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Exhibit 1.1
AMERICA WEST AIRLINES, INC.
1996-1 PASS THROUGH TRUSTS
$___________
Pass Through Certificates, Series 1996-1A, 1996-1B, 1996-1C, 1996-1D and
1996-1E
UNDERWRITING AGREEMENT
November __, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Citicorp Securities, Inc.
Xxxxxx Brothers Inc.
Salomon Brothers Inc
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. It is proposed that Fleet National Bank, as
trustee under each of the Trusts (as defined below) (each, a "Trustee"), issue
and sell to Xxxxxx Xxxxxxx & Co. Incorporated, Citicorp Securities, Inc.,
Xxxxxx Brothers Inc. and Salomon Brothers Inc, as underwriters (collectively,
the "Underwriters"), its pass through certificates in the aggregate principal
amounts set forth on Schedule I hereto and with the interest rates and final
distribution dates set forth on Schedule II hereto (the "Offered Certificates")
on the terms and conditions stated herein. As used herein, unless the context
otherwise requires, the term "you" shall mean Xxxxxx Xxxxxxx & Co.
Incorporated.
The Offered Certificates will be issued pursuant to a pass
through trust agreement, dated as of November __, 1996 (the "Basic Agreement"),
and five separate supplements thereto, dated as of November __, 1996 (each, a
"Trust Supplement" and together with the Basic Agreement, collectively, the
"Pass Through Trust Agreements") between America West Airlines, Inc., a
Delaware corporation (the "Company"), and the Trustee, relating to the creation
and administration of America West Airlines Pass Through Trust Series 1996-1A
(the "Class A Trust"), America West Airlines Pass Through Trust Series 1996-1B
(the "Class B Trust"), America West Airlines Pass Through Trust Series 1996-1C
(the "Class C Trust"), America West Airlines Pass Through Trust Series 1996-1D
(the "Class D Trust") and America West Airlines Pass Through Trust Series
1996-1E (the "Class E Trust"
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and, together with the Class A Trust, the Class B Trust, the Class C Trust and
the Class D Trust, the "Trusts"). Certain amounts of interest payable on the
Offered Certificates to be issued by the Class A Trust, the Class B Trust and
the Class C Trust will be entitled to the benefits of a separate liquidity
facility for each such Trust. Kredietbank N.V., acting through its New York
branch (the "Liquidity Provider"), will enter into three irrevocable revolving
credit agreements (each, a "Liquidity Facility"), to be dated as of November
__, 1996, for the benefit of the holders of the Offered Certificates issued by
the Class A Trust, the Class B Trust and the Class C Trust, respectively. The
Liquidity Provider and the holders of the Offered Certificates will be entitled
to the benefits of an Intercreditor Agreement to be dated as of November __,
1996 (the "Intercreditor Agreement") among the Trusts, Fleet National Bank, as
subordination agent (the "Subordination Agent"), and the Liquidity Provider.
The Leases (as defined in the Pass Through Trust Agreements) provide that the
aggregate amounts unconditionally payable by the Company under the Leases will
be at least sufficient to pay in full when due all scheduled amounts required
to be paid on the Equipment Notes, although neither the Offered Certificates
nor the Equipment Notes (as defined in the Pass Through Trust Agreements) are
not obligations of the Company or are guaranteed by the Company.
Capitalized terms used but not defined herein have the meanings
assigned to them in the Pass Through Trust Agreements, or, if not defined
therein, the meanings specified in each of the eleven Indentures referred to in
such Pass Through Trust Agreements or in each of the eleven Leases referred to
in such Indentures.
The Company understands that the Underwriters propose to make an
offering of the Offered Certificates on the terms, subject to the conditions
and in the manner set forth in the Prospectus (as defined below) and Section 5
hereof.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-3 under the Act (the "registration statement"), including a prospectus
subject to completion relating to the Offered Certificates. The term
"Registration Statement" as used in this Agreement means the registration
statement (including all financial schedules and exhibits), as amended at the
time it becomes effective, or, if the registration statement becomes effective
prior to the execution of this Agreement, as supplemented or amended prior to
the execution of this Agreement; provided, however, that if it is contemplated,
at the time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed and must be declared effective before the
offering of the Offered Certificates may commence, then the term "Registration
Statement" as used in this Agreement means the registration statement as
amended by said post- effective amendment and any additional post-effective
amendment that is subsequently filed with the Commission. The term
"Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement, as such prospectus may subsequently be
amended or supplemented, including, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the Act
and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, the prospectus in the form included in
the Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b).
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The term "Preliminary Prospectus" as used in this Agreement means the
prospectus subject to completion in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission, and as such prospectus shall have been amended from time to
time prior to the date of the Prospectus. Any reference herein to the
registration statement, the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Form S-3 under the Act, as of the
date of the registration statement, the Registration Statement, such
Preliminary Prospectus or the Prospectus, as the case may be, and any reference
to any amendment or supplement to the registration statement, the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after such date under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") and deemed
incorporated by reference pursuant to Form S-3 under the Act. As used herein,
the term "Incorporated Documents" means the documents which at the time are
incorporated by reference in the registration statement, the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto.
2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Underwriter and GPA
(as hereinafter defined) on and as of the date hereof and on and as of the
Closing Date (as defined in Section 4 hereof) that:
(a) The Company meets the requirements for use of Form S-3 under
the Act. The registration statement in the form in which it became or
becomes effective and also in such form as it may be when any post-
effective amendment thereto shall become effective complied and will
comply in all material respects with the provisions of the Act and did
not and will not at any such time contain an untrue statement of a
material fact or omit to state a material fact with respect to the
America West Information (as defined in Annex I hereto) required to be
stated therein or necessary to make the statements therein not
misleading. The Prospectus when filed with the Commission under Rule
424(b) under the Act complied and will comply in all material respects
with the provisions of the Act and on the date hereof, at the time it is
furnished to the Underwriters for their use and on the Closing Date did
not and will not at any such time contain an untrue statement of a
material fact or omit to state a material fact with respect to the
America West Information necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties made in this
paragraph (a) shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished by you in
writing to the Company or GPA expressly for use in the Registration
Statement or the Prospectus nor to any statements or omissions in that
part of the Registration Statement that shall constitute the Statement
of Eligibility under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), on Form T-1.
(b) The Incorporated Documents heretofore filed were filed in a
timely manner and, when they were filed (or, if any amendment with
respect to any such document was filed, when such amendment was filed),
complied in all material respects with the
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requirements of the Exchange Act and did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and any further Incorporated Documents will, when so filed,
be filed in a timely manner and will comply in all material respects
with the requirements of the Exchange Act and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(c) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own, lease and operate
its property and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under this Agreement and
the other Operative Documents to which it is or will be a party; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a material adverse
effect on the condition (financial or otherwise), or the earnings,
business affairs, business prospects or properties of the Company or on
the ability of the Company to perform its obligations under this
Agreement and the other Operative Documents to which it is or will be a
party or on the consummation of the transactions contemplated herein or
therein (a "Material Adverse Effect").
(d) The Company has no subsidiaries.
(e) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization" (except
for subsequent issuances, if any, pursuant to reservations, agreements,
employee benefit plans or the exercise of the warrants referred to in
the Prospectus). All of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable.
(f) Except as described in the Prospectus, the Company is not
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it is
a party or by which it may be bound or to which any of its properties
may be subject, except for such defaults that would not have a Material
Adverse Effect. The execution, delivery and performance of this
Agreement and the other Operative Documents to which the Company is or
will be a party and the consummation of the transactions contemplated
herein and therein have been duly authorized by all necessary corporate
action of the Company, do not require any stockholder approval, or
approval or consent of any trustee or holder of any material
indebtedness or material obligations of the Company, except such as have
been duly obtained and are in full force and effect, and will not result
in any breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company pursuant to any indenture, loan agreement, contract or other
instrument to which the Company is a party or by which the Company may
be bound
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or to which any of the property or assets of the Company is subject, the
failure of which to obtain or which breach, default, lien, charge or
encumbrance, individually or in the aggregate, would have a Material
Adverse Effect, nor will any such execution, delivery or performance
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company, or any statute or any rule,
regulation or order of any governmental agency or body or any court
having jurisdiction over the Company.
(g) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the valid authorization, execution
and delivery by the Company of this Agreement and the other Operative
Documents to which the Company is or will be a party and for the
consummation by the Company of the transactions contemplated herein and
therein, except such as may be required under (i) the securities or Blue
Sky laws of the various states, (ii) the Sections of Title 49 of the
United States Code relating to aviation, as amended (the "Aviation
Act"), and filings or recordings with the Federal Aviation
Administration (the "FAA"), and (iii) the Uniform Commercial Code as is
in effect in the State of Arizona and filings thereunder, which filings
listed in the preceding clauses (ii) and (iii) shall have been made, or
duly presented for filing, on or prior to the Closing Date.
(h) The Company has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has made
all declarations and filings with, all Federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to so
obtain, declare or file would not have a Material Adverse Effect.
(i) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any governmental agency or body or
court, domestic or foreign, now pending or, to the best knowledge of the
Company, threatened against the Company or any of its properties that
could reasonably be expected to result in a Material Adverse Effect; all
pending legal or governmental proceedings to which the Company is a
party or which affect any of its properties that are not described in
the Prospectus including ordinary routine litigation incidental to its
business, are not, singly or in the aggregate, reasonably expected to
have a Material Adverse Effect.
(j) The Company has not taken any corporate action or, to the
best knowledge of the Company, have any other steps been taken or legal
proceedings been started or threatened against it (i) as a result of
which it could become bankrupt, (ii) for its winding-up, dissolution or
reorganization or (iii) for the appointment of a liquidator, receiver,
administrator, administrative receiver, examiner or similar officer of
it or of any or all its assets or revenues.
(k) This Agreement and the other Operative Documents to which
the Company is a party have been duly executed and delivered by the
Company and the other
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Operative Documents to which the Company will be a party will be duly
executed and delivered by the Company on or prior to the Closing Date.
(l) The Operative Documents (other than this Agreement) to which
the Company is or will be a party will constitute, when duly executed
and delivered by the Company, assuming that such Operative Documents
have been duly authorized, executed and delivered by, and constitute the
legal, valid and binding obligations of, each other party thereto, the
legal, valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as enforcement
thereof may be limited by (i) bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium, or other similar laws now or hereinafter in effect relating
to creditors' rights generally and as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), or (ii) with respect to
indemnification and contribution provisions, applicable law.
(m) The financial statements included in the Prospectus,
together with the related notes thereto, present fairly the financial
position of the Company at the dates indicated and the results of
operations and cash flows of the Company for the periods specified.
Such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved, except as otherwise
stated in the Prospectus.
(n) Since the respective dates as of which information is given
in the Prospectus, except as otherwise stated therein, there has been no
material adverse change in the condition (financial or otherwise), or in
the earnings, business affairs, business prospects or properties of the
Company, whether or not arising in the ordinary course of business (a
"Material Adverse Change"). Except as disclosed in the Prospectus, the
Company has no material (i) contingent obligations, (ii) forward or
long-term commitments or (iii) unrealized or anticipated losses from
any unfavorable commitments.
(o) The Company is a "citizen of the United States" within the
meaning of Section 40102(a)(15) of Title 49 of the United States Code,
as amended, holding an air carrier operating certificate issued by the
Secretary of Transportation pursuant to Chapter 447 of Title 49 of the
United States Code, as amended, for aircraft capable of carrying 10 or
more individuals or 6,000 pounds or more cargo.
(p) When executed, authenticated, issued and delivered in the
manner provided for in the Pass Through Trust Agreements and this
Agreement and sold and paid for as provided in this Agreement, the
Offered Certificates will be legally and validly issued and will be
entitled to the benefits of the related Pass Through Trust Agreements.
(q) Except as disclosed in the Prospectus, the Company has good
and sufficient title for the use made and proposed to be made of all of
its properties, whether real or personal, in each case free from liens,
encumbrances and defects except where the failure to have such title
would not have a Material Adverse Effect;
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and except as disclosed in the Prospectus, the Company holds any leased
real or personal property under valid and enforceable leases with no
exceptions that would have a Material Adverse Effect.
(r) The statements in the Prospectus describing various
provisions of the Leases provide accurate summaries of such provisions
in all material respects.
(s) Except as disclosed in the Prospectus, the Company is not in
violation of any Federal, state or local law relating to discrimination
in the hiring, promotion or pay of employees nor any applicable wage or
hour laws that, singly or in the aggregate, could have a Material
Adverse Effect. There is (i) no significant unfair labor practice
complaint pending against the Company or, to the best knowledge of the
Company, threatened against the Company, before the National Labor
Relations Board, the National Mediation Board or any state or local
labor relations or mediation board, and no significant grievance or
significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or, to
the best knowledge of the Company, threatened against the Company, and
(ii) no labor dispute in which the Company is involved nor, to the best
knowledge of the Company, is any labor dispute imminent, other than
routine disciplinary and grievance matters, except as disclosed in the
Prospectus. The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and the regulations and
published interpretations thereunder, including, but not limited to
Sections 4975 and 4980B of the Internal Revenue Code of 1986, as amended
(the "Code"). There are no "pension plans" established or maintained by
the Company or "multi-employer pension plans" to which the Company is a
contributor that are intended to be qualified under Section 401(a) of
the Code.
(t) Except as disclosed in the Prospectus, the Company is not
in violation of any Federal, State or local laws and regulations
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), including, without
limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of toxic or hazardous substances,
materials or wastes, or petroleum and petroleum products ("Materials of
Environmental Concern"), or otherwise relating to the protection of
human health and safety, or the storage, disposal, transport or handling
of Materials of Environmental Concern (collectively, "Environmental
Laws"), which violation includes, but is not limited to, noncompliance
with any permits or other governmental authorizations, excluding any
violations which individually or in the aggregate would not have a
Material Adverse Effect; the Company has not received any communication
(written or oral), whether from a governmental authority or otherwise,
alleging any such violation or noncompliance, and there are no
circumstances, either past, present or that are reasonably foreseeable,
that may lead to such violation in the future; there is no pending or
threatened claim, action, investigation or notice (written or oral) by
any person or entity alleging potential liability for investigatory,
cleanup, or governmental responses costs, or natural resources or
property damages, or personal injuries, attorney's fees or penalties
relating
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to (i) the presence, or release into the environment, of any Material of
Environmental Concern at any location owned or operated by the Company,
now or in the past, or (ii) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law (collectively,
"Environmental Claims"); and there are no past or present actions,
activities, circumstances, conditions, events or incidents, that could
form the basis of any Environmental Claim against the Company or against
any person or entity whose liability for any Environmental Claim the
Company has retained or assumed either contractually or by operation of
law. In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties); on the basis
of such review, the Company has reasonably concluded that such
associated costs and liabilities could not singly or in the aggregate,
have a Material Adverse Effect.
(u) All tax returns required to be filed by the Company have
been timely filed and such returns are true, complete and correct in all
material respects. All taxes due or claimed to be due from the Company
that are due and payable have been paid, other than those (i) being
contested in good faith and for which an adequate reserve or accrual has
been established in accordance with GAAP or (ii) those currently payable
without penalty or interest for which an adequate reserve or accrual has
been established or extensions duly paid. Except as described in the
Prospectus, the Company does not know of (A) any actual or proposed
material additional tax assessments or (B) any probable basis for the
imposition of any material additional tax assessments for any fiscal
period against the Company.
(v) KPMG Peat Marwick, the firm that examined and issued an
auditors' report with respect to the financial statements of the Company
included in the Prospectus, are independent public accountants within
the meaning of the Securities Act and the regulations thereunder.
(w) Neither BK Associates, Inc., Aircraft Information Services,
Inc. nor Xxxxxx Xxxxx and Associates (collectively, the "Appraisers") is
an affiliate of the Company or has a substantial interest, direct or
indirect, in the Company. To the Company's knowledge, none of the
officers and directors of any of such Appraisers are connected with the
Company or any of its affiliates as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
(x) To the best of the Company's knowledge, no event has
occurred and is continuing which constitutes a Lease Event of Default or
would constitute a Lease Event of Default under any Lease but for the
requirement that notice be given or time lapse or both.
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(y) To the best of the Company's knowledge, no event has
occurred and is continuing which constitutes an Event of Loss (as
defined in each Lease) or would constitute an Event of Loss under any
Lease with the lapse of time.
(z) The Company is and will be the "issuer" within the meaning
of the Securities Act with respect to the offering and sale of the
Offered Certificates.
(aa) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(bb) As of the Closing Date, the Pass Through Trust Agreements
will have been duly qualified under the Trust Indenture Act, and the
rules and regulations promulgated thereunder, and comply as to form in
all material respects with the requirements of the Trust Indenture Act.
(cc) The Company has not and is not presently doing business
with the government of Cuba or with any person or affiliate located in
Cuba.
(dd) All of the Company's representations and warranties to be
contained in Section 8 of each Refunding Agreement, when made, shall be
incorporated by reference in this Agreement as if set forth herein, and
shall be true and correct on and as of the date they are made by the
Company pursuant to each Refunding Agreement and on and as of the
Closing Date.
3. Representations and Warranties of GPA. Each of GPA Group
plc ("GPA Group"), GPA Leasing USA I, Inc. ("GPA I") and GPA Leasing USA Sub I
("GPA Sub I" and, collectively with GPA Group and GPA I, "GPA") represents and
warrants to, and agrees with, the Underwriters and the Company on and as of the
date hereof and on and as of the Closing Date that:
(a) The registration statement in the form in which it became or
becomes effective and also in such form as it may be when any post-
effective amendment thereto shall become effective did not and will not
at any such time contain any untrue statement of a material fact or omit
to state any material fact with respect to the GPA Information (as
defined in Annex I hereto) required to be stated therein or necessary in
order to make the statements therein not misleading. The Prospectus on
the date hereof, at the time it is furnished to the Underwriters for
their use and on the Closing Date, did not and will not at any such time
contain an untrue statement of a material fact or omit to state a
material fact with respect to the GPA Information necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties made in this paragraph (a) shall not apply to any statements
or omissions made in reliance upon and in conformity with information
furnished by you in writing to the Company or GPA expressly for use in
the Registration Statement or the Prospectus nor to any statements or
omissions in that part of the Registration Statement that shall
constitute the Statement of Eligibility under the Trust Indenture Act on
Form T-1.
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(b) GPA Group is a corporation duly organized and validly
existing under the laws of Ireland, with power and authority (corporate
and other) to own, lease and operate its properties and to conduct its
business as presently conducted and to enter into and perform its
obligations under this Agreement and the other Operative Documents to
which it is or will be a party.
(c) Each of GPA I and GPA Sub I is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Connecticut, with power and authority (corporate and other)
to own, lease and operate its properties and to conduct its business as
presently conducted and to enter into and perform its obligations under
this Agreement and the other Operative Documents to which it is or will
be a party.
(d) Except as described in the Form 20-F most recently filed by
GPA Group with the Commission (the "Form 20-F"), neither GPA Group, GPA
I nor GPA Sub I is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it may be bound or to which any of its
properties may be subject, except for such defaults that would not have
a material adverse effect on the condition (financial or otherwise), or
the earnings, business affairs, business prospects or properties of GPA
Group and its subsidiaries taken as a whole, or on the ability of GPA
Group, GPA I or GPA Sub I to perform their respective obligations under
this Agreement and the other Operative Documents to which GPA Group, GPA
I or GPA Sub I, as the case may be, is or will be a party or on the
consummation by GPA of the transactions contemplated herein or therein
(a "GPA Material Adverse Effect"). The execution, delivery and
performance of this Agreement and the other Operative Documents to which
GPA Group, GPA I or GPA Sub I is or will be a party and the consummation
by GPA of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action of GPA Group, GPA I
and GPA Sub I, as the case may be, do not require any stockholder
approval, or approval or consent of any trustee or holder of any
material indebtedness or material obligations of GPA Group, GPA I or GPA
Sub I, except such as have been duly obtained and are in full force and
effect, and will not result in any breach of any of the terms,
conditions or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of GPA Group, GPA I or GPA Sub I pursuant to any
indenture, loan agreement, contract or other instrument to which GPA
Group, GPA I or GPA Sub I is a party or by which GPA Group, GPA I or GPA
Sub I may be bound or to which any of the property or assets of GPA
Group, GPA I or GPA Sub I is subject, the failure of which to obtain or
which breach, default, lien, charge or encumbrance, individually or in
the aggregate, would have a GPA Material Adverse Effect, nor will any
such execution, delivery or performance result in any violation by GPA
of the provisions of the memorandum, articles of association,
certificate of incorporation or by-laws, as the case may be, of GPA
Group, GPA I or GPA Sub I or any statute, or any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over GPA Group, GPA I or GPA Sub I.
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(e) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by GPA for the valid authorization, execution and
delivery by GPA Group, GPA I or GPA Sub I of this Agreement and the
Operative Documents to which GPA Group, GPA I or GPA Sub I is or will be
a party and for the consummation by GPA of the transactions contemplated
herein and therein, except such as may be required under (i) the
Sections of the Aviation Act and filings or recordings with the FAA and
(ii) the Uniform Commercial Code as is in effect in the States of
Arizona and Connecticut and similar statutes as in effect in the country
of Ireland and filings thereunder, which filings listed in the preceding
clauses (i) and (ii) shall have been made, or duly presented for filing
on or prior to the Closing Date.
(f) Except as disclosed in the Form 20-F, there is no action,
suit or proceeding before or by any governmental agency or body or
court, domestic or foreign, now pending or, to the best knowledge of GPA
Group, GPA I or GPA Sub I, threatened against GPA Group, GPA I or GPA
Sub I or any of their respective properties that could reasonably be
expected to result in a GPA Material Adverse Effect.
(g) On or prior to the Closing Date, the issuance of the
Equipment Notes to be issued under each Indenture will be duly
authorized by the related Owner Trustee, and when duly executed and
delivered by the related Owner Trustee, and duly authenticated by the
related Indenture Trustee in accordance with the terms of such
Indenture, will be duly issued under such Indenture and will constitute
the valid and binding obligations of such Owner Trustee, and the holders
thereof will be entitled to the benefits of such Indenture, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
The offer and sale of the Equipment Notes will be exempt from the
registration requirements of the Act and it will not be necessary to
qualify any of the Indentures under the Trust Indenture Act in respect
of any such offer or sale.
(h) Neither GPA Group, GPA I nor GPA Sub I has taken any
corporate action or, to the best knowledge of GPA Group, GPA I and GPA
Sub I, have any other steps been taken or legal proceedings been started
or threatened against it (i) as a result of which it could become
bankrupt, (ii) for its winding-up, dissolution or reorganization or
(iii) for the appointment of a liquidator, receiver, administrator,
administrative receiver, examiner or similar officer of it or of any or
all its assets or revenues.
(i) This Agreement and the other Operative Documents to which
each of GPA Group, GPA I and GPA Sub I is a party have been duly
executed and delivered by each of GPA Group, GPA I and GPA Sub I, and
the other Operative Documents to which GPA Group, GPA I and GPA Sub I
will be a party will be duly executed and delivered by each of GPA
Group, GPA I and GPA Sub I on or prior to the Closing Date.
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(j) The statements in the Prospectus describing various
provisions of the Pass Through Trust Agreements, the Offered
Certificates, the Intercreditor Agreement, the Liquidity Facilities, the
Equipment Notes, the Indentures and the other Operative Documents (other
than the Leases) provide accurate summaries of such provisions in all
material respects.
(k) The Operative Documents (other than this Agreement) to which
each of GPA Group, GPA I or GPA Sub I is or will be a party will
constitute, when duly executed and delivered by each of GPA Group, GPA I
or GPA Sub I, as the case may be, assuming that such Operative Documents
have been duly authorized, executed and delivered by, and constitute the
legal, valid and binding obligations of, each other party thereto, the
legal, valid and binding obligations of each of GPA Group, GPA I or GPA
Sub I, as the case may be, enforceable against each of GPA Group, GPA I
or GPA Sub I, as the case may be, in accordance with their terms, except
as enforcement thereof may be limited by (i) bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws now or
hereinafter in effect relating to creditors' rights generally and as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law), or (ii) with respect to indemnification and
contribution provisions, applicable law.
(l) To the best of GPA's knowledge, no event has occurred and is
continuing which constitutes a Lease Event of Default or would
constitute a Lease Event of Default under any Lease but for the
requirement that notice be given or time lapse or both.
(m) To the best of GPA's knowledge, no event has occurred and is
continuing which constitutes an Event of Loss (as defined in each Lease)
or would constitute an Event of Loss under any Lease with the lapse of
time.
(n) Neither GPA Group, GPA I, GPA Sub I nor any of the Trusts is
an "investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act; and
none of the Trusts, after giving effect to the offering and sale of the
Offered Certificates and the application of the proceeds thereof as
described in the Prospectus, will be an "investment company" as defined
in the Investment Company Act.
(o) All of GPA Group's, GPA I's and GPA Sub I's representations
and warranties to be contained in Section 9 of each Refunding Agreement,
when made, shall be incorporated by reference in this Agreement as if
set forth herein, and shall be true and correct on and as of the date
they are made by each of GPA Group, GPA I and GPA Sub I pursuant to each
Refunding Agreement and on and as of the Closing Date.
4. Purchase, Sale and Delivery of Offered Certificates.
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(a) Subject to the terms and conditions set forth herein and in
reliance upon the representations and warranties herein contained, the
Company agrees to cause the Trustee to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from
each Trustee, at a purchase price of ___% of the principal amount
thereof, the aggregate principal amount of Offered Certificates of each
Trust set forth opposite the name of such Underwriter in Schedule I
hereto.
(b) The Company is advised by you that the Underwriters propose
to make a public offering of the Offered Certificates as soon after this
Agreement has been entered into as in your judgment is advisable. The
Company is further advised by you that the Offered Certificates are to
be offered to the public initially at 100% of their principal amount --
the public offering price -- plus accrued interest, if any, and to
certain dealers selected by the Underwriters at concessions not in
excess of the concessions set forth in the Prospectus, and that the
Underwriters may allow, and such dealers may reallow, concessions not in
excess of the concessions set forth in the Prospectus to certain other
dealers.
(c) As compensation to the Underwriters for their respective
commitments and obligations hereunder in respect of the Offered
Certificates, including their respective undertakings to distribute the
Offered Certificates, GPA I and GPA Sub I, jointly and severally, will
pay to each Underwriter with respect to the Offered Certificates of each
Trust purchased by it as set forth in Schedule I hereto a portion
determined by you and such Underwriter of the total amount of
commissions payable in respect of the Offered Certificates of each such
Trust as set forth in Schedule II hereto; provided that if GPA I or GPA
Sub I fails to pay such amounts when due, GPA Group will pay such
amounts. Such payment shall be made simultaneously with the payment by
the Underwriters to the Trustee of the purchase price of the Offered
Certificates as specified in Section 4(a) hereof. Payment of such
compensation shall be made by Federal funds check or other immediately
available funds.
(d) Delivery of and payment for the Offered Certificates shall
be made at the offices of Milbank, Tweed, Xxxxxx & XxXxxx, 0 Xxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M. on November __,
1996, you, GPA and the Company, collectively, having determined that it
is not feasible to close at an earlier date, or such other date, time
and place as may be agreed upon by you and the Company (such date and
time of delivery and payment for the Offered Certificates being herein
called the "Closing Date"). Delivery of the Offered Certificates shall
be made to your account at The Depository Trust Company for the
respective accounts of the several Underwriters against payment by the
Underwriters of the purchase price thereof to or upon the order of the
Trustee by wire transfer. The Offered Certificates shall be registered
in the name of Cede & Co. or in such other names, and in such
denominations as you may request in writing at least two full business
days in advance of the Closing Date.
(e) The Company agrees to have the Offered Certificates
available for inspection, checking and packaging by you in New York, New
York not later than 1:00 P.M. on the business day prior to the Closing
Date.
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(f) It is understood that each Underwriter has authorized you
for its account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Offered Certificates that it has agreed to
purchase. You, individually and not as a representative, may (but shall
not be obligated to) make payment of the purchase price for the Offered
Certificates to be purchased by any Underwriter whose check or checks
shall not have been received by the Closing Date.
5. Certain Agreements of the Company. The Company agrees
with each Underwriter that:
(a) The Company will advise you promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and
will not effect such amendment or supplementation without your consent,
which consent will not be unreasonably withheld. If, at any time during
the period when a prospectus relating to the Offered Certificates is
required to be delivered by an Underwriter or a dealer under the Act any
event occurs as a result of which in the reasonable opinion of counsel
to the Underwriters or counsel to the Company the Registration Statement
or the Prospectus as then amended or supplemented would not comply with
applicable law or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, the Company promptly will prepare, at the joint
and several expense of GPA I and GPA Sub I (or, alternatively, at the
expense of GPA Group), an amendment or supplement which, in the
reasonable opinion of counsel to the Underwriters or counsel to the
Company, will comply with such law or will correct such statement or
omission, will promptly file such amendment or supplement with the
Commission, and will furnish, at the joint and several expense of GPA I
and GPA Sub I (or, alternatively, at the expense of GPA Group), to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company), upon request, copies of the Prospectus as so
amended or supplemented. Neither your consent to, nor any Underwriter's
delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
7.
(b) At the joint and several expense of GPA I and GPA Sub I (or,
alternatively, at the expense of GPA Group), the Company will furnish to
you one signed and as many conformed copies of each Registration
Statement (as originally filed) and of all amendments thereto, whether
filed before or after such Registration Statement became effective, as
many copies of all exhibits and documents filed therewith or
incorporated by reference therein and one signed and as many conformed
copies of all consents and certificates of experts as you may reasonably
request and, if requested by you, will furnish for each of the
Underwriters, one conformed copy of each Registration Statement (as
originally filed) and of each amendment thereto (including documents
incorporated by reference into the Prospectus but without exhibits).
(c) At the joint and several expense of GPA I and GPA Sub I (or,
alternatively, at the expense of GPA Group), the Company will furnish to
each
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Underwriter copies of the Preliminary Prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as each Underwriter reasonably
requests. The Company will file the Prospectus pursuant to Rule 424(b)
under the Act within the time required under such Rule and the Act.
(d) The Company, at the joint and several expense of GPA I and
GPA Sub I (or, alternatively, at the expense of GPA Group), will take
such actions as may be reasonably requested by the Underwriters to
arrange for the qualification of the Offered Certificates for sale under
the applicable securities or Blue Sky laws of such jurisdictions in the
United States as the Underwriters reasonably designate and will continue
such qualifications in effect so long as required for the resale of the
Offered Certificates by the Underwriters; provided that the Company will
not be required to (i) qualify as a foreign corporation or as a dealer
in securities, (ii) file a general consent to service of process or
(iii) subject itself to taxation in any such state.
(e) The Company will as soon as practicable, but not later than
18 months after the effective date of the Registration Statement, make
generally available to its security holders and to you an earnings
statement of the Company and any subsidiaries conforming with the
requirements of Section 11(a) of the Act (including, at the option of
the Company, Rule 158 under the Act), covering a period of at least 12
months beginning on the first day of the first fiscal quarter of the
Company commencing after the later of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the
Commission.
(f) During the period of five years hereafter, the Company will
promptly furnish to you, and will make available to each of the other
Underwriters upon their request, copies of all of its annual reports,
quarterly reports and current reports on Forms 10-K, 10-Q and 8-K, or
such other forms as may be designated by the Commission, and any
definitive proxy statement of the Company, in each case, filed with the
Commission under the Exchange Act or mailed to stockholders.
(g) So long as any of the Offered Certificates are outstanding,
the Company will furnish to you, by first-class mail as soon as
practicable, (i) all documents distributed by the Company to any holders
of Offered Certificates, or filed with the Commission pursuant to the
Exchange Act, or any rule or regulation of the Commission thereunder,
(ii) any order of the Commission under the Act or the Exchange Act
received by the Company applicable to the Trusts or to the Company as
originator of the Trusts, or pursuant to a "no-action" letter obtained
from the staff of the Commission by the Company and affecting the Trusts
or the Company as originator of the Trusts and (iii) from time to time,
such other information concerning the Company or, to the extent
possessed by the Company, the Trusts as the Underwriters may reasonably
request.
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(h) The Company will, during the period when a prospectus
relating to the Offered Certificates is required to be delivered by an
Underwriter or a dealer under the Act or the Exchange Act, file all
documents required to be filed with the Commission pursuant to Section
13, 14, or 15(d) of the Exchange Act within the required time periods.
You will notify the Company when such period shall have expired.
(i) The Company will notify you promptly after the Company
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Offered Certificates for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information and, in the event of the issuance of any stop
order or order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, at
the joint and several expense of GPA I and GPA Sub I (or, alternatively,
at the expense of GPA Group), promptly use reasonable efforts to obtain
its withdrawal.
(j) Between the date of this Agreement and the Closing Date, the
Company will not, without your prior written consent, offer, sell, or
enter into any agreement to sell, any public debt securities registered
under the Act (other than the Offered Certificates) or any debt
securities which may be resold in a transaction exempt from the
registration requirements of the Act in reliance on Rule 144A thereunder
and which are marketed through the use of a disclosure document
containing substantially the same information as a prospectus for
similar debt securities registered under the Act.
(k) In connection with the offering, until you shall have
notified the Company of the completion of the resale of the Offered
Certificates, neither the Company nor any of its affiliates has bid for
or purchased or will bid for or purchase, either alone or with one or
more other persons, for any account in which it or any of its affiliates
has a beneficial interest any Offered Certificates; and neither it nor
any of its affiliates will make bids or purchases for the purpose of
creating actual, or apparent, active trading in, or of raising the price
of, the Offered Certificates.
(l) To the extent, if any, that the ratings provided with
respect to the Offered Certificates by Xxxxx'x Investors Service, Inc.
("Moody's") or Standard & Poor's Rating Services ("Standard & Poor's"
and, together with Moody's, the "Rating Agencies") are conditional upon
the furnishing of documents or the taking of any other actions by the
Company, the Company will, at the joint and several expense of GPA I and
GPA Sub I (or, alternatively, at the expense of GPA Group), furnish such
documents and take any such other actions in each case to the extent
reasonably practicable.
6. Certain Agreements of GPA. GPA agrees with the
Underwriters that:
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(a) GPA I and GPA Sub I, jointly and severally, shall pay (or
cause to be paid), or if GPA I or GPA Sub I fails to pay, GPA Group
shall pay, the following (without duplication): (i) the preparation,
printing, distribution and filing of the registration statement
(including financial statements and exhibits), as originally filed and
amended, the Preliminary Prospectus, the Prospectus, and any amendments
thereof or supplements thereto, (ii) the preparation, printing and
distribution of this Agreement, the Pass Through Trust Agreements, the
Offered Certificates, the other Operative Documents and any Blue Sky
Memorandum or Legal Investment Survey by the Underwriters' counsel and
the reasonable fees and disbursements of Underwriters' counsel in
connection with such memorandum or survey, (iii) the delivery of the
Offered Certificates to the Underwriters, (iv) the reasonable fees and
disbursements of the Company's and GPA's counsel and the Company's
accountants, (v) the expenses of qualifying the Offered Certificates
under Blue Sky or state securities laws, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith, (vi) the fees and expenses of the Owner Trustees,
the Indenture Trustees, the Subordination Agent and the Trustees and the
reasonable fees and disbursements of their respective counsel, (vii) any
fees charged by the Rating Agencies for rating the Offered Certificates
(including annual surveillance fees related to the Offered Certificates
as long as they are outstanding), (viii) the reasonable fees and
disbursements of counsel for the Underwriters generally incurred in
connection with the consummation of the transactions contemplated by
this Agreement and the Operative Documents, (ix) any fees of the
National Association of Securities Dealers, Inc. in connection with
their review of the Underwriters' compensation; (xi) the costs and
charges of DTC and its nominee in connection with the Offered
Certificates, including the book-entry ownership system for the Offered
Certificates, (xi) all reasonable travel, lodging and other expenses of
the Underwriters and the Company's officers and employees and any other
expenses in connection with attending or hosting meetings with
prospective purchasers of Offered Certificates, (xii) all fees and
expenses relating to appraisals of each of the Aircraft and each Spare
Engine, and (xiv) all expenses specified in Section 21 of each Refunding
Agreement.
If this Agreement is terminated by the Underwriters in accordance
with the provisions of Section 11, GPA shall reimburse the Underwriters
for all their reasonable out-of-pocket expenses.
(b) To the extent, if any, that the ratings provided with
respect to the Offered Certificates by any Rating Agency are conditional
upon the furnishing of documents or the taking of any other actions by
GPA, GPA will furnish such documents and take any such other actions in
each case to the extent reasonably practicable.
7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters hereunder shall be subject to (i) the condition
that all representations and warranties and other statements of the Company and
GPA set forth or incorporated by reference herein and made in certificates
furnished pursuant hereto, and of each party to the Operative Documents, made
in such documents, are, at and as of the Closing Date, true and correct, (ii)
the condition that the Company and GPA shall have performed in all material
respects all of their respective obligations hereunder theretofore to be
performed, (iii) the
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condition that each of the Indenture Documents related to each of the Owner
Trusts constitutes the legal, valid and binding agreements of the parties
thereto, (iv) the condition that no Lease Event of Default under any Lease or
event or condition which with the passage of time or the giving of notice or
both would become a Lease Event of Default under any Lease shall have occurred,
and (v) the condition that none of the Japanese Financing Documents have been
repudiated by any party thereto or otherwise have ceased to be in full force
and effect, and to the following additional conditions precedent:
(a) Subsequent to the date of this Agreement and on or prior to
the Closing Date,
(i) no stop order suspending the effectiveness of either
Registration Statement shall have been issued under the Act and
no proceedings therefor shall have been instituted or threatened
by the Commission.
(ii) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by the Rating Agencies
or any other "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule
436(g)(2) under the Act; and
(iii) (A) the Company shall not have sustained, since the
date of the interim financial statements included in the
Prospectus, any material loss or interference with its business
from any court or governmental action, order or decree, other
than as set forth or contemplated in the Prospectus and (B) since
such date there shall not have occurred any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), or the earnings, business
affairs, business prospects or properties of the Company that,
individually or in the aggregate, other than as set forth or
contemplated in the Prospectus, the effect of which, in any such
case described in clause (A) or clause (B), is material and
adverse and that makes it, in your judgment, impracticable or
inadvisable to market the Offered Certificates on the terms and
in the manner contemplated in the Prospectus.
(iv) since the date of the Prospectus there shall not
have occurred any change or development which would reasonably be
expected to result in a prospective change in or affecting the
condition (financial or otherwise), or the earnings, business
affairs, business prospects or properties of GPA and its
subsidiaries taken as a whole, that, individually or in the
aggregate, other than as set forth or contemplated in the Form
20-F, the effect of which is material and adverse and that makes
it, in your judgment, impracticable or inadvisable to market the
Offered Certificates on the terms and in the manner contemplated
in the Prospectus.
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(b) You shall have received a letter, dated the date of this
Agreement, from each of KPMG Peat Marwick LLP and Xxxxxxx & Xxxxx in
form and substance reasonably satisfactory to you.
(c) On the Closing Date, you shall have received:
(1) The favorable opinions, dated as of the Closing Date,
of Xxxxxxx & Xxxxx L.L.P., and Xxxxxx & Xxxxxxx, counsel for the
Company, in form and substance reasonably satisfactory to you.
(2) The favorable opinion, dated as of the Closing Date,
of Xxxxxxx X. Xxxxxxx, Senior Vice President - Legal Affairs, of
the Company, in form and substance reasonably satisfactory to
you.
(3) The favorable opinion, dated as of the Closing Date,
of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for GPA Group,
GPA I and GPA Sub I, in form and substance reasonably
satisfactory to you.
(4) The favorable opinion, dated as of the Closing Date,
of XxXxxx XxxxXxxxxx, Irish counsel for GPA Group, in form and
substance reasonably satisfactory to you.
(5) The favorable opinions, dated as of the Closing Date,
of ______ __________, and ___________________________, each
counsel for an Owner Participant in form and substance reasonably
satisfactory to you.
(6) The favorable opinions, dated as of the Closing Date
of the general counsel or assistant general counsel for
_____________________ ___________ and
____________________________, respectively, as Owner
Participants, in form and substance reasonably satisfactory to
you.
(7) The favorable opinions, dated as of the Closing Date,
of Nakagawa & Takashina, counsel for FUYO General Lease Co.,
Ltd., and Nishimura & Partners, counsel to Air Xxxx Caymans I,
Limited and Air Xxxx Caymans II, Limited in form and substance
reasonably satisfactory to you.
(8) The favorable opinions, dated as of the Closing Date,
of Xxxxxx, Xxxx & Xxxxxx and Xxxxxxx & Xxxxxxx LLP, counsel for
the Chase Manhattan Bank and Fleet National Bank, respectively,
as Indenture Trustees, in form and substance reasonably
satisfactory to you.
(9) The favorable opinions, dated as of the Closing Date,
of Morris, James, Hitchens & Xxxxxxxx, counsel for Wilmington
Trust Company, as Owner Trustee, in form and substance reasonably
satisfactory to you.
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(10) The favorable opinion, dated as of the Closing Date,
of Xxxxxxx & Xxxxxxx LLP, counsel for Fleet National Bank as Pass
Through Trustee under each Trust, in form and substance
reasonably satisfactory to you.
(11) The favorable opinion, dated as of the Closing Date,
of Xxxxxxx & Xxxxxxx LLP, counsel for Fleet National Bank as
Subordination Agent, in form and substance reasonably
satisfactory to you.
(12) The favorable opinion, dated as of the Closing Date,
of White & Case, counsel for Kredietbank N.V., acting through its
New York Branch, as Liquidity Provider, in form and substance
reasonably satisfactory to you.
(13) The favorable opinion, dated as of the Closing Date,
of Xxxxxxxx Xxxxxx, Senior Legal Advisor for Kredietbank N.V.,
acting through its New York branch, as Liquidity Provider, in
form and substance reasonably satisfactory to you.
(14) The favorable opinion, dated as of the Closing Date,
of Xxxxxxxxx, Xxxxxx & Xxxxxxxx, special FAA counsel, in form and
substance reasonably satisfactory to you.
(15) The favorable opinion, dated as of the Closing Date,
of Milbank, Tweed, Xxxxxx & XxXxxx, your special counsel, with
respect to Section 1110 of the Bankruptcy Code, in form and
substance reasonably satisfactory to you.
(16) The favorable opinion, dated as of the Closing Date,
of Milbank, Tweed, Xxxxxx & XxXxxx, your special counsel, with
respect to the validity of the Offered Certificates, the
Prospectus, and other related matters as the Underwriters may
require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) Each of the Appraisers shall have furnished to you a letter
from such Appraiser, addressed to the Company and dated the Closing
Date, confirming that such Appraiser and each of its directors and
officers (i) is not an affiliate of the Company or any of its
affiliates, (ii) does not have any substantial interest, direct or
indirect, in the Company or any of its affiliates and (iii) is not
connected with the Company or any of its affiliates as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
(e) You shall have received a certificate, dated the Closing
Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers shall state
that, to the best of their knowledge after reasonable investigation, the
representations and warranties of the Company in this Agreement are true
and correct on and as of the Closing Date as if made on the Closing
Date, that the Company has complied with all agreements and satisfied
all
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conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, and that, subsequent to the dates of the
Company's most recent interim financial statements there has been no
Material Adverse Change, except as set forth in or contemplated by the
Prospectus.
(f) You shall have received a certificate, dated the Closing
Date, of any authorized officer of each of GPA Group, GPA I and GPA Sub
I in which such officers shall state that, to the best of their
knowledge after reasonable investigation, the representations and
warranties of each of GPA Group, GPA I and GPA Sub I in this Agreement
are true and correct on and as of the Closing Date as if made on the
Closing Date, and that each of GPA Group, GPA I and GPA Sub I has
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date.
(g) You shall have received a letter, dated the Closing Date, of
KPMG Peat Marwick LLP which meets the requirements of subsection (b) of
this Section 7.
(h) At the Closing Date, each of the Operative Documents shall
have been duly executed and delivered by each of the parties thereto;
the representations and warranties of the Company contained in each of
the Operative Documents to which it is a party shall be true and correct
as of the Closing Date (except to the extent that they relate solely to
an earlier date in which case they shall be true and correct as of such
earlier date) and you shall have received a certificate of a Vice
President of the Company, dated as of the Closing Date, to such effect.
GPA agrees to furnish to you, promptly after the Closing Date, a copy of
each opinion required to be delivered under the applicable Operative
Document addressed to you and of such other documents furnished in
connection with the fulfillment of the conditions precedent therein as
you or your counsel may reasonably request.
(i) Each of the Company and GPA shall have furnished or caused
to be furnished to you prior to or at the Closing Date, in form and
substance satisfactory to you and your counsel, such other information,
documents, certificates and opinions as the you, your counsel, or the
Rating Agencies may reasonably request.
(j) On the Closing Date, the Class A Certificates shall be rated
A2 by Xxxxx'x and AA- by Standard & Poor's, the Class B Certificates
shall be rated Baa2 by Xxxxx'x and A- by Standard & Poor's, the Class C
Certificates shall be rated Ba1 by Xxxxx'x and BBB- by Standard &
Poor's, the Class D Certificates shall be rated Ba3 by Xxxxx'x and BB by
Standard & Poor's, and the Class E Certificates shall be rated B1 by
Xxxxx'x and B+ by Standard & Poor's.
(k) On or prior to the Closing Date, the conditions precedent
set forth in Section 3 of each Refunding Agreement shall have been
fulfilled to the satisfaction of the Underwriters.
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The Company will furnish you with such conformed copies of such
agreements, opinions, certificates, letters and documents as you reasonably
request. You may waive compliance with any conditions to your obligations
hereunder.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, and each Person, if any, who controls such Underwriter within the
meaning of either Section 15 of the Act, or Section 20 of the Exchange Act, or
is under common control with any Underwriter, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling or affiliated person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the America West Information included
in the Registration Statement (as amended if any amendments thereto shall have
been prepared), or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in the America West Information
included in the Preliminary Prospectus or the Prospectus (as amended or
supplemented, if any amendments or supplements thereto shall have been
prepared), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that the Company shall not be liable in any such case to the extent
that any such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing by you on behalf
of such Underwriter expressly for use therein; provided, further, that the
Company shall not be liable in any such case to the extent that any such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon the GPA
Information or the Statement of Eligibility under the Trust Indenture Act on
Form T-1 filed as part of the Registration Statement; provided, further, that
with respect to any untrue statement or omission or alleged untrue statement or
omission in any Prospectus such indemnity with respect to such Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling or under
common control with such Underwriter) from whom the Person asserting any such
loss, claim, damage or liability purchased the Offered Certificates which are
the subject thereof if such untrue statement or omission or alleged untrue
statement or omission was remedied or eliminated in a subsequent Prospectus and
if such Underwriter failed to deliver a copy of such subsequent Prospectus to
such Person prior to or together with written confirmation of the sale of
Offered Certificates to such Person, unless such failure to deliver the
Prospectus was a result of noncompliance by the Company with the delivery
requirements set forth in Section 5 hereof.
(b) The GPA Group, GPA I and GPA Sub I, jointly and severally,
agree to indemnify and hold harmless, each Underwriter, and each Person, if
any, who controls such Underwriter within the meaning of either Section 15 of
the Act, or Section 20 of the Exchange Act, or is under common control with any
Underwriter, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by the Company, any Underwriter or any such controlling or
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affiliated person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the GPA Information included in the Registration
Statement (as amended if any amendments thereto shall have been prepared), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or caused by any untrue statement or alleged untrue statement of a
material fact contained in the GPA Information included in the Preliminary
Prospectus or the Prospectus (as amended or supplemented if any amendments or
supplements thereto shall have been prepared), or caused by any omission or
alleged omission to state therein a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that GPA shall not be liable in any
such case to the extent that any such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to any Underwriter furnished in
writing by you on behalf of such Underwriter expressly for use therein;
provided, further, that GPA shall not be liable in any such case to the extent
that any such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
the America West Information; provided, further, that with respect to any
untrue statement or omission or alleged untrue statement or omission in any
Prospectus such indemnity with respect to such Prospectus shall not inure to
the benefit of any Underwriter (or any person controlling or under common
control with such Underwriter) from whom the Person asserting any such loss,
claim, damage or liability purchased the Offered Certificates which are the
subject thereof if such untrue statement or omission or alleged untrue
statement or omission was remedied or eliminated in a subsequent Prospectus and
if such Underwriter failed to deliver a copy of such subsequent Prospectus to
such Person prior to or together with written confirmation of the sale of
Offered Certificates to such Person, unless such failure to deliver the
Prospectus was a result of noncompliance by the Company with the delivery
requirements set forth in Section 5 hereof.
(c) The Underwriters agree to indemnify and hold harmless the
Company, the GPA Group, GPA I and GPA Sub I, each of their directors, each of
their officers who signed the Registration Statement and each Person, if any,
who controls the Company, the GPA Group, GPA I or GPA Sub I within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act, or is under
common control with the Company, the GPA Group, GPA I or GPA Sub I, to the same
extent as the foregoing indemnities from the Company, the GPA Group, GPA I and
GPA Sub I to the Underwriters, but only with reference to information relating
to the Underwriters furnished in writing by you on behalf of the Underwriters
expressly for use in the Registration Statement, the Preliminary Prospectus or
the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraphs (a), (b) or (c) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and
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disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by you on behalf
of the Underwriters, in the case of parties indemnified pursuant to paragraphs
(a) or (b) above, and by the Company, the GPA Group, GPA I or GPA Sub I, as the
case may be, in the case of parties indemnified pursuant to paragraph (c)
above; provided, however, that if the indemnified parties consist of the
Company, the GPA Group, GPA I or GPA Sub I, each such indemnified party shall
have the right to select its own counsel in the circumstances described in
clauses (i) and (ii) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment to the
extent provided herein. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(e) To the extent the indemnification provided for in paragraph
(a), (b) or (c) of this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by (A) the Company and GPA collectively on the one
hand, and (B) the Underwriters collectively on the other hand, from the
offering of the Offered Certificates or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of (A) the Company, (B) GPA, and (C) the
Underwriters, in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
GPA collectively in connection with the offering of the Offered Certificates
shall be deemed to be in the same proportion as the net proceeds from the
offering of the Offered Certificates (after deducting the aggregate
underwriting commissions received by the Underwriters but before deducting
other fees and expenses) received by the Trustees in respect thereof, as set
forth in the Prospectus, bears to the aggregate public offering price of such
Offered Certificates. The relative benefits received by the Underwriters
collectively in
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connection with the offering of the Offered Certificates shall be deemed to be
in the same proportion as the aggregate underwriting commissions received by
the Underwriters in respect thereof, as set forth in the Prospectus, bears to
the aggregate public offering price of the Offered Certificates. The relative
fault of the Company, GPA or the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by (a) the Company, (b) GPA, or (c) the
Underwriters, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
For purposes of the preceding sentence, the Company shall be deemed to have
supplied the America West Information, GPA shall be deemed to have supplied the
GPA Information and the Underwriters shall be deemed to have supplied the
information concerning the Underwriters described in paragraph (c) of this
Section 8.
(f) The Company, GPA and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph
(e) above. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in paragraph (e) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Certificates underwritten by it and distributed to
the public were offered to investors exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(g) The indemnity and contribution provisions contained in this
Section 8 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of or the Company, the GPA Group, GPA I or GPA Sub I, their respective officers
or directors or any person controlling the Company, the GPA Group, GPA I or GPA
Sub I and (iii) acceptance of and payment for any of the Offered Certificates.
The remedies provided for in this Section 8 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
9. Default of Underwriters. If, on the Closing Date any one or
more of the Underwriters shall fail or refuse to purchase Offered Certificates
that it has or they have agreed to purchase hereunder on such date, and the
aggregate principal amount of Offered Certificates which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate principal amount of the Offered Certificates to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the principal amount of Offered Certificates specified to
be purchased by them in Schedule I bears to the aggregate principal amount of
Offered Certificates specified to
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26
be purchased by all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Offered Certificates which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall principal amount of Offered
Certificates that any Underwriter has agreed to purchase pursuant to Section 4
be increased pursuant to this Section 9 by an amount in excess of one-ninth of
such principal amount of Offered Certificates without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Offered Certificates and the aggregate principal
amount of Offered Certificates with respect to which such default occurs is
more than 10% of the aggregate principal amount of Offered Certificates to be
purchased on such date, and arrangements satisfactory to you and the Company
for the purchase of such Offered Certificates are not made within 36 hours
after such default, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter, GPA or the Company, except that GPA
will continue to be liable for the payment of expenses to the extent set forth
in Section 6, but only with respect to the non-defaulting Underwriters and the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements that may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of GPA or the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason GPA or the Company shall be unable to perform its obligations
under this Agreement, GPA will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the reasonable fees and disbursements of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10. Survival of Certain Agreements, Etc. and Certain
Reimbursement Obligations. The respective agreements, covenants,
representations, warranties and other statements of the Company or GPA or of
their respective officers and of the Underwriters set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, GPA or the Company or any of their respective representatives,
officers or directors or any controlling person and will survive delivery of
and payment for the Offered Certificates. If for any reason the purchase of
the Offered Certificates by the Underwriters is not consummated, GPA shall be
responsible for all of the expenses to be paid or reimbursed pursuant to
Section 6, and the obligations of GPA and the Company and the Underwriters
pursuant to Section 8 shall remain in effect. If the purchase of the Offered
Certificates by the Underwriters is not consummated for any reason other than
solely because of the occurrence of the termination of the Agreement pursuant
to Section 9 or Section 11, GPA shall reimburse the Underwriters for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of such Offered
Certificates and comply with its obligations under Section 6.
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11. Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clause (a), such event singly or together with any
other such event makes it, in your judgment, impracticable or inadvisable to
market the Offered Certificates on the terms and in the manner contemplated in
the Prospectus.
12. Notices. All communications hereunder will be in writing
and will be mailed, delivered or sent by facsimile transmission and confirmed
(a) if to the Underwriters, Xxxxxx Xxxxxxx & Co. Incorporated, at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equipment Finance Group,
facsimile number 000- 000-0000; (b) if to the Company, at 0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Senior Vice President-Legal
Affairs, facsimile number 000-000-0000; (c) if to GPA Group, GPA Group plc, 0xx
Xxxxx, XXX Xxxxx, Xxxxxxx, Xx. Xxxxx, Xxxxxxx, Attention: Company Secretary,
facsimile number 000-00-000000; (d) if to GPA I or GPA Sub I, GPA Leasing USA
I, Inc. or GPA Leasing USA Sub I, Inc., at 00 Xxxxxxx Xxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxx 00000, Attention: President, facsimile number 000-000-0000.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 8, and no other person will have any
right or obligation hereunder.
14. Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
16. Submission to Jurisdiction; Appointment of Agent for
Service; Obligation Currency. Any suit, action or proceeding against any party
to this Agreement arising out of or relating to this Agreement, any transaction
contemplated hereby or any judgment entered by any court in respect thereof may
be brought in any New York State court located in the County of New York or
Federal court sitting in the Second Circuit, and each such party hereby submits
to the nonexclusive jurisdiction of such courts for the purpose of any such
suit, action or proceeding. To the extent that service of process by mail is
permitted by applicable law, each party hereto irrevocably consents to the
service of process in any such suit, action or proceeding in such courts by the
mailing of such process by
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registered or certified mail, postage prepaid, at its address for notices
provided for above. Each party to this Agreement irrevocably agrees not to
assert any objection which it may ever have to the laying of venue of any such
suit, action or proceeding in any New York State court located in the County of
New York or Federal court sitting in the Second Circuit, or any claim that any
such suit, action or proceeding brought in any such court has been brought in
an inconvenient forum. To the fullest extent permitted by applicable law, each
party to this Agreement waives any right it may have to a trial by jury in
respect of any litigation directly or indirectly arising out of, under or in
connection with this Agreement. The Company irrevocably designates and
appoints CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, and GPA
Group, GPA I and GPA Sub I each irrevocably designates and appoints Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx X. Xxxxxx and Xxxxx Xxxx, (collectively, the "Process
Agents"), as the authorized agents of the Company, GPA Group and GPA I and GPA
Sub I, respectively, upon whom process may be served in any such suit, action
or proceeding, it being understood that the designation and appointment of the
Process Agents as such authorized agent shall become effective immediately
without any further action on the part of the Company, GPA Group, GPA I or GPA
Sub I. Each of the Company, GPA Group, GPA I and GPA Sub I represents to the
Underwriters that it has notified its Process Agent of such designation and
appointment and that such Process Agent has accepted the same in writing. Each
of the Company, GPA Group, GPA I and GPA Sub I hereby irrevocably authorizes
and directs its Process Agent to accept such service. Each of the Company, GPA
Group, GPA I and GPA Sub I further agrees that service of process upon its
Process Agent and written notice of said service to the Company, GPA Group, GPA
I or GPA Sub I, as the case may be, mailed by first class mail or delivered to
such Process Agent, shall be deemed in every respect effective service of
process upon the Company, GPA Group, GPA I or GPA Sub I, as the case may be, in
any such suit, action or proceeding. Nothing herein shall affect the right of
any Underwriter or any person controlling such Underwriter to serve process in
any other manner permitted by law. Each of the Company, GPA Group, GPA I and
GPA Sub I agrees that a final action in any such suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other lawful manner. If the Company, GPA Group, GPA I or GPA Sub I,
as the case may be, has or may hereafter acquire immunity from jurisdiction or
legal process or from attachment in aid of execution or from execution with
respect to itself or its property, the Company, GPA Group, GPA I or GPA Sub I,
as the case may be, hereby irrevocably waives to the fullest extent permitted
under applicable law such immunity in respect of its obligations hereunder in
any action, suit or proceeding which may be instituted in any New York State
court located in the County of New York or Federal court sitting in the Second
Circuit by any Underwriter or by any persons controlling such Underwriter
within the meaning of Section 15 of the Securities Act or any director,
officer, employee or agent of such Underwriter. This waiver is intended to be
effective upon the execution of this Agreement without any further act by the
Company, GPA Group, GPA I or GPA Sub I, as the case may be, before any such
court, and the introduction of a true copy of this Agreement into evidence in
any such court shall, to the fullest extent permitted by applicable law, be
conclusive and final evidence of such waiver.
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The obligation of the parties hereto to make payments hereunder
is in U.S. dollars (the "Obligation Currency") and such obligation shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency
or any other realization in such other currency, whether as proceeds of
set-off, security, guarantee, distributions, or otherwise, except to the extent
to which such tender, recovery or realization shall result in the effective
receipt by the party which is to receive such payment of the full amount of the
Obligation Currency expressed to be payable hereunder.
--------------------
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If the foregoing is in accordance with the Underwriters'
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument will become a binding agreement
among the Underwriters, the Company, GPA Group, GPA I and GPA Sub I in
accordance with its terms.
Very truly yours,
AMERICA WEST AIRLINES, INC.
By:
------------------------------------
Name:
Title:
GPA GROUP PLC
By:
------------------------------------
Name:
Title:
GPA LEASING USA I, INC.
By:
------------------------------------
Name:
Title:
GPA LEASING USA SUB I, INC.
By:
------------------------------------
Name:
Title:
Accepted as of the date first above written:
Xxxxxx Xxxxxxx & Co. Incorporated; Citicorp
Securities, Inc.; Xxxxxx Brothers Inc.; and
Salomon Brothers Inc
By: XXXXXX XXXXXXX & CO.
INCORPORATED
By:
----------------------------------
Name:
Title:
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SCHEDULE I
UNDERWRITERS
Principal Amount Principal Amount Principal Amount Principal Amount Principal Amount
of Pass Through of Pass Through of Pass Through of Pass Through of Pass Through
Certificates of Certificates of Certificates of Certificates of Certificates of
the Class A Trust the Class B Trust the Class C Trust the Class D Trust the Class E Trust
----------------- ----------------- ----------------- ----------------- -----------------
Xxxxxx Xxxxxxx &
Co. Incorporated
Citicorp Securities, Inc.
Xxxxxx Brothers Inc.
Salomon Brothers Inc
TOTAL
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SCHEDULE II
Pass Through Aggregate
Certificate Principal Interest Final
Designation Amount Rate Distribution Date Commissions* Commissions**
----------- ------ ---- ----------------- ------------ -------------
1996-1A $ % % $
1996-1B
1996-1C
1996-1D
1996-1E
------------
Total
============
---------------
* Expressed as a percentage of Aggregate Principal Amount.
** Expressed in dollars.
33
ANNEX 1
For purposes of the Underwriting Agreement, "America West
Information" shall consist of the following information in the Registration
Statement and the Prospectus:
(a) The cover page of the Registration Statement.
(b) The table on the cover page of the Prospectus, including
the footnote thereto relating to accrued interest and the first sentence of the
footnote immediately following such footnote.
(c) The information in the last two paragraphs on page 2 of
the Prospectus.
(d) The information under the heading "Available Information
and Reports to Certificateholders."
(e) The information under the heading "Forward Looking
Information."
(f) The information under the heading "Incorporation of
Certain Documents by Reference."
(g) The information under the headings "Prospectus
Summary--The Company," "--Strategy," "--The Offering--Equipment Notes--(e)
Section 1110 Protection," "--Federal Income Tax Consequences,""--ERISA
Considerations" and "-- Summary Financial and Operating Data".
(h) The information under the headings "Risk Factors--Company
Related Risks" and "--Industry Related Risks."
(i) The information under the headings "Risk Factors-Factors
Relating to the Certificates and the Offering--Maintenance," "--Insurance", "--
Repossession" and "--Absence of a Public Market for the Certificates."
(j) The information under the headings "Ratio of Earnings to
Fixed Charges," "Capitalization," "Selected Financial and Operating Data,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," "Business," "Management" and "Certain Transactions."
(k) The second full paragraph under the heading "Description
of the Equipment Notes--General."
(l) The fifth, sixth and seventh paragraphs under the heading
"Description of the Equipment Notes--Remedies."
(m) The information under the heading "Description of the
Equipment Notes--Modification of Indentures and Leases" and
"--Indemnification," but only to the extent such information thereunder
concerns the Leases and not the Indentures.
(n) The information under the heading "Description of the
Equipment Notes--The Leases."
(o) The information under the headings "Certain U.S. Federal
Income Tax Consequences," "State Tax Considerations," "ERISA Considerations,"
"Underwriting" and "Legal Matters."
(p) The information under the first two paragraphs under the
heading "Experts."
(q) The information under the headings "Index to Financial
Statements," including the condensed financial statements of the Company, the
financial statements of the Company and the "Independent Auditors' Report" that
follow such index.
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(r) All annual, quarterly and other reports, exhibits and
other documents incorporated by reference in the Registration Statement and the
Prospectus.
(s) The information included in Part II of the Registration
Statement.
For purposes of the Underwriting Agreement, "GPA Information" shall
consist of all of the information in the Registration Statement and the
Prospectus other than the America West Information.
2
