transferor Owner Participant shall be relieved of all obligations of the transferring Owner Participant under the Owner Participant Agreements arising after the date of such transfer except to the extent fairly attributable to acts or events occurring prior thereto and not assumed by the transferee Owner Participant. If the Owner Participant intends to transfer its interests hereunder, it shall give prior written notice thereof as soon as practicable, but in no event less than ten (10) Business Days prior thereto, to the Indenture Trustee, the Owner Trustee and Lessee, specifying the name and address of the proposed Transferee and the facts necessary to determine whether or not the requirements for a Transferee, as set forth herein, are satisfied. The Owner Participant shall pay, or shall cause the transferee Owner Participant to pay, all of the reasonable costs and expenses (including, without limitation, legal fees and expenses) of the Original Loan Participant and the other parties hereto (except the costs and expenses of Lessee if such transfer is effected during the continuance of a Lease Default (of the type described in Section 14.1 or 14.5 of the Lease) or a Lease Event of Default or in connection with the exercise of remedies under the Lease), on a net after-tax basis, of any such transfer. For purposes of this Agreement, "net worth" shall mean the excess of total tangible assets over total liabilities, each to be determined in accordance with generally accepted accounting principles consistently applied.
Appears in 1 contract
Transfers of Equity Interests; Rights of Owner Participant and Owner Trustee. So long as the Aircraft shall be leased to Lessee under the Lease and so long as the Certificates are outstanding, the Owner Participant will not sell, assign, convey or otherwise transfer any of its right, title or interest in and to this Agreement, the Trust Estate or the Trust Agreement to any Person unless (i) the proposed transferee is a "Transferee" (as defined below) and (ii) the Owner Participant shall have delivered to the Owner Trustee, Lessee and the Indenture Trustee an opinion of counsel (in form, scope and substance who shall be reasonably satisfactory to the Indenture Trustee and Lessee) of counsel reasonably satisfactory to the Indenture Trustee and Lessee to the effect that the agreement referred to in clause (O) below and any guaranty required by clause (B) or (C) below, are the legal, valid, binding and enforceable obligations of the Transferee and the guarantor, if any, as the case may be. A "Transferee" shall mean either (A) a U.S. bank or other financial institution with a combined capital, capital and surplus and undivided profits PARTICIPATION AGREEMENT [N396SW] -34- 40 of at least $75,000,000 or a limited partnership or corporation whose net worth is at least $75,000,000, (B) any subsidiary of such a bank, financial institution, limited partnership or corporation; provided, that such bank, financial institution, limited partnership or corporation furnishes to the Owner Trustee, the Indenture Trustee and Lessee a guaranty in the form attached as Exhibit A hereto reasonably satisfactory to them with respect to the Owner Participant's obligations, in the case of the Owner Trustee, under the Trust Agreement and, in the case of the Indenture Trustee and Lessee, the Owner Participant's obligations hereunder, or (C) any other corporation or limited partnership, provided such obligations are guaranteed by the transferor Owner Participant; provided, however, that unless otherwise consented to by Lessee any Transferee shall not be an air carrier, an air freight forwarder or other similar Person or a corporation controlling, controlled by or under common control with such an air carrier, an air freight forwarder or other similar Person. Each such transfer to a Transferee shall be subject to the conditions that (M) upon giving effect to such transfer, the Transferee is a "citizen of the United States" within the meaning of 49 U.S.C. Section 40102(a)(15)(C) or the Transferee, at its sole cost and expense on an after-tax basis (including any continuing costs of any voting trust), shall have entered into a voting trust or similar other arrangement which permits the registration of the Aircraft under the Act in the name of the Owner Trustee without any restriction on the operation of the Aircraft, (N) the Transferee has the full power and authority to enter into and carry out the transactions contemplated hereby, (O) the Transferee enters into an agreement or agreements, in form and substance reasonably satisfactory to the Owner Trustee, Lessee and the Indenture Trustee, agreements whereby the Transferee confirms that it shall be deemed a party to this Agreement and a party to the Trust Agreement and agrees to be bound by all of the terms of, and to undertake all of the obligations of the transferor Owner Participant contained in the Owner Participant Agreements and makes representations of the scope provided for as to the Owner Participant in each of the Operative Agreements, (P) such transfer does not result in a nonexempt prohibited transaction under Section 4975 of the Code or Section 406 of ERISA with respect to such Holders about which the Owner Participant shall have received received, within ten Business Days of its request to the Indenture Trustee therefor, such information as may be reasonably necessary in making such determination (and Owner Participant shall request such information and each of Lessee, the Original Loan Participant and the Indenture Trustee shall cooperate in providing such information as PARTICIPATION AGREEMENT [N604SW] -32- 38 may be available), (Q) such transfer does not violate any applicable law including, without limitation, the Act, or any rules or regulations promulgated thereunder, the Securities Act or the Trust Indenture Act of 1939, (R) after giving effect to such transfer, there shall be no more than one Owner Participant of record at that time, time and (S) such transfer will not not, in and of itself, give rise to an Indenture Default or Indenture Event of Default; and Lessee or the Indenture Trustee may request such Transferee to provide an opinion of counsel (who shall be reasonably satisfactory to Lessee and the Indenture Trustee) in form, scope and substance reasonably satisfactory to Lessee and the Indenture Trustee as to any matter set forth in clause (Q) and as to such other matters as Lessee the non-violation of the Act or the Indenture Trustee may reasonably requestregistration requirements of the Securities Act by reason of such transfer. Upon any such transfer by the Owner Participant as above provided, the Transferee shall be deemed the Owner Participant for all purposes hereof and of the other Operative Agreements and each reference herein to the transferor Owner Participant shall be deemed for all purposes, with respect to circumstances existing and requirements arising thereafter, to be to the Transferee and the transferor Owner Participant shall be relieved of all obligations of the transferring Owner Participant under the Owner Participant Agreements arising after the date of such transfer except to the extent fairly attributable to acts or events occurring prior thereto and not assumed by the transferee Owner Participant. If the Owner Participant intends to transfer its interests hereunder, it shall give prior written notice thereof as soon as practicable, but in no event less than ten (10) Business Days prior thereto, to the Indenture Trustee, the Owner PARTICIPATION AGREEMENT [N396SW] -35- 41 Trustee and Lessee, specifying the name and address of the proposed Transferee and the facts necessary to determine whether or not the requirements for a Transferee, as set forth herein, are satisfied. The Owner Participant shall pay, or shall cause the transferee Owner Participant to pay, all of the reasonable costs and expenses (including, without limitation, legal fees and expenses) of the Original Loan Participant and the other parties hereto (except the costs and expenses of Lessee if such transfer is effected during the continuance of a Lease Default (of the type described in Section 14.1 or 14.5 of the Lease) or a Lease Event of Default or in connection with the exercise of remedies under the Lease), on a net after-tax basis, of any such transfer. For purposes of this Agreement, "net worth" shall mean the excess of total tangible assets over total liabilities, each to be determined in accordance with generally accepted accounting principles consistently applied.
Appears in 1 contract
Transfers of Equity Interests; Rights of Owner Participant and Owner Trustee. So long as the Aircraft shall be leased to Lessee under the Lease and so long as the Certificates are outstanding, the Owner Participant will not sell, assign, convey or otherwise transfer any of its right, title or interest in and to this Agreement, the Trust Estate or the Trust Agreement to any Person unless (i) the proposed transferee is a "Transferee" (as defined below) and (ii) the Owner Participant shall have delivered to the Owner Trustee, Lessee and the Indenture Trustee an opinion of counsel (in form, scope and substance who shall be reasonably satisfactory to the Indenture Trustee and Lessee) of counsel reasonably satisfactory to the Indenture Trustee and Lessee to the effect that the agreement referred to in clause (O) below and any guaranty required by clause (B) or (C) below, are the legal, valid, binding and enforceable obligations of the Transferee and the guarantor, if any, as the case may be. A "Transferee" shall mean either (A) a U.S. bank or other financial institution with a combined capital, capital and surplus and undivided profits PARTICIPATION AGREEMENT [N397SW] -34- 40 of at least $75,000,000 or a limited partnership or corporation whose net worth is at least $75,000,000, (B) any subsidiary of such a bank, financial institution, limited partnership or corporation; provided, that such bank, financial institution, limited partnership or corporation furnishes to the Owner Trustee, the Indenture Trustee and Lessee a guaranty in the form attached as Exhibit A hereto reasonably satisfactory to them with respect to the Owner Participant's obligations, in the case of the Owner Trustee, under the Trust Agreement and, in the case of the Indenture Trustee and Lessee, the Owner Participant's obligations hereunder, or (C) any other corporation or limited partnership, provided such obligations are guaranteed by the transferor Owner Participant; provided, however, that unless otherwise consented to by Lessee any Transferee shall not be an air carrier, an air freight forwarder or other similar Person or a corporation controlling, controlled by or under common control with such an air carrier, an air freight forwarder or other similar Person. Each such transfer to a Transferee shall be subject to the conditions that (M) upon giving effect to such transfer, the Transferee is a "citizen of the United States" within the meaning of 49 U.S.C. Section 40102(a)(15)(C) or the Transferee, at its sole cost and expense on an after-tax basis (including any continuing costs of any voting trust), shall have entered into a voting trust or similar other arrangement which permits the registration of the Aircraft under the Act in the name of the Owner Trustee without any restriction on the operation of the Aircraft, (N) the Transferee has the full power and authority to enter into and carry out the transactions contemplated hereby, (O) the Transferee enters into an agreement or agreements, in form and substance reasonably satisfactory to the Owner Trustee, Lessee and the Indenture Trustee, agreements whereby the Transferee confirms that it shall be deemed a party to this Agreement and a party to the Trust Agreement and agrees to be bound by all of the terms of, and to undertake all of the obligations of the transferor Owner Participant contained in the Owner Participant Agreements and makes representations of the scope provided for as to the Owner Participant in each of the Operative Agreements, (P) such transfer does not result in a nonexempt prohibited transaction under Section 4975 of the Code or Section 406 of ERISA with respect to such Holders about which the Owner Participant shall have received received, within ten Business Days of its request to the Indenture Trustee therefor, such information as may be reasonably necessary in making such determination (and Owner Participant shall request such information and each of Lessee, the Original Loan Participant and the Indenture Trustee shall cooperate in providing such information as PARTICIPATION AGREEMENT [N604SW] -32- 38 may be available), (Q) such transfer does not violate any applicable law including, without limitation, the Act, or any rules or regulations promulgated thereunder, the Securities Act or the Trust Indenture Act of 1939, (R) after giving effect to such transfer, there shall be no more than one Owner Participant of record at that time, time and (S) such transfer will not not, in and of itself, give rise to an Indenture Default or Indenture Event of Default; and Lessee or the Indenture Trustee may request such Transferee to provide an opinion of counsel (who shall be reasonably satisfactory to Lessee and the Indenture Trustee) in form, scope and substance reasonably satisfactory to Lessee and the Indenture Trustee as to any matter set forth in clause (Q) and as to such other matters as Lessee the non-violation of the Act or the Indenture Trustee may reasonably requestregistration requirements of the Securities Act by reason of such transfer. Upon any such transfer by the Owner Participant as above provided, the Transferee shall be deemed the Owner Participant for all purposes hereof and of the other Operative Agreements and each reference herein to the transferor Owner Participant shall be deemed for all purposes, with respect to circumstances existing and requirements arising thereafter, to be to the Transferee and the transferor Owner Participant shall be relieved of all obligations of the transferring Owner Participant under the Owner Participant Agreements arising after the date of such transfer except to the extent fairly attributable to acts or events occurring prior thereto and not assumed by the transferee Owner Participant. If the Owner Participant intends to transfer its interests hereunder, it shall give prior written notice thereof as soon as practicable, but in no event less than ten (10) Business Days prior thereto, to the Indenture Trustee, the Owner PARTICIPATION AGREEMENT [N397SW] -35- 41 Trustee and Lessee, specifying the name and address of the proposed Transferee and the facts necessary to determine whether or not the requirements for a Transferee, as set forth herein, are satisfied. The Owner Participant shall pay, or shall cause the transferee Owner Participant to pay, all of the reasonable costs and expenses (including, without limitation, legal fees and expenses) of the Original Loan Participant and the other parties hereto (except the costs and expenses of Lessee if such transfer is effected during the continuance of a Lease Default (of the type described in Section 14.1 or 14.5 of the Lease) or a Lease Event of Default or in connection with the exercise of remedies under the Lease), on a net after-tax basis, of any such transfer. For purposes of this Agreement, "net worth" shall mean the excess of total tangible assets over total liabilities, each to be determined in accordance with generally accepted accounting principles consistently applied.
Appears in 1 contract
Transfers of Equity Interests; Rights of Owner Participant and Owner Trustee. So long as the Aircraft shall be leased to Lessee under the Lease and so long as the Certificates are outstanding, the Owner Participant will not sell, assign, convey or otherwise transfer any of its right, title or interest in and to this Agreement, the Trust Estate or the Trust Agreement to any Person unless (i) the proposed transferee is a "Transferee" (as defined below) and (ii) the Owner Participant shall have delivered to the Owner Trustee, Lessee and the Indenture Trustee an opinion (in form, scope and substance reasonably satisfactory to the Indenture Trustee and Lessee) of counsel reasonably satisfactory to the Indenture Trustee and Lessee to the effect that the agreement referred to in clause (O) below and any guaranty required by clause (B) or (C) below, are the legal, valid, binding and enforceable obligations of the Transferee and the guarantor, if any, as the case may be. A "Transferee" shall mean either (A) a U.S. bank or other financial institution with a combined capital, surplus and undivided profits of at least $75,000,000 or a limited partnership or corporation whose net worth is at least $75,000,000, (B) any subsidiary of such a bank, financial institution, limited partnership or corporation; provided, that such bank, financial institution, limited partnership or corporation furnishes to the Owner Trustee, the Indenture Trustee and Lessee a guaranty substantially in the form attached as of Exhibit A hereto with respect to the Owner Participant's obligations, in the case of the Owner Trustee, under the Trust Agreement and, in the case of the Indenture Trustee and Lessee, the Owner Participant's obligations hereunder, or (C) any other corporation corporation, limited liability company or limited partnership, provided such obligations are guaranteed by the transferor Owner Participant; provided, however, that unless otherwise consented (such guaranty to by Lessee any Transferee shall not be an air carrier, an air freight forwarder or other similar Person or a corporation controlling, controlled by or under common control with such an air carrier, an air freight forwarder or other similar Person. Each such transfer to a Transferee shall be subject to the conditions that (M) upon giving effect to such transfer, the Transferee is a "citizen of the United States" within the meaning of 49 U.S.C. Section 40102(a)(15)(C) or the Transferee, at its sole cost and expense on an after-tax basis (including any continuing costs of any voting trust), shall have entered into a voting trust or similar arrangement which permits the registration of the Aircraft under the Act substantially in the name of the Owner Trustee without any restriction on the operation of the Aircraft, (N) the Transferee has the full power and authority to enter into and carry out the transactions contemplated hereby, (O) the Transferee enters into an agreement or agreements, in form and substance reasonably satisfactory to the Owner Trustee, Lessee and the Indenture Trustee, whereby the Transferee confirms that it shall be deemed a party to this Agreement and a party to the Trust Agreement and agrees to be bound by all of the terms of, and to undertake all of the obligations of the transferor Owner Participant contained in the Owner Participant Agreements and makes representations of the scope provided for as to the Owner Participant in each of the Operative Agreements, (P) such transfer does not result in a nonexempt prohibited transaction under Section 4975 of the Code or Section 406 of ERISA with respect to such Holders about which the Owner Participant shall have received such information as may be reasonably necessary in making such determination (and Owner Participant shall request such information and each of Lessee, the Original Loan Participant and the Indenture Trustee shall cooperate in providing such information as PARTICIPATION AGREEMENT [N604SW] -32- 38 may be available), (Q) such transfer does not violate any applicable law including, without limitation, the Act, or any rules or regulations promulgated thereunder, the Securities Act or the Trust Indenture Act of 1939, (R) after giving effect to such transfer, there shall be no more than one Owner Participant of record at that time, and (S) such transfer will not give rise to an Indenture Default or Indenture Event of Default; and Lessee or the Indenture Trustee may request such Transferee to provide an opinion of counsel (who shall be reasonably satisfactory to Lessee and the Indenture Trustee) in form, scope and substance reasonably satisfactory to Lessee and the Indenture Trustee as to any matter set forth in clause (Q) and as to such other matters as Lessee or the Indenture Trustee may reasonably request. Upon any such transfer by the Owner Participant as above provided, the Transferee shall be deemed the Owner Participant for all purposes hereof and of the other Operative Agreements and each reference herein to the transferor Owner Participant shall be deemed for all purposes, with respect to circumstances existing and requirements arising thereafter, to be to the Transferee and the transferor Owner Participant shall be relieved of all obligations of the transferring Owner Participant under the Owner Participant Agreements arising after the date of such transfer except to the extent fairly attributable to acts or events occurring prior thereto and not assumed by the transferee Owner Participant. If the Owner Participant intends to transfer its interests hereunder, it shall give prior written notice thereof as soon as practicable, but in no event less than ten (10) Business Days prior thereto, to the Indenture Trustee, the Owner Trustee and Lessee, specifying the name and address of the proposed Transferee and the facts necessary to determine whether or not the requirements for a Transferee, as set forth herein, are satisfied. The Owner Participant shall pay, or shall cause the transferee Owner Participant to pay, all of the reasonable costs and expenses (including, without limitation, legal fees and expenses) of the Original Loan Participant and the other parties hereto (except the costs and expenses of Lessee if such transfer is effected during the continuance of a Lease Default (of the type described in Section 14.1 or 14.5 of the Lease) or a Lease Event of Default or in connection with the exercise of remedies under the Lease), on a net after-tax basis, of any such transfer. For purposes of this Agreement, "net worth" shall mean the excess of total tangible assets over total liabilities, each to be determined in accordance with generally accepted accounting principles consistently applied.
Appears in 1 contract
Transfers of Equity Interests; Rights of Owner Participant and Owner Trustee. So long as the Aircraft shall be leased to Lessee under the Lease and so long as the Certificates are outstanding, the Owner Participant will not sell, assign, convey or otherwise transfer any of its right, title or interest in and to this Agreement, the Trust Estate or the Trust Agreement to any Person unless (i) the proposed transferee is a "Transferee" (as defined below) and (ii) the Owner Participant shall have delivered to the Owner Trustee, Lessee and the Indenture Trustee an opinion (in form, scope and substance reasonably satisfactory to the Indenture Trustee and Lessee) of counsel reasonably satisfactory to the Indenture Trustee and Lessee to the effect that the agreement referred to in clause (O) below and any guaranty required by clause (B) or (C) below, are the legal, valid, binding and enforceable obligations of the Transferee and the guarantor, if any, as the case may be. A "Transferee" shall mean either (A) a U.S. bank or other financial institution with a combined capital, surplus and undivided profits of at least $75,000,000 or a limited partnership or corporation whose net worth is at least $75,000,000, (B) any subsidiary of such a bank, financial institution, limited partnership or corporation; provided, that such bank, financial institution, limited partnership or corporation furnishes to the Owner Trustee, the Indenture Trustee and Lessee a guaranty substantially in the form attached as of Exhibit A hereto with respect to the Owner Participant's obligations, in the case of the Owner Trustee, under the Trust Agreement and, in the case of the Indenture Trustee and Lessee, the Owner Participant's obligations hereunder, or (C) any other corporation or limited partnership, provided such obligations are guaranteed (such guaranty to be substantially in the form of Exhibit A) by the transferor Owner Participant; provided, however, that unless otherwise consented to by Lessee any Transferee shall not be an air carrier, an air freight forwarder or other similar Person or a corporation controlling, controlled by or under common control with such an air carrier, an air freight forwarder or other similar Person. Each such transfer to a Transferee shall be subject to the conditions that (M) upon giving effect to such transfer, the Transferee is a "citizen of the United States" within the meaning of 49 U.S.C. Section 40102(a)(15)(C) or the Transferee, at its sole cost and expense on an after-tax basis (including any continuing costs of any voting trust), shall have entered into a voting trust or similar arrangement which permits the registration of the Aircraft under the Act in the name of the Owner Trustee without any restriction on the operation of the Aircraft, (N) the Transferee has the full power and authority to enter into and carry out the transactions contemplated hereby, (O) the Transferee enters into an agreement or agreements, in form and substance reasonably satisfactory to the Owner Trustee, Lessee and the Indenture Trustee, whereby the Transferee confirms that it shall be deemed a party to this Agreement and a party to the Trust Agreement and agrees to be bound by all of the terms of, and to undertake all of the obligations of the transferor Owner Participant contained agreements substantially in the Owner Participant Agreements and makes representations form of the scope provided for as to the Owner Participant in each of the Operative AgreementsExhibit B, (P) such transfer does not result in a nonexempt prohibited transaction under Section 4975 of the Code or Section 406 of ERISA with respect to such Holders about which the Owner Participant shall have received such information as may be reasonably necessary in making such determination (and Owner Participant shall request such information and each of Lessee, the Original Loan Participant and the Indenture Trustee shall cooperate in providing such information as PARTICIPATION AGREEMENT [N604SW] -32- 38 may be available), (Q) such transfer does not violate any applicable law including, without limitation, the Act, or any rules or regulations promulgated thereunder, the Securities Act or the Trust Indenture Act of 1939, (R) after giving effect to such transfer, there shall be no more than one Owner Participant of record at that time, time and (S) such transfer will not give rise to an Indenture Default or Indenture Event of Default; and Lessee or the Indenture Trustee may request such Transferee to provide an opinion of counsel (who shall be reasonably satisfactory to Lessee and the Indenture Trustee) in form, scope and substance reasonably satisfactory to Lessee and the Indenture Trustee as to any matter set forth in clause (Q) and as to such other matters as Lessee PARTICIPATION AGREEMENT [N603SW] -33- 39 or the Indenture Trustee may reasonably request. Upon any such transfer by the Owner Participant as above provided, the Transferee shall be deemed the Owner Participant for all purposes hereof and of the other Operative Agreements and each reference herein to the transferor Owner Participant shall be deemed for all purposes, with respect to circumstances existing and requirements arising thereafter, to be to the Transferee and the transferor Owner Participant shall be relieved of all obligations of the transferring Owner Participant under the Owner Participant Agreements arising after the date of such transfer except to the extent fairly attributable to acts or events occurring prior thereto and not assumed by the transferee Owner Participant. If the Owner Participant intends to transfer its interests hereunder, it shall give prior written notice thereof as soon as practicable, but in no event less than ten (10) Business Days prior thereto, to the Indenture Trustee, the Owner Trustee and Lessee, specifying the name and address of the proposed Transferee and the facts necessary to determine whether or not the requirements for a Transferee, as set forth herein, are satisfied. The Owner Participant shall pay, or shall cause the transferee Owner Participant to pay, all of the reasonable costs and expenses (including, without limitation, legal fees and expenses) of the Original Loan Participant and the other parties hereto (except the costs and expenses of Lessee if such transfer is effected during the continuance of a Lease Default (of the type described in Section 14.1 or 14.5 of the Lease) or a Lease Event of Default or in connection with the exercise of remedies under the Lease), on a net after-tax basis, of any such transfer. For purposes of this Agreement, "net worth" shall mean the excess of total tangible assets over total liabilities, each to be determined in accordance with generally accepted accounting principles consistently applied.
Appears in 1 contract
Transfers of Equity Interests; Rights of Owner Participant and Owner Trustee. So long as the Aircraft shall be leased to Lessee under the Lease and so long as the Certificates are outstanding, the Owner Participant will not sell, assign, convey or otherwise transfer any of its right, title or interest in and to this Agreement, the Trust Estate or the Trust Agreement to any Person unless (i) the proposed transferee is a "Transferee" (as defined below) and (ii) the Owner Participant shall have delivered to the Owner Trustee, Lessee and the Indenture Trustee an opinion (in form, scope and substance reasonably satisfactory to the Indenture Trustee and Lessee) of counsel reasonably satisfactory to the Indenture Trustee and Lessee to the effect that the agreement referred to in clause (O) below and any guaranty required by clause (B) or (C) below, are the legal, valid, binding and enforceable obligations of the Transferee and the guarantor, if any, as the case may be. A "Transferee" shall mean either (A) a U.S. bank or other financial institution with a combined capital, surplus and undivided profits of at least $75,000,000 or a limited partnership or corporation whose net worth is at least $75,000,000, (B) any subsidiary of such a bank, financial institution, limited partnership or corporation; provided, that such bank, financial institution, limited partnership or corporation furnishes to the Owner Trustee, the Indenture Trustee and Lessee a guaranty substantially in the form attached as of Exhibit A hereto with respect to the Owner Participant's obligations, in the case of the Owner Trustee, under the Trust Agreement and, in the case of the Indenture Trustee and Lessee, the Owner Participant's obligations hereunder, or (C) any other corporation or limited partnership, provided such obligations are guaranteed (such guaranty to be substantially in the form of Exhibit A) by the transferor Owner Participant; provided, however, that unless otherwise consented to by Lessee any Transferee shall not be an air carrier, an air freight forwarder or other similar Person or a corporation controlling, controlled by or under common control with such an air carrier, an air freight forwarder or other similar Person. Each such transfer to a Transferee shall be subject to the conditions that (M) upon giving effect to such transfer, the Transferee is a "citizen of the United States" within the meaning of 49 U.S.C. Section 40102(a)(15)(C) or the Transferee, at its sole cost and expense on an after-tax basis (including any continuing costs of any voting trust), shall have entered into a voting trust or similar arrangement which permits the registration of the Aircraft under the Act in the name of the Owner Trustee without any restriction on the operation of the Aircraft, (N) the Transferee has the full power and authority to enter into and carry out the transactions contemplated hereby, (O) the Transferee enters into an agreement or agreements, in form and substance reasonably satisfactory to the Owner Trustee, Lessee and the Indenture Trustee, whereby the Transferee confirms that it shall be deemed a party to this Agreement and a party to the Trust Agreement and agrees to be bound by all of the terms of, and to undertake all of the obligations of the transferor Owner Participant contained agreements substantially in the Owner Participant Agreements and makes representations form of the scope provided for as to the Owner Participant in each of the Operative AgreementsExhibit B, (P) such transfer does not result in a nonexempt prohibited transaction under Section 4975 of the Code or Section 406 of ERISA with respect to such Holders about which the Owner Participant shall have received such information as may be reasonably necessary in making such determination (and Owner Participant shall request such information and each of Lessee, the Original Loan Participant and the Indenture Trustee shall cooperate in providing such information as PARTICIPATION AGREEMENT [N604SW] -32- 38 may be available), (Q) such transfer does not violate any applicable law including, without limitation, the Act, or any rules or regulations promulgated thereunder, the Securities Act or the Trust Indenture Act of 1939, (R) after giving effect to such transfer, there shall be no more than one Owner Participant of record at that time, time and (S) such transfer will not give rise to an Indenture Default or Indenture Event of Default; and Lessee or the Indenture Trustee may request such Transferee to provide an opinion of counsel (who shall be reasonably satisfactory to Lessee and the Indenture Trustee) in form, scope and substance reasonably satisfactory to Lessee and the Indenture Trustee as to any matter set forth in clause (Q) and as to such other matters as Lessee or the Indenture Trustee may reasonably request. Upon any such transfer by the Owner Participant as above provided, the Transferee shall be deemed the Owner Participant for all purposes hereof and of the other Operative Agreements and each reference herein to the transferor Owner Participant shall be deemed for all purposes, with respect to circumstances existing and requirements arising thereafter, to be to the Transferee and the transferor Owner Participant shall be relieved of all obligations of the transferring Owner Participant under the Owner Participant Agreements arising after the date of such transfer except to the extent fairly attributable to acts or events occurring prior thereto and not assumed by the transferee Owner Participant. If the Owner Participant intends to transfer its interests hereunder, it shall give prior written notice thereof as soon as practicable, but in no event less than ten (10) Business Days prior thereto, to the Indenture Trustee, the Owner Trustee and Lessee, specifying the name and address of the proposed Transferee and the facts necessary to determine whether or not the requirements for a Transferee, as set forth herein, are satisfied. The Owner Participant shall pay, or shall cause the transferee Owner Participant to pay, all of the reasonable costs and expenses (including, without limitation, legal fees and expenses) of the Original Loan Participant and the other parties hereto (except the costs and expenses of Lessee if such transfer is effected during the continuance of a Lease Default (of the type described in Section 14.1 or 14.5 of the Lease) or a Lease Event of Default or in connection with the exercise of remedies under the Lease), on a net after-tax basis, of any such transfer. For purposes of this Agreement, "net worth" shall mean the excess of total tangible assets over total liabilities, each to be determined in accordance with generally accepted accounting principles consistently applied.may
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