EXHIBIT 4.e.1
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N660FE)
Dated as of September 1, 1995
Amended and Restated as of October 26, 1995
among
FEDERAL EXPRESS CORPORATION,
Lessee
CHRYSLER CAPITAL CORPORATION,
Owner Participant
THE ENTITIES LISTED ON SCHEDULE I
TO THE ORIGINAL PARTICIPATION AGREEMENT,
Original Loan Participants
NBD BANK,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as
Owner Trustee,
Owner Trustee
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as
Indenture Trustee,
Indenture Trustee
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as
Pass Through Trustee,
Pass Through Trustee
______________________________
LEVERAGED LEASE OF ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 759, REGISTRATION NO. N660FE
TABLE OF CONTENTS
Page
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
REFUNDING THE ORIGINAL LOAN CERTIFICATES
Section 2.01. Transfer of Funds........................................ 3
Section 2.02. Certificates............................................. 6
Section 2.03. Owner Participant Payment................................ 6
ARTICLE 3
EXTENT OF INTEREST OF ORIGINAL LOAN PARTICIPANTS
Section 3.01. Extent of Interest of Original Loan Participants......... 7
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent..................................... 7
Section 4.02. Opinion of Special Aviation Counsel...................... 16
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 16
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 17
Section 6.02. Offering by Lessee....................................... 23
Section 6.03. Certain Covenants of Lessee.............................. 23
Section 6.04. Survival of Representations and Warranties............... 30
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate................................................. 31
Section 7.02. Citizenship.............................................. 31
Section 7.03. Representations, Warranties and Covenants of the Owner
Participant............................................ 32
Section 7.04. Representations, Covenants and Warranties of NBD and
the Owner Trustee...................................... 37
Section 7.05. Representations, Warranties and Covenants of the Indenture
Trustee................................................ 40
Section 7.06. Indenture Trustee's Notice of Default.................... 41
Section 7.07. Releases from Indenture.................................. 41
Section 7.08. Covenant of Quiet Enjoyment.............................. 42
Section 7.09. Original Loan Participants' and Pass Through Trustee's
Representations and Warranties......................... 42
Section 7.10. Survival of Representations, Warranties and Covenants.... 43
Section 7.11. Lessee's Assumption of the Certificates.................. 43
Section 7.12. Indebtedness of Owner Trustee............................ 45
Section 7.13. Compliance with Trust Agreement, Etc..................... 45
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 46
Section 8.02. After-Tax Basis.......................................... 52
Section 8.03. Time of Payment.......................................... 53
Section 8.04. Contests................................................. 53
Section 8.05. Refunds.................................................. 55
Section 8.06. Lessee's Reports......................................... 56
Section 8.07. Survival of Obligations.................................. 56
Section 8.08. Payment of Taxes......................................... 56
Section 8.09. Reimbursements by Indemnitees Generally.................. 57
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 57
Section 9.02. After-Tax Basis.......................................... 61
Section 9.03. Subrogation.............................................. 62
Section 9.04. Notice and Payment....................................... 62
Section 9.05. Refunds.................................................. 62
Section 9.06. Defense of Claims........................................ 62
Section 9.07. Survival of Obligations.................................. 63
Section 9.08. Effect of Other Indemnities.............................. 63
Section 9.09. Interest................................................. 64
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 64
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 66
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant.................... 67
Section 12.02. Interest of Holders of Certificates..................... 68
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 68
Section 13.02. Further Assurances...................................... 68
Section 13.03. No Retroactive Application.............................. 68
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 69
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 70
Section 15.02. Reoptimization.......................................... 73
ARTICLE 16
[INTENTIONALLY LEFT BLANK]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes.......................... 74
Section 17.02. [Intentionally Left Blank.]............................. 75
Section 17.03. Counterparts............................................ 75
Section 17.04. No Oral Modifications................................... 75
Section 17.05. Captions................................................ 75
Section 17.06. Successors and Assigns.................................. 75
Section 17.07. Concerning the Owner Trustee, the Pass Through Trustee
and the Indenture Trustee............................. 76
Section 17.08. Severability............................................ 76
Section 17.09. Public Release of Information........................... 76
Section 17.10. Certain Limitations on Reorganization................... 76
Section 17.11. GOVERNING LAW........................................... 77
Section 17.12. Section 1110 Compliance................................. 77
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 78
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
EXHIBIT A(1) (a) Opinion of Lessee's Counsel
EXHIBIT A(1) (b) Opinion of Lessee's Special Counsel
EXHIBIT A(2) (a) Opinion of Owner Participant's Special Counsel
EXHIBIT A(2) (b) Opinion of Owner Participant's Counsel
EXHIBIT A(3) (a) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(3) (b) Opinion of Indenture Trustee's Counsel
EXHIBIT A(4) Opinion of Special Aviation Counsel
EXHIBIT A(5) Opinion of Owner Trustee's Counsel
EXHIBIT A(6) (a) Opinion of Pass Through Trustee's Special Counsel
EXHIBIT A(6) (b) Opinion of Pass Through Trustee's Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N660FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N660FE) dated as of September 1, 1995, as amended and restated as of
October 26, 1995 (this "Agreement") among FEDERAL EXPRESS CORPORATION, a
Delaware corporation (herein, together with its successors and permitted
assigns, the "Lessee"), CHRYSLER CAPITAL CORPORATION, a Delaware
corporation (herein, together with its successors and permitted assigns,
the "Owner Participant"), the entities listed on Schedule I to the Original
Participation Agreement as Loan Participants (individually, together with
its successors and permitted assigns, the "Original Loan Participant" and,
collectively, the "Original Loan Participants"), NBD BANK, a Michigan
banking corporation, not in its individual capacity, except as otherwise
expressly stated herein, but solely as owner trustee under the Trust
Agreement referred to below (in such capacity as trustee, together with its
successors and permitted assigns, the "Owner Trustee"), THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), a national banking association, not in its
individual capacity, except as otherwise expressly stated herein, but
solely as indenture trustee under the Indenture referred to below (in such
capacity as trustee, together with its successors and permitted assigns,
the "Indenture Trustee") and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national banking association, not in its individual
capacity, except as otherwise expressly stated herein, but solely as pass
through trustee (in such capacity as trustee, together with its successors
and permitted assigns, the "Pass Through Trustee") .
W I T N E S S E T H :
WHEREAS, the Lessee, the Owner Participant, the Owner Trustee, the
Original Loan Participants and the Indenture Trustee entered into the
Original Participation Agreement (such term, and all other terms not
heretofore defined, shall have the meanings assigned thereto as provided in
Article 1 below), providing for the sale and lease of the Aircraft that was
delivered on the Delivery Date;
WHEREAS, concurrently with the execution and delivery of the
Original Participation Agreement, the Owner Participant entered into the
Original Trust Agreement relating to the Aircraft with NBD in its
individual capacity, pursuant to which NBD agreed, among other things, to
hold the Lessor's Estate in trust for the benefit of the Owner Participant;
WHEREAS, concurrently with the execution and delivery of the
Original Participation Agreement, the Owner Trustee and the Indenture
Trustee entered into the Original Indenture, for the benefit of the
Original Loan Participants, pursuant to which the Owner Trustee issued to
the Original Loan Participants the Original Loan Certificates as evidence
of the loans made by the Original Loan Participants to the Owner Trustee,
the proceeds of which were used by the Owner Trustee to pay a portion of
the Purchase Price for the Aircraft;
WHEREAS, concurrently with the execution and delivery of the
Original Participation Agreement, the Owner Trustee and the Lessee entered
into the Original Lease relating to the Aircraft, whereby, subject to the
terms and conditions set forth in said Lease, the Owner Trustee agreed to
lease the Aircraft to the Lessee, and the Lessee agreed to lease the
Aircraft from the Owner Trustee, such lease of the Aircraft being evidenced
by the execution and delivery of the Lease Supplement;
WHEREAS, Article 15 of the Original Participation Agreement
permits a Refinancing of the Original Loan Certificates subject to the
satisfaction of the conditions specified in Section 15.01 thereof, and
Section 3.04 of the Original Lease contemplates the adjustment of the
percentages for Interim Rent, Basic Rent, Stipulated Loss Value and
Termination Value in the event of such a Refinancing, and the Lessee has
requested that the Owner Trustee effect such a Refinancing and adjustment;
WHEREAS, in order to facilitate such Refinancing, the Lessee is
concurrently entering into an Underwriting Agreement, which relates to
three series of Pass Through Certificates that will be issued by the Pass
Through Trusts formed to acquire, among other securities, the Certificates
bearing a particular interest rate and having a particular Maturity that
will be issued under the Indenture;
WHEREAS, on the Pass Through Closing Date, a closing will occur
with respect to the public offering of the Pass Through Certificates issued
by each Pass Through Trust, an allocable amount of the proceeds of which
offering will be used by the Pass Through Trustee to purchase for each such
Pass Through Trust the Certificates of the interest rate and Maturity
applicable thereto, the proceeds of which purchase in turn will be applied
to the Refinancing in full of the outstanding principal amount of the
Original Loan Certificates;
WHEREAS, the Lessee, the Owner Participant, the Owner Trustee, the
Original Loan Participants and the Indenture Trustee have agreed, subject
to the terms and conditions hereinafter provided, to amend and restate, and
to add the Pass Through Trustee as a party to, the Original Participation
Agreement; and
WHEREAS, the Lessee, the Owner Participant, the Owner Trustee, the
Original Loan Participants and the Indenture Trustee have agreed, to the
extent they are parties thereto and, subject to the terms and conditions
hereinafter provided, to amend and restate the Original Indenture, to amend
and restate the Original Lease, to amend the Original Tax Indemnity
Agreement and to amend and restate the Original Trust Agreement, each such
amendment and restatement to be executed and delivered simultaneously with
the purchase of the Certificates by the Pass Through Trustee for the Pass
Through Trusts and the Refinancing in full of the Original Loan
Certificates.
NOW, THEREFORE, in consideration of the mutual covenants contained
in this Agreement and other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree, subject to the
terms and conditions hereinafter provided, that the Original Participation
Agreement be and the same is hereby amended and restated in its entirety as
follows:
ARTICLE 1
DEFINITIONS
Unless otherwise specifically provided herein, the definitions set
forth in Schedule II hereto are incorporated herein for all purposes of
this Agreement and shall be equally applicable to both the singular and the
plural forms of the terms so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES; REFUNDING THE
ORIGINAL LOAN CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement,
shall enter into the Series Supplements, and, subject to the terms and
conditions set forth therein, on the Pass Through Closing Date (i) the
Lessee shall direct the Underwriters to execute a wire transfer or
intra-bank transfer to the Pass Through Trustee in the amount of the total
proceeds payable pursuant to the Underwriting Agreement with respect to the
Pass Through Certificates and (ii) the Pass Through Trustee shall deliver
the Pass Through Certificates to the Underwriters upon receipt by the Pass
Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Refunding Date the following events shall occur in the
order set forth below:
(i) the Owner Participant shall on behalf of the Owner Trustee
execute a wire transfer or intra-bank transfer in favor of the Agent in
the amount of all accrued and unpaid interest on the Original Loan
Certificates to but excluding the Refunding Date, which transfer shall
constitute the payment of all such accrued and unpaid interest;
(ii) the Lessee shall on behalf of the Owner Trustee execute a
wire transfer or intra-bank transfer in favor of the Agent as
Supplemental Rent in the amount of any Breakage Costs required to be
paid pursuant to the Original Indenture which transfer shall constitute
the payment of all such Breakage Costs;
(iii) for each Pass Through Trust, from an allocable amount of the
proceeds of the sale of the related Pass Through Certificates, the Pass
Through Trustee shall pay on behalf of the Owner Trustee in the manner
specified in paragraph (iv) below, an amount equal to the principal
amount of Certificates of the Maturity and having the interest rate that
relates to such Pass Through Trust, which amounts in the aggregate shall
equal the aggregate principal amount of the Certificates as specified in
Section 2.04 of the Indenture;
(iv) the aggregate amount payable by the Pass Through Trustee
pursuant to paragraph (iii) above shall be payable by wire transfer or
intra-bank transfer in favor of the Agent on behalf of the Owner Trustee
in the amount of the outstanding principal amount of the Original Loan
Certificates;
(v) the Agent shall apply the amounts received by it under
paragraphs (i), (ii) and (iv) of this subsection (b) to prepay the
Original Loan Certificates in full in accordance with Sections 2.06 and
2.10 of the Original Indenture; and
(vi) the Owner Trustee shall cause the Certificates to be
delivered to the applicable Pass Through Trustee in accordance with
Section 2.02 hereof.
On the Refunding Date concurrently with the events specified in
clauses (iii) through (v) of this Section 2.01(b), the parties hereto shall
execute and deliver, to the extent they are parties thereto, and consent to
the execution and delivery of (if they are not a party thereto), the
Indenture, the Lease and the Trust Agreement, and the Owner Trustee shall
execute and deliver to the Indenture Trustee for authentication, and the
Indenture Trustee shall authenticate and deliver to the applicable Pass
Through Trustee, upon the request of the Owner Trustee, the Certificates as
provided in Section 2.02 hereof. The Owner Participant hereby requests and
directs the Owner Trustee to execute and deliver this Participation
Agreement and, subject to the terms hereof, to take the actions specified
herein. The Original Loan Participants by their execution and delivery
hereof, request and direct the Indenture Trustee to execute and deliver
this Agreement and concurrently with the events specified in clauses (iii)
through (v) of this Section 2.01(b) and subject to the terms and conditions
hereof to take the actions contemplated herein. The parties hereto,
including, without limitation, the Original Loan Participants, confirm
that, as provided in Section 2.06 of the Original Indenture, upon payment
in full of the principal amount, Breakage Costs, if any, and interest on
the Original Loan Certificates and all other sums then payable to the
Original Loan Participants under the Original Agreements to the extent
specified in subsection (c) below, the Original Loan Participants shall
have no further interest in, or other right or obligation with respect to,
the Trust Indenture Estate, the Original Agreements or the Operative
Agreements (it being understood that the foregoing shall not limit or
detract from any claim that any Original Loan Participant may have under
Article 8 or 9 or Section 10.01(a) (ii) hereof or of the Original
Participation Agreement) and, accordingly, have no obligation to, and will
not attempt to direct any future actions of the Indenture Trustee with
respect to the Trust Indenture Estate, provided that the rights and
obligations of the Original Loan Participants shall, until the payment in
full of such amounts to the Agent on behalf of the Original Loan
Participants on the Refunding Date, be governed by the Original
Participation Agreement and the other Operative Agreements contemplated
thereby or in effect immediately prior to the effectiveness of this
Agreement and shall, upon such payment and thereafter, be governed by this
Agreement. The Lessee hereby consents to the foregoing.
(c) Not less than three (3) Business Days prior to the Refunding
Date, the Agent on behalf of the Original Loan Participants shall give
notice in writing to the parties hereto of the principal amount, Breakage
Costs, if any, and interest on and all other amounts due on the Refunding
Date under the Original Loan Certificates and all other sums payable on the
Refunding Date to the Original Loan Participants under the Original
Agreements, such notice to be deemed final and binding on the Original Loan
Participants as to the respective amounts of principal, Breakage Costs, if
any, and interest when given; provided that the expected Refunding Date, at
the time such notice is given, is the same as the Refunding Date.
(d) On the Refunding Date, subject to (i) the giving of at least
ten (10) Business Days' prior written notice to the Indenture Trustee and
the Original Loan Participants, (ii) the receipt by the Original Loan
Participants of the funds referred to in Section 2.01(b) (v) above and (iii)
compliance with the provisions of Section 15 of the Original Participation
Agreement and Section 2.10(c) of the Original Indenture (including the
Refinancing in full of the Original Loan Certificates), the Original Loan
Participants shall deliver the Original Loan Certificates to the Indenture
Trustee for cancellation and delivery to the Owner Trustee.
(e) The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to
the Refinancing of the Original Loan Certificates (together, the
"Closings") shall take place at the offices of Xxxxx Xxxx & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(f) All payments pursuant to this Section 2.01 shall be made in
immediately available funds.
(g) In the event that the Refunding Date and the actions
contemplated to occur on such date pursuant to subsection (d) of this
Section 2.01 do not occur on or before November 30, 1995, then the rights
and obligations of the parties to the Original Participation Agreement,
including, without limitation, the Original Loan Participants, shall be
governed by the Original Participation Agreement and the other Operative
Agreements contemplated thereby or in effect immediately prior to the
effectiveness of this Agreement and this Agreement shall be of no further
force and effect, except that the Lessee shall be obligated hereby to pay
all fees and expenses of the Original Loan Participants, the Indenture
Trustee, the Owner Participant, the Owner Trustee, the Pass Through Trustee
and their respective counsel relating to the transactions contemplated
hereby. Each of the parties hereto agrees to execute and deliver to the
other parties such documents and instruments as may be necessary to give
effect to the foregoing provisions of this subsection (g) .
Section 2.02. Certificates. Subject to the satisfaction or
waiver of the conditions set forth herein, on the Refunding Date, the Owner
Trustee shall execute and deliver to the Indenture Trustee, and the
Indenture Trustee shall authenticate and deliver, upon the request of the
Owner Trustee, to the Pass Through Trustee for each Pass Through Trust, the
Certificate specified for such Pass Through Trust on Schedule I attached
hereto, which (i) shall be issued in the principal amount and in the
Maturity set forth for such Certificate in Schedule I hereto, (ii) shall
bear interest at the interest rate set forth for such Certificate in
Schedule I hereto, (iii) shall be issued in such form and on such terms as
are specified in the Indenture, (iv) shall be dated and authenticated on
the Refunding Date and shall bear interest from the Refunding Date and (v)
shall be registered in the name of the Pass Through Trustee on behalf of
such Pass Through Trust.
Section 2.03. Owner Participant Payment. The Owner Participant
agrees with the Lessee and only with the Lessee on behalf of the Owner
Trustee to make available to the Owner Trustee funds sufficient to pay to
the Indenture Trustee on the Owner Participant Payment Date an amount equal
to the amounts of principal (if any) and interest scheduled to be paid on
the Certificates on such date (the "Owner Participant Amount"), and the
Owner Trustee shall upon receipt thereof make such funds available to the
Indenture Trustee to pay amounts due and owing under the Certificates on
the Owner Participant Payment Date, provided that the Owner Participant
shall not be obligated to make such funds available if an Event of Default
under the Lease shall have occurred and be continuing on the date on which
such funds are to be made available. If the Owner Participant does not
make such funds available when otherwise required to do so, the Lessee
shall be obligated to make an advance pursuant to Section 3.05 of the Lease
in an amount sufficient to pay in full the amounts of principal and
interest due on the Certificates on such date. Such obligations shall not,
nor shall they be construed to, make the Owner Participant directly liable
on the Certificates or in any way convert the Certificates to recourse
loans against the Owner Participant.
ARTICLE 3
EXTENT OF INTEREST OF ORIGINAL LOAN PARTICIPANTS
Section 3.01. Extent of Interest of Original Loan Participants.
Delivery of the Original Loan Certificates by the Original Loan
Participants to the Indenture Trustee for cancellation on the Refunding
Date shall be conclusive evidence of receipt by the Original Loan
Participants of all amounts then due and payable to the Original Loan
Participants in respect of principal of, Breakage Costs, if any, and
interest on the Original Loan Certificates under the Original Agreements
(it being understood that the foregoing shall not limit or detract from any
claim any Original Loan Participant may have under Article 8 or 9 or
Section 10.01(a) (ii) hereof or of the Original Participation Agreement) .
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent. The obligations of the Owner
Trustee, the Owner Participant, the Lessee, the Indenture Trustee and the
Pass Through Trustee on behalf of each Pass Through Trust to participate in
the transactions contemplated hereby on the Refunding Date are subject to
the fulfillment to the satisfaction of such party (or waiver by such
party), prior to or on the Refunding Date, of the following conditions
precedent (it being understood that receipt by the Lessee of any of the
following documents shall not be a condition precedent to the obligations
of any party) :
(a) Certificates. On the Refunding Date, there shall have been
duly issued and delivered by the Owner Trustee to the Pass Through
Trustee for each Pass Through Trust, against payment therefor, a
Certificate, substantially in the form set forth in Exhibit B to the
Indenture, duly authenticated, dated the Refunding Date and registered
in the name of the Pass Through Trustee on behalf of such Pass Through
Trust, in the principal amounts, Maturity, bearing the interest rate and
the other economic terms specified in the Series Supplements and
otherwise as provided in Section 2.04 of the Indenture. The Pass
Through Certificates shall be registered under the Securities Act, any
applicable state securities laws shall have been complied with, and the
Pass Through Agreement shall have been qualified under the Trust
Indenture Act.
(b) Legal Investment. On the Refunding Date, no fact or
condition shall exist under applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Owner Participant or its
special counsel, the Pass Through Trustee or the Indenture Trustee or
their special counsel, would make it illegal for the Owner Participant,
the Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance
issued by regulatory authorities for the Owner Participant, the Lessee,
the Owner Trustee, the Pass Through Trustee or the Indenture Trustee, to
participate in the transaction to be consummated on the Refunding Date;
and no action or proceeding shall have been instituted nor shall
governmental action before any court, governmental authority or agency
be threatened which in the opinion of counsel for the Owner Participant,
the Pass Through Trustee or the Indenture Trustee is not frivolous, nor
shall any order have been issued or proposed to be issued by any court,
or governmental authority or agency, as of the Refunding Date, to set
aside, restrain, enjoin or prevent the consummation of any of the
transactions contemplated by this Agreement or by any of the other
Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the
funds specified in Section 2.01(a) hereof and all conditions thereunder
shall have been satisfied or waived.
(d) Refunding Documents. This Agreement and the following
documents shall have been duly authorized, executed and delivered by the
respective party or parties thereto, shall, to the extent that the forms
thereof are not attached hereto, each be satisfactory in form and
substance to the Lessee, the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant (each acting
directly or by authorization to its special counsel) and shall each be
in full force and effect; there shall not have occurred any default
thereunder, or any event which with the lapse of time or the giving of
notice or both would be a default thereunder, and copies executed or
certified as requested by the Lessee, the Owner Trustee, the Owner
Participant, the Indenture Trustee or the Pass Through Trustee, as the
case may be, of such documents shall have been delivered to the Lessee,
the Owner Participant, the Indenture Trustee, the Pass Through Trustee
and the Owner Trustee (provided that the sole chattel-paper original of
the Lease shall be delivered to the Indenture Trustee) :
(i) the Lease;
(ii) the Indenture;
(iii) the Trust Agreement; and
(iv) in the case of the Owner Participant only, Amendment No. 1 to
the Original Tax Indemnity Agreement.
(e) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee and the Pass Through Trustee (to the extent of their
interests thereunder) or the Owner Participant, as the case may be, to
establish that the insurance required by Article 13 of the Lease is in
effect.
(f) Financing Statements. (i) Uniform Commercial Code ("UCC")
financing statements covering all the security interests (and other
interests) created by or pursuant to the Granting Clause of the Original
Indenture shall have been executed and delivered by the Owner Trustee,
as debtor, and by the Indenture Trustee, as secured party, for and on
behalf of the Original Loan Participants, and such financing statements
shall have been duly filed in the State of Michigan; (ii) a form UCC-3
financing statement to amend and restate each financing statement
referred to in the immediately preceding sentence shall have been
executed and delivered by the Owner Trustee, as debtor, and by the
Indenture Trustee as secured party, and a form UCC-1 financing statement
covering all the security interests (and other interests) created by or
pursuant to the Granting Clause of the Indenture shall have been
executed and delivered by the Owner Trustee, as debtor, and by the
Indenture Trustee, as secured party, for and on behalf of the Holders,
and concurrently with the Refinancing of the Original Loan Certificates
such UCC-3 financing statement and UCC-1 financing statement shall have
been duly filed or duly submitted for filing in the State of Michigan,
and all other actions shall have been taken which, in the opinion of
special counsel for the Pass Through Trustee or for the Underwriters,
are necessary or desirable to maintain the perfection of the security
interest created by or pursuant to the Granting Clause of the Indenture;
(iii) a UCC notice filing describing the Original Lease as a lease shall
have been executed and delivered by the Owner Trustee, as lessor, and
the Lessee, as lessee (which filing shall name the Indenture Trustee as
assignee of the Owner Trustee), and shall have been duly filed in the
State of Tennessee; and (iv) a form UCC-3 financing statement to amend
and restate the UCC notice filing referred to in the immediately
preceding clause (iii) shall have been executed and delivered by the
Owner Trustee, as lessor, and by the Lessee, as lessee (which filing
shall name the Indenture Trustee as assignee of the Owner Trustee), and
such notice filing shall concurrently with the Refinancing of the
Original Loan Certificates have been duly filed in the State of
Tennessee, and all other actions shall have been taken which, in the
opinion of the Owner Participant, Pass Through Trustee and the
Underwriters, are necessary to perfect and protect such security
interests and other interests created by or pursuant to the Granting
Clause of the Indenture.
(g) Corporate Documents. Except when such Person is the
delivering party, the Owner Participant, the Owner Trustee, the Lessee,
the Original Loan Participants, the Pass Through Trustee and the
Indenture Trustee (acting directly or by authorization to its counsel)
shall have received the following, in each case in form and substance
satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of
the Lessee, certified by the Secretary or an Assistant Secretary
of the Lessee as of the Refunding Date, and a copy of the
resolutions of the board of directors of the Lessee, certified as
such as of the Refunding Date by such Secretary or Assistant
Secretary, duly authorizing the lease by the Lessee of the
Aircraft under the Lease and the execution, delivery and
performance by the Lessee of the Original Agreements to which it
is a party, this Agreement, the Lease, the Tax Indemnity
Agreement, the Pass Through Agreement, the Series Supplements, the
other Operative Agreements to which the Lessee is or is to be a
party and each other document to be executed and delivered by the
Lessee in connection with the transactions contemplated hereby;
(ii) a copy of the certificate of incorporation and by-laws of
the Owner Participant, certified by the Secretary or an Assistant
Secretary of the Owner Participant as of the Refunding Date, and a
copy of the resolutions of the board of directors of the Owner
Participant, certified as such as of the Delivery Date by such
Secretary or Assistant Secretary, duly authorizing the execution,
delivery and performance by the Owner Participant of the Original
Agreements to which it is a party, this Agreement, the Tax
Indemnity Agreement, the Trust Agreement, the other Operative
Agreements to which the Owner Participant is or is to be a party
and each other document to be executed and delivered by the Owner
Participant in connection with the transactions contemplated
hereby;
(iii) a copy of the articles of incorporation and by-laws and
other instruments of NBD, certified by the Secretary or an
Assistant Secretary of NBD as of the Refunding Date (or other like
instruments satisfactory to the Lessee and the Owner Participant)
and evidence authorizing the execution, delivery and performance
by NBD or the Owner Trustee, as the case may be, of the Original
Agreements to which it is a party, this Agreement, the Trust
Agreement and each of the other Operative Agreements to which it
is or is to be a party, whether in its individual capacity or as
Owner Trustee and each other document to be executed and delivered
by the Owner Trustee in connection with the transactions
contemplated hereby;
(iv) a copy of the articles of association and by-laws and
other instruments of Chase and a copy of the resolutions of the
board of directors of Chase, certified by the Secretary or an
Assistant Secretary of Chase as of the Refunding Date (or other
like instruments satisfactory to the Lessee and the Owner
Participant) duly authorizing the execution, delivery and
performance by Chase (in its capacity as the entity acting as
Indenture Trustee) or the Indenture Trustee, as the case may be,
of the Original Agreements to which it is a party, this Agreement
and each of the other Operative Agreements to which it is or is to
be a party, whether in its individual capacity or as Indenture
Trustee and each other document to be executed and delivered by
the Indenture Trustee in connection with the transactions
contemplated hereby;
(v) a copy of the articles of association and by-laws and
other instruments of Chase and a copy of the resolutions of the
board of directors of Chase, certified by the Secretary or an
Assistant Secretary of Chase as of the Refunding Date (or other
like instruments satisfactory to the Lessee and the Owner
Participant) duly authorizing the execution, delivery and
performance by Chase (in its capacity as the entity acting as Pass
Through Trustee) or the Pass Through Trustee, as the case may be,
of this Agreement, the Pass Through Agreement, the Series
Supplements and each other document to be executed or
authenticated by or on behalf of the Pass Through Trustee in
connection with the transactions contemplated hereby; and
(vi) such other documents, evidences, materials, and
information with respect to the Lessee, the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee and the Owner
Participant as the Indenture Trustee, the Pass Through Trustee or
the Owner Participant may reasonably request in order to establish
the consummation of the transactions contemplated by this
Agreement.
(h) Title, Airworthiness and Registration. On the Refunding
Date, the following statements shall be true, and the Owner Participant,
the Owner Trustee, the Pass Through Trustee and the Indenture Trustee
shall have received evidence from the Lessee reasonably satisfactory to
each such Person to the effect that:
(i) the Owner Trustee has good and marketable title to the
Aircraft, free and clear of Liens, except the rights of the Owner
Trustee and the Lessee under the Lease and the Lease Supplement
covering the Aircraft, the rights of the Indenture Trustee under
the Indenture and the beneficial interest of the Owner Participant
created by the Trust Agreement and the interest of the Holders
created by the Indenture and the Indenture and Security Supplement
covering the Aircraft;
(ii) the Aircraft has been duly certified by the Aeronautics
Authority as to type and airworthiness in accordance with the
terms of the Operative Agreements;
(iii) the Lease, the Indenture and the Trust Agreement
concurrently with the Refinancing of the Original Loan
Certificates have been duly filed for recordation (or shall be in
the process of being so duly filed for recordation) with the
Aeronautics Authority pursuant to the Act; and
(iv) the Aircraft is registered in the name of the Owner
Trustee.
(i) Officer's Certificate of Lessee. On the Refunding Date, the
following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Refunding Date,
stating that:
(i) the representations and warranties of the Lessee contained
in the Operative Agreements to which it is a party (excluding the
Tax Indemnity Agreement) and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Refunding
Date as though made on and as of such date (except to the extent
that such representations and warranties relate solely to an
earlier date, in which case such certificate shall state that such
representations and warranties were true and correct on and as of
such earlier date) ;
(ii) except for the matters described under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1995 (as updated by Note 7 to the
financial statement included in the Lessee's Quarterly Report on
Form 10-Q for the fiscal quarter ended August 31, 1995), as to
which such officer will make no certification concerning the
liability of the Lessee (if any), or the effect of any adverse
determination upon the consolidated financial condition, business
or operations of the Lessee, no material adverse change has
occurred in the financial condition, business or operations of the
Lessee from that shown in the unaudited consolidated financial
statements of the Lessee as of August 31, 1995 and nothing has
occurred which will, in the judgment of such officer, materially
adversely affect the ability of the Lessee to carry on its
business or to perform its obligations under this Agreement and
each other Operative Agreement to which it is a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of
time would become an Event of Loss) with respect to the Airframe
or any Engine, or a Default or an Event of Default under the
Lease.
(j) Officer's Certificate of Owner Participant. On the Refunding
Date, the following statements shall be true, and the Lessee, the Pass
Through Trustee, the Owner Trustee and the Indenture Trustee shall have
received a certificate from the Owner Participant, signed by a duly
authorized officer of the Owner Participant dated the Refunding Date,
stating that:
(i) the representations and warranties of the Owner
Participant contained in this Agreement, the Trust Agreement and
any other Operative Agreement to which it is a party and in any
certificate delivered pursuant hereto or thereto, are true and
correct on and as of the Refunding Date as though made on and as
of such date (except to the extent that such representations and
warranties relate solely to an earlier date, in which case such
certificate shall state that such representations and warranties
were true and correct on and as of such earlier date) ;
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which
constitutes, due to any action or inaction on the part of the
Owner Participant, an Indenture Default or an Indenture Event of
Default.
(k) Other Officer's Certificates. On the Refunding Date, the
following statements shall be true, and the Owner Participant, the
Lessee, the Pass Through Trustee, the Owner Trustee and the Indenture
Trustee shall have received a certificate from each of NBD and the Owner
Trustee (in the case of the Lessee, the Owner Participant, the Pass
Through Trustee and the Indenture Trustee), Chase in its capacity as the
entity acting as Indenture Trustee (in the case of the Lessee, the Owner
Participant, the Pass Through Trustee and the Owner Trustee) and Chase
in its capacity as the entity acting as Pass Through Trustee (in the
case of the Lessee, the Owner Participant, the Indenture Trustee and the
Owner Trustee) signed by a duly authorized officer of NBD and Chase,
respectively, dated the Refunding Date, stating with respect to NBD and
the Owner Trustee, Chase (other than in its capacity as a Loan
Participant, Agent or Pass Through Trustee) and the Indenture Trustee or
Chase (other than in its capacity as a Loan Participant, Agent or
Indenture Trustee) and the Pass Through Trustee, as the case may be,
that:
(i) the representations and warranties of the Owner Trustee in
its individual capacity and as Owner Trustee, of the Indenture
Trustee in its individual capacity (other than in its capacity as
a Loan Participant, Agent or Pass Through Trustee) and as
Indenture Trustee, and of the Pass Through Trustee in its
individual capacity (other than in its capacity as a Loan
Participant, Agent or Indenture Trustee) and as Pass Through
Trustee, contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered
pursuant hereto or thereto are true and correct on and as of the
Refunding Date as though made on and as of such date (except to
the extent that such representations and warranties relate solely
to an earlier date, in which case such certificate shall state
that such representations and warranties were true and correct on
and as of such earlier date) ;
(ii) to the best of its knowledge, no event has occurred and
is continuing, which constitutes or which, but for the lapse of
time or the giving of notice, or both, would constitute, due to
any action or omission on the part of the Owner Trustee in its
individual capacity or as trustee, and of the Indenture Trustee in
its individual capacity (other than in its capacity as a Loan
Participant, Agent or Pass Through Trustee) or as trustee, an
Event of Default or an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or NBD and no Indenture Trustee's Liens affecting the
Trust Indenture Estate or the Lessor's Estate or any part thereof.
(l) Legal Opinions. The Owner Participant, the Original Loan
Participants, the Lessee, the Owner Trustee, the Indenture Trustee and
the Pass Through Trustee (acting directly or by authorization to its
special counsel) shall have received from the following counsel their
respective legal opinions in each case satisfactory to the Owner
Participant, the Original Loan Participants, the Lessee, the Owner
Trustee, the Indenture Trustee and the Pass Through Trustee, as the case
may be, as to scope and substance (and covering such other matters as
the recipient may reasonably request) and dated the Refunding Date:
(i) Xxxxxx X. Xxxxx, Esq., Vice President, Law - Corporate
and Business Transactions of the Lessee in the form of Exhibit
A(1) (a) hereto, addressed to the Owner Participant, the Owner
Trustee, the Pass Through Trustee, the Indenture Trustee, the
Underwriters and the Original Loan Participants;
(ii) Xxxxxx, Xxxxx & Bockius, special counsel for the Owner
Participant, in the form of Exhibit A(2) (a) hereto and Xxx
Xxxxxxx, Esq., Group Counsel of the Owner Participant, in the form
of Exhibit A(2) (b) hereto, each addressed to the Owner
Participant, the Owner Trustee, the Pass Through Trustee, the
Indenture Trustee, the Lessee, the Underwriters and the Original
Loan Participants;
(iii) Xxxxx Xxxxxxxxxx, special counsel for the Indenture
Trustee, in the form of Exhibit A(3) (a) hereto and Xxxxxxx Xx
Xxxxxx, Vice President and Senior Associate Counsel of the
Indenture Trustee, in the form of Exhibit A(3) (b) hereto, each
addressed to the Owner Participant, the Owner Trustee, the Pass
Through Trustee, the Indenture Trustee, the Lessee, the
Underwriters and the Original Loan Participants;
(iv) Xxxxxxxxx, Xxxxxx & Xxxxxxxx, special aviation counsel,
in the form of Exhibit A(4) hereto, addressed to the Owner
Participant, the Owner Trustee, the Pass Through Trustee, the
Indenture Trustee, the Lessee, the Underwriters and the Original
Loan Participants;
(v) [intentionally left blank];
(vi) [intentionally left blank];
(vii) Dickinson, Wright, Moon, Van Dusen & Xxxxxxx, special
counsel for the Owner Trustee, in the form of Exhibit A(5) hereto,
addressed to the Owner Participant, the Owner Trustee, the Pass
Through Trustee, the Indenture Trustee, the Lessee, the
Underwriters and the Original Loan Participants;
(viii) Xxxxx Xxxx & Xxxxxxxx, special counsel to the Lessee, in
the form of Exhibit A(1) (b) hereto, addressed to the Owner
Participant, the Owner Trustee, the Pass Through Trustee, the
Indenture Trustee, the Lessee, the Underwriters and the Original
Loan Participants; and
(ix) Xxxxx Xxxxxxxxxx, special counsel for the Pass Through
Trustee, in the form of Exhibit A(6) (a) hereto and Xxxxxxx Xx
Xxxxxx, Vice President and Senior Associate Counsel of the Pass
Through Trustee, in the form of Exhibit A(6) (b) hereto, each
addressed to the Owner Participant, the Owner Trustee, the Pass
Through Trustee, the Indenture Trustee, the Lessee, the
Underwriters and the Original Loan Participants;
(m) No Indenture Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(n) No Defaults. No Default or Event of Default under the Lease
and no Event of Loss or event, which with the passage of time or if
continued unremedied or unaltered would constitute an Event of Loss,
shall have occurred or be in existence.
(o) Cancellation. Following the Refinancing of the Original Loan
Certificates, the Original Loan Certificates shall have been duly
delivered by the Original Loan Participants to the Indenture Trustee for
cancellation and delivery to the Owner Trustee.
(p) Other Agreements. The Lessee and the Pass Through Trustee
shall have entered into the Pass Through Agreement and the Series
Supplements, all conditions to the effectiveness of each thereof shall
have been satisfied or waived, and the Pass Through Certificates shall
have been issued pursuant to the Series Supplements. The Lessee and the
Underwriters shall have entered into the Underwriting Agreement, all
conditions to the effectiveness thereof shall have been satisfied or
waived, and the Pass Through Certificates shall have been delivered
pursuant to the Underwriting Agreement.
Section 4.02. Opinion of Special Aviation Counsel. Promptly upon
the filing and, where appropriate, recording of the documents specified in
4.01(h) (iii) hereof, pursuant to the Act, the Lessee shall cause Special
Aviation Counsel to deliver to the Owner Participant, the Owner Trustee,
the Pass Through Trustee and the Indenture Trustee an opinion as to (i) the
due recording of such documents and the documents identified in Section
4.01(i) of the Original Participation Agreement and (ii), subject to
customary qualifications, the lack of any intervening documents with
respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby
is subject to the conditions that, prior to or on the Refunding Date, the
Lessee shall have received the certificates and other documents which are
referred to in, or the opinions to be addressed to it under, as the case
may be, paragraphs (d), (g) (ii) -(v), (h) (ii) -(iv), (j), (k) and (l)(ii),
(iii), (iv), (vii), (viii) and (ix) of Section 4.01 hereof and the
Underwriters and the Owner Participant shall have made available the
amounts required to be paid by them pursuant to Section 2.01 hereof.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The
Lessee represents and warrants to the Owner Participant, the Owner Trustee
(in its individual capacity and as Owner Trustee), the Pass Through Trustee
(in its individual capacity and as Pass Through Trustee) and the Indenture
Trustee (in its individual capacity and as Indenture Trustee) that, on the
date hereof and as of the Refunding Date:
(a) the Lessee is a corporation duly organized and validly
existing and is in good standing under the laws of the State of Delaware
with its principal place of business and chief executive office (as such
terms are used in Article 9 of the Uniform Commercial Code) in Memphis,
Tennessee, and is duly qualified to do business as a foreign corporation
and is in good standing in all jurisdictions in which it has intrastate
routes, or offices or major overhaul facilities or in which other
activities of the Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to
conduct its business and operations as currently conducted and to own or
hold under lease its Properties and to enter into and perform its
obligations under this Agreement, the Original Agreements to which it is
a party, the other Operative Agreements to which it is a party, the Pass
Through Agreement and the Series Supplements (the "Lessee Documents") ;
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections
41102(a) and 41103 of the Transportation Code and a "citizen of the
United States" within the meaning of Section 40102(a) (15) of the
Transportation Code holding an "air carrier operating certificate"
issued under Chapter 447 of the Transportation Code for aircraft capable
of carrying ten (10) or more individuals or 6,000 pounds or more of
cargo, and each such certificate is in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted
and each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee
Documents by the Lessee have been duly authorized by all necessary
corporate action on the part of the Lessee and do not require any
stockholder approval, or approval or consent of any trustee or holder of
any indebtedness or obligations of the Lessee, and each such document
has been duly executed and delivered by the Lessee and constitutes the
legal, valid and binding obligations of the Lessee enforceable against
it in accordance with the terms thereof except as such enforceability
may be limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws or equitable principles of general application to or
affecting the enforcement of creditors' rights generally (regardless of
whether enforceability is considered in a proceeding in equity or at
law) ;
(f) no authorization, consent or approval of or other action by,
and no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by the Lessee of the Lessee Documents or for the
use and maintenance of the Aircraft except for such registrations,
applications and recordings referred to in the opinions of Special
Aviation Counsel delivered or to be delivered pursuant to Sections
4.01(l) (iv) and 4.02 hereof and except for the filings referred to in
Section 4.01(f) hereof, all of which shall have been duly obtained or
made and shall be in full force and effect on and as of the Refunding
Date or as contemplated by said Sections;
(g) neither the execution, delivery or performance by the Lessee
of the Lessee Documents nor compliance with the terms and provisions
hereof or thereof, conflicts or will conflict with or results or will
result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or
bylaws, as amended, of the Lessee or any order, writ, injunction or
decree of any court or governmental authority against the Lessee or by
which it or any of its Properties is bound or any indenture, mortgage or
contract or other agreement or instrument to which the Lessee is a party
or by which it or any of its Properties is bound, or constitutes or will
constitute a default thereunder or results or will result in the
imposition of any Lien upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or
any of its Property before or by any court or administrative agency
which (A) involve the Aircraft, (B) except for the matters described
under "Legal Proceedings" in the Lessee's Annual Report on Form 10-K for
the fiscal year ended May 31, 1995 (as updated by Note 7 to the
financial statement included in the Lessee's Quarterly Report on Form
10-Q for the fiscal quarter ended August 31, 1995), as to which no
representation is made concerning the Lessee's liability (if any) or the
effect of any adverse determination upon the consolidated financial
condition, business or operations of the Lessee, if adversely
determined, would materially and adversely affect the consolidated
financial condition, business or operations of the Lessee, or (C) if
adversely determined would adversely affect the ability of the Lessee to
perform its obligations under the Lessee Documents;
(i) the Lessee and its subsidiaries have filed or caused to be
filed all tax returns which are required to be filed and has paid or
caused to be paid all taxes shown to be due and payable pursuant to such
returns or pursuant to any assessment received by the Lessee (other than
assessments the payment of which is being contested in good faith by the
Lessee), and the Lessee has no knowledge of any related actual or
proposed deficiency or additional assessment which either in any case or
in the aggregate would materially adversely affect the Lessee's
consolidated financial condition (other than, in any such case,
assessments, the payment of which is being contested in good faith by
the Lessee, as to which no representation is made concerning the
Lessee's liability (if any) or the effect of any adverse determination
upon the Lessee's consolidated financial condition) ;
(j) except for (A) the filing and, where appropriate, recordation
pursuant to the Act of the Indenture, the Trust Agreement and the Lease,
(B) the filing of the financing statements referred to in Section
4.01(f) hereof and (C) the taking of possession by the Indenture Trustee
of the original counterpart of the Lease and maintaining possession of
the original counterpart of the Lease Supplement delivered on the
Delivery Date, no further action, including any filing or recording of
any document, is necessary or advisable in order (i) to establish the
Owner Trustee's title to and interest in the Aircraft and the Lessor's
Estate as against the Lessee and any third parties, or (ii) to perfect
the first security interests in and mortgage Lien on the Trust Indenture
Estate in favor of the Indenture Trustee;
(k) on the Delivery Date, the Owner Trustee received good and
marketable title to the Aircraft, free and clear of all Liens, except
the rights of the Owner Trustee and the Lessee under the Original Lease,
the rights of the Indenture Trustee under the Original Indenture and the
beneficial interest of the Owner Participant created by the Original
Trust Agreement and the interest of the Original Loan Participants
created by the Original Indenture and the Indenture and Security
Supplement covering the Aircraft;
(l) the Lessee has heretofore delivered to the Owner Participant
true and correct copies of the Lessee's Annual Report on Form 10-K for
the fiscal year ended May 31, 1995 and its Quarterly Report on Form 10-Q
for the fiscal quarter ended August 31, 1995, and of the audited
consolidated balance sheet of the Lessee for the fiscal year ended May
31, 1995 and the unaudited consolidated balance sheet of the Lessee as
of August 31, 1995, and the related consolidated statements of income,
changes in common stockholders' investment and cash flows for the fiscal
year and interim reporting period ended on such dates, accompanied
(except in the case of such interim reporting period) by a report
thereon containing opinions without qualification, except as therein
noted, by Xxxxxx Xxxxxxxx & Co., independent public accountants; said
financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied and present fairly
the financial position of the Lessee as of such dates and the results of
its operations and cash flows for such periods and such Annual Reports,
Quarterly Reports and financial statements did not, as of their
respective dates of filing with the SEC, contain any untrue statement of
a material fact or omit a material fact necessary to make the statements
contained therein not misleading and there has been no material adverse
change in the consolidated financial condition of the Lessee since
August 31, 1995;
(m) with respect to ERISA, except as otherwise disclosed:
(i) none of the Pension Plans (as defined at the end of this
Section 6.01(m) ) nor their related trusts have been terminated in
a distress termination pursuant to Section 4041(c) of ERISA or by
the Pension Benefit Guaranty Corporation or any successor agency
or instrumentality thereto (the "PBGC") pursuant to Section 4042
of ERISA, nor have any actions been taken to so terminate any
Pension Plan or related trust and neither the Lessee nor any ERISA
Affiliate has incurred or could reasonably be expected to incur
any material liability with respect to a Pension Plan under
Section 4062, 4063, 4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension
Plan which have resulted or could reasonably be expected to result
in any material liability of the Lessee;
(iii) no "accumulated funding deficiency" (as such term is
defined in Section 302 of ERISA or Section 412 of the Code) exists
with respect to any Pension Plan, whether or not waived, nor has
any request for a waiver under Section 412(d) of the Code been, or
is reasonably likely to be, filed with respect to any of the
Pension Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to
make any contribution or payment to any Pension Plan which has
resulted or could reasonably be expected to result in the
imposition of a Lien under Section 302(f) of ERISA or Section
412(n) of the Code;
(v) all Pension Plans are in compliance in all material
respects with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred
or is reasonably likely to incur any material withdrawal liability
pursuant to Section 4201 or 4204 of ERISA or any material
liability under Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming (A) the truth of the representations contained
in Sections 7.03(a) (viii) and 7.09 hereof, (B) the applicability
of an individual or a class prohibited transaction exemption
("PTE") to the transactions contemplated hereby, and (C) the
compliance with all of the conditions of a PTE, the execution and
delivery of this Agreement and the other Operative Agreements and
the consummation of the transactions contemplated hereby and
thereby will not involve any transaction which is prohibited by
Section 406 of ERISA or in connection with which a tax could be
imposed pursuant to Section 4975 of the Code. No part of the
funds to be used by the Lessee in satisfaction of its obligations
under this Agreement or any other of the Operative Agreements to
which the Lessee is a party or to which the Lessee is bound are
the assets of any employee benefit plan subject to Title I of
ERISA, or any individual retirement account or an employee benefit
plan subject to Section 4975 of the Code.
As used in this Section 6.01(m), the term "Pension Plan" means an
employee pension benefit plan as defined in Section 3(2) of ERISA (other
than a multiemployer plan as defined in Section 4001(a) (3) of ERISA)
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and which is maintained, or
contributed to, by the Lessee or any ERISA Affiliate, and the term
"ERISA Affiliate" means any entity which together with the Lessee would
be treated as a single employer under Section 414(b), (c), (m) or (o) of
the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Section 4.01(f) hereof,
no governmental approval of any kind is required of the Owner
Participant or for the Owner Participant's execution of or performance
under this Agreement or any agreement contemplated hereby by reason of
any fact or circumstance of the Lessee, the nature of the Aircraft or
the Lessee's proposed operations or use of the Aircraft;
(p) on the Refunding Date, all premiums with respect to the
insurance required to be provided by the Lessee on or prior to the
Refunding Date under Article 13 of the Lease have been paid by the
Lessee;
(q) on the Refunding Date, all sales or use taxes relating to the
sale of the Aircraft by AVSA to the Owner Trustee which are then or were
theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of
trust, indenture, lease or other instrument or agreement to which the
Lessee is a party or by which it or any of its Properties or assets may
be bound, or in violation of any applicable law, which default or
violation would have a material adverse effect on the financial
condition, business or operations of the Lessee or its ability to
perform any of its obligations under the Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event,
which with the passage of time or if continued unremedied or unaltered
would constitute an Event of Loss, has occurred or exists;
(t) the Aircraft has been duly certified by the FAA as to type and
airworthiness; there is in effect with respect to the Aircraft a current
and valid airworthiness certificate issued by the FAA pursuant to the
Act; and there is no fact known to the Lessee which materially adversely
affects the value, utility or condition of the Aircraft;
(u) on the Refunding Date, the Lessee shall not be in default in
the performance of any term or condition of the Purchase Agreement, the
Purchase Agreement Assignment, the Engine Warranty Assignment and the
GTA;
(v) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(w) the Aircraft is fully equipped to operate in commercial
service and will comply with all governmental requirements governing
such service;
(x) neither the Lessee nor any of its Affiliates is engaged
principally in the business of extending credit for the purpose of
buying or carrying margin stock (within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System) and no part of the
proceeds from the sale of the Certificates and/or sale of the Aircraft
by the Lessee to the Owner Trustee will be used to purchase or carry any
such margin stock, or to refinance any borrowing, the proceeds of which
were used to purchase or carry any such margin stock;
(y) there are no broker's or underwriter's fees payable in
connection with the transactions contemplated in the Operative
Agreements other than those of the Underwriters and First Chicago
Leasing Corporation; and
(z) the representations and warranties of the Lessee set forth in
the Original Agreements to which it is a party were correct on and as of
the Delivery Date (except to the extent such representations expressly
related solely to a specified earlier date, in which case such
warranties and representations were correct on and as of such earlier
date) .
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection
with the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to,
or solicited any offer to acquire any of the same from, anyone other than
the Owner Participant and no more than 53 other institutional investors (as
such term is defined in Regulation D promulgated under the Securities Act
of 1933, as amended) .
Section 6.03. Certain Covenants of Lessee. The Lessee covenants
and agrees with the Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered all such further acts, conveyances and assurances as the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee or the Owner
Participant shall reasonably require for accomplishing the purposes of
this Agreement, the Trust Agreement, the Indenture, the Tax Indemnity
Agreement, the Lease and the other Operative Agreements to which it is a
party. Without limiting the generality of this Section 6.03(a), the
Lessee will promptly take, or cause to be taken, at the Lessee's cost
and expense, such action with respect to the recording, filing,
re-recording and re-filing of the Indenture, each Indenture and Security
Agreement Supplement, the Lease, each Lease Supplement and any financing
statements or other instruments as may be necessary, or as requested by
the Indenture Trustee and appropriate, to maintain the perfection of the
first security interest and the Lien created by the Indenture, and the
Owner Trustee's title to and interest in the Aircraft and the Lessor's
Estate as against the Lessee and any third parties, or if the Lessee
cannot take, or cause to be taken, such action, will furnish to the
Indenture Trustee and the Owner Trustee timely notice of the necessity
of such action, together with such instruments, in execution form, and
such other information as may be required to enable either of them to
take such action at the Lessee's cost and expense in a timely manner.
(b) The Lessee shall maintain the certificates referred to in
Section 7.01 of the Lease and shall cause the Aircraft to remain duly
registered, in the name of the Owner Trustee, under the Transportation
Code; provided, however, that the Owner Participant, the Owner Trustee
and the Indenture Trustee agree that if at any time after December 31,
2002 the Lessee has requested their consent to the registration of the
Aircraft in the name of the Owner Trustee (or, if appropriate, in the
name of the Lessee or a sublessee as a "lessee" or a "sublessee"), at
the Lessee's expense, in any country in which a permitted foreign
sublessee could be located pursuant to Section 7.02(a) (i) of the Lease
with which the United States then maintains normal diplomatic relations,
the Owner Participant, upon receipt by the Owner Participant, the Owner
Trustee and the Indenture Trustee of the assurances and opinion
described below, none of them shall unreasonably withhold their consent
to such change in registration (it being agreed, without limitation,
that the inability of the Lessee to deliver such assurances or such
opinion shall constitute reasonable grounds to withhold such consent) .
As a condition to any change in the registration of the Aircraft,
the Owner Participant, the Owner Trustee in its individual and trust
capacities, and the Indenture Trustee shall have received:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease
have been and will be complied with and are and shall be in full
force and effect upon such change of registry;
(B) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft;
(C) that the Owner Trustee's right, title and interest in and
to the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry, that the rights of the Owner Trustee in
and to the Aircraft will not be impaired in such new jurisdiction
of registry and that the new jurisdiction of registry will give
effect to the title and registry of the Aircraft therein
substantially to the same extent as does the Government;
(D) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as
provided under United States law (except that, in the absence of
restrictions under the laws of such country on rights and remedies
of lessors and secured parties similar to those imposed by
Sections 362 and 363 of the Bankruptcy Code, rights and remedies
similar to those available under Section 1110 of the Bankruptcy
Code shall not be required), (y) (i) if such change in registration
is made other than in connection with a sublease permitted under
Section 7.02(a) (i) of the Lease, imposes maintenance standards at
least comparable to those of the FAA, and (ii) if such change in
registration is made in connection with a sublease permitted under
Section 7.02(a) (i) of the Lease, imposes maintenance standards in
conformity with those set forth in Section 7.02(a) (i) of the Lease
and (z) would not impose requirements which materially increase
the administrative or other burdens or obligations of the Owner
Participant under the Operative Agreements unless indemnified by
the Lessee;
(E) that import and export certificates and any exchange
permits necessary to allow all Rent and other payments provided
for under the Lease, if required, shall have been procured at the
Lessee's own cost and expense by the Lessee;
(F) that the Lessee shall have effected or caused to be
effected at the Lessee's own cost and expense all recordings and
filings that are required to perfect the Lien of the Indenture;
(G) to the effect that the original indemnities (and any
additional indemnities for which the Lessee is then willing to
enter into a binding agreement to indemnify) in favor of the Owner
Participant, the Owner Trustee (in its individual capacity and as
trustee under the Trust Agreement), the Indenture Trustee (in its
individual capacity and as trustee under the Indenture), the Pass
Through Trustee (in its individual capacity and as trustee under
the Pass Through Agreement) and the other Indemnitees under this
Agreement, the Indenture, the Pass Through Agreement and (in the
case of the Owner Participant only) the Tax Indemnity Agreement,
afford each such party substantially the same protection as
provided prior to such change of registry;
(H) that such change will not result in the imposition of, or
increase in the amount of, any Tax (which, for this purpose,
includes the loss of any tax benefits assumed by the Owner
Participant to be available to it based upon the assumptions set
forth in Section 2 of the Original Tax Indemnity Agreement) for
which the Lessee has not agreed to indemnify the Owner
Participant, the Indenture Trustee, the Owner Trustee (or any
successor, assign or Affiliate thereof) and the Trust Estate;
(I) that any value added tax, customs duty, tariff or similar
governmental charge relating to the change in jurisdiction of
registration of the Aircraft shall have been paid in full or
adequately provided for by the Lessee to the satisfaction of the
Owner Trustee, the Indenture Trustee and the Owner Participant;
(J) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participant, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee in connection with
such change of registry, including any reasonable attorneys' fees
and expenses; and
(K) that duties and tariffs, if applicable, shall have been
paid for by the Lessee;
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Owner Participant) in the
new jurisdiction of registry, addressed and reasonably satisfactory to
such parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the
governing law, service-of-process and jurisdictional-submission
provisions thereof) of the Lease and the Indenture are legal,
valid, binding and enforceable in such jurisdiction against the
Lessee, any sublessee, the Owner Trustee and the Indenture
Trustee, respectively;
(B) that it is not necessary for the Owner Participant, the
Owner Trustee, the Indenture Trustee or the Pass Through Trustee
to register or qualify to do business or meet other requirements
not already met in such jurisdiction in connection with the
registration in the new jurisdiction (and the filing and/or
recordation therein of the Indenture or Lease) and the exercise of
any rights or remedies with respect to the Aircraft pursuant to
the Lease or the Indenture or in order to maintain such
registration and the Lien of the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b) (i) (D) (x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation,
the remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than tort
liability which might have been imposed on such owner, lessor or
mortgagee under the laws of the United States or any state thereof
(it being understood that, in the event such latter opinion cannot
be given in a form satisfactory to the Owner Trustee, the Owner
Participant and the Indenture Trustee, such opinion shall be
waived, if insurance reasonably satisfactory to the Owner
Participant, the Indenture Trustee and the Owner Trustee, in its
individual capacity, is provided, at Lessee's expense, to cover
such risk and the Lessee undertakes to keep such insurance in full
force and effect) ;
(E) that the laws of such jurisdiction will not impair the
rights of the Lessor in and to the Aircraft or under the Lease and
(unless the Lessee shall have agreed to provide insurance
reasonably satisfactory to the Indenture Trustee and the Owner
Participant covering the risk of requisition of use of the
Aircraft by the government of registry of the Aircraft) require
fair compensation by the government of such jurisdiction payable
in currency freely convertible into United States Dollars for the
loss of use of the Aircraft in the event of such requisition;
(F) that the Owner Trustee's title to the Aircraft is
recognized and fully enforceable in such jurisdiction, that such
jurisdiction will give effect to the title of the Aircraft therein
substantially to the same extent as does the Government, and that
the Lien of the Indenture shall continue as a first priority, duly
perfected lien on the Aircraft; and
(G) to such further effect with respect to such other matters
as the Owner Participant, the Owner Trustee, or the Indenture
Trustee may reasonably request.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participant such information as may be
required to enable the Owner Trustee and the Owner Participant timely to
file any reports required to be filed by the Owner Trustee as the Lessor
and the Owner Participant under the Lease with any governmental
authority.
(d) The Lessee will cause the Special Aviation Counsel to file,
and where appropriate record, on the Refunding Date, the Lease, the
Trust Agreement and the Indenture. The following documents shall be
filed and, where appropriate, recorded on the Refunding Date with the
Aeronautics Authority in the following order of priority: first, the
Trust Agreement, second, the Indenture and third, the Lease with the
Indenture attached thereto.
(e) The Lessee will furnish to the Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1996, an
opinion, reasonably satisfactory to the Owner Participant and the
Indenture Trustee, of Special Aviation Counsel, or other counsel
specified from time to time by the Lessee acceptable to the Lessor and
the Indenture Trustee: (i) stating either (1) that in the opinion of
such counsel such action has been taken with respect to the recording,
filing, re-recording and re-filing of the Lease, the Indenture, the
Trust Agreement, and any supplements to any of them and any financing
statements, continuation statements or other instruments, and all other
action has been taken, as is necessary to maintain the Owner Trustee's
title to and interest in the Aircraft and the Lessor's Estate as against
the Lessee and any third parties and to maintain the perfection of the
security interests created by said documents and reciting the details of
such action, or (2) that in the opinion of such counsel no such action
is necessary to maintain such title or the perfection of such security
interests; (ii) specifying all other action which needs to be taken
during the succeeding 14 months in order to maintain such title and the
perfection of such security interests (which the Lessee agrees timely to
take) ; and (iii) stating that the Owner Trustee is the owner of legal
title to the Aircraft, and the Aircraft is free and clear of all Liens,
except the security interest created by the Indenture and such as are
permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate
existence except as permitted by Section 6.03(g) hereof and all of its
rights, privileges and franchises necessary in the normal conduct of its
business, except for any corporate right, privilege or franchise (i)
that it determines, in its reasonable, good faith business judgment, is
no longer necessary or desirable in the conduct of its business and (ii)
the loss of which will not materially adversely affect or diminish the
rights of the Holders or the Owner Participant.
(g) The Lessee shall not enter into any merger or consolidation,
or convey, transfer or lease all or substantially all of its assets as
an entirety to any Person, unless the surviving corporation or Person
which acquires by conveyance, transfer or lease all or substantially all
of the assets of the Lessee as an entirety (i) is a domestic corporation
organized and existing under the laws of the United States or a
political subdivision thereof, (ii) is a Citizen of the United States,
(iii) is a U.S. Air Carrier holding an "air carrier operating
certificate" issued under Chapter 447 of the Transportation Code for
aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, (iv) expressly assumes by an instrument in
writing in form and substance satisfactory to the Indenture Trustee, the
Owner Participant and the Owner Trustee all of the Lessee's obligations
hereunder and under the other Operative Agreements, and each other
document contemplated hereby or thereby and the Lessee delivers such
instrument to the Indenture Trustee, the Owner Participant and the Owner
Trustee, (v) provides an opinion from counsel to the Lessee which
counsel shall be reasonably satisfactory to the Owner Participant and
the Indenture Trustee and which opinion shall be reasonably satisfactory
to the Owner Participant and the Indenture Trustee, and an officer's
certificate, each stating that such merger, consolidation, conveyance,
transfer or lease and the instrument noted in clause (iv) above comply
with this Section 6.03(g), that such instrument is a legal, valid and
binding obligation of, and is enforceable against, such survivor or
Person, and that all conditions precedent herein provided for relating
to such transaction have been complied with, and (vi) immediately after
such merger, consolidation or conveyance, transfer or lease, as the case
may be, the surviving company is in compliance with all of the terms and
conditions of this Agreement and the Lease and each other Operative
Agreement and each other document contemplated hereby or thereby;
provided that no such merger, consolidation or conveyance, transfer or
lease shall be permitted if the same gives rise to a Default not capable
of cure within the applicable grace period therefor or an Event of
Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the
Lessee is merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Lessee under this Agreement and the Lease
and each other Operative Agreement and any other document contemplated
hereby and thereby to which the Lessee is a party with the same effect
as if such successor corporation had been named as the Lessee herein and
therein. No such conveyance, transfer or lease of all or substantially
all of the assets of the Lessee as an entirety shall have the effect of
releasing the Lessee or any successor corporation which shall
theretofore have become such in the manner prescribed in this Section
6.03(g) from its liability hereunder or under the other Operative
Agreements. Nothing contained herein shall permit any lease, sublease,
or other arrangement for the use, operation or possession of the
Aircraft except in compliance with the applicable provisions of the
Lease.
(h) The Lessee agrees to give prompt written notice to the Owner
Participant, the Owner Trustee and the Indenture Trustee of any change
in the address of its chief executive office (as such term is used in
Section 9-103(3) of the Tennessee Uniform Commercial Code) or of any
change in its corporate name.
(i) The Lessee agrees to furnish to the Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee,
a consolidated balance sheet as of the end of such fiscal year,
and the related consolidated statements of income, common
stockholders' equity, retained earnings and cash flows of the
Lessee for the fiscal year then ended as prepared and certified by
the Lessee's independent certified public accountants, including
their opinion;
(B) within sixty (60) days after the end of the first, second
and third quarterly accounting periods in each fiscal year of the
Lessee, a consolidated balance sheet of the Lessee prepared by it
as of the close of the accounting period then ended, together with
the related consolidated statements of income, retained earnings
and cash flows for such accounting period certified by the chief
accounting officer or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
reports and statements furnished by the Lessee to all of its
stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business
Days after) any Responsible Officer of the Lessee obtaining actual
knowledge of any condition or event which constitutes a Default or
any officer of the Lessee obtaining knowledge of any condition or
event which constitutes an Event of Default, an officer's
certificate specifying the nature and period of existence thereof
and what action the Lessee has taken or is taking or proposes to
take with respect thereto; and
(F) from time to time, such other financial information as the
Lessor, the Owner Participant or the Indenture Trustee may
reasonably request.
Concurrently with the delivery of the financial statements
referred to in clause (A) above, the Lessee shall deliver to the Lessor,
the Owner Participant, the Pass Through Trustee and the Indenture Trustee a
certificate of the Lessee, signed by any one of the President, the Chief
Financial Officer, the General Counsel, the Treasurer or the principal
accounting officer of the Lessee, stating that the signer, or an employee
reporting to same, is familiar with the relevant terms of this Agreement
and the Lease and the signer has reviewed, or has caused to be made under
such Person's supervision a review of, the activities of the Lessee and
that, to the best of his or her knowledge, there does not exist any Default
or any Event of Default or if a Default or an Event of Default exists or
did exist, specifying the nature thereof, the period of existence thereof
and what action the Lessee has taken or proposes to take with respect
thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and
6.02 hereof and in any other Operative Agreement shall survive the Closings
hereunder and the expiration or other termination of this Agreement and the
other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. (a) [Intentionally Left Blank.]
(b) Owner Participant. The Owner Participant represents and
warrants that its interest in the Lessor's Estate and the Trust Agreement
was acquired by it for its own account and not with a view to resale or
distribution thereof; provided, however, that the disposition by the Owner
Participant of its interest in the Lessor's Estate and the Trust Agreement
shall, subject to the terms and provisions of Section 7.03(d) hereof, at
all times be within its control and the foregoing representation shall not
limit the Owner Participant's right to transfer or sell such interests
pursuant to the terms of this Agreement. Neither the Owner Participant nor
anyone authorized to act on its behalf has directly or indirectly offered
any interest in the Lessor's Estate or the Trust Agreement, or in any
similar security, for sale to, or solicited any offer to acquire any of the
same from, anyone. The Owner Participant further represents and warrants
that neither it nor anyone authorized to act on its behalf has made or will
make any offer, solicitation or sale of any interest in the Lessor's Estate
or the Trust Agreement in violation of the provisions of Section 5 of the
Securities Act of 1933, as amended. No representation in this Section
7.01(b) shall include any action or inaction of the Lessee, the Agent,
First Chicago Leasing Corporation or the Underwriters whether or not
purportedly on behalf of the Owner Trustee, the Owner Participant or any of
their Affiliates.
Section 7.02. Citizenship. (a) Generally. Each of the Owner
Trustee, in its individual capacity and as Trustee, and the Owner
Participant severally represents and warrants that it is a Citizen of the
United States on the Refunding Date. If the Owner Participant or the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee, the Indenture Trustee and the Owner
Participant hereby agree that a Default or an Event of Default shall not be
deemed to have occurred and be continuing under the Lease due to
non-compliance by the Lessee with the registration requirements in the Lease
occasioned by the noncompliance of the Owner Participant or the Owner
Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual
capacity, covenants that if at any time it shall have actual knowledge that
it has ceased to be a Citizen of the United States, it will resign
immediately as the Owner Trustee if such citizenship is necessary under the
Transportation Code as in effect at such time or, if it is not necessary
under the Transportation Code as in effect at such time, if it is informed
in writing by the Lessee or the Owner Participant that such lack of United
States citizenship would have any adverse effect on the Lessee or the Owner
Participant. The Owner Trustee, in its individual capacity, further
covenants that if at any time it appears reasonably probable that it will
cease to be a Citizen of the United States based on information that is (i)
known to a Responsible Officer or (ii) generally known to the public, it
will promptly so notify, to the extent permitted by law, all parties to
this Agreement.
(c) Owner Participant. The Owner Participant agrees, solely for
the benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee
and the Owner Trustee, that if at any time when the Aircraft is registered
or the Lessee proposes to register the Aircraft in the United States (i) it
shall cease to be, or determines that it is likely to cease to be, a
Citizen of the United States and (ii) the Aircraft shall or would therefore
become ineligible for registration in the name of the Owner Trustee under
the Transportation Code and regulations then applicable thereunder, then
the Owner Participant shall give notice thereof to the Lessee, the Owner
Trustee and the Indenture Trustee and shall (at its own expense and without
any reimbursement or indemnification from the Lessee) immediately (and in
any event within a period of 15 Business Days following such determination
or, if earlier, within 15 days following actual loss of citizenship) (x)
effect a voting trust or other similar arrangement, (y) transfer in
accordance with the terms of this Agreement and the Trust Agreement all its
rights, title and interest in and to such Trust Agreement, the Lessor's
Estate and this Agreement, or (z) take any other alternative action that
would prevent any deregistration, or maintain the United States
registration, of the Aircraft. It is agreed that the Owner Participant
shall be liable to pay promptly on request (A) to each of the other parties
hereto any actual damages (but not consequential damages) suffered by any
such other party to the extent the same shall result from the
representation and warranty of the Owner Participant in the first sentence
of Section 7.02(a) hereof proving to be untrue as of the Refunding Date;
and (B) to the Lessee, the Indenture Trustee and the Pass Through Trustee
for any damages actually incurred by the Lessee, the Indenture Trustee and
the Pass Through Trustee as a result of the Owner Participant's failure to
comply with its obligations pursuant to the first sentence of this Section
7.02(c) ; provided, that, the foregoing shall not restrict the Pass Through
Trustee or the Indenture Trustee from asserting against the Owner
Participant any damages actually incurred by the holders of any Pass
Through Certificates. Each party hereto agrees, upon the request and at
the sole expense of the Owner Participant, to cooperate with the Owner
Participant in complying with its obligations under the provisions of the
first sentence of this Section 7.02(c) .
Section 7.03. Representations, Warranties and Covenants of the
Owner Participant. (a) Representations, Warranties and Covenants. In
addition to and without limiting its other representations and warranties
provided for in this Article 7, the Owner Participant represents and
warrants that:
(i) it is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware and it has full
corporate power, authority and legal right to carry on its present
business and operations, to own or lease its Properties and to enter
into and to carry out the transactions contemplated by the Original
Agreements to which it is a party, this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement;
(ii) the execution, delivery and performance by it of the Original
Agreements to which it is a party, this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement have been duly authorized by all
necessary corporate action on its part and, assuming the accuracy of the
Lessee's representations in Section 6.01(o) hereof, do not require any
governmental approvals that would be required to be obtained by the
Owner Participant;
(iii) based on the representations, warranties and covenants
contained in Sections 6.01(m) (viii), 6.02 and 7.09 hereof, neither the
execution, delivery or performance by the Owner Participant of the
Original Agreements to which it is a party, this Agreement, the Tax
Indemnity Agreement, and the Trust Agreement nor compliance with the
terms and provisions hereof or thereof, conflicts or will conflict with
or results or will result in a breach or violation of any of the terms,
conditions or provisions of, or will require any consent or approval
under any law, governmental rule or regulation applicable to the Owner
Participant or the charter documents, as amended, or by-laws, as
amended, of the Owner Participant or any order, writ, injunction or
decree of any court or governmental authority against the Owner
Participant or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to
which the Owner Participant is a party or by which it or any of its
Properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any Lien upon
any of its Properties;
(iv) the Original Agreements to which it is a party, this
Agreement, the Tax Indemnity Agreement and the Trust Agreement have been
or on the Refunding Date will be duly executed and delivered by the
Owner Participant and constitute or on the Refunding Date will
constitute the legal, valid and binding obligation of the Owner
Participant enforceable against it in accordance with their terms except
as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws or equitable principles
of general application to or affecting the enforcement of creditors'
rights;
(v) to the best of its knowledge, it is not in default under any
mortgage, deed of trust, indenture, lease or other instrument or
agreement to which the Owner Participant is a party or by which it or
any of its Properties may be bound, or in violation of any applicable
law, which default or violation would have a material adverse effect on
the financial condition, business or operations of the Owner Participant
or an adverse effect on the ability of the Owner Participant to perform
its obligations under the Original Agreements to which it is a party,
this Agreement and the other Operative Agreements to which it is or is
to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability
of the Owner Participant to perform its obligations under any of the
Original Agreements or the Operative Agreements to which it is or is to
be a party, and the Owner Participant knows of no pending or threatened
actions or proceedings before any court, administrative agency or
tribunal involving it in connection with the transactions contemplated
by this Agreement, the Original Agreements or the Operative Agreements;
(vii) neither the execution and delivery by it of the Original
Agreements to which it is a party, this Agreement, the Tax Indemnity
Agreement or the Trust Agreement nor the performance of its obligations
hereunder or thereunder requires the consent or approval of or the
giving of notice to, the registration with, or the taking of any other
action in respect of, any governmental authority or agency that would be
required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the
interests to be acquired by it under this Agreement constitutes assets
(within the meaning of ERISA and any applicable rules and regulations)
of any employee benefit plan subject to Title I of ERISA or of any plan
or individual retirement account subject to Section 4975 of the Code;
(ix) it has a consolidated tangible net worth of not less than
$75,000,000; and
(x) the representations and warranties of the Owner Participant
set forth in the Original Agreements to which it is a party were correct
on and as of the Delivery Date (except to the extent such
representations expressly related solely to a specified earlier date, in
which case such warranties and representations were correct on and as of
such earlier date) .
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in
this Agreement with respect to laws, rules or regulations relating to
aviation or to the nature or use of the equipment owned by the Owner
Trustee, including, without limitation, the airworthiness, value,
condition, workmanship, design, patent or trademark infringement,
operation, merchantability or fitness for use of the Aircraft, other than
such laws, rules or regulations relating to the citizenship requirements of
the Owner Participant under applicable aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it
(or an Affiliate thereof) against, on or with respect to the Aircraft or
the Lessor's Estate or the Trust Indenture Estate, and that there will not
be any Lessor's Lien attributable to it (or an Affiliate thereof) against,
on or with respect to the Aircraft or the Lessor's Estate or the Trust
Indenture Estate attributable to it (or an Affiliate thereof) on the
Refunding Date. The Owner Participant agrees with and for the benefit of
the Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through
Trustee that the Owner Participant will, at its own cost and expense, take
such action as may be necessary (by bonding or otherwise, so long as
neither the Lessee's operation and use of the Aircraft nor the validity and
priority of the Lien of the Indenture is impaired) to duly discharge and
satisfy in full, promptly after the same first becomes known to the Owner
Participant, any Lessor's Lien against, on or with respect to the Aircraft
or the Lessor's Estate or the Trust Indenture Estate attributable to the
Owner Participant (or an Affiliate thereof), provided, however, that the
Owner Participant shall not be required to discharge or satisfy such
Lessor's Lien which is being contested by the Owner Participant in good
faith and by appropriate proceedings so long as such proceedings do not
involve any material danger of the sale, forfeiture or loss of the Aircraft
or the Lessor's Estate or the Trust Indenture Estate or any interest in any
thereof or otherwise materially adversely affect the validity or priority
of the Lien of the Indenture.
(c) Indemnity for Lessor's Liens. The Owner Participant agrees
to indemnify and hold harmless the Lessee, the Indenture Trustee and the
Pass Through Trustee from and against any loss, cost, expense or damage
which may be suffered by the Lessee, the Indenture Trustee or the Pass
Through Trustee as the result of the failure of the Owner Participant to
discharge and satisfy any Lessor's Liens attributable to the Owner
Participant (or an Affiliate thereof) and required to be discharged as
described in Section 7.03(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time
after all obligations of the Owner Participant under Section 2.01(d) hereof
have been satisfied in full, the Owner Participant may assign, convey or
otherwise transfer to a single institutional investor or an Affiliate of an
institutional investor all (but not less than all) of the Beneficial
Interest, provided that it gives the Lessee and the Indenture Trustee at
least 10 Business Days' notice of such assignment, conveyance or other
transfer and provided further that the Owner Participant shall remain
liable for all obligations of the Owner Participant under the Trust
Agreement and the Operative Agreements to which the Owner Participant is a
party to the extent (but only to the extent) incurred on or before the date
of such transfer and provided that the transferee agrees by a written
instrument in form and substance reasonably satisfactory to the Indenture
Trustee, the Owner Trustee and the Lessee to assume primary liability for
all obligations as an Owner Participant under the Trust Agreement and the
other Operative Agreements to which such Owner Participant is a party
incurred after the date of transfer and the Owner Participant shall remain
secondarily liable for all such obligations assumed by its successor as
Owner Participant; provided, that the Owner Participant need not so agree
to remain and shall not be so secondarily liable if (a) such transferee is
(i) a bank, savings institution, finance company, leasing company or trust
company, national banking association acting for its own account or in a
fiduciary capacity as trustee or agent under any pension, retirement,
profit sharing or similar trust or fund, insurance company, fraternal
benefit society or corporation acting for its own account having a combined
capital and surplus (or, if applicable, consolidated tangible net worth or
its equivalent) of not less than $75,000,000, (ii) a direct or indirect
subsidiary of any Person described in clause (i) where such Person provides
(A) support for the obligations assumed by such transferee subsidiary
reasonably satisfactory to the Lessee, the Owner Trustee and the Indenture
Trustee or (B) an unconditional guaranty reasonably satisfactory to the
Lessee, the Owner Trustee and the Indenture Trustee of such transferee
subsidiary's obligations, or (iii) an Affiliate of the transferring Owner
Participant, so long as such Affiliate has a combined capital and surplus
(or, if applicable, consolidated tangible net worth or its equivalent) of
not less than $75,000,000, (b) such transferee is legally capable of
binding itself to the obligations of the Owner Participant and expressly
agrees to assume all obligations of the Owner Participant under the Trust
Agreement and this Agreement and (c) such transferee shall provide
representations substantially similar to those contained in Section 7.03(a)
hereof. In the event of any such assignment, conveyance or transfer, the
transferee shall become a party to the Trust Agreement and shall agree to
be bound by all the terms of and will undertake all of the obligations of
the Owner Participant contained in the Trust Agreement and the other
Operative Agreements in such manner as is reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Lessee. A transferee
hereunder shall be (i) a "U.S. Person" as defined in Section 7701(a) (30)
of the Code (or any successor provision thereto) or if the transferee shall
not be such "U.S. Person" then (A) each Certificate Holder shall be
provided an indemnity in form and substance satisfactory to each such
Certificate Holder, for any Taxes that may be imposed on such Certificate
Holder (currently or in the future) due to such transferee's failure to be
such a "U.S. Person" and (B) such transferee shall be personally liable
for any debt service to the extent that its receipt of rentals is reduced
by reason of any withholding Taxes that result from such transferee's
failure to be such a "U.S. Person" and (ii) a Citizen of the United States
or has established a voting trust, voting powers or other arrangement
reasonably satisfactory to the Indenture Trustee and the Lessee to permit
the Owner Trustee to be the registered owner of the Aircraft under the
Transportation Code. A transferee hereunder shall not be, and in acquiring
the Beneficial Interest shall not use the assets of, an employee benefit
plan subject to Title I of ERISA or an individual retirement account or a
plan subject to Section 4975 of the Code. Assuming the truth of the
representations made in Sections 6.01(m) and 7.06 hereof, no such
assignment, conveyance or transfer shall violate any provision of law or
regulation or create a relationship which would be in violation thereof.
The Owner Trustee shall not be on notice of or otherwise bound by any such
assignment, conveyance or transfer unless and until it shall have received
an executed counterpart of the instrument of such assignment, conveyance or
transfer. Upon any such disposition by the Owner Participant to a
transferee as above provided, the transferee shall be deemed the "Owner
Participant" or "Trustor" for all purposes of the Operative Agreements, and
shall be deemed to have made all the payments previously made by its
transferor and to have acquired the same interest in the Lessor's Estate as
theretofore held by its transferor; and each reference therein to the
"Owner Participant" or "Trustor" shall thereafter be deemed a reference to
such transferee. Notwithstanding anything to the contrary contained in
this Section 7.03(d), in no event shall the Owner Participant transfer its
interest in the Beneficial Interest to any entity whose business is that of
a nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer and which competes with the Lessee in
one of its principal lines of business.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any
other applicable bankruptcy or insolvency statute.
Section 7.04. Representations, Covenants and Warranties of NBD
and the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, NBD
represents and warrants, in its individual capacity with respect to items
(i), (ii), (iii) (A), (iv), (v), (vi), (vii) and (viii) below and as the
Owner Trustee with respect to items (iii) (B) and (v) that:
(i) it is a banking corporation duly incorporated and validly
existing in good standing under the laws of the State of Michigan with
its principal place of business and chief executive office (as such
terms are used in Article 9 of the Uniform Commercial Code) at 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Department and, assuming the Trust Agreement has been duly authorized,
executed and delivered by the Owner Participant, has full corporate
power and authority, in its individual capacity or as the Owner Trustee,
as the case may be, to carry on its business as now conducted, and to
execute, deliver and perform this Agreement, the Original Agreements and
the Operative Agreements to which it is or is to be a party;
(ii) the execution, delivery and performance by NBD, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement, the Original Agreements and the Operative Agreements to which
it is or is to be party have been duly authorized by all necessary
action on its part, and do not contravene its certificate of
incorporation or by-laws; each of this Agreement, the Original
Agreements and the Operative Agreements to which it is or is to be a
party has been duly authorized, executed and delivered by NBD, either in
its individual capacity or as the Owner Trustee, as the case may be, and
neither the execution and delivery thereof nor NBD's performance of or
compliance with any of the terms and provisions hereof or thereof will
violate any Federal or state or local law or regulation governing NBD's
banking or trust powers;
(iii) (A) assuming due authorization, execution and delivery by
each other party thereto, each of the Operative Agreements to which it
is or is to be party when duly executed and delivered will, and each of
the Original Agreements to which it is a party does, to the extent each
such document is entered into by NBD in its individual capacity,
constitute the legal, valid and binding obligation of NBD in its
individual capacity enforceable against it in such capacity in
accordance with its respective terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization or other similar
laws or equitable principles of general application to or affecting the
enforcement of creditors' rights (regardless of whether enforceability
is considered in a proceeding in equity or at law) ;
(B) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or
is to be party when duly executed and delivered will, and each of the
Original Agreements to which it is a party does, to the extent each such
document is entered into by the Owner Trustee in its trust capacity,
constitute the legal, valid and binding obligation of the Owner Trustee
enforceable against it in such capacity in accordance with its
respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights (regardless of whether enforceability
is considered in a proceeding in equity or at law), and the performance
by the Owner Trustee of any of its obligations thereunder does not
contravene any lease, regulation or contractual restriction binding on
the Owner Trustee or any judgement or order applicable to or binding on
it;
(iv) the performance by NBD in its individual capacity of any of
its obligations under this Agreement, the Original Agreements and the
Operative Agreements does not contravene any lease, regulation or
contractual restriction binding on NBD in its individual capacity;
(v) there are no pending or, to its knowledge, threatened actions
or proceedings against NBD before any court or administrative agency
which would materially and adversely affect the ability of NBD, either
in its individual capacity or as the Owner Trustee, as the case may be,
to perform its obligations under this Agreement, the Original Agreements
and the Operative Agreements to which it is or is to be party;
(vi) it shall give the Lessee, the Indenture Trustee and the Owner
Participant at least thirty (30) days' prior written notice in the event
of any change in its chief executive office or name;
(vii) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any
of the Original Agreements and the Operative Agreements to which it is
or is to be a party nor the performance of its obligations hereunder or
thereunder, requires on the part of NBD in its individual capacity or
any of its Affiliates the consent or approval of or the giving of notice
to, the registration with, or the taking of any other action in respect
of, any Federal or state or local governmental authority or agency
governing its banking or trust powers;
(viii) on the Delivery Date the Owner Trustee shall have received
whatever title to the Aircraft as was conveyed to it by AVSA, on the
Refunding Date the Aircraft shall be free of Lessor's Liens attributable
to NBD in its individual capacity and NBD in its individual capacity is
a Citizen of the United States; and
(ix) the representations and warranties of the Owner Trustee set
forth in the Original Agreements to which it is a party were correct on
and as of the Delivery Date (except to the extent such representations
expressly related solely to a specified earlier date, in which case such
warranties and representations were correct on and as of such earlier
date) .
(b) Lessor's Liens. NBD, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity against, on or with respect
to the Aircraft or the Lessor's Estate or the Trust Indenture Estate, and
that there will not be any such Lessor's Liens against, on or with respect
to the Aircraft or the Lessor's Estate or the Trust Indenture Estate on the
Refunding Date. The Owner Trustee, in its trust capacity, and at the cost
and expense of the Lessee, covenants that it will in its trust capacity
promptly, and in any event within 30 days after the same shall first become
known to it, take such action as may be necessary to discharge duly any
Lessor's Liens attributable to it in its trust capacity. NBD, in its
individual capacity, covenants and agrees that it will at its own expense
take such action as may be necessary to duly discharge and satisfy in full,
promptly, and in any event within 30 days after the same shall first become
known to it, any Lessor's Liens against, on or with respect to the Aircraft
or the Lessor's Estate or the Trust Indenture Estate attributable to it in
its individual capacity or the consolidated group of taxpayers of which it
(in such capacity) is a part which may arise at any time after the date of
this Agreement.
(c) Indemnity for Lessor's Liens. NBD, in its individual
capacity, agrees to indemnify and hold harmless the Lessee, the Indenture
Trustee, the Owner Participant, the Pass Through Trustee and the Owner
Trustee from and against any loss, cost, expense or damage which may be
suffered by the Lessee, the Indenture Trustee, the Owner Participant, the
Pass Through Trustee or the Owner Trustee as a result of the failure of NBD
to discharge and satisfy any Lessor's Liens attributable to it in its
individual capacity, as described in Section 7.04(b) hereof.
(d) Securities Act. None of NBD, the Owner Trustee or any Person
authorized by either of them to act on its behalf has directly or
indirectly offered or sold or will directly or indirectly offer or sell any
interest in the Lessor's Estate, or in any similar security relating to the
Lessor's Estate, or in any security the offering of which for purposes of
the Securities Act of 1933, as amended, would be deemed to be part of the
same offering as the offering of the aforementioned securities to, or
solicited any offer to acquire any of the same from, any Person. NBD
further represents and warrants, in its individual capacity and as the
Owner Trustee, that neither it nor anyone acting on its behalf shall own
the Certificates.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity
(other than as a Loan Participant, the Pass Through Trustee or the Agent)
represents as follows:
(i) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States of
America and has the power and authority to enter into and perform its
obligations under the Indenture, this Agreement and the Original
Agreements to which it is a party and to authenticate the Certificates
to be delivered on the Refunding Date;
(ii) the Indenture and this Agreement, and the authentication of
the Certificates to be delivered on the Refunding Date have been duly
authorized by all necessary action on its part, and neither the
execution and delivery thereof nor its performance of any of the terms
and provisions thereof will violate any Federal, state or local law or
regulation relating to its banking or trust powers or contravene or
result in any breach of, or constitute any default under, its articles
of association or by-laws;
(iii) each of the Indenture, this Agreement and the Original
Agreements and the other Operative Agreements to which it is a party has
been duly executed and delivered by it and, assuming that each such
agreement is the legal, valid and binding obligation of each other party
thereto, is the legal, valid and binding obligation of the Indenture
Trustee, enforceable against the Indenture Trustee in accordance with
its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles
of general application to or affecting the enforcement of creditors'
rights;
(iv) neither the execution and delivery by it of this Agreement and
the Original Agreements and the other Operative Agreements to which it
is or is to be a party, nor the performance by it of any of the
transactions contemplated hereby or thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any Federal, state or local
governmental authority or agency governing its banking and trust powers;
(v) the representations and warranties of the Indenture Trustee
set forth in the Original Agreements to which it is a party were correct
on and as of the Delivery Date (except to the extent such
representations expressly related solely to a specified earlier date, in
which case such warranties and representations were correct on and as of
such earlier date) ; and
(vi) the Indenture Trustee holds the original counterparts of the
Original Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there
are no Indenture Trustee's Liens attributable to it in its individual
capacity against, on or with respect to the Aircraft or the Lessor's Estate
or the Trust Indenture Estate, and that there will not be any Indenture
Trustee's Liens against, on or with respect to the Aircraft or the Lessor's
Estate or the Trust Indenture Estate on the Refunding Date. The Indenture
Trustee, in its individual capacity, covenants and agrees that it will at
its own expense take such action as may be necessary to duly discharge and
satisfy in full, promptly, and in any event within 30 days after the same
shall first become known to it, any Indenture Trustee's Liens against, on
or with respect to the Aircraft or the Lessor's Estate or the Trust
Indenture Estate.
(c) Indemnity for Indenture Trustee's Liens. The Indenture
Trustee, in its individual capacity, agrees to indemnify and hold harmless
the Lessee, the Owner Participant, the Owner Trustee and the Pass Through
Trustee from and against any loss, cost, expense or damage which may be
suffered by the Lessee, the Indenture Trustee, the Owner Participant, the
Owner Trustee or the Pass Through Trustee as a result of the failure of the
Indenture Trustee to discharge and satisfy any Indenture Trustee's Liens
attributable to it in its individual capacity, as described in Section
7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The
Indenture Trustee agrees to give the Owner Participant notice of any
Default promptly upon a Responsible Officer of the Indenture Trustee having
actual knowledge thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and the Owner
Participant, to execute and deliver the instruments of release from the
Lien of the Indenture which it is required to execute and deliver in
accordance with the provisions of Article XIV of the Indenture, and the
Owner Participant agrees, for the benefit of the Lessee, to cause the Owner
Trustee to request the Indenture Trustee to execute and deliver such
instruments of release upon written notice from the Lessee to make such
request.
Section 7.08. Covenant of Quiet Enjoyment. The Owner
Participant, the Indenture Trustee, the Pass Through Trustee and the Owner
Trustee covenants and agrees as to itself only that, so long as no Event of
Default under the Lease has occurred and is continuing, neither such Owner
Participant (or the Owner Trustee, the Indenture Trustee or the Pass
Through Trustee, as the case may be) nor any Person lawfully claiming
through such Owner Participant (or the Owner Trustee, the Indenture Trustee
or the Pass Through Trustee, as the case may be) shall interfere with the
Lessee's right quietly to enjoy the Aircraft during the Term without
hindrance or disturbance by such Owner Participant (or the Owner Trustee,
the Indenture Trustee or the Pass Through Trustee, as the case may be) .
Section 7.09. Original Loan Participants' and Pass Through
Trustee's Representations and Warranties. (a) Each Original Loan
Participant represents and warrants that the representations and warranties
made by it in Sections 7.01(a) and 7.06 of the Original Participation
Agreement were correct on and as of the Delivery Date (except to the extent
such representations expressly related solely to a specified earlier date,
in which case such representations and warranties were correct on and as of
such earlier date) .
(b) The Pass Through Trustee, in its individual capacity (except
with respect to clause (iii) below), represents and warrants as of the date
hereof (except as otherwise provided), as of the Pass Through Closing Date
and as of the Refunding Date that:
(i) it is a validly existing national banking association duly
organized under the laws of the United States of America, holding a
valid certificate to do business as a national banking association with
banking and trust powers and has the corporate power and authority to
enter into and perform its obligations under the Pass Through Agreement,
the Series Supplements and this Agreement and to execute and
authenticate the Pass Through Certificates to be delivered on the Pass
Through Closing Date;
(ii) the execution, delivery and performance of this Agreement, the
Pass Through Agreement and the Series Supplements and the performance of
its obligations hereunder and thereunder (including the execution and
authentication of the Pass Through Certificates to be delivered on the
Pass Through Closing Date) have been fully authorized by all necessary
corporate action on its part, and, subject to (A) the registration of
the issuance and sale of the Pass Through Certificates under the
Securities Act, (B) compliance with any applicable state securities laws
and (C) the qualification of the Pass Through Agreement under the Trust
Indenture Act, neither the execution and delivery thereof nor its
performance of any of the terms and provisions thereof will violate any
Federal or New York law or regulation relating to its banking or trust
powers or contravene or result in any breach of, or constitute any
default under its articles of association, or bylaws or the provisions
of any indenture, mortgage, contract or other agreement to which it is a
party or by which it or its properties may be bound or affected; and
(iii) each of this Agreement and the Pass Through Agreement has
been, and as of the Pass Through Closing Date the Series Supplements
will be, duly executed and delivered by it (in its individual and trust
capacities) and, assuming that each such agreement is the legal, valid
and binding obligation of each other party thereto, is or will be, as
the case may be, the legal, valid and binding obligation of the Pass
Through Trustee (in its individual and trust capacities), enforceable in
accordance with its respective terms except as limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law) .
Section 7.10. Survival of Representations, Warranties and
Covenants. The representations, warranties and covenants of the Owner
Participant, the Owner Trustee (in its individual or trust capacity), the
Pass Through Trustee (in its individual or trust capacity) and the
Indenture Trustee (in its individual or trust capacity) provided for in
this Article 7, and their respective obligations under any and all of them,
shall survive the Closings and the expiration or other termination of this
Agreement, and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a)
Subject to compliance by the Lessee with all of its obligations under the
Operative Agreements, each of the Owner Participant, the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee and the Lessee covenants and
agrees that if the Lessee elects to terminate the Lease and to purchase the
Aircraft pursuant to Section 4.02(a) (A), (D), (E) or (F) of the Lease, and
so long as no Event of Default shall have occurred and be continuing then,
upon compliance with the applicable provisions of said Section 4.02(a) of
the Lease, the Owner Trustee will transfer to the Lessee, without recourse
or warranty (except as to the absence of Lessor's Liens attributable to the
Owner Trustee) but subject to the Lien of the Indenture, all of the Owner
Trustee's right, title and interest in and to the Aircraft, and if the
Lessee, in connection with such purchase, elects pursuant to Section
4.02(a) (A), (D), (E) or (F) of the Lease to assume the obligations of the
Owner Trustee to the Indenture Trustee and the Holders under the Indenture,
the Certificates and hereunder, and each of the parties shall execute and
deliver appropriate documentation permitting the Lessee to assume such
obligations on the basis of full recourse to the Lessee, maintaining for
the benefit of the Holders the security interest in the Aircraft created by
the Indenture, and upon compliance with the provisions of this Section 7.11
releasing the Owner Participant and the Owner Trustee from all obligations
in respect of the Certificates, the Indenture, this Agreement and all other
Operative Agreements, except any obligations which shall have arisen (or
with respect to events which shall have occurred) prior to such assumption
and take all such other actions as are reasonably necessary to permit such
assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument
satisfactory in form and substance to the Indenture Trustee (A) pursuant
to which the Lessee irrevocably and unconditionally assumes and
undertakes, with full recourse to the Lessee, to pay, satisfy and
discharge when and as due (at the stated maturity thereof, by
acceleration or otherwise) the principal of, Make-Whole Premium, if any,
interest and all other sums owing on all Outstanding Certificates (or on
the Lessee's substituted obligations) in accordance with their terms and
to punctually perform and observe all of the covenants and obligations
hereunder and under the Indenture and the Certificates (as the same may
be amended in connection with such assumption) to be performed or
observed by the Owner Trustee and (B) which contains amendments to the
Indenture, in form and substance satisfactory to the Indenture Trustee
and the Holders, that incorporate therein such provisions from the Lease
and this Agreement as may be appropriate, including, without limitation,
events of default substantially identical in scope and effect to those
set forth in the Lease and covenants substantially identical to the
covenants of the Lessee hereunder and under the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating
thereto, and any other documents which shall be necessary (or reasonably
requested by the Indenture Trustee) to establish the Lessee's title to
and interest in the Aircraft or to reflect the substitution of the
Lessee for the Owner Trustee under the Operative Agreements or to
continue the perfection of the security interests in the Aircraft and
the other rights, Property and interests included in the Trust Indenture
Estate for the benefit of the Holders (or the Lessee's substituted
obligations) shall be filed in such form, manner and places as are
necessary or, in the reasonable opinion of the Indenture Trustee,
advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of
the effective date of such assumption with the terms of Article 13 of
the Lease (as it relates to the Indenture Trustee) relating to the
insurance with respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from
the Lessee that no Event of Default shall have occurred and be
continuing as of the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with
respect to the compliance of the assumption contemplated hereby with the
terms, provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y)
with respect to the continued perfection of the first and prior Lien and
security interest in the Aircraft for the benefit of the Holders of the
Certificates (or the Lessee's substituted obligations) referred to in
paragraph (ii) of this Section 7.11(b) and (z) with respect to the
continued availability of the benefits of Section 1110 of the Bankruptcy
Code to the Indenture Trustee for the benefit of the Holders with
respect to the Aircraft after giving effect to such assumption, (B) from
counsel to the Indenture Trustee and Special Aviation Counsel, a legal
opinion comparable to the respective opinions delivered on the Delivery
Date with such changes therein as may be appropriate in light of such
assumption, and (C) in the case of each opinion described in clause (A)
or (B) above, covering such additional matters as the Indenture Trustee
shall reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Pass
Through Trustee, the Owner Trustee and the Owner Participant in connection
with such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity,
but solely as trustee under the Trust Agreement, shall not incur any
indebtedness for borrowed money except as expressly contemplated herein or
in any other Operative Agreement (excluding the Tax Indemnity Agreement)
and shall not engage in any business or other activity other than the
transactions contemplated herein or in any other Operative Agreement and
all necessary or appropriate activity related thereto.
Section 7.13. Compliance with Trust Agreement, etc. Each of the
Owner Participant, NBD and the Owner Trustee agrees with the Lessee, the
Indenture Trustee and the Pass Through Trustee that so long as the Lien of
the Indenture shall be in effect it will (i) comply with all of the terms
of the Trust Agreement applicable to it in its respective capacity, the
noncompliance with which would materially adversely affect any such party
and (ii) not take any action, or cause any action to be taken, to amend,
modify or supplement any provision of the Trust Agreement in a manner that
would adversely affect any such party without the prior written consent of
such party. The Owner Trustee confirms for the benefit of the Lessee, the
Indenture Trustee and the Pass Through Trustee that it will comply with the
provisions of Article 2 of the Trust Agreement. Notwithstanding anything
else to the contrary in the Trust Agreement, so long as the Lease remains
in effect, the Owner Participant agrees not to terminate or revoke the
trust created by the Trust Agreement without the consent of the Lessee. If
and so long as the Indenture shall not have been discharged the consent of
the Indenture Trustee shall also be required in connection with any such
termination or revocation and in addition, the Owner Participant will
promptly and duly execute and deliver to the Indenture Trustee such
documents and assurances including, without limitation, conveyances,
financing statements and continuation statements with respect to financing
statements and take such further action as the Indenture Trustee may from
time to time reasonably request and furnish in order to protect the rights
and remedies created or intended to be created in favor of the Indenture
Trustee under the Indenture and to create for the benefit of the
Certificate Holders a valid first priority Lien with respect to, and a
first and prior perfected security interest in, the Trust Indenture Estate.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally.
The Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration
and other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and
intangible), ad valorem, excise and stamp taxes), fees, levies, imposts,
recording duties, charges, assessments or withholdings of any nature
whatsoever, together with any assessments, penalties, fines, additions to
tax or interest thereon (individually, a "Tax," and collectively called
"Taxes"), however imposed (whether imposed upon any Indemnitee, the Lessee,
all or any part of the Aircraft, Airframe, any Engine or any Part or the
Lessor's Estate, Rent or otherwise), by any Federal, state or local
government or taxing authority in the United States, or by any government
or taxing authority of a foreign country or of any political subdivision or
taxing authority thereof or by a territory or possession of the United
States or an international taxing authority relating to:
(i) the acquisition, financing, use or operation of the Aircraft;
(ii) payments under the Original Agreements and the Operative
Agreements;
(iii) the property, or the income or other proceeds received with
respect to the property after an Event of Default under the Lease, by
the Indenture Trustee under the Indenture;
(iv) otherwise with respect to or by reason of the transactions
described in or contemplated by the Original Agreements and the
Operative Agreements;
(v) the payment of the principal or interest or other amounts
payable with respect to the Original Loan Certificates or the
Certificates;
(vi) the Original Loan Certificates, the Certificates or the Pass
Through Certificates or the issuance, acquisition, or refinancing
thereof or the beneficial interests in the Lessor's Estate or the
creation thereof under the Trust Agreement; or
(vii) any assumption by the Lessee pursuant to Section 7.11 of this
Agreement and Section 2.12 of the Indenture.
(b) Exceptions. The indemnity provided for in Section 8.01(a)
shall not extend to any of the following:
(i) with respect to an Indemnitee other than an Original Loan
Participant, Taxes based upon, measured by or with respect to the net or
gross income, items of tax preference or minimum tax or excess profits,
net receipts, value-added taxes (in the nature of an income tax and not
in the nature of a sales, use or similar tax), capital, franchise, net
worth (whether denominated income, excise, capital stock, or doing
business taxes) (other than, in each case, rental, sales, use,
transfer, value-added (in the nature of a sales, use or similar tax and
not in the nature of an income tax), consumption, ad valorem, stamp,
property, or similar taxes) ("Income Taxes"), provided that any such
gross income and gross receipts taxes and any such foreign taxes shall
not be excluded if such Taxes would not have been imposed absent the
location of the Aircraft, Airframe, any Engine or Part in, the presence,
operations or activities of the Lessee and/or its Affiliates or any
other user of the Aircraft, Airframe, any Engine or Part in, the making
of payments from, or any other Lessee (and/or Lessee Affiliate) or other
user contact with, such jurisdiction, and provided further that income
taxes on the Trust Estate shall not be excluded under this paragraph
(b) (i) if the Owner Participant would not have been subject to such
taxes in the absence of the participation of Owner Trustee in the
transaction;
(ii) with respect to an Original Loan Participant, Income Taxes
(other than in the case of a Non-U.S. Person, U.S. federal withholding
taxes on amounts payable with respect to such Holder's Loan Certificate)
except to the extent such Income Tax is imposed (including by way of
increase) by any jurisdiction in which the Indemnitee is subject to tax
(A) as a result of the operation, registration, location, presence,
basing or use of the Aircraft, Airframe, any Engine or any Part thereof,
in such jurisdiction (it being understood that (I) the incremental
Income Taxes described in this clause (A) shall not include any U.S.
Federal income taxes and (II) that to the extent such incremental Income
Taxes give rise to any incremental current Tax benefit in another tax
jurisdiction, that such incremental benefit shall offset and decrease
the incremental Income Taxes determined under this clause (A) ) or (B)
solely as a result of the place of incorporation, principal office,
corporate domicile or the activities of the Lessor, Owner Participant,
the Owner Trustee, the Indenture Trustee, the Lessee or any sublessee in
such jurisdiction (it being understood that to the extent that any
Income Taxes described under this clause (B) give rise to any
incremental current Tax benefit in another tax jurisdiction or another
tax period, that such incremental Tax benefit shall offset and decrease
the Income Taxes determined under this clause (B) ) ; provided, however,
that the provisions of this paragraph (b) (ii) relating to Income Taxes
shall not exclude from the indemnity described in Section 8.01(a) any
Income Taxes for which the Lessee would be required to indemnify an
Indemnitee (x) so that any payment under the Operative Agreements,
otherwise required to be made on an After-Tax Basis, is made on an
After-Tax Basis or (y) pursuant to the last sentence of Section 8.02 of
this Agreement;
(iii) taxes imposed with respect to the Aircraft and arising out of
or measured by acts, omissions, events or periods of time (or any
combination of the foregoing) which occur after the later of (A) the
payment in full of all amounts payable by the Lessee pursuant to and in
accordance with the Operative Agreements, or the earlier discharge in
full of the Lessee's payment obligations under and in accordance with
the Lease and the Operative Agreements (and the Certificates in the case
of the Indenture Trustee or the Trust Indenture Estate if the Lessee
shall have assumed the Certificates pursuant to Section 7.11 of this
Agreement), and (B) the earliest of (x) the expiration of the Term of
the Lease and return of the Aircraft in accordance with Article 12 of
the Lease, (y) the termination of the Lease in accordance with the
applicable provisions of the Lease and return of the Aircraft in
accordance with the Lease, or (z) the termination of the Lease in
accordance with the applicable provisions of the Lease and the transfer
of all right, title and interest in the Aircraft to the Lessee pursuant
to its exercise of any of its purchase options set forth in Section
4.02(a) of the Lease, provided that this exclusion (iii) shall not apply
in respect of any payment made after the dates set forth in clauses (A)
and (B) above or with respect to any event or circumstance occurring on,
with or prior to such return or transfer or period prior to such return
or transfer;
(iv) as to the Owner Trustee, Taxes imposed against the Owner
Trustee upon or with respect to any fees for services rendered in its
capacity as trustee under the Trust Agreement or, as to the Indenture
Trustee, Taxes imposed against the Indenture Trustee upon or with
respect to any fees received by it for services rendered in its capacity
as Owner Trustee under the Indenture;
(v) taxes imposed on an Indemnitee that would not have been
imposed but for the willful misconduct or gross negligence of such
Indemnitee (other than gross negligence or willful misconduct not
actually committed by but instead imputed to such Indemnitee by reason
of such Indemnitee's participation in the transactions contemplated by
the Operative Agreements) or the breach by such Indemnitee of any
representation, warranty or covenant contained in the Operative
Agreements or any document delivered in connection therewith (unless
attributable to a breach of representation, warranty or covenant of the
Lessee);
(vi) taxes imposed on the Owner Trustee or the Owner Participant or
any successor, assign or Affiliate thereof which became payable by
reason of any voluntary or involuntary transfer or disposition by such
Indemnitee subsequent to the Delivery Date, including revocation of the
Trust, of any interest in some or all of the Aircraft, Airframe, Engines
or Parts thereof or its interest in the Lessor's Estate except, in each
case, Taxes following or as a result of the exercise of remedies or in
connection with the exercise by the Lessee of one of its options to
purchase other than at Fair Market Value (it being understood that any
disposition of the Aircraft or the Airframe, any Engine or Part as a
result of the substitution, replacement or modification thereof by the
Lessee or by reason of any action taken by the Lessee or any other user
of the Aircraft, Airframe or any Engine pursuant to Sections 7, 8, or 9
of the Lease shall not be treated as a voluntary or involuntary transfer
or disposition, and that in the event that the Lessee exercises any of
its purchase options at Fair Market Value, the Lessee will, to the
extent practicable, cooperate to ensure delivery of the Aircraft in a
jurisdiction where there are no sales, transfer or similar Taxes to be
imposed);
(vii) Taxes imposed on the Owner Participant for which the Lessee
is obligated to indemnify the Owner Participant pursuant to the Tax
Indemnity Agreement;
(viii) Taxes imposed on a successor, assign or other transferee of
the Owner Participant that is not a U.S. Person or of any other
original Indemnitee (including, without limitation, a transferee which
is a new lending office of an original Indemnitee) (other than the
Owner Trustee) which on the Refunding Date is an Indemnitee (for
purposes of this clause (viii), an "original Indemnitee") or such
original Indemnitee to the extent that such Taxes exceed the amount of
Taxes that would have been imposed (in the case of an Original Loan
Participant, immediately after giving effect to such succession,
assignment or other transfer) and would have been indemnifiable pursuant
to Section 8.01(a) had there not been a succession, assignment or other
transfer by such original Indemnitee of any such interest of such
Indemnitee in the Aircraft or any part thereof, any interest in or under
any Operative Agreement, or any proceeds thereunder (it being understood
that for purposes of determining the amount of indemnification that
would have been due to such original Indemnitee with respect to a net
income Tax, it shall be assumed that such original Indemnitee would be
subject to taxation on its income at the highest marginal statutory rate
applicable to it); provided, however, that the exclusion provided by
this clause (viii) shall not apply in the case of a succession,
assignment or other transfer (1) while an Event of Default under the
Lease or the Indenture has occurred and is continuing; (2) required by
any provision of the Operative Agreements (other than pursuant to
Section 7.02 hereof) or (3) in the case of the Owner Participant or any
of its Affiliates, to any Tax other than an Income Tax;
(ix) As to any Original Loan Certificate Holder or Certificate
Holder, any U.S. federal withholding taxes imposed on the payment or
receipt of any amounts payable with respect to the Original Loan
Certificates of an Original Loan Certificate Holder or a Certificate of
a Certificate Holder, as the case may be, which is a Non-U.S. Person,
unless, in the case of an Original Loan Certificate Holder, such
Indemnitee (I) either (A) delivers to the Indenture Trustee and the
Lessor two Treasury Department Forms 4224 with respect to any and all
payments under the Loan Certificates, (B) delivers to the Indenture
Trustee and the Lessor a Treasury Department Form 1001 entitling such
Holder to a complete exemption from such U.S. withholding tax on
interest, or (C) delivers to Indenture Trustee and the Lessor a Treasury
Department Form W-8, in each case, evidencing such Indemnitee's partial
or complete exemption from United States withholding taxes, and (II)
executes and delivers to the Indenture Trustee and the Lessor additional
Treasury Department Forms 4224, 1001, or W-8 (or any successor forms),
as applicable in such manner and at such times as may be necessary to
evidence such exemption (unless and to the extent that, in the case of
any Loan Participant, such Indemnitee is not legally entitled to do so
as a result of a change in law or regulation enacted, adopted or
promulgated after the acquisition by it of its Loan Certificates) (in
the event that the Lessee assumes the debt, an Original Loan Participant
shall be deemed to have become such when it first acquired its Original
Loan Certificate); provided, however, that the provisions of this
paragraph (b) (viii) shall not apply to any withholding taxes for which
the Lessee would be required to indemnify an Original Loan Certificate
Holder so that any payment under the Operative Agreements, otherwise
required to be made on an After-Tax Basis, is made on an After-Tax
Basis;
(x) any Taxes which have been included in the Purchase Price and
which have been paid to the applicable taxing authorities;
(xi) any Taxes which would not have been imposed but for a Lessor's
Lien with respect to the Owner Participant or an Indenture Trustee's
Lien with respect to the Indenture Trustee;
(xii) any Taxes arising under or in connection with any prohibited
transaction, within the meaning of Section 406 of ERISA or Section
4975(c) (1) of the Code ("Prohibited Transaction"); provided, however,
that in the event Prohibited Transaction Exemption 89-88, appearing at
54 Fed. Reg. 42581 (1989), or any other comparable prohibited
transaction exemption, (individually or collectively, a "PTE") is not
valid or is not applicable in any respect to the purchase and holding of
the Pass Through Certificates, then the indemnity provided for in
Section 8.01(a) hereof shall extend to Taxes imposed on the Owner
Participant as the result of any Prohibited Transaction occurring with
respect to the purchase or holding of any Pass Through Certificate by an
employee benefit plan subject to Title I of ERISA or by a plan subject
to Section 4975 of the Code (individually or collectively, an "ERISA
Plan") with respect to which ERISA Plan the Owner Participant is a party
in interest, within the meaning of Section 3(14) of ERISA, or a
disqualified person, within the meaning of Section 4975 of the Code,
except, however, that such indemnity shall not extend to any Taxes
imposed on the Owner Participant as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Pass Through Certificate (A) over which purchase or holding the Owner
Participant or any Affiliate thereof has discretion or control (other
than in the capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16) (B) of ERISA; and provided
further, however, that in the event the PTE is not valid or applicable
in any respect to the purchase and holding of the Pass Through
Certificates and the Lessee had failed to obtain from the manager or
co-manager of the underwriting syndicate of the Pass Through Certificates a
representation that such manager or co-manager has a PTE, then the
indemnity provided for in Section 8.01(a) hereof shall extend to Taxes
imposed on the Owner Participant as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Pass Through Certificate by an ERISA Plan with respect to which the
Owner Participant is a party in interest or a disqualified person,
except, however, that such indemnity shall not extend to Taxes resulting
from any Prohibited Transaction occurring with respect to the purchase
or holding of any Pass Through Certificates by an ERISA Plan with
respect to which the Owner Participant (or any Affiliate thereof) is a
"plan sponsor", within the meaning of Section 3(16) (B) of ERISA; and
(xiii) Taxes imposed by any jurisdiction that would have been imposed on
the Lessor or the Owner Participant for activities in such jurisdiction
unrelated to the transactions contemplated by the Operative Agreements
to the extent imposed on such unrelated activities.
(c) Withholding. The Pass Through Trustee shall withhold any
Taxes required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from or reduction in the rate of
withholding on interest claimed by such holder of a Pass Through
Certificate. The Indenture Trustee shall withhold any Taxes required to be
withheld on any payment to a Holder pursuant to Section 5.09 of the
Indenture. If the Indenture Trustee or the Pass Through Trustee fails to
withhold a Tax required to be withheld with respect to any Holder of a
Certificate or any holder of a Pass Through Certificate or any claim is
otherwise asserted by a taxing authority against the Owner Trustee or Owner
Participant or any of their Affiliates for any withholding tax, the Lessee
will indemnify the Owner Trustee and the Owner Participant and their
Affiliates (and the Indenture Trustee or the Pass Through Trustee, as the
case may be, in turn agrees to indemnify the Lessee) (without regard to
the exclusions set forth in Section 8.01(b) hereof) on an After-Tax Basis
against any such Taxes required to be withheld and any interest and
penalties with respect thereto, along with any other costs (including
reasonable attorney's fees) incurred in connection with any such claim.
The Indenture Trustee or the Pass Through Trustee, as the case may be, in
its individual capacity (and without recourse to the Trust Indenture
Estate), shall indemnify the Lessee on an After-Tax Basis for any payment
the Lessee shall have made pursuant to the preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall
be required to pay with respect to any Tax indemnified against under
Section 8.01 shall be an amount sufficient to restore the Indemnitee, on an
After-Tax Basis, to the same position such party would have been in had
such Tax not been incurred, provided that the calculation of any additional
amounts owing to any Indemnitee as a result of the Lessee's obligation to
indemnify on an After-Tax Basis shall be made without regard to the
exclusions set forth in Section 8.01(b). If any Indemnitee actually
realizes a permanent tax benefit by reason of the payment of any Tax paid
or indemnified against by the Lessee, such Indemnitee shall promptly pay to
the Lessee to the extent such tax benefit was not previously taken into
account in computing such payment, but not before the Lessee shall have
made all payments then due to such Indemnitee under this Agreement, the Tax
Indemnity Agreement, the Original Agreements and any other Operative
Agreement, an amount equal to the lesser of (x) the sum of such permanent
tax benefit plus any other permanent tax benefit actually realized by such
Indemnitee that would not have been realized but for any payment made by
such Indemnitee pursuant to this sentence and not already paid to the
Lessee, and (y) the amount of the payment made under Sections 8.01 and 8.02
by the Lessee to such Indemnitee plus the amount of any other payments by
the Lessee to such Indemnitee theretofore required to be made under
Sections 8.01 and 8.02 (and the excess, if any, of the amount described in
clause (x) above over the amount described in clause (y) above shall be
carried forward and applied to reduce pro tanto any subsequent obligations
of the Lessee to make payments to such Indemnitee pursuant to Section
8.01); provided, however, that notwithstanding the foregoing portions of
this sentence, such Indemnitee shall not be obligated to make any payment
to the Lessee pursuant to this sentence as long as an Event of Default
shall have occurred and be continuing under the Lease. The Lessee shall
reimburse on an After-Tax Basis such Indemnitee (and without regard to
Section 8.01(b), except for clause (v) thereof) for any payment of a tax
benefit pursuant to the preceding sentence (or a tax benefit otherwise
taken into account in calculating the Lessee's indemnity obligation
hereunder) to the extent that such tax benefit is subsequently disallowed
or reduced (including the expiration of any tax credit carryovers or
carrybacks of such Indemnitee that would not otherwise have expired) .
Section 8.03. Time of Payment. Any amount payable to an
Indemnitee pursuant to this Article 8 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such
indemnity and the computation of the amount so payable, provided that in
the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04, such amount
shall be payable 30 days after the time such contest is finally resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a
payment or indemnity hereunder, such Indemnitee shall promptly give the
Lessee notice in writing of such claim and shall furnish the Lessee with
copies of any requests for information from any taxing authority relating
to such Taxes with respect to which the Lessee may be required to indemnify
hereunder; provided, however, that the failure of an Indemnitee to give
such notice or furnish such copy shall not terminate any of the rights of
such Indemnitee under this Article 8, except to the extent that the
Lessee's contest rights have been materially and adversely impaired by the
failure to provide such notice or copy. The Lessee may, at its option,
contest or, if required by law, require the Indemnitee to contest in good
faith, with due diligence and at the Lessee's expense, if timely requested
in writing by the Lessee, the validity, applicability or amount of such
Taxes by:
(i) resisting payment thereof if lawful and practicable or not
paying the same except under protest if protest is necessary and proper
in each case so long as non-payment will not result in a material risk
of the sale, forfeiture or loss of, or the creation of a Lien other than
a Lessor's Lien on the Aircraft, Airframe or any Engine or any risk of
criminal liability; or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in
which to contest such Taxes, and shall periodically or upon the Lessee's
request advise the Lessee of the progress of such contest; provided,
however, that the Lessee shall have the right to be consulted in good faith
with respect to any contest, including governmental and judicial
conferences and the right to be consulted in good faith regarding all
related submissions to any governmental or other authority, provided,
however, that the Lessee shall be permitted to participate in any such
contest only (x) with respect to issues that can be separated on audit from
any Taxes for which the Lessee is not required to indemnify the Indemnitee
hereunder, and (y) if the Indemnitee shall have determined that in its
judgement, exercised in its sole discretion, neither such participation nor
the separation of issues will adversely affect the Indemnitee.
Notwithstanding the preceding sentences of this Section 8.04, such
Indemnitee shall not be required to take or continue any action unless the
Lessee shall have (i) agreed to pay and shall pay the Indemnitee on a
current basis all reasonable fees and expenses which such Indemnitee may
incur as a result of contesting such Taxes, (ii) delivered to the
Indemnitee a written acknowledgment of the Lessee's obligation to such
Indemnitee pursuant to this Agreement to the extent that the contest is not
successful and of the inapplicability of any exclusion or defenses thereto,
provided, however, that such acknowledgement shall not preclude the Lessee
from raising defenses to liability under this Agreement if a decision in
such contest is rendered which clearly articulates the cause of such Tax
and the cause, as so articulated, is not one for which the Lessee is
responsible to pay an indemnity hereunder, and (iii) made all payments and
indemnities (other than contested payments and indemnities) then due to the
Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements. In no event shall such
Indemnitee be required to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received an
opinion of independent tax counsel, at the Lessee's expense, selected by
the Lessee and reasonably satisfactory to such Indemnitee ("Tax Counsel")
to the effect that there exists Substantial Authority for contesting such
claim, (ii) such Indemnitee (and, if such Indemnitee is not the Owner
Participant, the Owner Participant and such Indemnitee) shall have
determined that such contest will not result in any material risk of loss,
sale or forfeiture of, or the creation of a Lien (other than Lessor's
Liens) on, the Aircraft or any part thereof or interest thereon or in a
risk of criminal liability, or adversely affect the Trust Indenture Estate,
(iii) if an Event of Default shall have occurred and be continuing, the
Lessee shall have provided security for its obligations hereunder
reasonably satisfactory to the Indemnitee, (iv) if such contest shall be
conducted in a manner requiring payment of the claim in advance, the Lessee
shall have advanced sufficient funds, on an interest free basis, to make
the payment required, and agreed to indemnify the Indemnitee against any
additional net adverse tax consequences on an After-Tax Basis to such
Indemnitee of such advance and (v) the issue shall not be the same as an
issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received, at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee,
of Tax Counsel, to the effect that the applicable circumstances or law has
changed and, in light thereof, there is Substantial Authority for
contesting such claim and (viii) the amount of the indemnity payments the
Lessee would be required to make with respect to such adjustment, when
aggregated with similar adjustments that could be raised in other taxable
years of such Indemnitee is at least $50,000; provided, that in the event
that such Indemnitee is not required under this paragraph to contest any
Tax liability for which the Lessee is obligated to indemnify any
Indemnitee, the Lessee may contest such Tax liability in the name of the
Lessee, if permitted by law.
The Lessee may appeal or require the Indemnitee to appeal any
judicial decision (including to the U.S. Supreme Court), provided that the
Lessee may not require the Indemnitee to appeal any judicial decision
unless (i) it receives an opinion of Tax Counsel, at the Lessee's sole
expense, to the effect that it is more likely than not that such appeal
will be successful, and (ii) the Indemnitee shall have made a good faith
determination that it shall not be adversely affected by such appeal.
Nothing contained in this Section 8.04 shall require any
Indemnitee to contest or continue to contest, or permit Lessee to contest,
a claim which such Indemnitee would otherwise be required to contest
pursuant to this Section 8.04, if such Indemnitee shall waive payment by
Lessee of any amount that might otherwise be payable by Lessee under this
Article 8 in connection with such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund
of all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified
such Indemnitee, and provided there shall not have occurred and be
continuing any Event of Default by the Lessee hereunder or under the Lease
(in which case payment shall not be made to the Lessee until such Event of
Default shall have been cured), such Indemnitee shall pay to the Lessee an
amount equal to the amount of such refund less (x) reasonable expenses not
previously reimbursed, (y) all payments then due to such Indemnitee under
this Article 8 and (z) Taxes imposed with respect to the accrual or
receipt thereof, including interest received attributable thereto, plus any
permanent tax benefit actually realized by such Indemnitee as a result of
any payment by such Indemnitee made pursuant to this sentence; provided,
however, that such amount shall not be payable (a) before such time as the
Lessee shall have made all payments or indemnities then due and payable to
such Indemnitee under this Article 8 and (b) to the extent that the amount
of such payment would exceed (i) the amount of all prior payments by the
Lessee to such Indemnitee pursuant to this Article 8 less (ii) the amount
of all prior payments by such Indemnitee to the Lessee pursuant to this
Article 8.
Any subsequent loss of such refund or tax benefit shall be treated
as a Tax subject to indemnification under the provisions of this Article 8
(in the case of any such tax benefit, without regard to Section 8.01(b)
hereof) .
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any obligation of the Lessee under this
Article 8, the Lessee shall make such report or return, except for any such
report or return that the Indemnitee has notified the Lessee that it
intends to file, in such manner as will show the ownership of the Aircraft
in the Owner Trustee and shall send a copy of the applicable portions of
such report or return to the Indemnitee and the Owner Trustee or will
notify the Indemnitee of such requirement and make such report or return in
such manner as shall be satisfactory to such Indemnitee and the Owner
Trustee. The Lessee will provide such information reasonably available to
the Lessee as the Indemnitee may reasonably require from the Lessee to
enable the Indemnitee to fulfill its tax filing requirements with respect
to the transactions contemplated by the Operative Agreements (without
duplication of the requirements of Section 3 of Tax Indemnity Agreement)
and any audit information request arising from any such filing. The
Indemnitee will provide such information reasonably available to it as the
Lessee may reasonably require from such Indemnitee to enable the Lessee to
fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns. The Lessee shall
hold the Indemnitee harmless from and against any liabilities, including
penalties, additions to tax, fines and interest, imposed upon or incurred
by such Indemnitee to the extent directly attributable to any insufficiency
or inaccuracy in any return, statement, or report prepared by the Lessee or
information supplied by the Lessee, or directly attributable to the
Lessee's failure to supply reasonably available information to such
Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall
survive the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax
otherwise indemnifiable hereunder by the Lessee and applicable to the
Aircraft, Airframe, any Engine or Parts, to the extent permitted by the
applicable federal, state, local or foreign law, the Lessee shall pay such
tax directly to the relevant Taxing authority and file any returns or
reports required with respect thereto; provided, however, that the Lessee
shall not make any statements or take any action which would indicate that
the Lessee or any Person other than the Owner Trustee or Owner Participant
is the owner of the Aircraft, the Airframe, any Engine or any Part or which
would otherwise be inconsistent with the terms of the Lease or the Tax
Indemnity Agreement and the position thereunder of the Owner Trustee and
the Owner Participant. Copies of such returns or reports, together with
evidence of payment of any tax due, shall be sent by the Lessee to the
Owner Participant within thirty (30) days after the date of each payment by
the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. If, for
any reason, Lessee is required to make any payment with respect to any
Taxes imposed on any Indemnitee in respect of the transactions contemplated
by the Operative Agreements or on the Aircraft, the Airframe, the Engines,
the Parts of any part thereof, which Taxes are not the responsibility of
Lessee with respect to such Indemnitee, then such Indemnitee shall pay to
Lessee within 30 days of Lessee's demand therefor an amount which equals
the amount actually paid by Lessee with respect to such Taxes.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify
each Indemnitee against and agrees to protect, defend, save and keep
harmless each Indemnitee from any and all liabilities, obligations, losses,
damages, penalties, claims, actions, suits, costs, disbursements and
expenses (including legal fees and expenses (including, without limitation,
the allocated reasonable costs and expenses of in-house counsel to any
Original Loan Participant) and all costs and expenses relating to
amendments, supplements, adjustments, consents, refinancings and waivers
under the Operative Agreements and the Original Agreements except as
otherwise provided in Section 10.01(d) (i) or Section 15 hereof) of every
kind and nature (whether or not any of the transactions contemplated by
this Agreement are consummated) (individually, an "Expense," collectively,
"Expenses"), which may be imposed on, incurred or suffered by or asserted
against any Indemnitee, in any way relating to, based on or arising out of:
(i) the Original Agreements, this Agreement, the Lease, the
Indenture, the Trust Agreement, the Pass Through Trust Agreement, AVSA's
FAA Xxxx of Sale, AVSA's Warranty Xxxx of Sale or any other Operative
Agreement or any other document entered into in connection herewith or
any sublease or transfer or any transactions contemplated hereby or
thereby;
(ii) the operation, possession, use, non-use, maintenance, storage,
overhaul, delivery, non-delivery, control, repair or testing of the
Aircraft, Airframe, or any Engine or any engine used in connection with
the Airframe, or any part thereof by the Lessee, any sublessee or any
other Person whatsoever, whether or not such operation, possession, use,
non-use, maintenance, storage, overhaul, delivery, non-delivery,
control, repair or testing is in compliance with the terms of the Lease,
including without limitation, claims for death, personal injury or
property damage or other loss or harm to any Person whatsoever,
including, without limitation, any passengers, shippers or other Persons
wherever located, and claims relating to any laws, rules or regulations,
including, without limitation, environmental control, noise and
pollution laws, rules or regulation;
(iii) the manufacture, design, sale, return, purchase, acceptance,
rejection, delivery, non-delivery, condition, repair, modification,
servicing, rebuilding, airworthiness, registration, reregistration,
import, export, performance, non-performance, lease, sublease, transfer,
merchantability, fitness for use, alteration, substitution or
replacement of any Airframe, Engine, or Part under the Lease, the
Purchase Agreement, the Purchase Agreement Assignment, the GTA or the
Engine Warranty Assignment or other transfer of use or possession, or
other disposition of the Aircraft, the Airframe, any Engine or any Part
including, without limitation, latent and other defects, whether or not
discoverable, strict tort liability, and any claims for patent,
trademark or copyright infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be
performed, or other obligations of the Lessee under any of the Operative
Agreements or the Original Agreements, or the falsity or inaccuracy of
any representation or warranty of the Lessee in any of the Operative
Agreements or the Original Agreements (other than representations and
warranties in the Tax Indemnity Agreement);
(v) the enforcement of the terms of the Operative Agreements or
the Original Agreements and the administration of the Trust Indenture
Estate; and
(vi) the offer, issuance, sale or delivery of any Certificate or
any Pass Through Certificate or any Original Loan Certificate, or any
refunding or refinancing thereof, or interest in the Lessor's Estate or
the Trust Agreement or the Original Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
or the Original Trust Agreement and the Lessor's Estate, the Indenture
or the Original Indenture or the Trust Indenture Estate (including,
without limitation, any claim arising out of the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, or any
other federal or state statute, law or regulation, or at common law or
otherwise relating to securities), or the action or inaction of the
Owner Trustee or Indenture Trustee as trustees, in the manner
contemplated by this Agreement, the Original Participation Agreement,
the Indenture, the Original Indenture, the Indenture and Security
Agreement Supplement, the Trust Agreement or the Original Trust
Agreement and in the case of the Owner Participant, its obligations
arising under Section 6.01 of the Trust Agreement or the Original Trust
Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but
is not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in the
Aircraft, Airframe, any Engine or Part during the Term, whether or not in
the Lessee's possession or control, insofar as such Expense relates to any
activity or event whatsoever involving such item while it is under lease to
the Lessee (or after termination of the Lease in connection with the
exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements and Original Agreements), and such Expense does not
fall within any of the exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a)
shall not extend to any Expense of any Indemnitee to the extent it:
(i) would not have occurred but for the willful misconduct or
gross negligence of such Indemnitee;
(ii) in respect of the Aircraft, is attributable to acts or events
which occur after the Aircraft is no longer part of the Lessor's Estate
or leased under the Lease or, if the Aircraft remains a part of the
Lessor's Estate, after the expiration of the Term (other than pursuant
to Article 17 of the Lease, in which case the indemnity provided in
Section 9.01(a) hereof shall survive for so long as Lessor shall be
entitled to exercise remedies under such Article 17), or to acts or
events which occur after return of possession of the Aircraft by the
Lessee in accordance with the provisions of the Lease but in any such
case only to the extent not fairly attributable to circumstances or
events occurring prior to expiration of the Term, including without
limitation the Lessee's failure to fully discharge all of its
obligations under the Lease, the other Operative Agreements or the
Original Agreements;
(iii) is a Tax, whether or not the Lessee is required to indemnify
therefor pursuant to Article 8 hereof or pursuant to the Tax Indemnity
Agreement;
(iv) is a cost or expense required to be paid by the Owner
Participant or its permitted transferees (and not by the Lessee)
pursuant to this Agreement or any other Operative Agreement (other than
the Owner Participant's obligations under Section 6.01 of the Trust
Agreement) and for which the Lessee is not otherwise obligated to
reimburse the Owner Participant, directly or indirectly;
(v) would not have been incurred by such Indemnitee if such
Indemnitee had not been in breach of its representations or warranties,
or had not defaulted in the observance and performance of the terms and
provisions required to be observed and performed by it, in this
Agreement, the Purchase Agreement Assignment, the Lease, the Indenture,
the Trust Agreement, the Original Agreements or any other Operative
Agreement to which it is a party unless such breach or default shall be
a result of the breach or default of any of the foregoing by the Lessee
or another Indemnitee;
(vi) is a payment required to be made by the Owner Participant
pursuant to Section 2.01(b) hereof, but nothing contained in this
Section 9.01(b) (vi) shall be deemed or construed to limit the
obligations of the Lessee to the Indenture Trustee and Holders of the
Certificates pursuant to Section 3.05 of the Lease;
(vii) is, in the case of the Owner Participant, Lessor's Liens to
the extent attributable to the Owner Participant; in the case of the
Owner Trustee, Lessor's Liens to the extent attributable to the Owner
Trustee; and in the case of the Indenture Trustee, Indenture Trustee's
Liens;
(viii) is, in the case of the Owner Participant or the Owner
Trustee, attributable to the offer or sale by such Indemnitee after the
Delivery Date of any interest in the Aircraft, the Lessor's Estate or
the Trust Agreement or any similar interest (including an offer or sale
resulting from bankruptcy or other proceedings for the relief of debtors
in which such Indemnitee is the debtor), unless in each case such offer
or sale shall occur (x) in connection with a Refinancing or (y) as a
result of exercise of remedies under Section 17 of the Lease; and
(ix) is incurred under or in connection with any prohibited
transaction, within the meaning of Section 406 of ERISA or Section
4975(c) (1) of the Code ("Prohibited Transaction"); provided, however,
that in the event Prohibited Transaction Exemption 89-88, appearing at
54 Fed. Reg. 42581 (1989), or any other comparable prohibited
transaction exemption, (individually or collectively, a "PTE") is not
valid or is not applicable in any respect to the purchase and holding of
the Pass Through Certificates, then the indemnity provided for in
Section 9.01(a) hereof shall extend to any Expense incurred by the Owner
Participant as the result of any Prohibited Transaction occurring with
respect to the purchase or holding of any Pass Through Certificate by an
employee benefit plan subject to Title I of ERISA or by a plan subject
to Section 4975 of the Code (individually or collectively, an "ERISA
Plan") with respect to which the Owner Participant is a party in
interest, within the meaning of Section 3(14) of ERISA, or a
disqualified person, within the meaning of Section 4975 of the Code,
except, however, that such indemnity shall not extend to any Expense
incurred by the Owner Participant as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Pass Through Certificate (A) over which purchase or holding the Owner
Participant (or any Affiliate thereof) has discretion or control (other
than in the capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16) (B) of ERISA; and provided
further, however, that in the event the PTE is not valid or applicable
in any respect to the purchase and holding of the Pass Through
Certificates and the Lessee had failed to obtain from the manager or
co-manager of the underwriting syndicate of the Pass Through Certificates a
representation that such manager or co-manager has a PTE, then the
indemnity provided for in Section 9.01(a) hereof shall extend to any
Expense incurred by the Owner Participant as the result of any
Prohibited Transaction occurring with respect to the purchase or holding
of any Pass Through Certificate by an ERISA Plan with respect to which
the Owner Participant is a party in interest or a disqualified person,
except, however, that such indemnity shall not extend to any Expense
incurred by the Owner Participant as a result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Pass Through Certificates by an ERISA Plan with respect to which the
Owner Participant (or any Affiliate thereof) is a "plan sponsor", within
the meaning of Section 3(16) (B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall
be required to pay with respect to any Expense indemnified against under
Section 9.01 shall be an amount sufficient to restore the Indemnitee, on an
After-Tax Basis, to the same position such party would have been in had
such Expense not been incurred. If any Indemnitee actually realizes a
permanent Tax benefit by reason of the payment of such Expense paid or
indemnified against by the Lessee which was not considered in the
computation thereof, such Indemnitee shall promptly pay to the Lessee, but
not before the Lessee shall have made all payments theretofore due such
Indemnitee under this Agreement, the Original Agreements, the Tax Indemnity
Agreement and any other Operative Agreement, an amount equal to the lesser
of (x) the sum of such Tax benefit plus any other permanent Tax benefit
actually realized by such Indemnitee as the result of any payment made by
such Indemnitee pursuant to this sentence and (y) the amount of such
payment pursuant to this Section 9.02 by the Lessee to such Indemnitee plus
the amount of any other payments by the Lessee to such Indemnitee
theretofore made pursuant to this Section 9.02 less the amount of any
payments by such Indemnitee to the Lessee theretofore made pursuant to this
Section 9.02 (and the excess, if any, of the amount described in clause (x)
above over the amount described in clause (y) above shall be carried
forward and applied to reduce pro tanto any subsequent obligations of the
Lessee to make payments to such Indemnitee pursuant to this Section 9.02),
it being intended that no Indemnitee should realize a net Tax benefit
pursuant to this Section 9.02 unless the Lessee shall first have been made
whole for any payments by it to such Indemnitee pursuant to this Section
9.02; provided, however, that notwithstanding the foregoing portions of
this sentence, such Indemnitee shall not be obligated to make any payment
to the Lessee pursuant to this sentence so long as an Event of Default
shall have occurred and be continuing. Any Taxes that are imposed on any
Indemnitee as a result of the disallowance or reduction of such Tax benefit
referred to in the next preceding sentence (including the expiration of any
tax credit carryovers or carrybacks of such Indemnitee that would not
otherwise have expired) shall be indemnifiable pursuant to the provisions
of Section 8.01 hereof without regard to Section 8.01(b) hereof.
Section 9.03. Subrogation. Upon the payment in full of any
indemnity pursuant to this Article 9 by the Lessee (but not earlier), the
Lessee shall be subrogated to any right of the Indemnitee, other than with
respect to any of such Indemnitee's insurance policies or in connection
with any indemnity claim the Person indemnified may have against any other
Indemnitee in respect of the matter against which such indemnity has been
made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has knowledge for which the Lessee is, or may be, liable under
this Article 9; provided, however, that failure to give such notice shall
not terminate any of the rights of Indemnitees under this Article 9, except
(with respect to such Indemnitee) to the extent that the Lessee has been
materially prejudiced by the failure to provide such notice. Unless
otherwise provided in the Operative Agreements, any amount payable to an
Indemnitee pursuant to this Article 9 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such
indemnity and the computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery
of all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee
under this Article 9, and provided there shall not have occurred a Payment
Default or an Event of Default (in which case payment shall not be made to
the Lessee until such Payment Default or Event of Default shall have been
cured) such Indemnitee shall pay to the Lessee the amount of any such
recovery, including interest received with respect to the recovery, net of
any Taxes paid or payable as a result of the receipt of the recovery and
interest, plus any net additional permanent income tax benefits actually
realized by Indemnitee as the result of any payment made pursuant to this
sentence less any reasonable costs and expense of any Indemnitee not
reimbursed by the Lessee; provided, however, that such amount shall not be
payable (a) before such time as the Lessee shall have made all payments or
indemnities then due and payable to such Indemnitee under this Article 9 or
(b) to the extent that the amount of such payment would exceed the amount
of all prior payments by the Lessee to such Indemnitee pursuant to this
Article 9, less the amount of all prior payments by such Indemnitee to the
Lessee pursuant to this Article 9. Any subsequent loss of such recovery or
tax benefit shall be subject to indemnification under Article 8 or this
Article 9, as the case may be, but without regard to Section 8.01(b)
hereof, other than Section 8.01(b) (v) hereof.
Section 9.06. Defense of Claims. The Lessee or its insurers
shall have the right (in each such case at the Lessee's sole expense) to
investigate or, provided that (i) the Lessee or its insurers shall not
reserve the right to dispute liability with respect to any insurance
policies pursuant to which coverage is sought, (ii) in the case of the
Lessee, no Event of Default shall have occurred and be continuing and (iii)
the Lessee shall have first acknowledged in writing to such Indemnitee the
Lessee's obligation to indemnify such Indemnitee hereunder in respect of
such claim, defend any such claim covered by insurance for which
indemnification is sought pursuant to this Article 9 and each Indemnitee
shall cooperate with the Lessee or its insurers with respect thereto, and
provided, further, the Lessee shall not be entitled to assume and control
the defense of any such claim if and to the extent such Indemnitee
reasonably objects to such control on the ground that an actual or
potential material conflict of interest exists where it is advisable for
such Indemnitee to be represented by separate counsel. Subject to the
immediately foregoing sentence, where the Lessee or the insurers under a
policy of insurance maintained by the Lessee undertake the defense of an
Indemnitee with respect to such a claim, no additional legal fees or
expenses of such Indemnitee in connection with the defense of such claim
shall be indemnified hereunder unless the fees or expenses were incurred at
the written request of the Lessee or such insurers. Subject to the
requirement of any policy of insurance applicable to a claim, an Indemnitee
may participate at its own expense at any judicial proceeding controlled by
the Lessee or its insurers pursuant to the preceding provisions, to the
extent that such party's participation does not, in the opinion of the
independent counsel appointed by the Lessee or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 9.06.
No Indemnitee shall enter into any settlement or other compromise with
respect to any claim described in this Section 9.06 without the prior
written consent of the Lessee, which consent shall not unreasonably be
withheld or delayed, unless such Indemnitee waives its right to be
indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which the Lessee has not
agreed to discharge or with respect to which the Lessee has not agreed to
indemnify such Indemnitee to such Indemnitee's satisfaction.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall
survive the expiration or other termination of this Agreement, the Tax
Indemnity Agreement, the Trust Agreement, the Indenture, the Purchase
Agreement Assignment, the Engine Warranty Assignment, the Lease and the
other Operative Agreements but, as to such indemnities, only with respect
to losses, liabilities, obligations, damages, penalties, claims, actions,
suits, costs, Expenses and disbursements caused by events occurring or
existing (or fairly attributable to the Lessee's acts or omissions) prior
to or incurred in the process of (i) the return or disposition of the
Aircraft under Article 12 or Article 17 of the Lease, or (ii) the
termination of the Lease or the Indenture or, if later, the return of the
Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's
obligations under the indemnities provided for in this Agreement shall be
those of a primary obligor whether or not the Person indemnified shall also
be indemnified with respect to the same matter under the terms of this
Agreement, the Lease, the Indenture, the Trust Agreement, or any other
document or instrument, and the Person seeking indemnification from the
Lessee pursuant to any provision of this Agreement may proceed directly
against the Lessee without first seeking to enforce any other right of
indemnification.
Section 9.09. Interest. The Lessee will pay to each Indemnitee
on demand, to the extent permitted by applicable law, interest on any
amount of indemnity not paid when due pursuant to this Article 9 until the
same shall be paid, at the Past Due Rate.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a)
Transaction Costs. The Owner Participant shall pay (or reimburse the
Lessee if the Lessee shall have previously made such payment), in addition
to those items set forth in Section 10.01(a) of the Original Participation
Agreement (other than clause (vi) thereof) all fees and expenses of the
following persons relating to the public offering of the Pass Through
Certificates contemplated by the Underwriting Agreement and related to the
transactions contemplated hereby: (i) the fees and expenses of counsel for
the Owner Participant; (ii) the fees and expenses of the transaction
documentation counsel and counsel for the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee, the Original Loan Participants and the
Underwriters (other than those fees, expenses and disbursements payable by
the Underwriters pursuant to the Underwriting Agreement); (iii) the fees
and expenses of Xxxxxxxxx, Xxxxxx & Xxxxxxxx; (iv) any initial fees and
expenses of the Pass Through Trustee and the fees and expenses of the Owner
Trustee and the Indenture Trustee; (v) any compensation, commissions and
discounts payable to the Underwriters pursuant to the Underwriting
Agreement; (vi) the fees, if any, incurred in printing the Pass Through
Certificates; (vii) the fees and expenses incurred in connection with
printing any amendment to the Registration Statement on Form S-3 bearing
Registration No. 33-56569, printing any Preliminary Prospectus or
Prospectus (as such terms are defined in the Underwriting Agreement) for
the offering of the Pass Through Certificates; (viii) the fees and
expenses of Xxxxxx Xxxxxxxx & Co.; (ix) the fees and expenses of Xxxxx'x
and S&P; and (x) the fees and expenses of First Chicago Leasing
Corporation. The fees and expenses described in clauses (ii) through (x)
of this paragraph shall be allocable to the Owner Participant under this
Agreement (1) to the extent incurred specifically with respect to the Owner
Participant or the refunding of the Original Loan Certificates, and (2) to
the extent such fees and expenses are incurred but are not specifically
attributable to the Owner Participant or the refunding of the Original Loan
Certificates, in the proportion that the principal amount of the
Certificates bears to the total amount of the Pass Through Certificates.
The Owner Participant, the Owner Trustee and the Lessee
acknowledge that the percentages for Interim Rent, Basic Rent, Stipulated
Loss Value and Termination Value set forth in the Lease have been prepared
assuming the aggregate amount payable by the Owner Participant pursuant to
the preceding paragraph and Section 10.01 of the Original Participation
Agreement is 1.51% of the Purchase Price (the "Estimated Expense Amount") .
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the
entity acting as Owner Trustee, as lessor under the Lease and as Owner
Trustee under the Trust Agreement with respect to the administration of the
Lease and the Lessor's Estate and the continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses and initial
fees relating to the establishment of any replacement trustee) of the
Indenture Trustee, as trustee under the Indenture with respect to the
administration of the Trust Indenture Estate and the continuing fees,
expenses and disbursements (including reasonable counsel fees and initial
fees relating to the establishment of a replacement trustee) of the Pass
Through Trustee shall be paid as Supplemental Rent by the Lessee, including
without limitation any amounts payable to the Indenture Trustee or on
account of requests by the Indenture Trustee for indemnification under
Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of
the foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, the Owner
Participant, the Indenture Trustee and the Pass Through Trustee all
costs and expenses (including reasonable legal fees and expenses)
incurred by any of them in connection with (a) any Default or Event of
Default and any enforcement or collection proceedings resulting
therefrom, or (b) the enforcement of the obligations of the Lessee
hereunder or under the other Operative Agreements, including, without
limitation, the entering into or giving or withholding of any amendments
or supplements or waivers or consents, including without limitation, any
amendment, supplement, waiver or consent resulting from any work-out,
restructuring or similar proceeding relating to the performance or
nonperformance by the Lessee of its obligations under the Operative
Agreements or (c) any amendment, supplement, waiver or consent (whether
or not entered into) under the Original Agreements, this Agreement, the
Lease, the Indenture, the Certificates, the Tax Indemnity Agreement, the
Purchase Agreement Assignment or any other Operative Agreement or
document or instrument delivered pursuant to any of them, which
amendment, supplement, waiver or consent is required by any provision of
any Operative Agreement or is requested by the Lessee or necessitated by
the action or inaction of the Lessee; provided, however, that the Lessee
shall not be responsible for fees and expenses incurred in connection
with the offer, sale or other transfer (whether pursuant to Section
7.03(d) hereof or otherwise) by the Owner Participant or the Owner
Trustee after the Refunding Date of any interest in the Aircraft, the
Lessor's Estate or the Trust Agreement or any similar interest (and the
Owner Participant shall be responsible for all such fees and expenses),
unless such offer, sale or transfer shall occur (A) during a period when
an Event of Default has occurred and is continuing under the Lease, (B)
during a period following an Event of Loss or (C) in connection with the
termination of the Lease or action or direction of the Lessee pursuant
to Section 4.02 or Article 10 of the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee
may resign or may be removed by the Owner Participant, and a successor
Owner Trustee may be appointed and a Person may become Owner Trustee under
the Trust Agreement only in accordance with the provisions of Section 3.11
of the Trust Agreement and the provisions of paragraphs (b) and (c) of this
Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of
a successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement
shall be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust
company having combined capital, surplus and undivided profits of at
least $100,000,000 or a bank or trust company fully guaranteed by a
direct or indirect parent thereof having a combined capital, surplus and
undivided profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which
the Aircraft may then be registered or create a relationship which would
be in violation of the Transportation Code or any applicable rule or
regulation of the applicable regulatory agency or body of any other
jurisdiction in which the Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement or
agreements, in form and substance reasonably satisfactory to the Lessee,
the Owner Participant, the Pass Through Trustee and the Indenture
Trustee whereby such successor Owner Trustee confirms that it shall be
deemed a party to this Agreement, the Trust Agreement, the Lease, the
Lease Supplement, the Purchase Agreement Assignment, the Engine Warranty
Assignment, the Indenture, the Indenture Supplement and any other
Operative Agreement to which the Owner Trustee is a party and agrees to
be bound by all the terms of such documents applicable to the Owner
Trustee and makes the representations and warranties contained in
Section 7.04 hereof (except that it may be duly incorporated, validly
existing and in good standing under the laws of the United States of
America or any State thereof); and
(v) All filings of Uniform Commercial Code financing and
continuation statements, filings in accordance with the Transportation
Code and amendments thereto shall be made and all further actions taken
in connection with such appointment as may be necessary in connection
with maintaining the validity, perfection and priority of the Lien of
the Indenture and the valid and continued registration of the Aircraft
in accordance with the Transportation Code.
(c) Appointment. For so long as the Aircraft remains registered
under the Transportation Code, the Owner Participant agrees to appoint
promptly a successor Owner Trustee meeting the requirements of Section
11.01(b) hereof in the event the Owner Participant has knowledge that the
Owner Trustee at any time shall not be a Citizen of the United States.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant. The Owner
Participant shall have no obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except
those obligations or duties expressly set forth in this Agreement, the
Trust Agreement, the Tax Indemnity Agreement or any other Operative
Agreement to which the Owner Participant is a party, and the Owner
Participant shall not be liable for the performance by any party hereto of
such other party's obligations or duties hereunder. Under no circumstances
shall the Owner Participant as such be liable to the Lessee, nor shall the
Owner Participant be liable to any Holder, for any action or inaction on
the part of the Owner Trustee or the Indenture Trustee in connection with
this Agreement, the Indenture, the Lease, the Trust Agreement, the Purchase
Agreement Assignment, the Engine Warranty Assignment, any other Operative
Agreement, any Original Agreement, the ownership of the Aircraft, the
administration of the Lessor's Estate or the Trust Indenture Estate or
otherwise, whether or not such action or inaction is caused by the willful
misconduct or gross negligence of the Owner Trustee or the Indenture
Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of
a Certificate shall have no further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal and
interest on all Certificates held by such Holder and all other sums payable
to such Holder under this Agreement, under the Indenture and under such
Certificates shall have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the Trust
Agreement and the Indenture and to all of the terms of said documents, and
the Lessee acknowledges receipt of an executed counterpart of each of the
Trust Agreement and the Indenture; it being agreed that such consent shall
not be construed to require the Lessee's consent to any future supplement
to, or amendment, waiver or modification of, the terms of the Trust
Agreement, the Indenture or the Certificates, except that prior to the
occurrence and continuance of an Event of Default, no section of the
Indenture or the Trust Agreement shall be amended or modified in any manner
which materially adversely affects the Lessee without its consent.
Section 13.02. Further Assurances. The Lessee hereby confirms to
the Owner Participant its covenants set forth in and obligations under the
Lease. The Lessee agrees that, except as otherwise provided in the
Indenture, the Owner Trustee may not enter into any amendment, modification
or supplement of, or give any waiver or consent with respect to, or approve
any matter or document as being satisfactory under the Lease without the
prior consent of the Indenture Trustee and the Owner Participant and that,
except as otherwise provided in the Indenture, upon an Indenture Event of
Default, the Indenture Trustee may act as the Lessor under the Lease to the
exclusion of the Owner Trustee. The Lessee further agrees to deliver to
the Indenture Trustee and the Owner Participant a copy of each notice,
statement, request, report or other communication given or required to be
given to the Owner Trustee under the Lease.
Section 13.03. No Retroactive Application. This Agreement, the
Lease, the Indenture and the Trust Agreement each amend and restate, and
the Tax Indemnity Agreement amends, the respective original agreements with
no intention of retroactive application. The applicable original
agreements have been restated for the convenience of the parties and such
amendments and restatements, and such amendment in the case of the Tax
Indemnity Agreement, are not intended to waive or modify the obligations of
any party which accrued or were to have been performed on or prior to the
Refunding Date under such unamended agreements (or, in the case of this
Agreement, the effective date hereof) or to deprive any party of its rights
and remedies in respect thereof.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and
other communications required by this Agreement shall be in writing and
shall be deemed received (a) if given by telecopier, when transmitted and
the appropriate telephonic confirmation received if transmitted on a
Business Day and during normal business hours of the recipient, and
otherwise on the next Business Day following transmission, (b) if given by
certified mail, return receipt requested, postage prepaid five Business
Days after being deposited in the United States mail and (c) if given by
FedEx service (or, if a Default or Event of Default shall have occurred and
be continuing, by other comparable courier service), when received or
personally delivered, addressed:
(a) if to the Lessee, to its office at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxx 00000, Attention: Vice President and Treasurer with
a copy to Senior Vice President and General Counsel at 0000 Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxx 00000, telephone (000) 000-0000, facsimile
(000) 000-0000; or to such other address as the Lessee shall from time
to time designate in writing to the Lessor, the Indenture Trustee and
the Owner Participant;
(b) if to the Lessor or the Owner Trustee, to its office at 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration Department, telephone (000) 000-0000, facsimile (313)
225-3420; or to such other address as Lessor shall from time to time
designate in writing to the Lessee and the Indenture Trustee, with a
copy to Owner Participant;
(c) if to the Owner Participant, to its office at 000 Xxxx Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Vice President - Leasing,
telephone (000) 000-0000, facsimile (000) 000-0000; or to such other
address as the Owner Participant may from time to time designate in
writing to the Lessee and the Indenture Trustee; and
(d) if to the Indenture Trustee or the Pass Through Trustee, to
its office at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Administration, telephone (000) 000-0000,
facsimile (000) 000-0000; or to such other address as the Indenture
Trustee or the Pass Through Trustee, as the case may be, shall from time
to time designate in writing to the Lessor, the Lessee, the Indenture
Trustee and the Pass Through Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request the Owner
Participant to participate in up to three refinancings (including the
refinancing contemplated by this Agreement on the Refunding Date), in whole
but not in part, of the Certificates prior to the end of the Basic Term (a
"Refinancing"), provided, that, except in connection with the Refinancing
contemplated by this Agreement on the Refunding Date, such Refinancing may
not occur prior to the fifth anniversary of the Refunding Date. Such
Refinancings may be placed in either the private or public markets and
shall be denominated in United States dollars (or in any other foreign
currency so long as there is no foreign currency risk to the Owner
Participant), and shall be on terms that do not materially adversely affect
the Owner Participant. The Owner Participant agrees to negotiate promptly
in good faith to conclude an agreement with the Lessee as to the terms of
any such Refinancing transaction (including the terms of any debt to be
issued in connection with such refinancing and the documentation to be
executed in connection therewith). Without the prior written consent of
the Owner Participant, the prospectus and other offering materials relating
to any Refinancing in the form of a public offering shall not identify the
Owner Participant and shall not include any financial statements of the
Owner Participant or any Affiliate thereof. In connection with any such
Refinancing in the form of a public offering, the Lessee shall indemnify
the Owner Participant for any liabilities under federal, state or foreign
securities laws resulting from such offering. The aggregate principal
amount of the new Certificates issued in connection with each Refinancing
shall be the same as the aggregate principal amount outstanding on the
Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no
Refinancing will be permitted unless the Owner Participant shall have
received at least 10 Business Days' prior written notice of the closing
date of such Refinancing, the Owner Participant shall have been provided
such longer period required for a reasonable opportunity to review the
relevant documentation and the Owner Participant shall have determined in
good faith that neither it nor the Owner Trustee shall suffer any loss or
expense or material adverse effect upon the rights or obligations or bear
any increased risk as a result of such Refinancing (including, without
limitation, any risk with respect to taxes or other adverse consequences to
the Owner Participant including the application of Revenue Procedures 75-21
and 75-28 and Section 467 of the Code) for which it has not been or will
not have been indemnified by the Lessee in a manner reasonably satisfactory
to the Owner Participant.
Prior to the consummation of any Refinancing pursuant to this
Section 15.01, the Owner Participant and the Lessee shall agree upon a
schedule setting forth each installment of Interim Rent, Basic Rent,
Stipulated Loss Values, Termination Values and EBO Price payable pursuant
to the Lease as a result of the Refinancing in accordance with Section 3.04
of the Lease, and thereafter the amounts set forth in such schedule shall
become the amounts payable under the Lease. Upon the consummation of the
Refinancing, the evidence of indebtedness issued pursuant to the
Refinancing shall be considered "Certificates" for purposes of this
Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall
have no obligation to proceed with any Refinancing transaction as
contemplated by this Section 15.01 unless the Lessee indemnifies the Owner
Trustee and the Owner Participant by agreement in form and substance
satisfactory to each of them, for any liability, obligation (other than the
obligation to pay principal and interest in respect of the refinanced
indebtedness), cost or expense (including, without limitation, reasonable
attorneys' fees and Make-Whole Premium and any other premiums or amounts
due under the Indenture), including any adverse tax consequences or impact,
related to or arising out of any such Refinancing transaction, except to
the extent of amounts included in Transaction Costs and payable by the
Owner Participant as provided in Article 10 hereof.
(d) Each party agrees to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participant,
direction to the Owner Trustee by the Owner Participant to prepay the
Certificates then outstanding; provided, however, that such Refinancing
shall be subject to the satisfaction of each of the following conditions:
(i) payment of principal, accrued interest, Make-Whole Premium
and Breakage Costs, if any, and all other sums due and owing on the
Certificates payable under the Indenture;
(ii) payment in full of all other amounts then due and owing by
the Lessee under this Agreement, the Indenture, the Lease, the Trust
Agreement, and the Certificates then outstanding shall have been made by
the Lessee;
(iii) such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participant from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to such Owner Participant, unless the Lessee shall have
agreed to provide an indemnity in respect thereof reasonably
satisfactory in form and substance to the Owner Participant),
certificates and other documents as it may reasonably request, each in
form and substance reasonably satisfactory to such party;
(iv) all authorizations, approvals and consents which in the
reasonable judgment of the Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) the Lessee shall have provided or agreed to provide to the
Owner Participant, as Supplemental Rent under the Lease, sufficient
funds to pay any Breakage Costs, Make-Whole Premium and any other
amounts due under the Indenture;
(vi) the satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such
party's obligations under this Section 15.01;
(vii) no Event of Default shall have occurred and be continuing
or would occur immediately after giving effect to such Refinancing;
(viii) the Indenture Trustee shall have received no later than the
Business Day next preceding the day 15 days prior to the effective date
of such Refinancing irrevocable notice of such Refinancing; and
(ix) in the event the Lessee shall not prohibit the purchase of the
Refinancing loan certificates by, or with the assets of, an employee
benefit plan, as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA or a plan, which is subject to Section 4975(c) of the
Code, (individually or collectively, an "ERISA Plan"), the Lessee will
permit the placement of the Refinancing loan certificates with an ERISA
Plan only if either (A) if such placement is in the form of pass through
certificates, the sole underwriter or the manager or co-manager of the
underwriting syndicate or the selling or placement agent of the
Refinancing loan certificates represents to the Lessee that it has a
prohibited transaction exemption from the U.S. Department of Labor with
respect to pass through certificates (such as Prohibited Transaction
Exemption 90-24 or any other comparable exemption) or (B) purchasers of
the Refinancing loan certificates provide a representation regarding
their source of funds used in acquiring the Refinancing loan
certificates and, if such purchasers represent that they are using funds
of an ERISA Plan in acquiring the Refinancing loan certificates, such
purchasers further represent that either a prohibited transaction
exemption from the U.S. Department of Labor is available with respect
to their purchase and holding of the Refinancing loan certificates or
that their purchase and holding of the Refinancing loan certificates
will not constitute a prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code. The reliance on any such exemption will
not be conditional on the Owner Participant's representation concerning
its party in interest or other status with respect to ERISA Plans. If
neither exemption referred to in clause (A) or (B) of this paragraph
(viii) is valid or applicable in any respect to the purchase and holding
of the Refinancing loan certificates, or if the representation in clause
(B) of this paragraph (viii) that such purchase and holding will not
constitute a prohibited transaction is not correct, whichever is
applicable then the Lessee shall indemnify the Owner Participant
pursuant to, and to the extent provided for, under Sections 8 and 9
hereof for Taxes and Expenses resulting from any "prohibited
transaction", within the meaning of Section 406 of ERISA or Section
4975(c) (1) of the Code, occurring with respect to the placement of the
Refinancing loan certificates with, or the holding of the Refinancing
loan certificates by, any ERISA Plan with respect to which the Owner
Participant is a party in interest, within the meaning of Section 3(14)
of ERISA, or a disqualified person, within the meaning of Section 4975
of the Code.
Section 15.02. Reoptimization. (a) If a Change in Tax Rate
occurs prior to the end of the Basic Term, then, subject to the terms and
conditions of this Section 15.02 and Section 3.04 of the Lease, the Owner
Participant may, upon 30 days' prior notice to the Lessee, the Indenture
Trustee, the Owner Trustee and the Holders, elect to modify the schedule of
payments of principal of the certificates issued ("Refinancing
Certificates") in connection with any Refinancing effected after the
Refunding Date using private debt (not including debt issued pursuant to an
exemption from registration under the Securities Act relying on Rule 144A
promulgated thereunder but otherwise marketed in a manner substantially
similar to securities registered under the Securities Act, and not
including debt issued in connection with any offering of securities
registered under the Securities Act) due on each remaining Rent Payment
Date on or commencing on the Rent Payment Date next succeeding the date
mutually agreed to by the Owner Participant, the Lessee and the Indenture
Trustee on which the Owner Participant shall make such modification (the
"Reoptimization Date"). Promptly after making such modification, the Owner
Participant shall furnish each party hereto written notice of the amounts
so recalculated.
(b) Adjustments to Refinancing Certificates. On the
Reoptimization Date, subject to the satisfaction on or before the
Reoptimization Date of the conditions set forth in Section 15.02(c), the
Owner Trustee will issue and deliver and the Indenture Trustee will
authenticate, and each holder of a Refinancing Certificate will accept
delivery of, a new Refinancing Certificate or Refinancing Certificates (in
replacement of each Refinancing Certificate then held by such holder, which
Refinancing Certificates shall be surrendered to the Indenture Trustee for
cancellation) containing such changed principal installments (expressed as
a percentage of the original principal amount of such Refinancing
Certificate) as shall have been recalculated by the Owner Participant, but
in the same principal amount as, and containing terms identical to, except
as otherwise contemplated by Section 15.02(d) hereof, the Refinancing
Certificates originally issued in connection with the Operative Agreements.
(c) Conditions to the Obligations of the Holders of the
Refinancing Certificates on the Reoptimization Date. The obligation of
each holder of a Refinancing Certificate to accept delivery of a new
Refinancing Certificate on the Reoptimization Date, and to surrender on
such Reoptimization Date any Refinancing Certificate then held by it, is
subject to the following conditions precedent having been satisfied on or
before the Reoptimization Date:
(i) the requirements of Section 15.02(d) hereof shall have been
satisfied;
(ii) the following documents, in form and substance satisfactory to
such Holder, shall have been duly authorized, executed and delivered by
the party or parties thereto and shall be in full force and effect: (A)
if the payments of Basic Rent, Stipulated Loss Values and Termination
Values with respect to the Term have been changed, an amendment to the
Lease, dated the Reoptimization Date, (B) an amendment to the Indenture
setting forth any changed repayment schedule to the Refinancing
Certificates, dated the Reoptimization Date and (C) replacement
Refinancing Certificates; and
(iii) in connection with any Reoptimization the Owner Participant
shall pay or agree to pay all reasonable costs and expenses incurred by
the Lessee, the Owner Trustee, the Indenture Trustee and each Holder of
a Refinancing Certificate (including, without limitation, reasonable
legal fees and expenses) in connection with any such reoptimization.
(d) Payment Schedules. Except as otherwise provided in this
Section 15.02 as long as the Refinancing Certificates remain outstanding,
the payment schedules for the Refinancing Certificates shall not be
modified.
ARTICLE 16
[INTENTIONALLY LEFT BLANK]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes. It is hereby
agreed between the Owner Participant and the Lessee (but the Lessee makes
no representation to such effect) that it is the intent of the parties for
Federal, state, local and foreign income tax purposes that the Owner
Participant will be treated as the owner of the Aircraft and the Lessee
will be treated as the lessee of the Aircraft.
Section 17.02. [Intentionally Left Blank.]
Section 17.03. Counterparts. This Agreement may be executed by
the parties in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement,
waiver or modification is sought. No such written termination, amendment,
supplement, waiver or modification shall be effective unless a signed copy
shall have been delivered to and executed by the Owner Trustee and the
Indenture Trustee. A copy of each such termination, amendment, supplement,
waiver or modification shall also be delivered to each other party to this
Agreement other than the Original Loan Participants.
The consent of the Pass Through Trustee, in its capacity as a
party to this Agreement and not as a Holder, shall not be required to
modify, amend or supplement this Agreement or to give any consent, waiver,
authorization or approval with respect to this Agreement under the
circumstances in which the consent of the Indenture Trustee would not be
required for such modification, amendment, supplement, consent, waiver or
approval in accordance with Section 8.01(b) of the Indenture, provided that
the Pass Through Trustee shall be entitled to receive an Opinion of Counsel
(as defined in the Pass Through Agreement) necessary, in its sole
discretion, to establish that the Indenture Trustee's consent would not be
required under such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the
Lessee and its successors and permitted assigns, the Owner Participant and
its successors and permitted assigns, the Owner Trustee and its successors
as Owner Trustee (and any additional owner trustee appointed) under the
Trust Agreement, the Indenture Trustee and its successors as Indenture
Trustee (and any additional indenture trustee appointed) under the
Indenture and the Pass Through Trustee and its successors as Pass Through
Trustee (and any additional pass through trustee appointed) .
Section 17.07. Concerning the Owner Trustee, the Pass Through
Trustee and the Indenture Trustee. Each of NBD and Chase is entering into
this Agreement solely in their respective capacities (except to the extent
otherwise expressly indicated), in the case of NBD, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, in the case
of Chase (except insofar as it is acting as a Loan Participant or Agent),
not in its individual capacity but solely as Indenture Trustee under the
Indenture and as Pass Through Trustee under the Pass Through Agreement, and
except as otherwise expressly provided in this Agreement or in the Lease,
the Indenture, the Pass Through Agreement or the Trust Agreement, neither
NBD, nor Chase, shall be personally liable for or on account of its
statements, representations, warranties, covenants or obligations under
this Agreement; provided, however, that each of NBD and Chase accepts the
benefits running to it under this Agreement, and each agrees that (except
as otherwise expressly provided in this Agreement or any other Operative
Agreement to which it is a party) it shall be liable in its individual
capacity for (a) its own gross negligence or willful misconduct (whether in
its capacity as trustee or in its individual capacity), (b) any breach of
representations and warranties or any breach of covenants made in its
individual capacity pursuant to or in connection with this Agreement or the
other Operative Agreements to which it is a party, (c) any breach, in the
case of the Owner Trustee, of its covenants made in its individual capacity
in Sections 3.05 and 3.08 of the Indenture, (d) the failure to use ordinary
care in receiving, handling and disbursing funds, (e) in the case of the
Owner Trustee, Lessor's Liens attributable to it in its individual
capacity, (f) in the case of the Indenture Trustee, Indenture Trustee's
Liens and (g) taxes, fees or other charges on, or based on, or measured by,
any fees, commissions or compensation received by it in connection with the
transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any
such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section 17.09. Public Release of Information. Subject to
applicable legal requirements (including, without limitation, securities
laws requirements, other regulatory requirements and other legally
compelled disclosures), so long as there shall not have occurred an Event
of Default or Indenture Event of Default, each party to this Agreement
shall in each instance obtain the prior written approval of each other
party to this Agreement concerning the exact text and timing of news
releases, articles and other information releases to the public media
concerning any Operative Agreements.
Section 17.10. Certain Limitations on Reorganization. The
Indenture Trustee agrees that, if (i) the Lessor's Estate or the trust
created by the Trust Agreement becomes a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to such reorganization
provision, the Owner Participant is held to have recourse liability to the
debtor or the trustee of the debtor directly or indirectly on account of
any amount payable as principal, interest or premium on the Certificates,
and (iii) the Indenture Trustee actually receives any Recourse Amount which
reflects any payment by the Owner Participant on account of (ii) above,
then the Indenture Trustee, as the case may be, shall promptly refund to
the Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such
payment by the Owner Participant on account of clause (ii) above received
by the Indenture Trustee exceeds the amount which would have been received
by the Indenture Trustee if the Owner Participant had not become subject to
the recourse liability referred to in (ii) above. Nothing contained in
this Section shall prevent the Indenture Trustee from enforcing any
individual obligation (and retaining the proceeds thereof) of the Owner
Participant under this Agreement or any other Operative Agreement to the
extent herein or therein provided, for which the Owner Participant has
expressly agreed by the terms of this Agreement to accept individual
responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS AND
IS BEING DELIVERED IN NEW YORK.
Section 17.12. Section 1110 Compliance. The Owner Participant,
the Indenture Trustee and the Lessee agree that the transactions
contemplated by the Operative Agreements are expressly intended to be,
shall be and should be construed so as to be entitled to the benefits and
protection of Section 1110 of the Bankruptcy Code.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on
behalf of itself and each of its Affiliates, agents, directors, officers,
employees and representatives) to use reasonable precautions to keep
confidential, in accordance with its customary procedures for handling
confidential information of this nature, any non-public information
supplied to it pursuant to this Agreement which is identified by the Person
supplying the same as being confidential at the time the same is delivered
to such party, provided that nothing herein shall limit the disclosure of
any such information (i) to the extent required by statute, rule,
regulation or judicial process, (ii) to counsel for any of the parties
hereto, (iii) to bank examiners, auditors, insurance regulators,
accountants or similar regulatory authorities, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party
relating to the transactions contemplated hereby or by any of the Operative
Agreements, (v) to a subsidiary or Affiliate of the parties hereto, (vi) to
any assignee or participant (or prospective assignee or participant) so
long as such assignee or participant (or prospective assignee or
participant) first executes and delivers to the respective party making
such assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of the Owner
Participant or the Owner Trustee (in its individual or trust capacity) to
the Owner Trustee (in its individual or trust capacity) or to the Owner
Participant, as the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and
this Participation Agreement shall be effective this ___ day of October,
1995.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name:Xxxxxx X. Xxxxxxx
Title:Assistant Treasurer and
Managing Director - Structured
Finance
OWNER PARTICIPANT:
CHRYSLER CAPITAL CORPORATION
By:__________________________________________
Name: Title:
OWNER TRUSTEE:
NBD BANK, not in its individual capacity
except as otherwise expressly provided
herein, but solely as Owner Trustee
By:__________________________________________
Name: Title:
INDENTURE TRUSTEE:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), not in its individual
capacity except as otherwise expressly
provided herein, but solely as Indenture
Trustee
By:__________________________________________
Name: Title:
PASS THROUGH TRUSTEE:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), not in its individual
capacity except as otherwise expressly
provided herein, but solely as Pass
Through Trustee
By:__________________________________________
Name: Title:
ORIGINAL LOAN PARTICIPANTS:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as a Loan Participant and as
Agent
By:__________________________________________
Name: Title:
BANK OF AMERICA NT & SA
By:__________________________________________
Name: Title:
CIBC INC.
By:__________________________________________
Name: Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:__________________________________________
Name: Title:
SCHEDULE I CERTIFICATE INFORMATION
1. Federal Express Corporation Pass Through Trust, 1995-B1
Federal Express Corporation Trust No. N660FE
Interest Rate: 6.05%
Maturity: March 19, 1996
Principal Amount: $3,668,000
2. Federal Express Corporation Pass Through Trust, 1995-B2
Federal Express Corporation Trust No. N660FE
Interest Rate: 7.11%
Maturity: January 2, 2014
Principal Amount: $44,526,000
3. Federal Express Corporation Pass Through Trust, 1995-B3
Federal Express Corporation Trust No. N660FE
Interest Rate: 7.58%
Maturity: July 2, 2018
Principal Amount: $17,806,000
SCHEDULE II
DEFINITIONS
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement
and the Series Supplements) referred to below, unless otherwise defined in
an Operative Agreement or the context thereof shall otherwise require. In
the case of any conflict between the provisions of this Schedule and the
provisions of any Operative Agreement, the provisions of such Operative
Agreement shall control the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to
agreements shall be deemed to mean and include such agreements as amended
and supplemented from time to time, and (ii) references to parties to
agreements shall be deemed to include the successors and permitted assigns
of such parties.
DEFINED TERMS:
Additional Insureds. As defined in Article 13 of the Lease.
Aeronautics Authority or FAA. As appropriate, the Federal
Aviation Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affiliate. With respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control
with such Person. For the purposes of this definition, "control"
(including "controlled by" and "under common control with") shall mean the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether through the ownership of
voting securities or by contract or otherwise. In no event shall the Owner
Trustee or the Lessor be deemed an Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment received or
deemed to have been received by a Person (the "Original Payment") shall be
supplemented by a further payment to such Person so that the sum of the two
payments shall be equal to the Original Payment, after taking into account
(x) all Taxes that would result from the receipt or accrual of such
payments and (y) any reduction in Taxes that would result from such
increased Taxes. In the case of amounts payable to the Lessor, the Owner
Participant, or any corporate Affiliate of the Owner Participant, it shall
be presumed that such Person is at all times subject to Federal income tax
at the maximum marginal rate generally applicable to corporations from time
to time and actual state, local and foreign income taxes.
Agent. The Chase Manhattan Bank (National Association) and its
successors and permitted assigns as Agent for the Original Loan
Participants pursuant to Article 16 of the Original Participation
Agreement.
Air Carrier. Any U.S. Air Carrier and any "foreign air
carrier" (as defined in the Transportation Code) as to which there is in
force a permit granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Xxxx of Sale.
Aircraft. The Airframe (or any permitted substitute airframe)
together with the two Engines (or any Replacement Engine or Engines)
whether or not any of such initial or Replacement Engines may from time to
time be installed on such Airframe or may be installed on any other
airframe or on any other aircraft, including any aircraft substituted
pursuant to Section 11.03 of the Lease.
Airframe. The Airbus A300F4-605R aircraft (excluding the
Engines or engines from time to time installed thereon) leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number and manufacturer's
serial number specified in the initial Lease Supplement, including (i) all
Parts in respect thereof and (ii) any replacement airframe which may be
substituted pursuant to Section 11.03 of the Lease.
Amendment No. 1 to the Original Tax Indemnity Agreement.
Amendment No. 1 to the Original Tax Indemnity Agreement, dated as of
October 26, 1995.
Ancillary Agreement. Any written agreement of the Lessee to
which the Lessor is a party or to which the Lessor has consented in writing
entered into on the Delivery Date or the Refunding Date or any date
thereafter in connection with the transactions contemplated by the
Operative Agreements, as such agreement may be amended and supplemented
from time to time with the consent of the Lessor and delivered to the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal
Express Corporation Trust No. N660FE), dated September 20, 1995 among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as
Owner Trustee, the Owner Participant and the Indenture Trustee not in its
individual capacity, but solely as Indenture Trustee, as originally
executed or as amended, modified or supplemented with the consent of all
the parties thereto.
Appraisal. The report prepared by BK Associates, Inc. and
delivered to the Owner Participant (with a copy of such report to the
Lessee) on the Delivery Date pursuant to Section 4.01(n) of the Original
Participation Agreement.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee,
organized and existing under the laws of France, and its successors and
assigns.
AVSA Consent and Agreement. The Consent and Agreement dated as
of September 1, 1995, executed by AVSA, as the same may be amended,
modified or supplemented from time to time.
AVSA's FAA Xxxx of Sale. The xxxx of sale for the Airframe on
AC Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and dated the
Delivery Date.
AVSA's Warranty Xxxx of Sale. The full warranty xxxx of sale
covering the Aircraft (and specifically referring to each Engine) executed
by AVSA as owner of the Aircraft in favor of the Owner Trustee and dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as
amended, and any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e),
(f) or (g) of the Lease which either does or with the giving of notice or
lapse of time or both would constitute an Event of Default.
Basic Rent. The periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day
on the Commencement Date and ending at the end of the day on July 2, 2020,
or such earlier date on which the Lease shall be terminated as provided
therein.
Beneficial Interest. The interest of the Owner Participant
under the Trust Agreement.
Breakage Costs. Has the meaning specified in Schedule II to
the Original Participation Agreement.
Business Day. Any day on which commercial banks are not
authorized or required to close in New York, New York and Memphis,
Tennessee, and after the Lien of the Indenture is discharged, Detroit,
Michigan.
Certificates. The Equipment Trust Certificates (Federal
Express Corporation Trust No. N660FE), issued by the Owner Trustee
pursuant to the Indenture and any certificate issued in exchange therefor
or replacement thereof pursuant to the Indenture.
Change in Tax Rate. Any amendment, modification, deletion,
addition, or change to the Code which is enacted into law after the
Delivery Date which changes the highest marginal statutory rate of Federal
income tax applicable to the Owner Participant (other than a change which
is in the nature of a minimum tax) .
Chase. The Chase Manhattan Bank (National Association) and its
successors and permitted assigns.
Citizen of the United States. A citizen of the United States
as defined in Section 40102(a) (15) of the Transportation Code, or any
analogous part of any successor or substituted legislation or regulation at
the time in effect.
Closings. The closing with respect to the acquisition of the
Pass Through Certificates by the Underwriters and the closing with respect
to the refunding of the Original Loan Certificates.
Code. Except as otherwise provided, references to the Code
shall mean the Internal Revenue Code of 1986, as amended from time to time.
Commencement Date. July 2, 1996.
Consent and Agreement. The Consent and Agreement dated as of
September 1, 1995 executed by the Manufacturer, as the same may be amended,
modified or supplemented from time to time.
Consent and Guaranty. The Consent and Guaranty of the
Manufacturer attached to the Purchase Agreement.
Corporate Trust Administration. The principal office of the
Indenture Trustee located at 4 Chase Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx,
Xxx Xxxx 00000, or such other office at which the Indenture Trustee's
corporate trust business shall be administered which the Indenture Trustee
shall have specified by notice in writing to the Lessee, the Owner
Participant and the Owner Trustee.
Corporate Trust Department. The principal office of the Owner
Trustee located at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such
other office at which the Owner Trustee's corporate trust business shall be
administered which the Owner Trustee shall have specified by notice in
writing to the Lessee, the Owner Participant and the Indenture Trustee.
Debt Rate. The weighted average (based on Outstanding
principal amount) rate of interest on the Certificates issued pursuant to
the Indenture.
Default. Any event or condition which with the lapse of time
or the giving of notice, or both, would constitute an Event of Default.
Delivery Date. September 20, 1995.
EBO Price. Has the meaning set forth in Section 4.02(a) (F) of
the Lease.
Engine. Each of the two General Electric CF6-80C2-A5F engines
listed by its manufacturer's serial number in the initial Lease Supplement
and leased pursuant to the Lease, whether or not from time to time
installed on the Airframe or installed on any other airframe or on any
other aircraft, and any Replacement Engine which may from time to time be
substituted for an Engine pursuant to Section 7.02(a) (vii), 10.03, 11.03,
11.04 or 12.02 of the Lease, together with all Parts related thereto.
Except as otherwise provided, at such time as a Replacement Engine shall be
so substituted and the Engine for which the substitution is made shall be
released from the Lien of the Indenture, such replaced Engine shall cease
to be an "Engine" under the Lease. The term "Engines" means, as of any
date of determination, both Engines then leased to the Lessee pursuant to
the Lease.
Engine Consent. The Engine Consent dated as of September 1,
1995, executed by the Engine Manufacturer, as the same may be amended,
modified or supplemented from time to time.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment
(Federal Express Corporation Trust No. N660FE), dated as of September 1,
1995 between the Lessor and the Lessee, as the same may be amended,
modified or supplemented from time to time.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. Has the meaning set forth in Section 7.06 of the
Participation Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16
of the Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use
(A) for a period in excess of 90 days due to theft or disappearance or such
longer period, not to exceed 90 days from the end of such initial 90-day
period, if and so long as the location of such property is known to the
Lessee and the Lessee is diligently pursuing recovery of such property, or
to the end of the Term, if less (unless such theft or disappearance
constitutes an Event of Loss pursuant to (i) (B) or (ii) hereof) or (B) for
a period in excess of 60 days due to the destruction, damage beyond
economic repair or rendition of such property permanently unfit for normal
use by Lessee for any reason whatsoever; (ii) any damage to such property
which results in an insurance settlement with respect to such property on
the basis of a total loss, or constructive or compromised total loss;
(iii) (1) condemnation, confiscation or seizure of, or requisition of
title to such property by the Government, any foreign government or
purported government or any agency or instrumentality thereof, or (2)
condemnation, confiscation, or seizure of, or requisition or taking of, use
of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on
the date on which an insurance settlement with respect to such property on
the basis of a total loss or constructive or compromised total loss shall
occur) or (B) by the Government for a period extending beyond the Term,
provided that no Event of Loss shall be deemed to have occurred, and the
Term shall be extended automatically for a period of six months (or the
date of return of the Aircraft, if shorter, so long as the Lessor receives
at least six months notice of such date of return) beyond the end of the
Term in the event that the Aircraft, the Airframe or any Engine as of the
end of the Lease Term is requisitioned by the Government pursuant to an
activation as part of the Civil Reserve Air Fleet Program described in
Section 7.02(a) (iv) of the Lease; and (iv) as a result of any law, rule,
regulation, order or other action by the Aeronautics Authority or other
governmental body having jurisdiction, the use of the Aircraft or Airframe
in the normal course of air transportation of cargo shall have been
prohibited by virtue of a condition affecting all Airbus A300F-600 series
aircraft equipped with engines of the same make and model as the Engines
for a period not to exceed six (6) consecutive months, unless the Lessee,
prior to the expiration of such six (6) month period, shall be diligently
carrying forward in a similar manner as are then being carried forward with
respect to other aircraft of the Lessee so as to not discriminate against
the Aircraft by reason of its leased status, all steps which are necessary
or desirable to permit the normal use of the Aircraft or Airframe or, in
any event, if such use of the Aircraft or the Airframe shall have been
prohibited for a period of eighteen (18) consecutive months or until the
end of the Term, if earlier. The date of such Event of Loss shall be (s)
the 91st day or the 180th day, as the case may be, following loss of such
property or its use due to theft or disappearance (or the end of the Term
or the Lessee's abandonment of diligent efforts to recover such property,
if earlier); (t) the 61st day following the date of any destruction,
damage beyond economic repair or rendition of such property permanently
unfit for normal use; (u) the date of any insurance settlement on the
basis of a total loss or constructive or compromised total loss; (v) the
date of any condemnation, confiscation, seizure or requisition of title of
such property; (w) the 181st day following condemnation, confiscation,
seizure or requisition for use of such property by a foreign government
referred to in clause (iii) (2) (A) above (or the end of the Term or the date
of any insurance settlement described therein, if earlier than such 181st
day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the six (6) month or
eighteen (18) month period, referred to in clause (iv) above (or if
earlier, the end of the Term or abandonment of the Lessee's efforts to
restore the normal use of the Aircraft). An Event of Loss with respect to
the Aircraft shall be deemed to have occurred if any Event of Loss occurs
with respect to the Airframe. If an Event of Loss described in any of
clauses (i) (A), (iii) or (iv) above shall occur, Lessor may elect, within
30 days following the date upon which such Event of Loss is deemed to have
occurred, to waive such Event of Loss and the consequences thereof.
Excepted Payments. Collectively, (i) indemnity or other
payments (and interest thereon to the extent provided in the Operative
Agreements) paid or payable by the Lessee in respect of the Owner
Participant, the Owner Trustee in its individual capacity or any of their
respective successors, permitted assigns, directors, officers, employees,
servants and agents or Affiliates, pursuant to the Participation Agreement
or any indemnity hereafter granted to the Owner Participant or the Owner
Trustee in its individual capacity pursuant to the Lease or the
Participation Agreement, (ii) proceeds of public liability insurance (or
government indemnities in lieu thereof) in respect of the Aircraft payable
as a result of insurance claims paid for the benefit of, or losses suffered
by, the Owner Trustee or the Indenture Trustee in their respective
individual capacities or by the Owner Participant, or their respective
successors, permitted assigns or Affiliates, (iii) proceeds of insurance
maintained with respect to the Aircraft by the Owner Participant (whether
directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Section 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) payments constituting
increases in Interim Rent or Basic Rent attributable to payments arising
pursuant to Section 5 of the Tax Indemnity Agreement and (vi) any right to
demand, collect or otherwise receive and enforce the payment of any amount
described in clauses (i) through (v) above.
Expense; Expenses. Have the meaning specified in Section
9.01(a) of the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the
Lessee has exercised its option to renew the Lease pursuant to the second
paragraph of Section 4.01(a) thereof and with respect to which the
conditions set forth in the second paragraph of Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and
equal in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and
willing lessor unaffiliated with such lessee, neither being under any
compulsion to lease the Aircraft. In such determination, it shall be
assumed that the Aircraft is in the condition required under the Lease in
the case of return of the Aircraft pursuant to Article 12 of the Lease.
Fair Market Rental shall be determined in accordance with the provisions of
Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and
equal in amount to, the value which would be obtained in an arm's-length
transaction between an informed and willing purchaser under no compulsion
to buy and an informed and willing seller unaffiliated with such purchaser
and under no compulsion to sell, assuming that the Aircraft (or other
property) is unencumbered by the Lease. In such determination it shall be
assumed that the Aircraft is in the condition required under the Lease in
the case of return of the Aircraft pursuant to Article 12 of the Lease;
provided that in connection with any determination pursuant to or for the
purposes of Article 17 of the Lease, the Aircraft shall be appraised on an
"as is, where is" basis. Fair Market Value shall be determined in
accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States
Federal Aviation Administration and any successor agency or agencies
thereto.
Fixed Renewal Rent. Semi-annual payments during the Fixed
Renewal Term equal to 50% of the average actual semi-annual Basic Rent
payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee
has exercised its option to renew the Lease pursuant to the first paragraph
of Section 4.01(a) thereof and with respect to which the conditions set
forth in such Section 4.01(a) are met.
French Pledge Agreement. The French Pledge Agreement dated as
of September 1, 1995 between the Owner Trustee and the Indenture Trustee.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991
between the Engine Manufacturer and the Lessee related to the purchase by
the Lessee of the Engines as originally executed or as modified, amended or
supplemented in accordance with the terms thereof, but only insofar as the
General Terms Agreement relates to the Engines, to the extent assigned to
the Owner Trustee pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of
any particular time, the Person in whose name a Certificate shall be
registered (but not including the holder of any Pass Through Certificate) .
Indemnitee. Each of NBD, in its individual capacity and as
Owner Trustee and Lessor, the Agent (to the extent set forth in Articles 8
and 9 of the Original Participation Agreement), the Owner Participant, the
Original Loan Participants (to the extent set forth in Articles 8 and 9 of
the Original Participation Agreement), the Indenture Trustee, in its
individual capacity and as trustee, any Owner Participant Guarantor, and
any successor (including any trustee which may succeed to the Lessor's
interest under the Lease), Affiliate, assign, officer, director, employee,
agent and servant of any of the foregoing, the Lessor's Estate and the
Trust Indenture Estate.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N660FE) dated as of September 1, 1995, as
amended and restated as of October 26, 1995, between the Lessor and the
Indenture Trustee, as supplemented by the Indenture and Security Agreement
Supplement, and as said Indenture may from time to time be further
supplemented or amended, including any amendment or supplement thereto
entered into from time to time pursuant to the applicable provisions of the
Indenture.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N660FE) dated September 20, 1995, as such Indenture and Security Agreement
Supplement shall be amended or supplemented from time to time and any other
supplement to the Indenture, substantially in the form of Exhibit A to the
Indenture.
Indenture Default. Any event or condition which with the lapse
of time or the giving of notice, or both, would constitute an Indenture
Event of Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in
Section 7.01 of the Indenture.
Indenture Trustee. The Chase Manhattan Bank (National
Association), a national banking association, not in its individual
capacity but solely as Indenture Trustee under the Indenture and each other
Person which may from time to time be acting as successor trustee under the
Indenture.
Indenture Trustee's Liens. Any Lien on the Trust Indenture
Estate resulting from (i) claims against the Indenture Trustee not related
to the administration of the Trust Indenture Estate or any transactions
pursuant to the Indenture or any document included in the Trust Indenture
Estate or (ii) any act or omission of the Indenture Trustee which is not
related to the transactions contemplated by the Operative Agreements or is
in violation of any of the terms of the Operative Agreements.
Independent Investment Banker. An independent investment
banking institution of national standing appointed by the Lessee that is
independent in fact, does not have any direct financial interests, or any
material indirect financial interest, in the Lessee or any Affiliate of the
Lessee, and is not connected with the Lessee or any Affiliate of the
Lessee, as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, that if the
Indenture Trustee shall not have received written notice of such an
appointment at least 10 days prior to the Prepayment Date, "Independent
Investment Banker" shall mean such an institution appointed by the
Indenture Trustee.
Interim Rent. The periodic rent payable for the Aircraft
throughout the Interim Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Interim Term. The period commencing on the Owner Participant
Payment Date and ending at the end of the day immediately preceding the
Commencement Date.
Invoice. The invoice for the Aircraft given by AVSA to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust
No. N660FE) dated as of September 1, 1995, as amended and restated as of
October 26, 1995, entered into by the Lessor and the Lessee concurrently
with the execution and delivery of the Indenture, as said Lease may from
time to time be supplemented or amended, or its terms waived or modified,
to the extent permitted by, and in accordance with, the terms of the
Indenture, including, without limitation, supplementation by one or more
Lease Supplements entered into pursuant to the applicable provisions of the
Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N660FE) dated September 20, 1995, as such Lease
Supplement shall be amended or supplemented from time to time and any other
supplement to the Lease, substantially in the form of Exhibit A to the
Lease.
Lease Term. The period commencing on the Delivery Date and
ending at the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation,
and its successors and permitted assigns.
Lessee Documents. Has the meaning set forth in Section 6.01(b)
of the Participation Agreement.
Lessor. NBD Bank, a Michigan banking corporation, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement,
and its successors and permitted assigns.
Lessor's Estate. All estate, right, title and interest of the
Owner Trustee in and to the Aircraft, the Lease, any Lease Supplement, the
Participation Agreement, AVSA's FAA Xxxx of Sale, AVSA's Warranty Xxxx of
Sale, the Airbus Guaranty, the Purchase Agreement, the Purchase Agreement
Assignment, the Consent and Agreement, the AVSA Consent and Agreement, the
Consent and Guaranty (to the extent assigned by the Purchase Agreement
Assignment), the GTA, the Engine Warranty Assignment, the Engine Consent,
any warranty with respect to the Airframe and the Engines, all amounts of
Interim Rent, Basic Rent and Supplemental Rent, including without
limitation, insurance proceeds (other than insurance proceeds payable to or
for the benefit of the Owner Trustee in its individual capacity, the Owner
Participant or the Indenture Trustee) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts
owing to the Owner Participant, to the Indenture Trustee, to the Owner
Trustee in its individual capacity, or to any of their respective
directors, officers, employees and agents pursuant to Articles 8 and 9 of
the Participation Agreement). Notwithstanding the foregoing, "Lessor's
Estate" shall (i) not include any Excepted Payment and (ii) include all
property intended to be subjected to the Indenture by the Granting Clause
thereof.
Lessor's Liens. Liens on the Lessor's Estate or the Trust
Indenture Estate arising as a result of (i) claims against the Lessor, in
its individual capacity or as Owner Trustee, or the Owner Participant, in
each case not related to the transactions contemplated by the Operative
Agreements, (ii) acts or omissions of the Lessor in its individual capacity
or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or
expressly prohibited under the Operative Agreements and any act or omission
of the Owner Participant which is in violation of any of the terms of the
Operative Agreements, (iii) Taxes or Expenses imposed against the Lessor,
in its individual capacity or as Owner Trustee, Owner Participant, Lessor's
Estate or the trust created by the Trust Agreement which are not required
to be indemnified against by the Lessee pursuant to the Participation
Agreement by reason of Section 8.01(b) or 9.01(b) thereof and which are not
required to be indemnified against by the Lessee pursuant to the Tax
Indemnity Agreement, or (iv) claims against the Lessor or the Owner
Participant arising from the voluntary transfer by the Lessor or the Owner
Participant of its interests in the Aircraft other than a transfer of the
Aircraft pursuant to Section 4.02(a) or Article 10 or 11 of the Lease and
other than a transfer pursuant to the exercise of the remedies set forth in
Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease
or security interest or other similar interest.
Majority in Interest of Certificate Holders. As of a
particular date of determination, the Holders of more than 50% of the
aggregate unpaid principal amount of all Certificates outstanding as of
such date excluding for purposes of this definition any Certificates held
by (i) the Owner Trustee or the Owner Participant or any interests of the
Owner Participant unless all Certificates then outstanding shall be held by
the Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Make-Whole Premium. An amount determined as of the day before
the applicable Prepayment Date (or date of purchase, as the case may be)
which an Independent Investment Banker determines to be equal to the
excess, if any, of (i) the present values of all remaining scheduled
payments of such principal amount or portion thereof and interest thereon
(excluding interest accrued from the immediately preceding Payment Date to
such Prepayment Date or date of purchase, as the case may be) to the
Maturity of such Certificate in accordance with generally accepted
financial practices assuming a 360-day year consisting of twelve 30-day
months at a discount rate equal to the Treasury Yield, all as determined by
the Independent Investment Banker over (ii) the unpaid principal amount of
such Certificate.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France, and its successors and assigns.
Maturity. With respect to any Certificate, the date on which
the final principal amount of such Certificate is scheduled to be due and
payable.
Moody's. Xxxxx'x Investors Service, Inc.
NBD. NBD Bank, a Michigan banking corporation.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Interim Rent and Basic Rent set forth in Schedule II of
the Lease, discounted at a rate per semi-annual period equal to the Debt
Rate.
Non-U.S. Person. Any Person other than (i) a citizen or
resident of the United States, as defined in Section 7701(a) (30) of the
Code, (ii) a corporation, partnership or other entity created or organized
in or under the laws of the United States or any political subdivision
thereof or therein, or (iii) any estate or trust that is subject to United
States federal income taxation regardless of the source of its income.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no
longer suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the
Indenture, a certificate signed by a Responsible Officer of the Lessee or
the Owner Trustee, as the case may be, and delivered to the Indenture
Trustee. Each such certificate shall include the statements provided for
in Section 15.07 of the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Xxxx of Sale, AVSA's Warranty Xxxx of Sale, the
Airbus Guaranty, the Purchase Agreement, the Purchase Agreement Assignment,
the GTA, the Engine Warranty Assignment, the French Pledge Agreement, the
Lease, the Lease Supplement, the Owner Participant Guaranty, if any, the
Owner Trustee Guaranty, if any, any Ancillary Agreement entered into by or
with the written consent of the Indenture Trustee, which by its terms is an
Operative Agreement, the Certificates outstanding at the time of reference,
the Indenture, the Indenture and Security Agreement Supplement, the Consent
and Agreement, the AVSA Consent and Agreement, the Consent and Guaranty (to
the extent assigned by the Purchase Agreement Assignment), the Engine
Consent and the Tax Indemnity Agreement, each as amended from time to time.
Opinion of Counsel. When delivered pursuant to the Indenture,
a written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Xxxxx Xxxx & Xxxxxxxx or
a successor firm or (iii) other counsel designated by the Lessee and
reasonably satisfactory to the Indenture Trustee and (b) for the Owner
Trustee or the Indenture Trustee, an attorney selected by such Person and,
in the case of the Owner Trustee, reasonably satisfactory to the Indenture
Trustee.
Original Agreements. The documents and instruments delivered
on the Delivery Date in connection with the transactions contemplated by
the Original Participation Agreement.
Original Indenture. The Trust Indenture, Mortgage and Security
Agreement (Federal Express Corporation Trust No. N660FE) dated as of
September 1, 1995 between the Owner Trustee and the Indenture Trustee,
which together with the Indenture and Security Agreement Supplement No. 1
(Federal Express Corporation Trust No. N660FE) dated September 20, 1995
attached thereto was recorded as one instrument by the FAA on September 21,
1995 and assigned Conveyance Number 2A267705.
Original Lease. The Lease Agreement (Federal Express
Corporation Trust No. N660FE) dated as of September 1, 1995 between the
Owner Trustee as lessor, and the Lessee, which together with Lease
Supplement Xx. 0 (Xxxxxxx Xxxxxxx Xxxxxxxxxxx Xxxxx Xx. X000XX) dated
September 20, 1995 attached thereto was recorded as one instrument by the
FAA on September 21, 1995 and assigned Conveyance Number 2A267706.
Original Loan Certificates. The loan certificates issued on
the Delivery Date to the Original Loan Participants.
Original Loan Participants. The entities listed on Schedule I
to the Original Participation Agreement and their successors and assigns
(other than any assignees in connection with the Refunding Date) .
Original Participation Agreement. The Participation Agreement
(Federal Express Corporation Trust No. N660FE) among the Lessee, the Owner
Participant, the Indenture Trustee, the Owner Trustee and the Original Loan
Participants as it was originally executed as of September 1, 1995.
Original Tax Indemnity Agreement. The Tax Indemnity Agreement
(Federal Express Corporation Trust No. N660FE) between the Lessee and the
Owner Participant as it was originally executed as of September 1, 1995.
Original Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N660FE) between the Owner Participant and the Owner
Trustee as it was originally executed as of September 1, 1995 and filed
with the FAA on September 20, 1995.
Outstanding. When used with respect to Certificates, as of the
date of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation pursuant
to Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary
amount has been theretofore deposited with the Indenture
Trustee in trust for the Holders of such Certificates pursuant
to Section 14.01 of the Indenture; provided, that if such
Certificates are to be prepaid, notice of such prepayment has
been duly given pursuant to the Indenture or provision therefor
satisfactory to the Indenture Trustee has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to
Article II of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's
Estate.
Owner Participant Amount. The amount described in Section 2.03
of the Participation Agreement and set forth on Schedule II to the Lease.
Owner Participant Guarantor. The provider of an Owner
Participant Guaranty.
Owner Participant Guaranty. Any guaranty delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Owner Participant Payment Date. March 19, 1996.
Owner Trustee. NBD, not in its individual capacity, but solely
as Owner Trustee under the Trust Agreement, and its successors and
permitted assigns.
Owner Trustee Guarantor. The provider of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance
with Section 11.01(b) (ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated
net after-tax book yield and aggregate after-tax cash during the Interim
Term and the Basic Term utilizing the multiple investment sinking fund
method of analysis, computed on the basis of the same methodology and
assumptions as were utilized by the Owner Participant in determining
Interim Rent, Basic Rent, Stipulated Loss Value and Termination Value
percentages or the EBO Price, as the case may be, as such assumptions may
be adjusted for events which have been the basis of adjustments to Rent
pursuant to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal
Express Corporation Trust No. N660FE), dated as of September 1, 1995, as
amended and restated as of October 26, 1995, among the Lessee, the Original
Loan Participants, the Owner Trustee not in its individual capacity except
as otherwise expressly provided therein, but solely as owner trustee, the
Owner Participant, the Indenture Trustee not in its individual capacity
except as otherwise expressly provided therein, but solely as indenture
trustee and the Pass Through Trustee not in its individual capacity except
as otherwise expressly provided therein, but solely as pass through
trustee, as amended, modified or supplemented, or the terms thereof waived.
Parts. All appliances, parts, components, instruments,
appurtenances, accessories, furnishings and other equipment of whatever
nature (other than complete Engines or engines) which may from time to time
be incorporated or installed in or attached to the Airframe or any Engine
or, prior to replacement thereof in accordance with the Lease, which may be
removed therefrom.
Pass Through Agreement. The Pass Through Trust Agreement dated
as of February 1, 1993, as amended and restated as of October 1, 1995
between the Lessee and the Pass Through Trustee, as such Pass Through
Agreement may be modified, supplemented or amended from time to time in
accordance with the provisions thereof.
Pass Through Certificates. Any of the 1995 Pass Through
Certificates, Series B1, 1995 Pass Through Certificates, Series B2 or 1995
Pass Through Certificates, Series B3, in each case as issued by the related
Pass Through Trust; and "Pass Through Certificates" means all of the Pass
Through Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale
of the Pass Through Certificates to the Underwriters pursuant to the
Underwriting Agreement takes place.
Pass Through Trust. The Federal Express Pass Through Trust,
1995-B1, Federal Express Pass Through Trust, 1995-B2 or Federal Express
Pass Through Trust, 1995-B3, in each case formed pursuant to the related
Series Supplement in accordance with the Pass Through Agreement; and "Pass
Through Trusts" means all of such Pass Through Trusts.
Pass Through Trustee. The Chase Manhattan Bank (National
Association), a national banking association, in its capacity as Pass
Through Trustee under the Pass Through Agreement and each Pass Through
Trust, and its successors and permitted assigns as Pass Through Trustee
thereunder.
Past Due Rate. In respect of (A) any amount payable to the
Owner Participant or the Owner Trustee a rate per annum during the period
from and including the due date to but excluding the date on which such
amount is paid in full equal to 2% plus the Debt Rate and (B) any principal
of or interest on any Certificate or any other amount payable under the
Indenture, any Certificate or any other Operative Agreement that is not
paid when due (whether at Maturity, by acceleration, by optional or
mandatory prepayment or otherwise) to any Holder, the Indenture Trustee or
the Pass Through Trustee, a rate per annum during the period from and
including the due date to but excluding the date on which such amount is
paid in full equal to (i) in the case of any such amount payable to the
Holder of any Certificate, 2% plus the interest rate applicable to such
Certificate and (ii) in the case of any other such amount, 2% plus the Debt
Rate.
Payment Date. The Owner Participant Payment Date, and each
January 2 and July 2 commencing July 2, 1996.
Payment Default. Any event specified in Section 16.01(a) or
16.01(b) of the Lease which with the giving of notice or lapse of time or
both would constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership,
joint venture, joint stock company, trust, unincorporated organization,
association, corporation, institution, entity or government (federal,
state, local, foreign or any agency, instrumentality, division or body
thereof) .
Preliminary Term. The period commencing on the Delivery Date
and ending at the end of the day on the day immediately preceding the Owner
Participant Payment Date.
Premium Termination Date. With respect to the Certificates
having a Maturity in 2014, November 7, 2007 and with respect to the
Certificates having a Maturity in 2018, October 7, 2017.
Prepayment Date. Has the meaning specified in Section 6.02(b)
of the Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b)
of the Indenture.
Proposed Termination Date. Has the meaning specified in
Section 10.01(a) of the Lease.
Purchase Agreement. The Airbus A300-600R Freighter Purchase
Agreement, dated as of July 3, 1991 between AVSA and the Lessee, including
all exhibits, appendices and letter agreements attached thereto as
originally executed or as modified, amended or supplemented in accordance
with the terms thereof, but only to the extent that the foregoing relates
to the Aircraft and to the extent assigned pursuant to the Purchase
Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement
Assignment (Federal Express Corporation Trust No. N660FE), dated as of
September 1, 1995 between the Lessor and the Lessee, as the same may be
amended, modified or supplemented from time to time.
Purchase Price. Has the meaning specified in Schedule II to
the Original Participation Agreement.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), March 4, 1996 for the
Owner Participant Payment Date, December 18 for January 2 Payment Dates and
June 17 for July 2 Payment Dates, whether or not such date is a Business
Day.
Recourse Amount. Has the meaning specified in Section 17.10 of
the Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged
pursuant to Section 15.01 of the Participation Agreement.
Refunding Date. A Business Day on which the refunding of the
Original Loan Certificates occurs, the expected date thereof having been
specified by the Lessee in a written notice given to the parties to the
Participation Agreement and the Underwriters at least ten (10) Business
Days prior to such expected Refunding Date.
Register. Has the meaning set forth in Section 3.02 of the
Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Remaining Weighted Average Life. For any Certificate, as of
any determination date, the number of years obtained by dividing (a) the
sum of the products obtained by multiplying (i) the amount of each then
remaining mandatory sinking fund redemption payment of principal, including
the payment due on the Maturity of such Certificate, by (ii) the number of
years (calculated to the nearest one-twelfth) which will elapse between
such determination date, and the date on which such payment is scheduled to
be made, by (b) the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in
accordance with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the
Lessee has exercised its option to renew the Lease pursuant to Section
4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as
Interim Rent, Basic Rent, Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. Each January 2 and July 2 commencing July
2, 1996.
Reoptimization Date. Has the meaning specified in Section
15.02(a) of the Participation Agreement.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or
an engine of the same or another manufacturer) manufactured after October
22, 1994 of the same or of equal or greater value, remaining useful life
and utility as the Engine being replaced, together with all Parts relating
to such engine; provided, however, that if such replacement engine is not a
General Electric CF6-80C2-A5F engine, such replacement engine must then be
commonly used in the commercial aviation industry on Airbus A300-600
airframes.
Responsible Officer. With respect to the Owner Trustee or the
Indenture Trustee, any officer in its Corporate Trust Department or
Corporate Trust Administration, as the case may be, designated by such
Person to perform obligations under the Operative Agreements, with respect
to the Owner Participant, the president or any vice president with direct
responsibility for the transactions contemplated by the Operative
Agreements, and with respect to any other party, any corporate officer or
(except in the case of the Owner Participant) other employee of a party
who, in the normal performance of his or her operational responsibilities,
with respect to the subject matter of any covenant, agreement or obligation
of such party pursuant to any Operative Agreement, would have
responsibility for and knowledge of such matter and the requirements of any
Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
SEC. The Securities and Exchange Commission of the United
States and any successor agencies or authorities.
Securities Act. The Securities Act of 1933, as amended.
Series Supplement. The Series Supplement 1995-B1 to be
executed and delivered by the Lessee and the Pass Through Trustee, the
Series Supplement 1995-B2 to be executed and delivered by the Lessee and
the Pass Through Trustee or the Series Supplement 1995-B3 to be executed
and delivered by the Lessee and the Pass Through Trustee, in each case as
such Series Supplement may be modified, supplemented or amended from time
to time in accordance with the provisions thereof and "Series Supplements"
means all of such Series Supplements.
Sinking Fund Redemption Date. Has the meaning specified in
Section 6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in
Section 6.06 of the Indenture.
Special Aviation Counsel. Xxxxxxxxx, Xxxxxx & Xxxxxxxx.
Stipulated Loss Value. As of any Stipulated Loss Value
Determination Date during the Term, the amount determined by multiplying
the Purchase Price by the percentage set forth in Schedule III of the Lease
under the heading "Stipulated Loss Value Factor" opposite such date (as
such Schedule III may be adjusted from time to time as provided in Section
3.04 of the Lease), and during any Renewal Term, the amount determined
pursuant to Section 4.01(b) of the Lease. Notwithstanding any other
provisions of the Lease or the Participation Agreement or the Indenture,
each Stipulated Loss Value shall be, under any circumstances and in any
event, an amount, together with so much of the arrears portion of Interim
Rent and Basic Rent due and owing through the date of payment of Stipulated
Loss Value as does not constitute an Excepted Payment, at least sufficient
to pay in full as of such date of payment the aggregate unpaid principal
amount of and accrued interest on the Certificates outstanding on such date
of payment. Subject to the immediately preceding sentence, it is
understood and agreed that the amounts set forth on Schedule III of the
Lease, for dates other than Rent Payment Dates on which arrears Interim
Rent and Basic Rent is due, fully reflect appropriate Interim Rent and
Basic Rent accruals and credits of unearned Interim Rent and Basic Rent
and, accordingly, no further accrual or credit shall be required whenever
Stipulated Loss Value is to be calculated with reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth
on Schedule III of the Lease under the heading "Stipulated Loss Value
Date."
Substantial Authority. For Federal income tax purposes, shall
have the meaning applicable for purposes of Section 6662 of the Code and
relevant Treasury regulations.
Supplemental Rent. All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or
under the Participation Agreement or Tax Indemnity Agreement or any
Ancillary Agreement or any other Operative Agreement to the Lessor, the
Owner Participant or others, including, without limitation, payments of
Stipulated Loss Value, EBO Price and amounts calculated by reference to
Termination Value and all amounts required to be paid by Lessee under the
agreements, covenants and indemnities contained in the Lease or in the
Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Interim Rent and Basic Rent.
Tax. Shall have the meaning set forth in Section 8.01(a) of
the Participation Agreement.
Tax Indemnity Agreement. The Original Tax Indemnity Agreement
as amended by Amendment No. 1 to the Original Tax Indemnity Agreement, as
from time to time modified, amended or supplemented pursuant to its
applicable provisions.
Term. The Preliminary Term, the Interim Term and the Basic
Term of the lease for the Aircraft under the Lease and, if renewed pursuant
to Section 4.01 of the Lease, each Renewal Term for the Aircraft for which
the Lease is renewed, or such earlier date on which the Lease is terminated
pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term
that is on or after July 2, 2001 in the case of Article 10 of the Lease,
and in the case of (i) Section 4.02(a) (A) of the Lease, the Rent Payment
Date falling on July 2, 2008 or January 2, 2012, (ii) Section 4.02(a) (D)
or (E) of the Lease, a Rent Payment Date that is on or after the fifth
anniversary of the Commencement Date and (iii) Section 4.02(a) (F) of the
Lease, January 2, 2015.
Termination Value. As of any Termination Date, the amount
determined by multiplying the Purchase Price by the percentage set forth in
Schedule IV of the Lease under the heading "Termination Value Factor"
opposite such Termination Date (as such Schedule IV may be adjusted from
time to time as provided in Section 3.04 of the Lease). Notwithstanding
any other provisions of the Lease, the Participation Agreement or the
Indenture, each Termination Value shall be, under any circumstances and in
any event, an amount, together with so much of the arrears portion of Basic
Rent due and owing through the date of payment of any amount calculated by
reference to Termination Value as does not constitute an Excepted Payment,
at least sufficient to pay in full as of such date of payment the aggregate
unpaid principal amount of and accrued interest on the Certificates
outstanding on such date of payment. Subject to the immediately preceding
sentence, it is understood and agreed that the amounts set forth on
Schedule IV of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals
and credits of unearned Basic Rent and, accordingly, no further accrual or
credit shall be required whenever Termination Value is to be calculated
with reference to any such date.
Transaction Costs. Those costs and expenses set forth in
Section 10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code
(which, among other things, recodified the Federal Aviation Act of 1958, as
amended to the time of such recodification), as amended and in effect on
the date of the Lease or as subsequently amended, or any successor or
substituted legislation at the time in effect and applicable, and the
regulations promulgated pursuant thereto.
Treasury Yield. (i) In the case of a Certificate having a
Maturity within one year after the Prepayment Date the average yield to
maturity on a government bond equivalent basis of the applicable United
States Treasury Xxxx due the week of Maturity of such Certificate and (ii)
in the case of a Certificate having a Maturity one year or more after the
Prepayment Date, the average yield of the most actively traded United
States Treasury Note (as reported by Cantor Xxxxxxxxxx Securities Corp. on
page 5 of Telerate Systems, Inc., a financial news service, or if such
report is not available, a source deemed comparable by the Independent
Investment Banker selected to determine the Make-Whole Premium and
reasonably acceptable to the Lessee) corresponding in maturity to the
Remaining Weighted Average Life of such Certificate (or, if there is no
corresponding maturity, an interpolation of maturities by the Independent
Investment Banker), in each case determined by the Independent Investment
Banker selected to determine the Make-Whole Premium based on the average of
the yields to stated maturity determined from the bid prices as of 10:00
a.m. and 2:00 p.m. New York time, on the second Business Day preceding the
Prepayment Date.
Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N660FE), dated as of September 1, 1995, as amended
and restated as of October 26, 1995, between the Owner Participant and the
Owner Trustee in its individual capacity, as from time to time modified,
amended or supplemented pursuant to its applicable provisions and in
accordance with the Operative Agreements.
Trust Indenture Act. The Trust Indenture Act of 1939, as
amended.
Trust Indenture Estate. All estate, right, title and interest
of the Indenture Trustee in and to any of the property, rights, interests
and privileges granted to the Indenture Trustee pursuant to the Granting
Clause of the Indenture, other than Excepted Payments and any and all other
rights of the Owner Trustee or the Owner Participant expressly reserved to
the Owner Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. The several Underwriters named in the
Underwriting Agreement.
Underwriting Agreement. The Underwriting Agreement dated
October 26, 1995 among the Lessee, Xxxxxxx Sachs & Co., X.X. Xxxxxx
Securities Inc. and Xxxxxx Xxxxxxx & Co. Incorporated.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which
there is in force a certificate issued pursuant to Section 41102(a) or
Section 41103 of the Transportation Code, and as to which there is in force
an air carrier operating certificate issued pursuant to Chapter 447 of the
Transportation Code and Part 121 of the regulations under such
Transportation Code, for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, or which may operate as an
air carrier by certification or otherwise under any successor or substitute
provision thereof or in absence thereof.
U.S. Person. A Person described in Section 7701(a) (30) of the
Code.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Japan
Austria Luxembourg
Belgium Malaysia
Canada Netherlands
Denmark New Zealand
Finland Norway
France Philippines
Germany Portugal
Greece Singapore
Hong Kong South Korea
Iceland Sweden
Ireland Switzerland
Italy United Kingdom
EXHIBIT A(1)(a)
[Letterhead of Federal Express]
[Refunding Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N660FE
--------------------------------------------
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express Corporation, a
Delaware corporation ("Federal"), and am familiar with the transactions
contemplated by the Participation Agreement (Federal Express Corporation
Trust No. N660FE), dated as of September 1, 1995, as amended and restated
as of October 26, 1995 (the "Participation Agreement"), among Federal, as
Lessee, Chrysler Capital Corporation, as Owner Participant, The Chase
Manhattan Bank (National Association), Bank of America NT & SA, CIBC Inc.
and The First National Bank of Chicago, as Original Loan Participants, NBD
Bank, a Michigan banking corporation, not in its individual capacity,
except as otherwise stated, but solely as Owner Trustee under the Trust
Agreement, The Chase Manhattan Bank (National Association), a national
banking association, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee under the Indenture and The Chase
Manhattan Bank (National Association), as Pass Through Trustee, relating to
the Aircraft. This opinion is being delivered pursuant to Section
4.01(l) (i) of the Participation Agreement. Capitalized terms not otherwise
defined herein have the meaning assigned thereto in the Participation
Agreement.
The Participation Agreement provides, among other things, for
the refinancing in full of the Original Loan Certificates evidencing the
Original Loan Participants' participation in the payment of the Purchase
Price of one Airbus A300F4-605R aircraft (the "Aircraft"), using the
proceeds from the public offering of the Pass Through Certificates. Three
Series of Pass Through Certificates will be issued by three Pass Through
Trusts formed to acquire, among other securities, the Certificates bearing
a particular interest rate and having a particular Maturity that will be
issued under the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N660FE) dated as of September 1, 1995, as amended
and restated as of October 26, 1995, as supplemented by the related
Indenture and Security Agreement Supplement ("Indenture"), between the
Owner Trustee and the Indenture Trustee.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision
executed counterparts of the Operative Agreements, the Pass Through
Agreement and each Series Supplement (the "Transaction Agreements"). We
have relied upon originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, documents and other
instruments as in our judgment are relevant to rendering the opinions
expressed below. As to any facts material to the opinions expressed below
(other than any thereof relating to Federal), we have relied upon the
representations and warranties made in the Transaction Agreements, the
accuracy of which we have not independently investigated or verified. In
such examination, we have assumed the genuineness of all signatures (other
than the signatures of Federal) and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. We have also assumed that each of the
parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements
and that each such Transaction Agreement has been duly authorized, executed
and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a) (15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Original Agreements and the Transaction Agreements to which it is a party.
Federal is duly qualified to do business and is in good standing in the
State of Tennessee and each other state of the United States in which its
operations or the nature of its business requires Federal so to qualify,
except where the failure so to qualify would not have a material adverse
impact on Federal or its business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material
to the operation of the routes flown by it and the conduct of its business
and operations as currently conducted, and each such certificate,
franchise, license, permit, right and concession and consent is in full
force and effect.
3. Each of the Original Agreements and the Transaction
Agreements to which Federal is a party has or had, on the date of execution
thereof, been duly authorized, executed and delivered by Federal and
together constitute the legal, valid and binding obligation of Federal
enforceable against Federal in accordance with its and their terms. 4.
Neither the execution and delivery by Federal of the Original Agreements
and the Transaction Agreements to which Federal is a party, nor the
consummation of any of the transactions by Federal contemplated thereby,
nor the performance of the obligations thereunder by Federal, did at the
time of execution and delivery, or does presently (a) require any
stockholder approval or violate the certificate of incorporation or by-laws
of Federal or (b) conflict with or contravene the provisions of, or
constitutes a default under, or result in the creation of any Lien (other
than Liens permitted under Section 6.01(a) of the Lease) upon the property
of Federal under any law, governmental rule or regulation, or the charter
or bylaws of Federal or any order, writ, injunction or decree of any court
or governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Original Agreements and the Transaction Agreements to which it is a party,
nor the consummation of any of the transactions by Federal contemplated
thereby, nor the performance of the obligations thereunder by Federal, did
or does, as the case may be, require the consent or approval of, the giving
of notice to, or (except as described or contemplated in the Participation
Agreement and the Lease, all of which are required to be performed on or
prior to the Refunding Date and which shall have been accomplished on or
prior to the Refunding Date) the registration with, or the taking of any
other action in respect of, the FAA, the Securities and Exchange Commission
or any other authority or agency of the federal government or of the State
of Tennessee other than (a) the registration of the issuance and sale of
the Pass Through Certificates under the Securities Act, (b) compliance with
the securities laws of each applicable state, and (c) the filing of the
Indenture, the Lease and the Trust Agreement with the FAA.
6. There are no pending, or to my knowledge, threatened
actions or proceedings before or by any court or administrative agency
which individually (or in the aggregate in the case of any group of related
lawsuits) (i) is expected to have a material adverse effect on (A) except
for the matters described under "Legal Proceedings" in Federal's Annual
Report on Form 10-K for the fiscal year ended May 31, 1995 (as updated by
Note 7 to the financial statement included in the Lessee's Quarterly Report
on Form 10-Q for the fiscal quarter ended August 31, 1995), as to which I
can express no opinion at this time concerning Federal's liability (if any)
or the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of Federal, the financial condition
of Federal or (B) the ability of Federal to perform its obligations under
the Original Agreements or the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the filing and, where appropriate, recording
pursuant to the Transportation Code of the Lease, the Indenture, the Trust
Agreement, the filing of the financing statements referred to in Section
4.01(f) of the Participation Agreement and the taking of possession by the
Indenture Trustee of the original counterpart of the Lease and maintaining
possession of the original counterpart of the Lease Supplement delivered on
the Delivery Date, no further action, including any filing or recording of
any document is necessary or advisable in order to establish and perfect
the Owner Trustee's title to and interest in the Aircraft as against
Federal and any third parties, or to perfect the first security interests
in and mortgage Lien on the Trust Indenture Estate in favor of the
Indenture Trustee in each case with respect to such portion of the Aircraft
as is covered by the recording system established by the Transportation
Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
9. On the Delivery Date the Owner Trustee received valid title
to the Aircraft free and clear of all Liens on file with the FAA, except
for Liens permitted under Section 6.01(a) of the Lease. Pursuant to the
Original Participation Agreement the Aircraft was duly delivered to the
Owner Trustee. Federal, as Lessee, duly accepted the Aircraft under the
Original Lease and the Lease Supplement and the Term commenced on the
Delivery Date.
10. Federal's principal place of business and chief executive
office (as such term is defined in the Uniform Commercial Code in effect in
the State of Tennessee) are located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxxxxxx.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Original Agreements and the Transaction Agreements to
which Federal is a party are based upon the assumption for purposes of such
opinions and without independent analysis that, notwithstanding the
respective choice of laws clauses in the Original Agreements and the
Transaction Agreements, the governing law with respect to each of the
Original Agreements and the Transaction Agreements is identical in all
relevant respects to the law of the State of Tennessee. Insofar as the
foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally
(whether such enforceability is considered in a proceeding in equity or at
law). The enforceability of the remedies provided under the Lease may also
be limited by applicable laws which may affect the remedies provided
therein but which do not in my opinion affect the validity of the Lease or
make such remedies inadequate for the practical realization of the benefits
intended to be provided thereby.
I do not express any opinion as to matters governed by any law
other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9 above, I
have relied on the opinion of Xxxxxxxxx, Xxxxxx & Xxxxxxxx of even date
herewith, to the extent such matters are addressed in such counsel's
opinion and subject to the assumptions and qualifications expressed
therein.
This opinion is delivered to you solely for your use in
connection with the transactions described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
I rendered an opinion dated September 20, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. I hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxxx X. Xxxxx
SCHEDULE A
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(1)(b)
[Letterhead of Xxxxx Xxxx & Xxxxxxxx]
[Refunding Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N660FE
--------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal
Express Corporation Trust No. N660FE), dated as of September 1, 1995, as
amended and restated as of October 26, 1995 (the "Participation
Agreement"), among Federal Express, as Lessee, Chrysler Capital
Corporation, as Owner Participant, The Chase Manhattan Bank (National
Association), Bank of America NT & SA, CIBC Inc. and The First National
Bank of Chicago, as the Original Loan Participants, NBD Bank, a Michigan
banking corporation, not in its individual capacity but solely as Owner
Trustee under the Trust Agreement, The Chase Manhattan Bank (National
Association), a national banking association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee under
the Indenture, and The Chase Manhattan Bank (National Association), as Pass
Through Trustee, relating to the Aircraft. This opinion is being delivered
pursuant to Section 4.01(l) (viii) of the Participation Agreement.
Capitalized terms not otherwise defined herein have the meanings assigned
thereto in the Participation Agreement.
Pursuant to the Original Participation Agreement, the Owner
Participant and the Original Loan Participants participated in the payment
of the Purchase Price of one Airbus A300F4-605R Aircraft which was
purchased by the Owner Trustee pursuant to AVSA's FAA Xxxx of Sale and
AVSA's Warranty Xxxx of Sale, subjected to the Lien of the Original
Indenture and leased to Federal Express under the Original Lease. The
Participation Agreement provides, among other things, for the refinancing
of the Original Loan Certificates using the proceeds from the public
offering of the Pass Through Certificates. Three Series of Pass Through
Certificates will be issued by separate Pass Through Trusts, each formed to
acquire, among other securities, the Certificates bearing a particular
interest rate and having a particular Maturity that will be issued under
the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Original Agreements, the Operative
Agreements, the Pass Through Certificates, the Pass Through Agreement and
each Series Supplement. We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as
originals and the conformity with the originals of all documents submitted
to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made
in or pursuant to the Participation Agreement, the Original Participation
Agreement and the other documents referred to therein, the accuracy of
which we have not independently verified. In addition, we have, when
relevant facts were not independently established by us, relied, to the
extent we deemed such reliance proper, upon certificates of public
officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft and
the other property included in the Lessor's Estate as may not be covered by
the recording system established by the FAA pursuant to Section 44107 of
the Transportation Code, no filing or recording of any document or other
action was or is necessary in order to establish the Owner Trustee's title
thereto and interest therein as against Federal Express and any third
parties.
2. The Lease creates a valid leasehold interest in the
Aircraft, the entitlement thereof to the benefits of recordation under the
Transportation Code being subject to the due and timely filing and, where
appropriate, recording of (A) the Lease, with the Indenture attached as an
exhibit, (B) the Indenture and (C) the Trust Agreement.
3. The execution, delivery and performance of the Original
Participation Agreement, the Participation Agreement, the Original Trust
Agreement, the Trust Agreement, the Original Indenture, the Indenture, the
Indenture and Security Agreement Supplement, the Original Lease, the Lease
and the Lease Supplement by the Owner Trustee in its individual or trust
capacity, as the case may be, and the issuance, execution, delivery and
performance of the Certificates by the Owner Trustee in its trust capacity
do not violate, and fully comply with, any laws and governmental rules and
regulations of the State of New York that may be applicable to the Owner
Trustee in its individual or trust capacity, as the case may be. The
opinion set forth in this paragraph 3 is rendered without regard to the
effect, if any, on such issuance (in the case of the Certificates),
execution, delivery or performance or the taking of any other action, the
conduct of any other business or the exercise of any other powers by NBD
Bank in its individual or in a trust capacity in the State of New York not
related to the transactions contemplated by the Original Agreements, the
Operative Agreements, the Pass Through Agreement or the Series Supplements.
We have assumed that NBD Bank has made the filings necessary to comply with
Section 131.3 of the Banking Law of the State of New York, however we
express no opinion as to whether NBD Bank is required to comply with said
Section 131.3.
4. (a) Each of the Original Agreements, the Operative
Agreements, the Pass Through Agreement and each of the Series Supplements
to which Federal Express is a party has been duly authorized, executed and
delivered by Federal Express.
(b) The execution, delivery and performance by Federal Express
of each of the Original Agreements and each of the Operative Agreements to
which Federal Express is a party, the Pass Through Agreement and each
Series Supplement do not violate, and fully comply with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph
4(b) is rendered without regard to the taking of any other action or the
conduct of any other business by Federal Express in the State of New York
other than the transactions contemplated by the Original Agreements, the
Operative Agreements, the Pass Through Agreement or each Series Supplement.
5. Assuming (i) the due authorization, execution and delivery
of the Original Agreements, the Operative Agreements, the Pass Through
Agreement and each Series Supplement by each of the parties to each such
document (other than Federal Express), (ii) that the execution, delivery
and performance by each of the Operative Agreements, the Pass Through
Agreement and each Series Supplement by each of the parties thereto will
not violate the respective parties' constituent documents, (iii) the due
authorization, execution, issue and delivery by the Owner Trustee, and the
due authentication by the Indenture Trustee, of the Certificates to be
issued under the Indenture in accordance with the terms of the Indenture,
(iv) that the Original Loan Certificates are delivered by the Original Loan
Participants to the Indenture Trustee for cancellation and are cancelled,
(v) the due authorization, execution, issuance, delivery and authentication
by the Pass Through Trustee of the Pass Through Certificates to be issued
under the Pass Through Agreement and the Series Supplement relating to such
Pass Through Certificates, in each case in accordance with the terms of the
Pass Through Agreement and such Series Supplement, and (vi) that the form
of each Operative Agreement, the Pass Through Agreement and each Series
Supplement is in compliance with all applicable laws and governmental rules
and regulations (other than Federal laws and the laws of the State of New
York), then: (A) each Operative Agreement, the Pass Through Agreement and
each Series Supplement in form constitutes a legal, valid and binding
agreement of each party thereto enforceable against each such party in
accordance with its terms; (B) the Original Indenture created, and the
Indenture creates, for the benefit of the Holders, the security interest in
the Trust Indenture Estate that they purport to create; (C) the
Certificates, when issued to and acquired by the Pass Through Trustee, will
be legal, valid and binding obligations of the Owner Trustee enforceable
against the Owner Trustee in accordance with their terms and the terms of
the Indenture and will be entitled to the benefits of the Indenture,
including the benefit of the security interest created thereby; (D) the
Pass Through Certificates, when issued to and acquired by the Underwriters
in accordance with the Underwriting Agreement, will be legal, valid and
binding obligations of the Pass Through Trustee enforceable against the
Pass Through Trustee in accordance with their terms and will be entitled to
the benefits of the Pass Through Agreement and the Series Supplement
relating thereto; and (E) the beneficial interest of the Owner Participant
under the Trust Agreement in and to the properties which are part of the
Trust Indenture Estate is subject, to the extent provided in the Indenture,
to the Lien of the Indenture in favor of the Holders. The opinions set
forth in this paragraph 5 are subject to the due filing and recording,
where appropriate, with the FAA of the documents referred to in paragraph 2
above.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee
pledged and mortgaged by it pursuant to the Indenture in and to the
Aircraft and the Lease) have been pledged and mortgaged with the Indenture
Trustee as part of the Trust Indenture Estate (subject to the due filing
and, where appropriate, recording of those documents referred to in
paragraph 2 above and the financing statements referred to in Section
4.01(f) of the Participation Agreement), and the beneficial interests of
the Owner Participant under the Trust Agreement in and to such properties
are subject, to the extent provided in the Indenture, to the Lien of the
Indenture in favor of the Holders of the Certificates issued and to be
issued under the Indenture.
7. The Indenture creates, as security for the Certificates
duly issued and to be issued under the Indenture, the first priority
security interest in the Aircraft it purports to create, the perfection and
rank thereof being subject to the registration with the FAA of the Aircraft
in the name of the Owner Trustee and the due and timely filing and, where
appropriate, recording in accordance with the Transportation Code of the
documents referred to in paragraph 2 above. We express no opinion with
respect to the status of any security interest in any portion of the
Aircraft which does not constitute an "aircraft" or "aircraft engine", as
defined in paragraphs (6) and (7) of Section 40102(a) of the Transportation
Code.
8. Federal Express's participation in the transactions
contemplated by the Operative Agreements, the Pass Through Agreement and
each Series Supplement does not and will not constitute a violation of
Section 7 of the Securities Exchange Act of 1934.
9. It is not necessary, in connection with the creation of the
beneficial interests of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Indenture
Trustee.
The foregoing opinions are subject to the following
qualifications:
(a) To the extent that this opinion relates to matters involving
Federal aviation law, we have relied, with your consent, without
independent investigation and verification and subject to the assumptions
and qualifications contained therein, upon the opinion of Xxxxxxxxx, Xxxxxx
& Xxxxxxxx to be delivered to you and dated the date hereof. We have also
relied, with your consent, on the opinion dated the date hereof of Xxxxxx
X. Xxxxx, Vice President - Law of the Lessee, for purposes of the matters
stated in paragraphs 4(a) and as to all matters of Tennessee law.
(b) We are qualified to practice law in the State of New York, and
we do not purport to be experts on, or to express any opinion herein
concerning, any laws other than the laws of the State of New York, the laws
of the United States and the General Corporation Law of the State of
Delaware.
(c) The opinion contained in paragraph 5 above as to enforceability
is subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity which may affect the
remedies provided in the agreements referred to in said opinions, which
laws and principles, however, do not in our opinion make the remedies
provided in said agreements inadequate for the practical realization of the
benefits of the security intended to be provided thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other Person
without our prior written consent.
(e) We rendered an opinion dated September 20, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxx Xxxx & Xxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
---------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(2)(a)
[Letterhead of Xxxxxx, Xxxxx & Xxxxxxx]
[Refunding Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N660FE
--------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for Chrysler Capital
Corporation, a Delaware corporation (the "Owner Participant"), in
connection with the transactions contemplated by (i) the Participation
Agreement, dated as of September 1, 1995, as amended and restated as of
October 26, 1995 (the "Participation Agreement"), among Federal Express
Corporation, as Lessee (the "Lessee"), the Owner Participant, The Chase
Manhattan Bank (National Association), Bank of America NT & SA, CIBC Inc.
and The First National Bank of Chicago, as the Original Loan Participants
(the "Original Loan Participants"), NBD Bank, a Michigan banking
corporation, not in its individual capacity but solely as Owner Trustee
under the Trust Agreement (the "Owner Trustee"), The Chase Manhattan Bank
(National Association), a national banking association, not in its
individual capacity, except as otherwise stated, but solely as Indenture
Trustee under the Indenture (the "Indenture Trustee"), and The Chase
Manhattan Bank (National Association), as Pass Through Trustee, (ii) the
Trust Agreement, dated as of September 1, 1995, as amended and restated as
of October 26, 1995 (the "Trust Agreement"), by and between the Owner
Participant and the Owner Trustee and (iii) the Tax Indemnity Agreement,
dated as of September 1, 1995, as amended by Amendment No. 1 thereto dated
as of October 26, 1995 (the "Tax Indemnity Agreement"), by and between the
Owner Participant and the Lessee. This opinion is delivered pursuant to
Section 4.01(l) (ii) of the Participation Agreement. Unless otherwise
defined herein, all capitalized terms used herein shall have the respective
defined meanings set forth in the Participation Agreement.
In connection with our opinions herein, we have examined
executed counterparts of (i) the Original Participation Agreement, the
Original Trust Agreement and the Original Tax Indemnity Agreement
(collectively, the "Original Owner Participant Documents") and (ii) the
Participation Agreement, the Trust Agreement and the Tax Indemnity
Agreement (collectively, the "Owner Participant Documents"). We have
further examined and relied upon the accuracy of original, certified,
conformed, photographic or telecopied copies of such records, agreements,
certificates, instruments and other documents as we have deemed necessary
or appropriate to enable us to render the opinions expressed herein. In
all such examinations, we have assumed the genuineness of signatures on
original documents, the authenticity of all documents submitted to us as
originals and the conformity to such original documents of all copies
submitted to us as certified, conformed, photographic or telecopied copies
and the authenticity of such latter documents, and as to certificates and
telegraphic and telephonic confirmations given by public officials, we have
assumed the same to have been properly given and to be accurate. As to
various questions of fact material to our opinions, we have relied solely
upon the accuracy of the statements, representations and warranties made in
the Original Owner Participant Documents and the Owner Participant
Documents, and we have made no independent investigation or inquiry with
respect to such factual matters.
With your consent, and for purposes of this opinion, we have
assumed the accuracy of the following matters, but we have not made any
independent investigation or inquiry with respect thereto and we render no
opinion on such matters:
(a) That the execution and delivery and performance of each of the
Original Owner Participant Documents and the Owner Participant Documents by
each of the parties thereto did not or will not, as the case may be,
violate the respective parties' constituent documents.
(b) That each of the parties to the Original Owner Participant
Documents and the Owner Participant Documents had or has, as the case may
be, full power, authority and legal right to enter into and perform its
respective obligations under the Original Owner Participant Documents and
the Owner Participant Documents to which it is a party.
(c) The Original Owner Participant Documents and the Owner
Participant Documents, at the time of execution and delivery by the Owner
Participant, were or will have been, as the case may be, duly authorized
and validly executed and delivered by all parties thereto (other than the
Owner Participant) and constituted or will constitute, as the case may be,
the legal, valid and binding obligations of such parties, enforceable
against such parties in accordance with their terms.
(d) The parties to the Original Owner Participant Documents and the
Owner Participant Documents (other than the Owner Participant, as to which
we have not assumed the acquisition of all consents, permits and approvals
under New York law) at the time of execution and delivery by the Owner
Participant, obtained or have obtained, as the case may be, and there were
or are, as the case may be, in full force and effect at such time, any and
all required consents, permits and approvals required by or from any and
all federal, state, local or foreign governmental agencies and authorities
in connection with the transactions contemplated thereby, to the extent
necessary for the legality, validity, binding effect or enforceability of
the Original Owner Participant Documents and the Owner Participant
Documents.
We have been retained as special counsel to the Owner
Participant in connection with the transactions contemplated by the
Participation Agreement, and have not generally represented the Owner
Participant in its business activities and are not familiar with the nature
and extent of such other activities. Accordingly, we also have assumed
without investigation that such other activities are not of such a nature
as to cause the transactions contemplated by the Participation Agreement to
be governed by laws or regulations of the State of New York or the United
States of America applicable only because of such other activities (such as
laws relating specifically to the banking, securities, insurance or utility
industries) and not applicable to business corporations generally.
Based upon the foregoing, we are of the opinion that:
(1) The Original Owner Participant Documents on the date of execution
thereof constituted, and the Owner Participant Documents constitute legal,
valid and binding obligations of the Owner Participant, enforceable against
the Owner Participant in accordance with their respective terms, except as
the enforceability thereof may be limited by (a) applicable bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors', mortgagees' and lessors'
rights generally, (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity) and
(c) with respect to the indemnification provisions set forth in the
Original Owner Participant Documents and the Owner Participant Documents,
considerations of public policy.
(2) Neither the execution and delivery of the Original Owner Participant
Documents and the Owner Participant Documents by the Owner Participant nor
the consummation by the Owner Participant of any of the transactions
therein contemplated, or the fulfillment of, or compliance with, the terms
and provisions of any thereof, (A) required or requires, as the case may
be, for its validity that the Owner Participant obtain the consent or
approval of, give notice to, register with, or take any other action with
respect to, any governmental authority or agency of the State of New York
or the Federal government of the United States, or (B) contravened or
contravenes any law, governmental rule or regulation of the State of New
York or the Federal government of the United States or any governmental
authority or agency thereof.
In rendering the foregoing opinions, we have relied, with your
consent, on the opinion of even date herewith of Xxx X. Xxxxxxx, Esq.,
Senior Vice President and General Counsel of the Owner Participant, as to
the matters set forth therein (i) that are governed by the laws of the
State of New York, and (ii) relating to the due authorization, execution
and delivery of the Original Owner Participant Documents and the Owner
Participant Documents by the Owner Participant under the laws of the United
States of America, and our opinions are subject to the same limitations and
exceptions as set forth therein.
The foregoing opinions are subject, however, to the
qualification that we express no opinion as to matters relating to the
title to or sufficiency of description of any property or collateral
described in the Original Owner Participant Documents and the Owner
Participant Documents or the perfection or relative priority of any lien or
security interest created with respect to such property or collateral
thereunder. In addition, we express no opinion as to matters governed by
(i) any tax laws, (ii) the Transportation Code, or by any other laws,
statutes, rules or regulations of the United States particularly relating
to the acquisition, ownership, registration, leasing, use or sale of the
Aircraft, the Airframe or the Engines other than such laws relating to
personal property generally, (iii) any securities laws and (iv) laws
pertaining to the Owner Participant solely because of the business
activities of the Owner Participant and not applicable to business
corporations generally.
We are licensed to practice law in the State of New York and we
express no opinions herein as to the laws of any state or jurisdiction
other than the laws of the State of New York and the laws of the United
States of America.
This opinion is furnished by us at your request and at the
Owner Participant's request for your sole benefit, and we agree that you
and your successors and permitted assigns may rely on the opinions
expressed herein. No other Person or entity shall be entitled to rely on
the opinions expressed herein without our express written consent. This
opinion shall not be published or reproduced in any manner or distributed
or circulated to any person or entity without our express written consent;
provided that no such consent shall be necessary for the reproduction,
circulation or distribution of this opinion to (i) the special counsel,
auditors or public accountants of the persons named on Schedule A hereto or
(ii) bank examiners or similar regulatory authorities. Our opinion is
limited to the matters stated herein, and no opinion is implied or may be
inferred beyond the matters expressly stated herein.
We rendered an opinion dated September 20, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxxx, Xxxxx & Bockius
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
------------------
The Chase Manhattan Bank (National Association)
0 Xxxxx Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
---------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
------------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
-------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
---------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(2)(b)
[Letterhead of Chrysler Capital Corporation]
[Refunding Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N660FE
--------------------------------------------
Ladies and Gentlemen:
I have acted as counsel to Chrysler Capital Corporation, a
Delaware corporation (the "Owner Participant"), in connection with the
transactions contemplated by that certain (i) the Participation Agreement,
dated as of September 1, 1995, as amended and restated as of October 26,
1995 (the "Participation Agreement"), among Federal Express Corporation, as
Lessee (the "Lessee"), the Owner Participant, The Chase Manhattan Bank
(National Association), Bank of America NT & SA, CIBC Inc. and The First
National Bank of Chicago, as the Original Loan Participants (the "Original
Loan Participants"), NBD Bank, a Michigan banking corporation, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement
(the "Owner Trustee"), The Chase Manhattan Bank (National Association), a
national banking association, not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee under the Indenture (the
"Indenture Trustee"), and The Chase Manhattan Bank (National Association),
as Pass Through Trustee (the "Pass Through Trustee), (ii) the Trust
Agreement, dated as of September 1, 1995, as amended and restated as of
October 26, 1995 (the "Trust Agreement"), by and between the Owner
Participant and the Owner Trustee and (iii) the Tax Indemnity Agreement,
dated as of September 1, 1995, as amended by Amendment No. 1 thereto (the
"Tax Indemnity Agreement"), by and between the Owner Participant and the
Lessee. This opinion is delivered pursuant to Section 4.01(l) (ii) of the
Participation Agreement. Unless otherwise defined herein, all capitalized
terms used herein shall have the respective defined meanings set forth in
the Participation Agreement.
For purposes of the opinions expressed below, I, or members of
my staff, have examined executed counterparts or copies certified to my
satisfaction of the Original Participation Agreement, the Original Trust
Agreement, the Original Tax Indemnity Agreement, the Participation
Agreement, the Trust Agreement and the Tax Indemnity Agreement
(collectively, the "Owner Participant Documents") and have examined
originals or photostatic, certified or telecopied copies of such records of
the Owner Participant, certificates of officers of the Owner Participant
and public officials, and such other documents as I have deemed relevant
and necessary as a basis for the opinions set forth below. In such
examination I have assumed the genuineness of all signatures (other than
those of the Owner Participant), the authenticity of all documents
submitted to me as originals, the conformity to the original documents of
documents submitted to me as certified, photostatic or telecopied copies,
and the authenticity of the originals of such copies. As to questions of
fact material to my opinions, I have relied upon the representations and
warranties contained in the Owner Participant Documents and upon
certificates of officers of the Owner Participant, those of other persons
having knowledge thereof delivered pursuant thereto and those of public
officials. I have assumed, except with regard to the Owner Participant,
that each of the Owner Participant Documents have been duly authorized,
executed and delivered by the respective parties thereto and that they
constitute the legal, valid and binding obligations of each party thereto
enforceable against each such party in accordance with their respective
terms.
Based on the foregoing examination and subject to the
assumptions and qualifications set forth herein, I am of the opinion that
as of the date hereof:
1. The Owner Participant is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. The
Owner Participant has all requisite corporate power, authority and legal
right to carry on its present business and operations, to own or lease its
Properties and enter into and to carry out the transactions contemplated by
each of the Owner Participant Documents.
2. The performance by the Owner Participant of its obligations under
each of the Owner Participant Documents did not or does not, as the case
may be, (a) required or require, as the case may be, any approval or
consent of any shareholder, to the best of my knowledge, require any
consent or approval of any trustee, or holder of any indebtedness or other
obligation of the Owner Participant, (b) violated or violate, as the case
may be, the organizational documents or by-laws of the Owner Participant,
(c) violated or violate, as the case may be, any law, governmental rule or
regulation of the State of New York or of the federal government of the
United States or any governmental authority or agency thereof or (d) to the
best of my knowledge, conflicted or conflict, as the case may be, with any
judgment or order applicable to or binding upon the Owner Participant or
its properties, or violated or violate, as the case may be, or (except as
contemplated by the Owner Participant Documents) subject the Trust Estate
to any lien under any indenture, mortgage, bank credit agreement, note or
bond purchase agreement, long-term lease, license or contract or any other
agreement or instrument to which the Owner Participant is a party or by
which the Owner Participant is bound.
3. The execution and delivery by the Owner Participant of the Owner
Participant Documents and the performance by the Owner Participant of its
obligations thereunder have been duly authorized by all necessary corporate
action on the part of the Owner Participant. Each of the Owner Participant
Documents has been duly executed and delivered by the Owner Participant.
4. Neither the execution and delivery by the Owner Participant of
the Owner Participant Documents, nor the consummation by the Owner
Participant of any of the transactions contemplated thereby, required or
requires, as the case may be, the consent or approval of, the giving of
notice to, the registration with, the recording or filing of any document
with, or the taking or any other action in respect of, any governmental
authority or agency of the State of New York or of the federal government
of the United States, except those contemplated by the Operative
Agreements.
5. There are no actions, suits, investigations or proceedings
pending or, to the best of my knowledge, threatened against or affecting
the Owner Participant or any of its properties in any court or before any
administrative agency or arbitrator, which, if adversely determined, would
materially adversely affect the ability of the Owner Participant to perform
its obligations under any of the Owner Participant Documents, and there are
no pending or, to the best of my knowledge, threatened actions or
proceedings before any court, administrative agency or tribunal involving
the Owner Participant in connection with the transactions contemplated by
any of the Owner Participant Documents.
I am a member of the Bar of the State of New York and I do not
purport to have any knowledge of, or to express any opinion herein
concerning, any laws other than the laws of the State of New York, the
General Corporation Law of the State of Delaware and the laws of the United
States of America, except that no opinion is given as to securities,
banking or tax laws. Further, I have made no investigation and express no
opinion, as to any aviation law or other laws, statutes, rules or
regulations applicable due to the particular nature of the equipment
subject to the Lease.
This opinion is furnished by me as counsel to the Owner
Participant for your sole benefit and for the benefit of your successors
and assigns and no other person or entity shall rely on this opinion
without my express written consent. This opinion shall not be published or
reproduced in any manner or distributed or circulated to any person or
entity without my express written consent; provided that no such consent
shall be necessary for the reproduction, circulation or distribution of
this opinion to (i) the special counsel, auditors or public accountants of
the persons named on Schedule A hereto or (ii) bank examiners or similar
regulatory authorities. My opinion is limited to the matters stated
herein, and no opinion is implied or may be inferred beyond the matters
expressly stated herein. We rendered an opinion dated September 20, 1995
(the "Delivery Date Opinion"), a copy of which is attached hereto, in
connection with the financing and acquisition of the Aircraft on such date.
We hereby consent and agree that the addressees hereto who were not
addressees to the Delivery Date Opinion may rely on the Delivery Date
Opinion as fully and with the same force and effect as if such addressees
were originally named therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxx X. Xxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(3)(a)
[Letterhead of Xxxxx Xxxxxxxxxx]
[Refunding Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N660FE
--------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to The Chase Manhattan Bank
(National Association), a national banking association (the "Indenture
Trustee"), in connection with the transactions contemplated by (i) the
Trust Indenture, Mortgage and Security Agreement (Federal Express
Corporation Trust No. N660FE) dated as of September 1, 1995 (the "Original
Indenture") between NBD Bank (the "Owner Trustee") and the Indenture
Trustee, (ii) the Participation Agreement (Federal Express Corporation
Trust No. N660FE) dated as of September 1, 1995 (the "Original
Participation Agreement") among Federal Express Corporation ("Federal
Express"), Chrysler Capital Corporation, as Owner Participant (the "Owner
Participant"), The Chase Manhattan Bank (National Association), Bank of
America NT & SA, CIBC Inc. and The First National Bank of Chicago, as
Original Loan Participants (the "Original Loan Participants"), the Owner
Trustee and the Indenture Trustee, (iii) the Trust Indenture and Security
Agreement (Federal Express Corporation Trust No. N660FE) dated as of
September 1, 1995, as amended and restated as of October 26, 1995 (as
amended and restated, the "Indenture") between the Owner Trustee and the
Indenture Trustee, and (iv) the Participation Agreement (Federal Express
Corporation Trust No. N660FE) dated as of September 1, 1995, as amended
and restated as of October 26, 1995 (as amended and restated, the
"Participation Agreement") among Federal Express, the Owner Participant,
the Original Loan Participants, the Owner Trustee, the Indenture Trustee,
and The Chase Manhattan Bank (National Association), as Pass Through
Trustee. Further, we have advised the Indenture Trustee with respect to
the authentication of one or more equipment trust certificates (the
"Certificates") referred to in the Indenture issued on the date hereof.
This opinion is being delivered pursuant to Section
4.01(l) (iii) of the Participation Agreement. Capitalized terms used herein
and not otherwise defined herein shall have the respective meanings set
forth or referred to in the Participation Agreement. Additionally, The
Chase Manhattan Bank (National Association), in its capacity as Agent and
as an Original Loan Participant, is sometimes referred to herein as the
"New York Loan Participant". We have not served as counsel for or advised
the New York Loan Participant in connection with the transactions
contemplated by the Participation Agreement, the Indenture or any of the
other Operative Agreements and references herein to the Indenture Trustee,
in its individual capacity, exclude The Chase Manhattan Bank (National
Association) in its capacity as the New York Loan Participant.
In connection with the opinions expressed herein, we have
reviewed executed counterparts of the Operative Agreements and the Original
Agreements to which the Indenture Trustee is a party (which we previously
reviewed). We have also examined and relied upon the accuracy of the
originals or certified, conformed, photocopied or telecopied copies of such
corporate records, certificates, instruments and other documents as we have
deemed necessary or appropriate to enable us to render the opinions
expressed herein. In all such examinations, we have assumed the
genuineness of signatures on original documents and the conformity to such
original documents of all copies submitted to us as certified, conformed,
photocopied or telecopied copies, and as to certificates and telegraphic
and telephonic confirmations given by public officials, we have assumed the
same to have been properly given and to be accurate. As to all matters of
fact material to our opinions, we have, when relevant facts were not
independently established, relied upon representations and warranties
contained in the Operative Agreements and upon the statements and
certificates furnished to us.
Based upon and subject to the foregoing and the qualifications
hereinafter set forth, we are of the opinion that:
1. The Indenture Trustee is a national banking association duly
organized and validly existing in good standing under the laws of the
United States of America holding a valid certificate to do business as a
national banking association, with banking and trust powers, and has the
corporate power and authority to execute, deliver and perform its
obligations under the Indenture, the Participation Agreement and the other
Operative Agreements to which it is or is to be a party, and to
authenticate the Certificates to be delivered on the date hereof and had on
the date of execution thereof the corporate power and authority to execute,
deliver and perform its obligations under the Original Indenture, the
Original Participation Agreement and the other Original Agreements to which
it was a party.
2. The Indenture Trustee, in its individual and trust capacities,
has duly authorized, executed and delivered the Indenture, the
Participation Agreement and each of the other Operative Agreements to which
it is a party and as of the date of execution thereof had duly authorized,
executed and delivered the Original Indenture, the Original Participation
Agreement and each of the other Original Agreements to which it was a
party.
3. Each of the Indenture, the Participation Agreement and the other
Operative Agreements to which it is a party constitutes, and on the date of
execution thereof, the Original Indenture, the Original Participation
Agreement and the other Original Agreements to which it was a party
constituted, a legal, valid and binding obligation of the Indenture Trustee
in its trust capacity (and, to the extent provided in each such document,
in its individual capacity) enforceable against the Indenture Trustee in
its trust capacity (and, to the extent provided in each such document, in
its individual capacity) in accordance with its terms thereof, except as
the enforceability thereof may be limited by (a) general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law), (b) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and (c) public policy considerations (in the case of
the indemnity provisions contained therein) .
4. The Certificates delivered on the date hereof have been duly
authenticated and delivered by the Indenture Trustee in accordance with the
terms of the Indenture.
5. The execution, delivery, and performance by the Indenture Trustee
of the Indenture, the Participation Agreement and each of the other
Operative Agreements to which it is a party are not in violation of the
Articles of Association or By-laws of the Indenture Trustee or any law,
governmental rule or regulation of the United States of America or the
State of New York governing the banking or trust powers of the Indenture
Trustee. The execution, delivery, and performance by the Indenture Trustee
of the Original Indenture, the Original Participation Agreement and each of
the other Original Agreements to which it was a party were not on the date
of execution thereof in violation of the Articles of Association or By-laws
of the Indenture Trustee or any law, governmental rule or regulation of the
United States of America or the State of New York governing the banking or
trust powers of the Indenture Trustee.
6. Neither the execution and delivery by the Indenture Trustee, in
its individual or trust capacity, as the case may be, of the Original
Indenture, the Indenture, the Original Participation Agreement, the
Participation Agreement or any of the other Operative Agreements or
Original Agreements to which it is or was, as the case may be, a party, nor
the consummation by the Indenture Trustee, in its individual or trust
capacity, as the case may be, of any of the transactions contemplated in
the Indenture or the Participation Agreement requires, or required on the
date of execution thereof in the case of the Original Indenture and the
Original Participation Agreement, consent or approval of, giving of notice
to, or registration with, or taking of any other action with respect to,
any federal or state governmental authority or agency having jurisdiction
over the Indenture Trustee.
7. There are no fees, taxes or other governmental charges payable by
the Certificate Holders, the Owner Trustee, the Indenture Trustee (except
taxes imposed on fees payable to the Indenture Trustee) to the State of New
York or any political subdivision thereof in connection with the execution,
delivery or performance of any of the Operative Agreements or in connection
with the issuance and acquisition of the Certificates issued to the
Certificate Holders or the beneficial interests of the Certificate Holders
in the Trust Indenture Estate. Neither the Indenture Trustee nor the trust
created under the Indenture will be subject to any fee, tax or other
governmental charge under the laws of the State of New York or any
political subdivision thereof in existence on the date hereof, on, based on
or measured by, directly or indirectly, the gross receipts, net income or
value of the Trust Indenture Estate. There is no fee, tax or other
governmental charge (other than as such as may be imposed upon the New York
Loan Participant) under the laws of the State of New York or any political
subdivision thereof in existence on the date hereof, on, based on or
measured by any payments under the Certificates issued to the Certificate
Holders by reason of the creation of the trust under the Indenture pursuant
to the laws of the State of New York or the Indenture Trustee's performance
of its duties under the Indenture within the State of New York. We express
no opinion, however, as to whether or not any fees, taxes or other charges
are now or hereafter may be payable by the Original Loan Participants, the
Owner Participant or the New York Loan Participant to the State of New York
or any political subdivision thereof in connection with (x) the execution,
delivery or performance by any of the Indenture, the Participation
Agreement or any of the other Operative Agreements, (y) the making by the
Owner Participant of its investment in the Aircraft, (z) with respect to
the New York Loan Participant, the issuance and ownership of the Original
Loan Certificates issued to the New York Loan Participant.
We express no opinion as to the laws of any jurisdiction other
than the laws of the State of New York and the federal laws of the United
States of America. In addition, we express no opinion herein as to (i) any
federal or state securities laws, (ii) any tax laws, (iii) any aviation
laws including, without limitation, the Transportation Code, (iv) any laws,
statutes, rules or regulations applicable to the particular nature of the
equipment acquired or to be acquired by the Owner Trustee, or (v) ERISA or
any other pension and employee benefit laws, rules or regulations. In
addition, we express no opinion as to the right, title or interest in or to
the Trust Estate on the part of any Person. We also express no opinion as
to the perfection or priority of any security interest created by any of
the Operative Agreements.
In rendering the opinions expressed herein, we have assumed
that (a) each of the Indenture, the Participation Agreement and the other
Operative Agreements has been duly authorized, executed and delivered by
the respective parties thereto (other than the Indenture Trustee) and
constitutes and on the date of execution thereof, the Original Indenture
and the Original Participation Agreement constituted, a legal, valid and
binding obligation of each of such parties (other than the Indenture
Trustee), enforceable against each of such parties in accordance with the
terms thereof, (b) each of such parties (other than the Indenture Trustee)
has the requisite power, authority and legal right to enter into and
perform its respective obligations under the Indenture, the Participation
Agreement and each of the other Operative Agreements to which it is a party
and (c) the transactions provided for in the Operative Agreements are not
within the prohibitions of Section 406 of ERISA or Section 4975 of the
Internal Revenue Code of 1986, as amended.
This opinion is furnished by us for the sole benefit of the
addressees hereof, each of whom we understand and agree may rely upon the
opinions set forth herein. No other person or entity is entitled to rely
on this opinion without our express written consent. This opinion is
limited to the matters stated herein and no opinion is implied or may be
inferred beyond the matters expressly stated herein.
We rendered an opinion dated September 20, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxx Xxxxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(3)(b)
[Letterhead of The Chase Manhattan Bank, N.A.]
[Refunding Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N660FE
--------------------------------------------
Ladies and Gentlemen:
As Vice President and Senior Associate Counsel to The Chase
Manhattan Bank (National Association), a national banking association (the
"Indenture Trustee"), I advise you as follows with respect to the
authorization, execution and delivery by the Indenture Trustee of (i) the
Trust Indenture, Mortgage and Security Agreement (Federal Express
Corporation Trust No. N660FE) dated as of September 1, 1995 (the "Original
Indenture") between NBD Bank (the "Owner Trustee") and the Indenture
Trustee, (ii) the Participation Agreement (Federal Express Corporation
Trust No. N660FE) dated as of September 1, 1995 (the "Original
Participation Agreement") among Federal Express Corporation ("Federal
Express"), Chrysler Capital Corporation, as Owner Participant (the "Owner
Participant"), The Chase Manhattan Bank (National Association), Bank of
America NT & SA, CIBC Inc. and The First National Bank of Chicago, as
Original Loan Participants (the "Original Loan Participants"), the Owner
Trustee and the Indenture Trustee, (iii) the Trust Indenture and Security
Agreement (Federal Express Corporation Trust No. N660FE) dated as of
September 1, 1995, as amended and restated as of October 26, 1995 (as
amended and restated, the "Indenture") between the Owner Trustee and the
Indenture Trustee, and (iv) the Participation Agreement (Federal Express
Corporation Trust No. N660FE) dated as of September 1, 1995, as amended
and restated as of October 26, 1995 (as amended and restated, the
"Participation Agreement") among Federal Express, the Owner Participant,
the Original Loan Participants, the Owner Trustee, the Indenture Trustee,
and The Chase Manhattan Bank (National Association), as Pass Through
Trustee. Further, we have advised the Indenture Trustee with respect to
the authentication of one or more equipment trust certificates (the
"Certificates") referred to in the Indenture issued on the date hereof.
Unless otherwise defined herein, capitalized terms used herein
shall have the respective meanings attributed thereto in the Participation
Agreement. The Chase Manhattan Bank (National Association), in its
capacity as Agent and as a Loan Participant, is sometimes referred to
herein as the "New York Loan Participant". I have not served as counsel
for or advised the New York Loan Participant in connection with the
transactions contemplated by the Participation Agreement, the Indenture or
any of the other Operative Agreements and references herein to the
Indenture Trustee, in its individual capacity, exclude The Chase Manhattan
Bank (National Association) in its capacity as the New York Loan
Participant.
I have reviewed executed counterparts of the Operative
Agreements and the Original Agreements to which the Indenture Trustee is a
party (which we previously reviewed). I have also examined the originals,
or certified, conformed, photocopied or telecopied copies of such corporate
records, certificates, instruments and other documents as I have deemed
necessary to appropriate to enable me to render the opinions expressed
herein, including, without limitation, certified copies of the By-laws of
the Indenture Trustee, a certificate of the secretary of the Indenture
Trustee as to certain matters, including the incumbency of the officer of
the Indenture Trustee who executed the Indenture and the Participation
Agreement and who authenticated the Certificates and a certificate of the
Comptroller of the Currency, Washington, D.C., dated September 23, 1965, as
to the Indenture Trustee's existence and authority to do business as a
national banking association and to act in a fiduciary capacity.
In all such examinations, I have assumed the genuineness of
signatures on original documents (other than those of the Indenture
Trustee) and the conformity to such original documents of all copies
submitted to me as certified, conformed, photocopied or telecopied copies,
and as to certificates and telegraphic and telephonic confirmations given
by public officials, I have assumed the same to have been properly given
and to be accurate. As to all matters of fact material to my opinions, I
have, when relevant facts were not independently established, relied upon
statements, representations and warranties contained in the Operative
Agreements and upon the statements and certificates furnished to me.
A. Based upon the foregoing and subject to the limitations
expressed in paragraph B below, I am of the opinion that: (i) the
execution, delivery and performance by the Indenture Trustee of the
Indenture, the Participation Agreement and each of the other Operative
Agreements to which it is a party are not, to my knowledge, in violation of
any judgment, order, indenture, mortgage, bank credit agreement, note or
bond purchase agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it or its properties may be
bound and (ii) the execution, delivery and performance by the Indenture
Trustee of the Original Indenture, the Original Participation Agreement and
each of the other Original Agreements to which it was a party were not on
the date of execution thereof, to my knowledge, in violation of any
judgment, order, indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it or its properties may be
bound.
B. I am qualified to practice law in the State of New York and
I express no opinion as to any laws other than the laws of the State of New
York and the federal laws of the United States of America. Further,
without limiting the generality of the foregoing, I express no opinion with
respect to (i) the citizenship of the Indenture Trustee, the Transportation
Code and the regulations promulgated thereunder, the impact of the
Transportation Code upon matters set forth in this opinion or any other
aviation or other laws, rules or regulations applicable to the particular
nature of the equipment to be acquired by the Owner Trustee; (ii) federal
securities laws, including, without limitation, the Securities Act of 1933,
as amended, and the Trust Indenture Act of 1939, as amended, or state
securities or blue sky laws; (iii) title to any property, real or personal
or the priority or perfection of any liens or security interests; (iv) the
authority or power of the Indenture Trustee under the laws of any
jurisdiction other than New York or federal laws of the United States of
America to exercise any rights or remedies set forth in the Operative
Agreements or to perform any duties or obligations on its part to be
performed other than those that can be performed in the State of New York;
or (v) ERISA.
This opinion is being furnished only to the parties to whom
this opinion is addressed and is solely for their benefit, and no other
person or entity shall be entitled to rely on this opinion without my
express prior written consent. This opinion may not be used, circulated,
quoted, published or otherwise referred to for any purpose without my
express prior written consent. This opinion is limited to the matters
stated herein, and no opinion is implied or may be inferred beyond the
opinions expressly stated herein.
We rendered an opinion dated September 20, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxxxx Xx Xxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(4)
[Letterhead of Xxxxxxxxx, Xxxxxx & Xxxxxxxx]
[Refunding Date]
To the Parties Named on Schedule A attached hereto
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.01(l) (iv) of the Participation Agreement (Federal Express Corporation
Trust No. N660FE), dated as of September 1, 1995, as amended and restated
as of October 26, 1995 (the "Participation Agreement") among Federal
Express Corporation, as Lessee (the "Lessee"), Chrysler Capital
Corporation, as Owner Participant (the "Owner Participant"), The Chase
Manhattan Bank (National Association), Bank of America NT & SA, CIBC Inc.
and The First National Bank of Chicago, as the Original Loan Participants
(the "Original Loan Participants"), NBD Bank, not in its individual
capacity but solely as Owner Trustee (the "Owner Trustee"), The Chase
Manhattan Bank (National Association), as Indenture Trustee (the "Indenture
Trustee") and The Chase Manhattan Bank (National Association), as Pass
Through Trustee, with respect to that portion of Subtitle VII of Title 49
of the United States Code relative to the recordation of instruments and
the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise defined,
have the same meanings given them in the Participation Agreement or in
Annex I attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at
the respective times listed below:
(a) Trust Agreement (Federal Express Corporation Trust No. N660FE)
dated as of September 1, 1995, as amended and restated as of October 26,
1995 (the "Trust Agreement") between the Owner Participant and the Owner
Trustee, which Trust Agreement amends and restates the Original Trust
Agreement, which Trust Agreement was filed at ____ _.m., C.D.T.;
(b) Trust Indenture and Security Agreement (Federal Express Corporation
Trust No. N660FE) dated as of September 1, 1995, as amended and restated
as of October 26, 1995 and executed on October __, 1995 (the "Indenture")
between the Owner Trustee and the Indenture Trustee, which Indenture amends
and restates the Original Indenture, which Indenture was filed at ____
_.m., C.D.T.; and,
(c) Lease Agreement (Federal Express Corporation Trust No. N660FE)
dated as of September 1, 1995, as amended and restated as of October 26,
1995 (the "Lease") between the Owner Trustee, as lessor, and the Lessee, as
lessee, which Lease amends and restates the Original Lease, with the
Indenture attached thereto, which Lease with the Indenture attached thereto
was filed at ____ _.m., C.D.T.
The Confidential Omissions were intentionally omitted from the FAA
filing counterparts of the Lease and the Indenture, as containing
confidential financial information.
Based upon our examination of the above described instruments and of
such records of the FAA as we deemed necessary to render this opinion, it
is our opinion that:
1. AC Form 8050-2 Aircraft Xxxx of Sale dated September 20, 1995
(the "FAA Xxxx of Sale") from AVSA S.A.R.L., as seller, conveying title to
the Airframe to the Owner Trustee has been duly recorded by the FAA on
September 20, 1995 and assigned Conveyance No. 2A267698;
2. the Indenture and the Lease with the Indenture attached are in due
form for recordation by and have been duly filed for recordation with the
FAA pursuant to and in accordance with the provisions of 49 U.S.C. Section
44107;
3. the Trust Agreement is in due form for filing and has been duly
filed with the FAA pursuant to and in accordance with the provisions of 49
U.S.C. Section 44103(a);
4. the Original Trust Agreement was duly filed with the FAA on
September 20, 1995 pursuant to and in accordance with the provisions of 49
U.S.C. Section 44103(a);
5. the Original Indenture with the Indenture and Security Agreement
Supplement attached has been duly filed with and duly recorded by the FAA
pursuant to and in accordance with the provisions of 49 U.S.C. Section
44107;
6. the Original Lease with the Lease Supplement, the Original
Indenture and the Indenture and Security Agreement Supplement attached was
duly filed with and duly recorded by the FAA pursuant to and in accordance
with the provisions of 49 U.S.C. Section 44107;
7. the Airframe is duly registered in the name of the Owner Trustee
pursuant to and in accordance with the provisions of 49 U.S.C. Section
44103(a);
8. the Owner Trustee has valid legal title to the Airframe and the
Aircraft is free and clear of all Liens, except (i) the security interest
created by the Original Indenture, as amended and restated by the
Indenture, as supplemented by the Indenture and Security Agreement
Supplement, and (ii) the rights of the parties under the Original Lease, as
amended and restated by the Lease, as supplemented by the Lease Supplement;
9. the Original Indenture, as amended and restated by the Indenture,
as supplemented by the Indenture and Security Agreement Supplement,
constitutes a duly perfected first priority security interest in the
Aircraft and a duly perfected first assignment of all the right, title and
interest of the Owner Trustee in, to and under the Original Lease, as
amended and restated by the Lease, as supplemented by the Lease Supplement
(insofar as such assignment affects an interest covered by the recording
system established by the FAA pursuant to 49 U.S.C. Section 44107), and no
other registration of the Airframe or filings other than filings with the
FAA (which have been duly effected) are necessary in order to perfect in
any applicable jurisdiction in the United States (A) the Owner Trustee's
title to the Airframe or (B) such security interest and assignment (insofar
as such assignment affects an interest covered by the recording system
established by the FAA pursuant to 49 U.S.C. Section 44107), it being
understood that no opinion is expressed as to the validity, priority or
enforceability of such security interest and assignment under local law or
as to the recognition of the perfection of such security interest and
assignment as against third parties in any legal proceeding outside the
United States;
10. no authorization, approval, consent, license or order of, or
registration with, or the giving of notice to, the FAA is required for the
valid authorization, delivery and performance of the Original Lease, as
amended and restated by the Lease, as supplemented by the Lease Supplement,
the Original Indenture, as amended and restated by the Indenture, as
supplemented by the Indenture and Security Agreement Supplement, or the
Original Trust Agreement, as amended and restated by the Trust Agreement,
except for such filings as are referred to in our opinion dated September
20, 1995 (which have been duly effected) and the filings referred to in
clauses (a), (b) and (c) above; and,
11. neither the authorization, issuance and delivery of the
Certificates, the execution and delivery by the parties thereto of the
Original Trust Agreement, the Trust Agreement, the Original Indenture, the
Indenture, the Indenture and Security Agreement Supplement, the Original
Participation Agreement, the Participation Agreement, the FAA Xxxx of Sale,
the Original Lease, the Lease and the Lease Supplement or the performance
by the parties thereto of: (i) the Original Trust Agreement, as amended
and restated by the Trust Agreement; (ii) the Original Indenture, as
amended and restated by the Indenture, as supplemented by the Indenture and
Security Agreement Supplement; (iii) the Original Participation Agreement,
as amended and restated by the Participation Agreement; and (iv) the
Original Lease, as amended and restated by the Lease, as supplemented by
the Lease Supplement, in accordance with the provisions thereof, nor the
consummation by the parties thereto of any of the transactions contemplated
thereby, requires the consent or approval of, or the giving of notice to,
or the registration with, or the taking of any other action in respect of,
the FAA except for the filings, the recordations and the filings for
recordation specified elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period or
periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws of
the United States. In rendering this opinion, we were subject to the
accuracy of the FAA, its employees and agents, in the filing, indexing and
recording of instruments filed with the FAA and in the search for
encumbrance cross-reference index cards for the Engines. Further, in
rendering this opinion we are assuming the validity and enforceability of
the above described instruments under local law. Since our examination was
limited to records maintained by the FAA, our opinion does not cover liens
which are perfected without the filing of notice thereof with the FAA, such
as federal tax liens, liens arising under 29 U.S.C. Section 1368(a),
possessory artisan's liens, or matters of which the parties have actual
notice. In rendering this opinion we are assuming that there are no
documents with respect to the Aircraft which have been filed for recording
under the recording system of the FAA but have not yet been listed in the
available records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of the
Assistant Chief Counsel for the Aeronautical Center dated October __, 1995
and have continued to rely upon the opinion of the Assistant Chief Counsel
for the Aeronautical Center dated September 18, 1995, copies of which are
attached hereto.
Annex I
Certain Definitions
Airframe, Engines and Aircraft
One (1) Airbus Industrie A300F4-605R aircraft bearing
manufacturer's serial number 759 and U.S. Registration No. N660FE (the
"Airframe") and two (2) General Electric CF6-80C2-A5F aircraft engines
bearing manufacturer's serial numbers 705-229 and 705-230 (the "Engines")
(the Airframe and the Engines are referred to collectively as the
"Aircraft") .
Original Trust Agreement
Trust Agreement (Federal Express Corporation Trust No. N660FE)
dated as of September 1, 1995 between the Owner Participant and the Owner
Trustee, which was filed with the FAA on September 20, 1995.
Original Indenture
Trust Indenture, Mortgage and Security Agreement (Federal
Express Corporation Trust No. N660FE) dated as of September 1, 1995
between the Owner Trustee and the Indenture Trustee, which together with
the Indenture and Security Agreement Supplement (as hereinafter defined)
attached thereto was recorded as one instrument by the FAA on September 21,
1995 and assigned Conveyance No. 2A267705.
Indenture and Security Agreement Supplement
Indenture and Security Agreement Supplement No. 1 (Federal
Express Corporation Trust No. N660FE) dated September 20, 1995 between the
Owner Trustee and the Indenture Trustee, with respect to the Aircraft,
which was attached to and recorded by the FAA as one instrument with the
Original Indenture.
Original Lease
Lease Agreement (Federal Express Corporation Trust No. N660FE)
dated as of September 1, 1995 between the Owner Trustee, as lessor, and the
Lessee, which together with the Lease Supplement (as hereinafter defined),
the Original Indenture and the Indenture and Security Agreement Supplement
attached thereto was recorded as one instrument by the FAA on September 21,
1995 and assigned Conveyance No. 2A267706.
Lease Supplement
Lease Supplement Xx. 0 (Xxxxxxx Xxxxxxx Xxxxxxxxxxx Xxxxx Xx.
X000XX) dated September 20, 1995 between the Owner Trustee, as lessor, and
the Lessee, with respect to the Aircraft, which was attached to and
recorded by the FAA as one instrument with the Original Lease.
Confidential Omissions
The Lease was filed with the FAA, with (i) the Owner
Participant Amount, the Interim Rent and Basic Rent (Schedule II), (ii) the
Stipulated Loss Values (Schedule III), (iii) the Termination Values
(Schedule IV), (iv) the Purchase Option Schedule (Schedule V) omitted from
the FAA filing counterpart thereof as containing confidential financial
information; and (v) the purchase price under Section 4.02(a) (F) set forth
in Ancillary Agreement I, which was not attached to the FAA filing
counterpart of the Lease or otherwise filed with the FAA for recordation as
containing confidential financial information.
The Indenture was filed with the FAA, with
the Schedule of Principal Payments (Schedule I) omitted from the FAA filing
counterpart thereof as containing confidential financial information.
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(5)
[Letterhead of Dickinson, Wright, Moon, Van Dusen & Xxxxxxx]
[Refunding Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N660FE
--------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to NBD Bank, a Michigan
banking corporation ("NBD"), in connection with the Trust Agreement
(Federal Express Corporation Trust No. N660FE), dated as of September 1,
1995, as amended and restated as of October 26, 1995 (the "Trust
Agreement"), between NBD and Chrysler Capital Corporation, a Delaware
corporation (the "Trustor" or "Owner Participant"). Pursuant to the
Participation Agreement (Federal Express Corporation Trust No. N660FE),
dated as of September 1, 1995, as amended and restated as of October 26,
1995 (the "Participation Agreement"), among Federal Express Corporation, as
Lessee, the Owner Participant, The Chase Manhattan Bank (National
Association), Bank of America NT & SA, CIBC Inc. and The First National
Bank of Chicago, as Original Loan Participants, NBD, not in its individual
capacity except as specifically set forth therein but solely as Owner
Trustee (the "Owner Trustee") under the Trust Agreement, The Chase
Manhattan Bank (National Association), as Indenture Trustee and The Chase
Manhattan Bank (National Association), as Pass Through Trustee, one Airbus
A300F4-605R aircraft bearing U.S. Registration No. N660FE (the
"Aircraft") is being refinanced. This opinion is being furnished pursuant
to Section 4.01(l) (vii) of the Participation Agreement. Capitalized terms
used herein and not otherwise defined are used as defined in the
Participation Agreement, except that references herein to any instrument
shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Trust Agreement;
(c) The Indenture;
(d) The Indenture and Security Agreement Supplement No. 1
dated September 20, 1995;
(e) The Lease;
(f) The Lease Supplement dated September 20, 1995 (each of the
documents identified in paragraphs (a) through (f) above being collectively
referred to as the "Owner Trustee Documents"); and
(g) The Certificates being issued today (the "Certificates") .
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
public officials and of corporate officers and other representatives of NBD
and such other instruments as we have deemed necessary and relevant as the
basis for our opinion. Moreover, as to certain facts material to the
opinions expressed herein, we have relied upon representations and
warranties contained in the Owner Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary and relevant, and subject
to the assumptions, exceptions and qualifications set forth below, we
advise you that, in our opinion:
1. NBD is a Michigan banking corporation duly organized and validly
existing under the laws of the State of the Michigan, with banking and
trust powers, is a "citizen of the United States" within the meaning of
Section 40102(a) (15) of the Transportation Code, and each of NBD and the
Owner Trustee, as the case may be, has or had, on the date of execution
thereof, full power, authority and legal right to execute, deliver and
perform each of the Owner Trustee Documents to which it is or is to be a
party and to issue, execute, deliver and perform the Certificates.
2. Each of NBD and the Owner Trustee, as the case may be, has duly
authorized, executed and delivered each Owner Trustee Document; each Owner
Trustee Document constitutes a legal, valid and binding obligation of the
Owner Trustee (and, to the extent set forth in the respective Owner Trustee
Document, of NBD) enforceable against the Owner Trustee (and, to the extent
set forth in the respective Owner Trustee Document, against NBD) in
accordance with its terms; and the Trust Agreement constitutes a legal,
valid and binding obligation of the Owner Participant enforceable against
the Owner Participant in accordance with its terms.
3. The Certificates have been duly issued, executed and delivered by
the Owner Trustee, pursuant to authorization contained in the Trust
Agreement, and constitute the legal, valid and binding obligations of the
Owner Trustee enforceable against the Owner Trustee in accordance with
their terms and the terms of the Indenture; and the Certificates are
entitled to the benefits and security afforded by the Indenture in
accordance with their terms and the terms of the Indenture.
4. On the Delivery Date, the Owner Trustee received from AVSA such
title to the Aircraft as AVSA conveyed to the Owner Trustee, subject to the
rights of the Owner Trustee and the Lessee under the Original Lease and the
security interest created pursuant to the Original Indenture and the
Indenture Supplement; and to our knowledge, there exist no Liens affecting
the title of the Owner Trustee to the Lessor's Estate resulting from claims
against NBD not related to the ownership of the Lessor's Estate or the
administration of the Lessor's Estate or any other transaction pursuant to
the Indenture or any document included in the Trust Indenture Estate.
5. All of the properties which are part of the Trust Indenture
Estate have been pledged and mortgaged with the Indenture Trustee as part
of the Trust Indenture Estate, and the beneficial interest of the Owner
Participant under the Trust Agreement in and to such properties is subject,
to the extent provided in the Indenture, to the Lien of the Indenture in
favor of the Holders of the Certificates.
6. To the extent that the Uniform Commercial Code of the State of
Michigan (the "UCC") is applicable, except for the Indenture Trustee's
taking possession of all monies and securities (including instruments)
constituting part of the Trust Indenture Estate, no action, including the
filing or recording of any document, is necessary (i) to create under the
UCC the security interest in the Trust Indenture Estate (including the
grant and assignment unto the Indenture Trustee of the security interest in
all estate, right, title and interest of the Owner Trustee in, to and under
the Lease) which the Indenture by its terms purports to create in favor of
the Indenture Trustee, and (ii) to perfect in the State of Michigan such
security interest, except for the filing of a UCC financing statement in
the office of the Secretary of State of the State of Michigan, which filing
has been duly effected, and the filing of continuation statements with
respect thereto required to be filed at periodic intervals under the UCC.
7. The Trust Agreement duly creates a legal and valid trust under
Michigan law, the trust created by the Trust Agreement has been duly
created and exists for the benefit of the Owner Participant, and the Trust
Agreement and the Indenture Supplement create for the benefit of the Owner
Participant the interest in the properties referred to in Section 1.02 of
the Trust Agreement which the Trust Agreement by its terms purports to
create, which interest is subject and subordinate to the security interests
created by the Indenture to the extent provided in the Indenture.
8. Neither the authorization, execution and delivery by the Owner
Trustee or NBD, as the case may be, of the Owner Trustee Documents, nor the
issuance, execution and delivery by the Owner Trustee of the Certificates
nor the fulfillment or compliance by the Owner Trustee or NBD with the
respective terms and provisions thereof nor the consummation of any of the
transactions by the Owner Trustee or NBD, as the case may be, contemplated
thereby, requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Michigan or the United
States of America governing the banking or trust powers of NBD.
9. The execution, delivery and performance by the Owner Trustee or
NBD, as the case may be, of each of the Owner Trustee Documents and the
issuance, execution, delivery and performance of the Certificates by the
Owner Trustee are not or were not, on the date of execution thereof, in
violation of the articles of incorporation or by-laws of NBD or of any law,
governmental rule, or regulation of the State of Michigan or the United
States of America governing the banking or trust powers of NBD or, to our
knowledge, of any indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it is bound or, to our
knowledge, of any judgment or order of the State of Michigan or the United
States of America relating to the banking or trust powers of NBD.
10. Assuming that (i) the Aircraft is not used in Michigan and is
not physically located in Michigan at the commencement or termination of
the Term or during such Term, (ii) in connection with any sale of the
Aircraft, such Aircraft will not be physically delivered in Michigan to a
buyer nor be shipped from a point within Michigan to a buyer, and (iii) the
trust created by the Trust Agreement is treated as a grantor trust for
federal income tax purposes within the contemplation of Sections 671
through 678 of the Internal Revenue Code of 1986, there are no fees, taxes,
or other charges (except taxes imposed on fees payable to the Owner
Trustee) payable to the State of Michigan or any political subdivision
thereof in connection with the execution, delivery or performance by the
Owner Trustee, the Indenture Trustee, the Lessee or the Owner Participant,
as the case may be, of the Owner Trustee Documents or in connection with
the making by the Owner Participant of its investment in the Aircraft or
its acquisition of the beneficial interest in the Lessor's Estate or in
connection with the issuance and acquisition of the Certificates, and
neither the Owner Trustee, the Lessor's Estate nor the trust created by the
Trust Agreement will be subject to any fee, tax or other governmental
charge (except taxes on fees payable to the Owner Trustee) under the laws
of the State of Michigan or any political subdivision thereof on, based on
or measured by, directly or indirectly, the gross receipts, net income or
value of the Lessor's Estate solely by reason of the creation or continued
existence of the trust under the terms of the Trust Agreement pursuant to
the laws of the State of Michigan or the Owner Trustee's performance of its
duties under the Trust Agreement.
11. There is no fee, tax or other governmental charge under the laws
of the State of Michigan or any political subdivision thereof in existence
on the date hereof on, based on or measured by any payments under the
Certificates or the beneficial interests in the Lessor's Estate, by reason
of the creation of the trust under the Trust Agreement, pursuant to the
laws of the State of Michigan or the Owner Trustee's performance of its
duties under the Trust Agreement, within the State of Michigan, which would
not have been imposed if NBD did not have its principal place of business
and did not perform its obligations under the Owner Trustee Documents in
the State of Michigan.
12. Neither a Michigan court nor a federal court applying federal
law or Michigan law, if all relevant issues are properly presented to and
considered by such court, would permit the Owner Participant to terminate
the Trust Agreement, except as otherwise provided in the Trust Agreement or
with the consent of the Indenture Trustee, until the Lien of the Indenture
on the Trust Estate has been released and until payment in full of the
principal of, Make-Whole Premium, if any, and interest on, the
Certificates.
13. Under the laws of the State of Michigan, as long as the Trust
Agreement has not been terminated in accordance with its terms or with the
consent of the Indenture Trustee, creditors of any person that is an Owner
Participant, holders of a lien against the assets of any such person and
representatives of creditors of any such person, such as trustees,
receivers or liquidators (whether or not any insolvency proceeding has been
commenced) (collectively, the "Creditors") may acquire legal, valid and
enforceable claims and liens, as to the Trust Estate, only against the
rights of such Owner Participant under the Trust Agreement or in the Trust
Estate, and may not through the enforcement of such Creditor's rights,
acquire any greater rights than the rights of the Owner Participant with
respect to the Trust Agreement or the Trust Estate.
14. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting NBD or the
Owner Trustee, as the case may be, or any of its properties in any court or
before any administrative agency or arbitrator, which, if adversely
determined, would materially adversely affect the ability of NBD or the
Owner Trustee, as the case may be, to perform its obligations under any of
the Owner Trustee Documents, and there are no pending or, to our knowledge,
threatened actions or proceedings before any court, administrative agency
or tribunal involving NBD or the Owner Trustee, as the case may be, in
connection with the transactions contemplated by any of the Owner Trustee
Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. The foregoing opinions are limited to the laws of the State
of Michigan and applicable federal laws. We express no opinion with
respect to (i) federal securities laws, including the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the
Trust Indenture Act of 1939, as amended, and the Investment Company Act of
1940, as amended, (ii) Part A of Subtitle VII of Title 49 of the United
States Code, as amended (except with respect to the opinion set forth in
paragraph 1 above concerning the citizenship of NBD), (iii) state
securities or blue sky laws, or (iv) laws, rules and regulations applicable
to the particular nature of the Aircraft acquired by the Owner Trustee.
Insofar as any Owner Trustee Documents and the Certificates expressed to be
governed by the laws of a jurisdiction other than the State of Michigan, we
have assumed that all such documents are legal, valid, binding and
enforceable in accordance with their terms under such laws (as to which we
express no opinion) .
B. The foregoing opinions regarding enforceability, except for
the opinions set forth in paragraphs 12 and 13 above, are subject to (i)
applicable bankruptcy, insolvency, moratorium, reorganization, receivership
and other laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law) and (iii) the
effect of applicable public policy on the enforceability or provisions
relating to indemnification.
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than NBD and the Owner
Trustee, of the Owner Trustee Documents to which each is a party and that
each of such parties has the full power, authority and legal right to
execute and deliver, and perform under the terms of, each such document.
D. The opinion set forth in paragraph 1 above concerning the
citizenship of NBD is based upon the Affidavit of Citizenship, and we have
not independently verified the facts supporting such opinion.
E. We have assumed the due authentication of the Certificates
by the Indenture Trustee.
F. We have assumed that all signatures (other than those of
the Owner Trustee or NBD) on documents and instruments examined by us are
genuine, that all documents and instruments submitted to us as originals
are authentic, and that all documents and instruments submitted to us as
copies conform with the originals, which facts we have not independently
verified.
G. We do not purport to be experts in respect of, or express
any opinion concerning, aviation law or other laws, rules or regulations
applicable to the particular nature of the equipment to be acquired by the
Owner Trustee.
H. Except as otherwise provided in paragraph 7, no opinion is
expressed as to the creation, attachment, perfection or priority of any
mortgage or security interest, of any instrument or document creating a
lien or security interest, or of the Indenture or as to the nature or
validity of title to any part of the Trust Estate. I. We have assumed
that the Participation Agreement and the transactions contemplated thereby
are not within the prohibitions of Section 406 of the Employee Retirement
Income Security Act of 1974.
J. Whenever our opinion, with respect to the existence or
absence of facts, is qualified by the phrase "to our knowledge" or a phrase
of similar import, it is intended to indicate that during the course of our
representation in connection with the Owner Trustee Documents, the lawyers
in our firm who have been principally involved in representing NBD and the
Owner Trustee in connection with the Owner Trustee Documents have not
obtained actual knowledge of the existence or absence of such facts, as the
case may be, without the implication that we have made any investigation or
inquiry to determine the existence or absence of such facts.
K. The foregoing opinions are given as of the date hereof
only, and do not contemplate, and no opinion is given or intended, with
respect to subsequent changes in law or fact.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent, except that the law firm of Xxxxx Xxxx & Xxxxxxxx may rely
on this opinion in connection with the rendering of its opinion dated the
date hereof in connection with the financing described herein.
We rendered an opinion dated September 20, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Dickinson, Wright, Moon, Van Dusen & Xxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(6)(a)
[Letterhead of Xxxxx Xxxxxxxxxx]
[Refunding Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N660FE
---------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to The Chase Manhattan Bank
(National Association), a national banking association, acting as Pass
Through Trustee (the "Pass Through Trustee") with respect to the Pass
Through Trust Agreement dated as of February 1, 1993, as amended and
restated as of October 1, 1995 (the "Pass Through Trust Agreement"), as
supplemented by the Series Supplements dated the date hereof, designated as
Series Supplement 1995-B1, 1995-B2 and 1995-B3, respectively (the "Series
Supplements"). We have advised the Pass Through Trustee with respect to
the Pass Through Agreement, the Series Supplements and the Participation
Agreement relating to the Pass Through Trust Agreement and each designated
Series Supplement (the "Participation Agreement") among the parties listed
therein. Additionally, we have advised the Pass Through Trustee with
respect to the Pass Through Certificates (the "Certificates") issued on the
date hereof.
This opinion is being delivered pursuant to Section 4.01(l) (ix)
of the Participation Agreement. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings set forth or
referred to in the Participation Agreement, the Pass Through Trust
Agreement or the Series Supplements, as applicable.
In connection with the opinions expressed herein, we have
reviewed executed counterparts of the Operative Agreements, the Pass
Through Trust Agreement and the Series Supplements. We have also examined
and relied upon the accuracy of the originals or certified, conformed,
photocopied or telecopied copies of such corporate records, certificates,
instruments and other documents as we have deemed necessary or appropriate
to enable us to render the opinions expressed herein. In all such
examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies
submitted to us as certified, conformed, photocopied or telecopied copies,
and as to certificates and telegraphic and telephonic confirmations given
by public officials, we have assumed the same to have been properly given
and to be accurate. As to all matters of fact material to our opinions, we
have, when relevant facts were not independently established, relied upon
representations and warranties contained in the Operative Agreements, the
Pass Through Trust Agreement and the Series Supplements and upon the
statements and certificates furnished to us.
Based upon and subject to the foregoing and the qualifications
hereinafter set forth, we are of the opinion that:
1. The Pass Through Trustee is a national banking association duly
organized and validly existing in good standing under the laws of the
United States of America holding a valid certificate to do business as a
national banking association, with banking and trust powers, and has the
corporate power and authority to execute, deliver and perform its
obligations under the Participation Agreement, the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the other Operative
Agreements to which it is a party. Upon execution of the Series
Supplements, the Pass Through Trustee will be deemed to have duly executed
the Pass Through Trust Agreement and thereupon become the Pass Through
Trustee under the Pass Through Trust Agreement and the Series Supplements
for all purposes thereof.
2. The Pass Through Trustee, in its individual and trust capacities,
has duly authorized, executed and delivered the Participation Agreement,
the Pass Through Trust Agreement and the Series Supplements and each of the
other Operative Agreements to which it is a party.
3. Each of the Participation Agreement, the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the other Operative
Agreements to which it is a party constitutes the legal, valid and binding
obligation of the Pass Through Trustee in its trust capacity (and, to the
extent provided in each such document, in its individual capacity)
enforceable against the Pass Through Trustee in its trust capacity (and, to
the extent provided in each such document, in its individual capacity) in
accordance with its terms thereof, except as the enforceability thereof may
be limited by (a) general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law), (b)
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and (c) public policy
considerations (in the case of the indemnity provisions contained therein) .
4. The Certificates have been duly authorized and validly executed,
issued, delivered and authenticated by the Pass Through Trustee pursuant to
the Pass Through Trust Agreement and the Series Supplements; and the
Certificates acquired by the Underwriters under the Underwriting Agreement
are enforceable against the Pass Through Trustee and are entitled to the
benefits of the related Pass Through Trust Agreement and the related Series
Supplements, except as the enforceability thereof may be limited by (a)
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), (b) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights
of creditors generally and (c) public policy considerations (in the case of
the indemnity provisions contained therein) .
5. The execution, delivery, and performance by the Pass Through
Trustee in its trust capacity (and, to the extent provided in each such
document, in its individual capacity), of the Participation Agreement, the
Pass Through Trust Agreement and the Series Supplements and each of the
other Operative Agreements to which it is a party and the consummation of
the transactions therein contemplated and compliance with the terms
thereof, and the issuance of the Certificates thereunder are not in
violation of the Articles of Association or By-laws of the Pass Through
Trustee or any law, governmental rule or regulation of the United States of
America or the State of New York governing the banking or trust powers of
the Pass Through Trustee or constitute a default under, or result in the
creation or the imposition of any Lien upon any property or assets of the
Pass Through Trustee, under any indenture, mortgage or other agreement or
instrument known to us to which the Pass Through Trustee is a party or by
which it or any of its property is bound, or any New York or Federal law,
rule or regulation governing the Pass Through Trustee's banking or trust
powers, or of any judgment, order or decree known to us to be applicable to
the Pass Through Trustee, in its individual or trust capacity, of any
court, regulatory body, administrative agency, government or governmental
body having jurisdiction over the Pass Through Trustee, in its individual
or trust capacity, or its properties.
6. Neither the execution and delivery by the Pass Through Trustee,
in its individual or trust capacity, as the case may be, of the
Participation Agreement, the Pass Through Trust Agreement, the Series
Supplements, the Certificates or any of the other Operative Agreements to
which it is a party, nor the consummation by the Pass Through Trustee, in
its individual or trust capacity, as the case may be, of any of the
transactions contemplated in the Participation Agreement, the Pass Through
Trust Agreement, the Series Supplements, the Certificates or any of the
other Operative Agreements to which it is a party requires consent or
approval of, giving of notice to, or registration with, or taking of any
other action with respect to, any Federal or state governmental authority
or agency having jurisdiction over the Pass Through Trustee.
7. There are no taxes, fees or other governmental charges payable
under the laws of the State of New York or any political subdivision
thereof in connection with the execution, delivery and performance by the
Pass Through Trustee, in its individual or trust capacity, as the case may
be, of the Participation Agreement, the Pass Through Trust Agreement, the
Series Supplements and the other Operative Agreements to which it is a
party or in connection with the execution, issuance and delivery of the
Certificates by the Pass Through Trustee, pursuant to the Series
Supplements.
8. Neither the trusts created by the Pass Through Trust Agreement
and the Series Supplements nor the Pass Through Trustee, in its individual
or trust capacity, as the case may be, nor their respective Affiliates,
successors or assigns, will be subject to any tax (including, without
limitation, net or gross income, tangible or intangible property, net
worth, capital, franchise or doing business tax), fee or other governmental
charge under the laws of the State of New York or any political subdivision
thereof (other than taxes imposed on the fees received by The Chase
Manhattan Bank (National Association) for acting as Pass Through Trustee
under the Series Supplements). Certificate holders who are not residents
of or otherwise subject to tax in New York will not be subject to any tax
(including, without limitation, net or gross income, tangible or intangible
property, net worth, capital, franchise or doing business tax), fee or
other governmental charge under the laws of the State of New York or any
political subdivision thereof as a result of purchasing, owning (including
receiving payments with respect to) or selling a Certificate. There are no
applicable taxes under the laws of the State of New York or any political
subdivision thereof upon or with respect to (a) the construction,
mortgaging, financing, refinancing, purchase, acquisition, acceptance,
rejection, delivery, nondelivery, transport, location, ownership,
insurance, control, assembly, possession, repossession, operation, use,
condition, maintenance, repair, sale, return, abandonment, replacement,
preparation, installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of title,
transfer of registration, exportation or other application or disposition
of the Aircraft or any interest in any thereof, (b) payments of Rent or
other receipts, income or earnings arising therefrom or received with
respect to the Aircraft or any interest in any thereof or payable pursuant
to the Lease, (c) any amount paid or payable pursuant to any Operative
Agreements, (d) the Aircraft or any interest therein or the applicability
of the Lease to the Aircraft or any interest in any thereof, (e) any or all
of the Operative Agreements, any or all of the Certificates or any interest
in any or all thereof or the offering, registration, reregistration,
issuance, acquisition, modification, assumption, reissuance, refinancing or
refunding of any or all thereof, and any other documents contemplated
thereby and amendments or supplements hereto and thereto, (f) the payment
of the principal of, or interest or premium on, or other amounts payable
with respect to, any or all of the Certificates, whether as originally
issued or pursuant to any refinancing, refunding, assumption, modification
or reissuance, or any other obligation evidencing any loan in replacement
of the loan evidenced by any or all of the Certificates, or (g) otherwise
with respect to or in connection with the transactions contemplated by the
Pass Through Trust Agreement, the Series Supplements, the Certificates and
the Operative Agreements, which would not have been imposed if the Pass
Through Trustee had not had its principal place of business in, had not
performed (either in its individual capacity or as Pass Through Trustee)
any or all of its administrative duties under the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the Operative
Agreements in, and had not engaged in any activities unrelated to the
transactions contemplated by the Pass Through Trust Agreement, the Series
Supplements, the Certificates and the Operative Agreements in, the State of
New York.
With respect to the opinions set forth in paragraphs 7 and 8
above, with your permission we have relied upon, and this opinion is
limited by, the assumptions set forth in the discussion entitled "Certain
New York Taxes" in the Prospectus Supplement to the Prospectus forming part
of Registration Number No. 33-56569 (the "Registration Statement") for the
registration of the Certificates with the Securities and Exchange
Commission. In addition, we have assumed that each Pass Through Trust (as
defined in the Registration Statement) will constitute a grantor trust
under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended (the "Code"), and will not be classified as a corporation
or as a Partnership (as defined in Section 7701 of the Code), and each Pass
Through Trust does not otherwise engage in business in New York. We
express no opinion as to the correctness of the foregoing assumptions and
we have conducted no independent investigation in this regard.
We express no opinion as to the laws of any jurisdiction other
than the laws of the State of New York and the Federal laws of the United
States of America. In addition, we express no opinion herein as to (i) any
Federal or state securities laws or blue sky laws and assume that the
Certificates have been registered, issued and sold in compliance with all
applicable Federal and state securities and blue sky laws and that the Pass
Through Trust Agreement and the Series Supplements have been duly qualified
under the provisions of the Trust Indenture Act of 1939, as amended, (ii)
any tax laws, (iii) any aviation laws including, without limitation, the
Transportation Code, (iv) any laws, statutes, rules or regulations
applicable to the particular nature of the equipment acquired or to be
acquired by the Owner Trustee, or (v) ERISA or any other pension and
employee benefit laws, rules or regulations. In addition, we express no
opinion as to the right, title or interest in or to the Trust Estate on the
part of any Person. We also express no opinion as to the perfection or
priority of any security interest created by any of the Operative
Agreements.
In rendering the opinions expressed herein, we have assumed
that (a) each of the Participation Agreement, the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the other Operative
Agreements has been duly authorized, executed and delivered by the
respective parties thereto (other than the Pass Through Trustee) and
constitutes a legal, valid and binding obligation of each of such parties
(other than the Pass Through Trustee), enforceable against each of such
parties in accordance with the terms thereof, (b) each of such parties
(other than the Pass Through Trustee) has the requisite power, authority
and legal right to enter into and perform its respective obligations under
the Participation Agreement, the Pass Through Trust Agreement, the Series
Supplements, the Certificates and each of the other Operative Agreements to
which it is a party and (c) the transactions provided for in the Operative
Agreements are not within the prohibitions of Section 406 of ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended.
This opinion is furnished by us for the sole benefit of the
addressees hereof, each of whom we understand and agree may rely upon the
opinions set forth herein. No other person or entity is entitled to rely
on this opinion without our express written consent. This opinion is
limited to the matters stated herein and no opinion is implied or may be
inferred beyond the matters expressly stated herein.
Very truly yours,
Xxxxx Xxxxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(6)(b)
[Letterhead of The Chase Manhattan Bank, N.A.]
[Refunding Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N660FE
---------------------------------------------
Ladies and Gentlemen:
As Vice President and Senior Associate Counsel to The Chase Manhattan
Bank (National Association), a national banking association, acting as Pass
Through Trustee (the "Pass Through Trustee") with respect to the Pass
Through Trust Agreement dated as of February 1, 1993, as amended and
restated as of October 1, 1995 (the "Pass Through Trust Agreement"), as
supplemented by the Series Supplements dated the date hereof, designated as
Series Supplement 1995-B1, 1995-B2 and 1995-B3, respectively (the "Series
Supplements"), I advise you as follows with respect to the authorization,
execution and delivery by the Pass Through Trustee of (i) the Series
Supplements and (ii) the Participation Agreement (Federal Express
Corporation Trust No. N660FE) dated as of September 1, 1995, as amended
and restated as of October 26, 1995 (as amended and restated, the
"Participation Agreement") among the parties listed therein. Additionally,
I have advised the Pass Through Trustee with respect to the Pass Through
Certificates (the "Certificates") issued on the date hereof.
Unless otherwise defined herein, capitalized terms used herein
shall have the respective meanings attributed thereto in the Participation
Agreement, the Pass Through Trust Agreement or the Series Supplements, as
applicable.
I have reviewed executed counterparts of the Pass Through Trust
Agreement, the Series Supplements, the Certificates, the Participation
Agreement and the other Operative Agreements to which the Pass Through
Trustee is a party. I have also examined the originals, or certified,
conformed, photocopied or telecopied copies of such corporate records,
certificates, instruments and other documents as I have deemed necessary to
appropriate to enable me to render the opinions expressed herein,
including, without limitation, certified copies of the By-laws of the Pass
Through Trustee, a certificate of the secretary of the Pass Through Trustee
as to certain matters, including the incumbency of the officer of the Pass
Through Trustee who executed the Pass Through Trust Agreement, the Series
Supplements, the Participation Agreement and the other certificates
executed and delivered in connection with the transactions contemplated by
any of the foregoing and who authenticated the Certificates and a
certificate of the Comptroller of the Currency, Washington, D.C., dated
September 23, 1965, as to the Pass Through Trustee's existence and
authority to do business as a national banking association and to act in a
fiduciary capacity.
In all such examinations, I have assumed the genuineness of
signatures on original documents (other than those of the Pass Through
Trustee) and the conformity to such original documents of all copies
submitted to me as certified, conformed, photocopied or telecopied copies,
and as to certificates and telegraphic and telephonic confirmations given
by public officials, I have assumed the same to have been properly given
and to be accurate. As to all matters of fact material to my opinions, I
have, when relevant facts were not independently established, relied upon
statements, representations and warranties contained in the Operative
Agreements, the Pass Through Trust Agreement, the Series Supplements and
the Certificates and upon the statements and certificates furnished to me.
A. Based upon the foregoing and subject to the limitations
expressed in paragraph B below, I am of the opinion that: the execution,
delivery and performance by the Pass Through Trustee of the Series
Supplements, the Certificates, the Participation Agreement and each of the
other Operative Agreements to which it is a party are not, to my knowledge,
in violation of any judgment, order, indenture, mortgage, bank credit
agreement, note or bond purchase agreement, long-term lease, license or
other agreement or instrument to which it is a party or by which it or its
properties may be bound. Upon execution of the Series Supplements, the
Pass Through Trustee will be deemed to have duly executed the Pass Through
Trust Agreement and thereupon become the Pass Through Trustee under the
Pass Through Trust Agreement and the Series Supplements for all purposes
thereof.
B. I am qualified to practice law in the State of New York and
I express no opinion as to any laws other than the laws of the State of New
York and the federal laws of the United States of America. Further,
without limiting the generality of the foregoing, I express no opinion with
respect to (i) the citizenship of the Pass Through Trustee, the
Transportation Code and the regulations promulgated thereunder, the impact
of the Transportation Code upon matters set forth in this opinion or any
other aviation or other laws, rules or regulations applicable to the
particular nature of the equipment acquired by the Owner Trustee; (ii)
federal securities laws, including, without limitation, the Securities Act
of 1933, as amended, and the Trust Indenture Act of 1939, as amended, or
state securities or blue sky laws; (iii) title to any property, real or
personal or the priority or perfection of any liens or security interests;
(iv) the authority or power of the Pass Through Trustee under the laws of
any jurisdiction other than New York or federal laws of the United States
of America to exercise any rights or remedies set forth in the Pass Through
Trust Agreement, the Series Supplements or the Operative Agreements or to
perform any duties or obligations on its part to be performed other than
those that can be performed in the State of New York; or (v) ERISA.
This opinion is being furnished only to the parties to whom
this opinion is addressed and is solely for their benefit, and no other
person or entity shall be entitled to rely on this opinion without my
express prior written consent. This opinion may not be used, circulated,
quoted, published or otherwise referred to for any purpose without my
express prior written consent. This opinion is limited to the matters
stated herein, and no opinion is implied or may be inferred beyond the
opinions expressly stated herein.
Very truly yours,
Xxxxxxx Xx Xxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.g]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.c.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.f]
/dpw/cw/037/07853/042/8K/XXXXX/FILING.2/ex4e1.2.ed
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N661FE)
Dated as of October 1, 1995
Amended and Restated as of October 26, 1995
among
FEDERAL EXPRESS CORPORATION,
Lessee
NATIONSBANK, N.A.,
Owner Participant
THE ENTITIES LISTED ON SCHEDULE I
TO THE ORIGINAL PARTICIPATION AGREEMENT,
Original Loan Participants
NBD BANK,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as
Owner Trustee,
Owner Trustee
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as
Indenture Trustee,
Indenture Trustee
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as
Pass Through Trustee,
Pass Through Trustee
______________________________
LEVERAGED LEASE OF ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 760, REGISTRATION NO. N661FE
TABLE OF CONTENTS
Page
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
REFUNDING THE ORIGINAL LOAN CERTIFICATES
Section 2.01. Transfer of Funds........................................ 3
Section 2.02. Certificates............................................. 6
Section 2.03. Owner Participant Payment................................ 6
ARTICLE 3
EXTENT OF INTEREST OF ORIGINAL LOAN PARTICIPANTS
Section 3.01. Extent of Interest of Original Loan Participants......... 7
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent..................................... 7
Section 4.02. Opinion of Special Aviation Counsel...................... 16
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 16
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 17
Section 6.02. Offering by Lessee....................................... 23
Section 6.03. Certain Covenants of Lessee.............................. 23
Section 6.04. Survival of Representations and Warranties............... 30
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in
Lessor's Estate......................................... 31
Section 7.02. Citizenship.............................................. 31
Section 7.03. Representations, Warranties and Covenants of the Owner
Participant............................................. 32
Section 7.04. Representations, Covenants and Warranties of NBD and the
Indenture Owner Trustee................................. 37
Section 7.05. Representations, Warranties and Covenants of the
Trustee................................................. 40
Section 7.06. Indenture Trustee's Notice of Default.................... 41
Section 7.07. Releases from Indenture.................................. 41
Section 7.08. Covenant of Quiet Enjoyment.............................. 42
Section 7.09. Original Loan Participants' and Pass Through Trustee's
Representations and Warranties...........................42
Section 7.10. Survival of Representations, Warranties and Covenants.... 43
Section 7.11. Lessee's Assumption of the Certificates.................. 43
Section 7.12. Indebtedness of Owner Trustee............................ 45
Section 7.13. Compliance with Trust Agreement, Etc..................... 45
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 46
Section 8.02. After-Tax Basis.......................................... 52
Section 8.03. Time of Payment.......................................... 53
Section 8.04. Contests................................................. 53
Section 8.05. Refunds.................................................. 55
Section 8.06. Lessee's Reports......................................... 55
Section 8.07. Survival of Obligations.................................. 56
Section 8.08. Payment of Taxes......................................... 56
Section 8.09. Reimbursements by Indemnitees Generally.................. 56
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 57
Section 9.02. After-Tax Basis.......................................... 61
Section 9.03. Subrogation.............................................. 61
Section 9.04. Notice and Payment....................................... 61
Section 9.05. Refunds.................................................. 62
Section 9.06. Defense of Claims........................................ 62
Section 9.07. Survival of Obligations.................................. 63
Section 9.08. Effect of Other Indemnities.............................. 63
Section 9.09. Interest................................................. 63
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 64
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 66
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant.................... 67
Section 12.02. Interest of Holders of Certificates..................... 67
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 68
Section 13.02. Further Assurances...................................... 68
Section 13.03. No Retroactive Application.............................. 68
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 69
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 70
Section 15.02. Reoptimization.......................................... 73
ARTICLE 16
[INTENTIONALLY LEFT BLANK]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes.......................... 74
Section 17.02. [Intentionally Left Blank.]............................. 75
Section 17.03. Counterparts............................................ 75
Section 17.04. No Oral Modifications................................... 75
Section 17.05. Captions................................................ 75
Section 17.06. Successors and Assigns.................................. 75
Section 17.07. Concerning the Owner Trustee, the Pass Through Trustee
and the Indenture Trustee............................. 76
Section 17.08. Severability............................................ 76
Section 17.09. Public Release of Information........................... 76
Section 17.10. Certain Limitations on Reorganization................... 76
Section 17.11. GOVERNING LAW........................................... 77
Section 17.12. Section 1110 Compliance................................. 77
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 78
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
EXHIBIT A(1)(a) Opinion of Lessee's Counsel
EXHIBIT A(1)(b) Opinion of Lessee's Special Counsel
EXHIBIT A(2)(a) Opinion of Owner Participant's Special Counsel
EXHIBIT A(2)(b) Opinion of Owner Participant's Counsel
EXHIBIT A(3)(a) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(3)(b) Opinion of Indenture Trustee's Counsel
EXHIBIT A(4) Opinion of Special Aviation Counsel
EXHIBIT A(5) Opinion of Owner Trustee's Counsel
EXHIBIT A(6)(a) Opinion of Pass Through Trustee's Special Counsel
EXHIBIT A(6)(b) Opinion of Pass Through Trustee's Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N661FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N661FE) dated as of October 1, 1995, as amended and restated as of October
26, 1995 (this "Agreement") among FEDERAL EXPRESS CORPORATION, a Delaware
corporation (herein, together with its successors and permitted assigns,
the "Lessee"), NATIONSBANK, N.A., a national banking association (herein,
together with its successors and permitted assigns, the "Owner
Participant"), the entities listed on Schedule I to the Original
Participation Agreement as Loan Participants (individually, together with
its successors and permitted assigns, the "Original Loan Participant" and,
collectively, the "Original Loan Participants"), NBD BANK, a Michigan
banking corporation, not in its individual capacity, except as otherwise
expressly stated herein, but solely as owner trustee under the Trust
Agreement referred to below (in such capacity as trustee, together with its
successors and permitted assigns, the "Owner Trustee"), THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), a national banking association, not in its
individual capacity, except as otherwise expressly stated herein, but
solely as indenture trustee under the Indenture referred to below (in such
capacity as trustee, together with its successors and permitted assigns,
the "Indenture Trustee") and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national banking association, not in its individual
capacity, except as otherwise expressly stated herein, but solely as pass
through trustee (in such capacity as trustee, together with its successors
and permitted assigns, the "Pass Through Trustee").
W I T N E S S E T H :
WHEREAS, the Lessee, the Owner Participant, the Owner Trustee, the
Original Loan Participants and the Indenture Trustee entered into the Original
Participation Agreement (such term, and all other terms not heretofore
defined, shall have the meanings assigned thereto as provided in Article 1
below), providing for the sale and lease of the Aircraft that was delivered on
the Delivery Date;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, the Owner Participant entered into the Original Trust
Agreement relating to the Aircraft with NBD in its individual capacity,
pursuant to which NBD agreed, among other things, to hold the Lessor's Estate
in trust for the benefit of the Owner Participant;
WHEREAS, concurrently with the execution and delivery of the
Original Participation Agreement, the Owner Trustee and the Indenture
Trustee entered into the Original Indenture, for the benefit of the
Original Loan Participants, pursuant to which the Owner Trustee issued to
the Original Loan Participants the Original Loan Certificates as evidence
of the loans made by the Original Loan Participants to the Owner Trustee,
the proceeds of which were used by the Owner Trustee to pay a portion of
the Purchase Price for the Aircraft;
WHEREAS, concurrently with the execution and delivery of the
Original Participation Agreement, the Owner Trustee and the Lessee entered
into the Original Lease relating to the Aircraft, whereby, subject to the
terms and conditions set forth in said Lease, the Owner Trustee agreed to
lease the Aircraft to the Lessee, and the Lessee agreed to lease the
Aircraft from the Owner Trustee, such lease of the Aircraft being evidenced
by the execution and delivery of the Lease Supplement;
WHEREAS, Article 15 of the Original Participation Agreement
permits a Refinancing of the Original Loan Certificates subject to the
satisfaction of the conditions specified in Section 15.01 thereof, and
Section 3.04 of the Original Lease contemplates the adjustment of the
percentages for Interim Rent, Basic Rent, Stipulated Loss Value and
Termination Value in the event of such a Refinancing, and the Lessee has
requested that the Owner Trustee effect such a Refinancing and adjustment;
WHEREAS, in order to facilitate such Refinancing, the Lessee is
concurrently entering into an Underwriting Agreement, which relates to
three series of Pass Through Certificates that will be issued by the Pass
Through Trusts formed to acquire, among other securities, the Certificates
bearing a particular interest rate and having a particular Maturity that
will be issued under the Indenture;
WHEREAS, on the Pass Through Closing Date, a closing will occur
with respect to the public offering of the Pass Through Certificates issued
by each Pass Through Trust, an allocable amount of the proceeds of which
offering will be used by the Pass Through Trustee to purchase for each such
Pass Through Trust the Certificates of the interest rate and Maturity
applicable thereto, the proceeds of which purchase in turn will be applied
to the Refinancing in full of the outstanding principal amount of the
Original Loan Certificates;
WHEREAS, the Lessee, the Owner Participant, the Owner Trustee, the
Original Loan Participants and the Indenture Trustee have agreed, subject
to the terms and conditions hereinafter provided, to amend and restate, and
to add the Pass Through Trustee as a party to, the Original Participation
Agreement; and
WHEREAS, the Lessee, the Owner Participant, the Owner Trustee, the
Original Loan Participants and the Indenture Trustee have agreed, to the
extent they are parties thereto and, subject to the terms and conditions
hereinafter provided, to amend and restate the Original Indenture, to amend
and restate the Original Lease, to amend the Original Tax Indemnity
Agreement and to amend and restate the Original Trust Agreement, each such
amendment and restatement to be executed and delivered simultaneously with
the purchase of the Certificates by the Pass Through Trustee for the Pass
Through Trusts and the Refinancing in full of the Original Loan
Certificates.
NOW, THEREFORE, in consideration of the mutual covenants contained
in this Agreement and other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree, subject to the
terms and conditions hereinafter provided, that the Original Participation
Agreement be and the same is hereby amended and restated in its entirety as
follows:
ARTICLE 1
DEFINITIONS
Unless otherwise specifically provided herein, the definitions set
forth in Schedule II hereto are incorporated herein for all purposes of this
Agreement and shall be equally applicable to both the singular and the plural
forms of the terms so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
REFUNDING THE ORIGINAL LOAN CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement,
shall enter into the Series Supplements, and, subject to the terms and
conditions set forth therein, on the Pass Through Closing Date (i) the
Lessee shall direct the Underwriters to execute a wire transfer or
intra-bank transfer to the Pass Through Trustee in the amount of the total
proceeds payable pursuant to the Underwriting Agreement with respect to the
Pass Through Certificates and (ii) the Pass Through Trustee shall deliver
the Pass Through Certificates to the Underwriters upon receipt by the Pass
Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Refunding Date the following events shall occur in the
order set forth below:
(i) the Owner Participant shall on behalf of the Owner Trustee
execute a wire transfer or intra-bank transfer in favor of the Agent in the
amount of all accrued and unpaid interest on the Original Loan Certificates
to but excluding the Refunding Date, which transfer shall constitute the
payment of all such accrued and unpaid interest;
(ii) the Lessee shall on behalf of the Owner Trustee execute a wire
transfer or intra-bank transfer in favor of the Agent as Supplemental
Rent in the amount of any Breakage Costs required to be paid pursuant to
the Original Indenture which transfer shall constitute the payment of
all such Breakage Costs;
(iii) for each Pass Through Trust, from an allocable amount of the
proceeds of the sale of the related Pass Through Certificates, the Pass
Through Trustee shall pay on behalf of the Owner Trustee in the manner
specified in paragraph (iv) below, an amount equal to the principal
amount of Certificates of the Maturity and having the interest rate that
relates to such Pass Through Trust, which amounts in the aggregate shall
equal the aggregate principal amount of the Certificates as specified in
Section 2.04 of the Indenture;
(iv) the aggregate amount payable by the Pass Through Trustee
pursuant to paragraph (iii) above shall be payable by wire transfer or
intra-bank transfer in favor of the Agent on behalf of the Owner Trustee
in the amount of the outstanding principal amount of the Original Loan
Certificates;
(v) the Agent shall apply the amounts received by it under
paragraphs (i), (ii) and (iv) of this subsection (b) to prepay the
Original Loan Certificates in full in accordance with Sections 2.06 and
2.10 of the Original Indenture; and
(vi) the Owner Trustee shall cause the Certificates to be delivered
to the applicable Pass Through Trustee in accordance with Section 2.02
hereof.
On the Refunding Date concurrently with the events specified in
clauses (iii) through (v) of this Section 2.01(b), the parties hereto shall
execute and deliver, to the extent they are parties thereto, and consent to
the execution and delivery of (if they are not a party thereto), the
Indenture, the Lease and the Trust Agreement, and the Owner Trustee shall
execute and deliver to the Indenture Trustee for authentication, and the
Indenture Trustee shall authenticate and deliver to the applicable Pass
Through Trustee, upon the request of the Owner Trustee, the Certificates as
provided in Section 2.02 hereof. The Owner Participant hereby requests and
directs the Owner Trustee to execute and deliver this Participation
Agreement and, subject to the terms hereof, to take the actions specified
herein. The Original Loan Participants by their execution and delivery
hereof, request and direct the Indenture Trustee to execute and deliver
this Agreement and concurrently with the events specified in clauses (iii)
through (v) of this Section 2.01(b) and subject to the terms and conditions
hereof to take the actions contemplated herein. The parties hereto,
including, without limitation, the Original Loan Participants, confirm
that, as provided in Section 2.06 of the Original Indenture, upon payment
in full of the principal amount, Breakage Costs, if any, and interest on
the Original Loan Certificates and all other sums then payable to the
Original Loan Participants under the Original Agreements to the extent
specified in subsection (c) below, the Original Loan Participants shall
have no further interest in, or other right or obligation with respect to,
the Trust Indenture Estate, the Original Agreements or the Operative
Agreements (it being understood that the foregoing shall not limit or
detract from any claim that any Original Loan Participant may have under
Article 8 or 9 or Section 10.01(a)(ii) hereof or of the Original
Participation Agreement) and, accordingly, have no obligation to, and will
not attempt to direct any future actions of the Indenture Trustee with
respect to the Trust Indenture Estate, provided that the rights and
obligations of the Original Loan Participants shall, until the payment in
full of such amounts to the Agent on behalf of the Original Loan
Participants on the Refunding Date, be governed by the Original
Participation Agreement and the other Operative Agreements contemplated
thereby or in effect immediately prior to the effectiveness of this
Agreement and shall, upon such payment and thereafter, be governed by this
Agreement. The Lessee hereby consents to the foregoing.
(c) Not less than three (3) Business Days prior to the Refunding
Date, the Agent on behalf of the Original Loan Participants shall give
notice in writing to the parties hereto of the principal amount, Breakage
Costs, if any, and interest on and all other amounts due on the Refunding
Date under the Original Loan Certificates and all other sums payable on the
Refunding Date to the Original Loan Participants under the Original
Agreements, such notice to be deemed final and binding on the Original Loan
Participants as to the respective amounts of principal, Breakage Costs, if
any, and interest when given; provided that the expected Refunding Date, at
the time such notice is given, is the same as the Refunding Date.
(d) On the Refunding Date, subject to (i) the giving of at least
three (3) days' prior written notice to the Indenture Trustee and the
Original Loan Participants, (ii) the receipt by the Original Loan
Participants of the funds referred to in Section 2.01(b)(v) above and (iii)
compliance with the provisions of Section 15 of the Original Participation
Agreement and Section 2.10(c) of the Original Indenture (including the
Refinancing in full of the Original Loan Certificates), the Original Loan
Participants shall deliver the Original Loan Certificates to the Indenture
Trustee for cancellation and delivery to the Owner Trustee.
(e) The closing with respect to the acquisition of the Pass
Through Certificates by the Underwriters and the closing with respect to
the Refinancing of the Original Loan Certificates (together, the
"Closings") shall take place at the offices of Xxxxx Xxxx & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(f) All payments pursuant to this Section 2.01 shall be made in
immediately available funds.
(g) In the event that the Refunding Date and the actions
contemplated to occur on such date pursuant to subsection (d) of this
Section 2.01 do not occur on or before November 30, 1995, then the rights
and obligations of the parties to the Original Participation Agreement,
including, without limitation, the Original Loan Participants, shall be
governed by the Original Participation Agreement and the other Operative
Agreements contemplated thereby or in effect immediately prior to the
effectiveness of this Agreement and this Agreement shall be of no further
force and effect, except that the Lessee shall be obligated hereby to pay
all fees and expenses of the Original Loan Participants, the Indenture
Trustee, the Owner Participant, the Owner Trustee, the Pass Through Trustee
and their respective counsel relating to the transactions contemplated
hereby. Each of the parties hereto agrees to execute and deliver to the
other parties such documents and instruments as may be necessary to give
effect to the foregoing provisions of this subsection (g).
Section 2.02. Certificates. Subject to the satisfaction or
waiver of the conditions set forth herein, on the Refunding Date, the Owner
Trustee shall execute and deliver to the Indenture Trustee, and the
Indenture Trustee shall authenticate and deliver, upon the request of the
Owner Trustee, to the Pass Through Trustee for each Pass Through Trust, the
Certificate specified for such Pass Through Trust on Schedule I attached
hereto, which (i) shall be issued in the principal amount and in the
Maturity set forth for such Certificate in Schedule I hereto, (ii) shall
bear interest at the interest rate set forth for such Certificate in
Schedule I hereto, (iii) shall be issued in such form and on such terms as
are specified in the Indenture, (iv) shall be dated and authenticated on
the Refunding Date and shall bear interest from the Refunding Date and (v)
shall be registered in the name of the Pass Through Trustee on behalf of
such Pass Through Trust.
Section 2.03. Owner Participant Payment. The Owner Participant
agrees with the Lessee and only with the Lessee on behalf of the Owner
Trustee to make available to the Owner Trustee funds sufficient to pay to
the Indenture Trustee on the Owner Participant Payment Date an amount equal
to the amounts of principal (if any) and interest scheduled to be paid on
the Certificates on such date (the "Owner Participant Amount"), and the
Owner Trustee shall upon receipt thereof make such funds available to the
Indenture Trustee to pay amounts due and owing under the Certificates on
the Owner Participant Payment Date, provided that the Owner Participant
shall not be obligated to make such funds available if an Event of Default
under the Lease shall have occurred and be continuing on the date on which
such funds are to be made available. If the Owner Participant does not
make such funds available when otherwise required to do so, the Lessee
shall be obligated to make an advance pursuant to Section 3.05 of the Lease
in an amount sufficient to pay in full the amounts of principal and
interest due on the Certificates on such date. Such obligations shall not,
nor shall they be construed to, make the Owner Participant directly liable
on the Certificates or in any way convert the Certificates to recourse
loans against the Owner Participant.
ARTICLE 3
EXTENT OF INTEREST OF ORIGINAL LOAN PARTICIPANTS
Section 3.01. Extent of Interest of Original Loan Participants.
Delivery of the Original Loan Certificates by the Original Loan
Participants to the Indenture Trustee for cancellation on the Refunding
Date shall be conclusive evidence of receipt by the Original Loan
Participants of all amounts then due and payable to the Original Loan
Participants in respect of principal of, Breakage Costs, if any, and
interest on the Original Loan Certificates under the Original Agreements
(it being understood that the foregoing shall not limit or detract from any
claim any Original Loan Participant may have under Article 8 or 9 or
Section 10.01(a)(ii) hereof or of the Original Participation Agreement).
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent. The obligations of the Owner
Trustee, the Owner Participant, the Lessee, the Indenture Trustee and the
Pass Through Trustee on behalf of each Pass Through Trust to participate in
the transactions contemplated hereby on the Refunding Date are subject to
the fulfillment to the satisfaction of such party (or waiver by such
party), prior to or on the Refunding Date, of the following conditions
precedent (it being understood that receipt by the Lessee of any of the
following documents shall not be a condition precedent to the obligations
of any party):
(a) Certificates. On the Refunding Date, there shall have been
duly issued and delivered by the Owner Trustee to the Pass Through
Trustee for each Pass Through Trust, against payment therefor, a
Certificate, substantially in the form set forth in Exhibit B to the
Indenture, duly authenticated, dated the Refunding Date and registered
in the name of the Pass Through Trustee on behalf of such Pass Through
Trust, in the principal amounts, Maturity, bearing the interest rate and
the other economic terms specified in the Series Supplements and
otherwise as provided in Section 2.04 of the Indenture. The Pass
Through Certificates shall be registered under the Securities Act, any
applicable state securities laws shall have been complied with, and the
Pass Through Agreement shall have been qualified under the Trust
Indenture Act.
(b) Legal Investment. On the Refunding Date, no fact or
condition shall exist under applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Owner Participant or its
special counsel, the Pass Through Trustee or the Indenture Trustee or
their special counsel, would make it illegal for the Owner Participant,
the Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance
issued by regulatory authorities for the Owner Participant, the Lessee,
the Owner Trustee, the Pass Through Trustee or the Indenture Trustee, to
participate in the transaction to be consummated on the Refunding Date;
and no action or proceeding shall have been instituted nor shall
governmental action before any court, governmental authority or agency
be threatened which in the opinion of counsel for the Owner Participant,
the Pass Through Trustee or the Indenture Trustee is not frivolous, nor
shall any order have been issued or proposed to be issued by any court,
or governmental authority or agency, as of the Refunding Date, to set
aside, restrain, enjoin or prevent the consummation of any of the
transactions contemplated by this Agreement or by any of the other
Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the
funds specified in Section 2.01(a) hereof and all conditions thereunder
shall have been satisfied or waived.
(d) Refunding Documents. This Agreement and the following
documents shall have been duly authorized, executed and delivered by the
respective party or parties thereto, shall, to the extent that the forms
thereof are not attached hereto, each be satisfactory in form and
substance to the Lessee, the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant (each acting
directly or by authorization to its special counsel) and shall each be
in full force and effect; there shall not have occurred any default
thereunder, or any event which with the lapse of time or the giving of
notice or both would be a default thereunder, and copies executed or
certified as requested by the Lessee, the Owner Trustee, the Owner
Participant, the Indenture Trustee or the Pass Through Trustee, as the
case may be, of such documents shall have been delivered to the Lessee,
the Owner Participant, the Indenture Trustee, the Pass Through Trustee
and the Owner Trustee (provided that the sole chattel-paper original of
the Lease shall be delivered to the Indenture Trustee):
(i) the Lease;
(ii) the Indenture;
(iii) the Trust Agreement; and
(iv) in the case of the Owner Participant only, Amendment No. 1
to the Original Tax Indemnity Agreement.
(e) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee and the Pass Through Trustee (to the extent of their
interests thereunder) or the Owner Participant, as the case may be, to
establish that the insurance required by Article 13 of the Lease is in
effect.
(f) Financing Statements. (i) Uniform Commercial Code ("UCC")
financing statements covering all the security interests (and other
interests) created by or pursuant to the Granting Clause of the Original
Indenture shall have been executed and delivered by the Owner Trustee,
as debtor, and by the Indenture Trustee, as secured party, for and on
behalf of the Original Loan Participants, and such financing statements
shall have been duly filed in the State of Michigan; (ii) a form UCC-3
financing statement to amend and restate each financing statement
referred to in the immediately preceding sentence shall have been
executed and delivered by the Owner Trustee, as debtor, and by the
Indenture Trustee as secured party, and a form UCC-1 financing statement
covering all the security interests (and other interests) created by or
pursuant to the Granting Clause of the Indenture shall have been
executed and delivered by the Owner Trustee, as debtor, and by the
Indenture Trustee, as secured party, for and on behalf of the Holders,
and concurrently with the Refinancing of the Original Loan Certificates
such UCC-3 financing statement and UCC-1 financing statement shall have
been duly filed or duly submitted for filing in the State of Michigan,
and all other actions shall have been taken which, in the opinion of
special counsel for the Pass Through Trustee or for the Underwriters,
are necessary or desirable to maintain the perfection of the security
interest created by or pursuant to the Granting Clause of the Indenture;
(iii) a UCC notice filing describing the Original Lease as a lease shall
have been executed and delivered by the Owner Trustee, as lessor, and
the Lessee, as lessee (which filing shall name the Indenture Trustee as
assignee of the Owner Trustee), and shall have been duly filed in the
State of Tennessee; and (iv) a form UCC-3 financing statement to amend
and restate the UCC notice filing referred to in the immediately
preceding clause (iii) shall have been executed and delivered by the
Owner Trustee, as lessor, and by the Lessee, as lessee (which filing
shall name the Indenture Trustee as assignee of the Owner Trustee), and
such notice filing shall concurrently with the Refinancing of the
Original Loan Certificates have been duly filed in the State of
Tennessee, and all other actions shall have been taken which, in the
opinion of the Owner Participant, Pass Through Trustee and the
Underwriters, are necessary to perfect and protect such security
interests and other interests created by or pursuant to the Granting
Clause of the Indenture.
(g) Corporate Documents. Except when such Person is the
delivering party, the Owner Participant, the Owner Trustee, the Lessee,
the Original Loan Participants, the Pass Through Trustee and the
Indenture Trustee (acting directly or by authorization to its counsel)
shall have received the following, in each case in form and substance
satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of the
Lessee, certified by the Secretary or an Assistant Secretary of the
Lessee as of the Refunding Date, and a copy of the resolutions of the
board of directors of the Lessee, certified as such as of the
Refunding Date by such Secretary or Assistant Secretary, duly
authorizing the lease by the Lessee of the Aircraft under the Lease
and the execution, delivery and performance by the Lessee of the
Original Agreements to which it is a party, this Agreement, the
Lease, the Tax Indemnity Agreement, the Pass Through Agreement, the
Series Supplements, the other Operative Agreements to which the
Lessee is or is to be a party and each other document to be executed
and delivered by the Lessee in connection with the transactions
contemplated hereby;
(ii) a copy of the articles of association and by-laws of the
Owner Participant, certified by the Secretary or an Assistant
Secretary of the Owner Participant as of the Refunding Date;
(iii) a copy of the articles of incorporation and by-laws and
other instruments of NBD, certified by the Secretary or an Assistant
Secretary of NBD as of the Refunding Date (or other like instruments
satisfactory to the Lessee and the Owner Participant) and evidence
authorizing the execution, delivery and performance by NBD or the
Owner Trustee, as the case may be, of the Original Agreements to
which it is a party, this Agreement, the Trust Agreement and each of
the other Operative Agreements to which it is or is to be a party,
whether in its individual capacity or as Owner Trustee and each other
document to be executed and delivered by the Owner Trustee in
connection with the transactions contemplated hereby;
(iv) a copy of the articles of association and by-laws and
other instruments of Chase and a copy of the resolutions of the
board of directors of Chase, certified by the Secretary or an
Assistant Secretary of Chase as of the Refunding Date (or other
like instruments satisfactory to the Lessee and the Owner
Participant) duly authorizing the execution, delivery and
performance by Chase (in its capacity as the entity acting as
Indenture Trustee) or the Indenture Trustee, as the case may be,
of the Original Agreements to which it is a party, this Agreement
and each of the other Operative Agreements to which it is or is to
be a party, whether in its individual capacity or as Indenture
Trustee and each other document to be executed and delivered by
the Indenture Trustee in connection with the transactions
contemplated hereby;
(v) a copy of the articles of association and by-laws and
other instruments of Chase and a copy of the resolutions of the
board of directors of Chase, certified by the Secretary or an
Assistant Secretary of Chase as of the Refunding Date (or other
like instruments satisfactory to the Lessee and the Owner
Participant) duly authorizing the execution, delivery and
performance by Chase (in its capacity as the entity acting as Pass
Through Trustee) or the Pass Through Trustee, as the case may be,
of this Agreement, the Pass Through Agreement, the Series
Supplements and each other document to be executed or
authenticated by or on behalf of the Pass Through Trustee in
connection with the transactions contemplated hereby; and
(vi) such other documents, evidences, materials, and information
with respect to the Lessee, the Owner Trustee, the Indenture Trustee,
the Pass Through Trustee and the Owner Participant as the Indenture
Trustee, the Pass Through Trustee or the Owner Participant may
reasonably request in order to establish the consummation of the
transactions contemplated by this Agreement.
(h) Title, Airworthiness and Registration. On the Refunding
Date, the following statements shall be true, and the Owner Participant,
the Owner Trustee, the Pass Through Trustee and the Indenture Trustee
shall have received evidence from the Lessee reasonably satisfactory to
each such Person to the effect that:
(i) the Owner Trustee has good and marketable title to the
Aircraft, free and clear of Liens, except the rights of the Owner
Trustee and the Lessee under the Lease and the Lease Supplement
covering the Aircraft, the rights of the Indenture Trustee under
the Indenture and the beneficial interest of the Owner Participant
created by the Trust Agreement and the interest of the Holders
created by the Indenture and the Indenture and Security Supplement
covering the Aircraft;
(ii) the Aircraft has been duly certified by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) the Lease, the Indenture and the Trust Agreement
concurrently with the Refinancing of the Original Loan Certificates
have been duly filed for recordation (or shall be in the process of
being so duly filed for recordation) with the Aeronautics Authority
pursuant to the Act; and
(iv) the Aircraft is registered in the name of the Owner Trustee.
(i) Officer's Certificate of Lessee. On the Refunding Date, the
following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Refunding Date,
stating that:
(i) the representations and warranties of the Lessee contained
in the Operative Agreements to which it is a party (excluding the
Tax Indemnity Agreement) and in any certificate delivered pursuant
hereto or thereto are true and correct on and as of the Refunding
Date as though made on and as of such date (except to the extent
that such representations and warranties relate solely to an
earlier date, in which case such certificate shall state that such
representations and warranties were true and correct on and as of
such earlier date);
(ii) except for the matters described under "Legal Proceedings"
in the Lessee's Annual Report on Form 10-K for the fiscal year ended
May 31, 1995 (as updated by Note 7 to the financial statement
included in the Lessee's Quarterly Report on Form 10-Q for the fiscal
quarter ended August 31, 1995), as to which such officer will make no
certification concerning the liability of the Lessee (if any), or the
effect of any adverse determination upon the consolidated financial
condition, business or operations of the Lessee, no material adverse
change has occurred in the financial condition, business or
operations of the Lessee from that shown in the unaudited
consolidated financial statements of the Lessee as of August 31, 1995
and nothing has occurred which will, in the judgment of such officer,
materially adversely affect the ability of the Lessee to carry on its
business or to perform its obligations under this Agreement and each
other Operative Agreement to which it is a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(j) Officer's Certificate of Owner Participant. On the Refunding
Date, the following statements shall be true, and the Lessee, the Pass
Through Trustee, the Owner Trustee and the Indenture Trustee shall have
received a certificate from the Owner Participant, signed by a duly
authorized officer of the Owner Participant dated the Refunding Date,
stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement to which it is a party and in any certificate
delivered pursuant hereto or thereto, are true and correct on and as
of the Refunding Date as though made on and as of such date (except
to the extent that such representations and warranties relate solely
to an earlier date, in which case such certificate shall state that
such representations and warranties were true and correct on and as
of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes,
due to any action or inaction on the part of the Owner Participant,
an Indenture Default or an Indenture Event of Default.
(k) Other Officer's Certificates. On the Refunding Date, the
following statements shall be true, and the Owner Participant, the
Lessee, the Pass Through Trustee, the Owner Trustee and the Indenture
Trustee shall have received a certificate from each of NBD and the Owner
Trustee (in the case of the Lessee, the Owner Participant, the Pass
Through Trustee and the Indenture Trustee), Chase in its capacity as the
entity acting as Indenture Trustee (in the case of the Lessee, the Owner
Participant, the Pass Through Trustee and the Owner Trustee) and Chase
in its capacity as the entity acting as Pass Through Trustee (in the
case of the Lessee, the Owner Participant, the Indenture Trustee and the
Owner Trustee) signed by a duly authorized officer of NBD and Chase,
respectively, dated the Refunding Date, stating with respect to NBD and
the Owner Trustee, Chase (other than in its capacity as a Loan
Participant, Agent or Pass Through Trustee) and the Indenture Trustee or
Chase (other than in its capacity as a Loan Participant, Agent or
Indenture Trustee) and the Pass Through Trustee, as the case may be,
that:
(i) the representations and warranties of the Owner Trustee in
its individual capacity and as Owner Trustee, of the Indenture
Trustee in its individual capacity (other than in its capacity as
a Loan Participant, Agent or Pass Through Trustee) and as
Indenture Trustee, and of the Pass Through Trustee in its
individual capacity (other than in its capacity as a Loan
Participant, Agent or Indenture Trustee) and as Pass Through
Trustee, contained in this Agreement, the Lease, the Trust
Agreement and the Indenture and in any certificate delivered
pursuant hereto or thereto are true and correct on and as of the
Refunding Date as though made on and as of such date (except to
the extent that such representations and warranties relate solely
to an earlier date, in which case such certificate shall state
that such representations and warranties were true and correct on
and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of the Owner Trustee in its individual capacity
or as trustee, and of the Indenture Trustee in its individual
capacity (other than in its capacity as a Loan Participant, Agent or
Pass Through Trustee) or as trustee, an Event of Default or an
Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or NBD and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
(l) Legal Opinions. The Owner Participant, the Original Loan
Participants, the Lessee, the Owner Trustee, the Indenture Trustee and the
Pass Through Trustee (acting directly or by authorization to its special
counsel) shall have received from the following counsel their respective
legal opinions in each case satisfactory to the Owner Participant, the
Original Loan Participants, the Lessee, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee, as the case may be, as to scope and
substance (and covering such other matters as the recipient may reasonably
request) and dated the Refunding Date:
(i) Xxxxxx X. Xxxxx, Esq., Vice President, Law - Corporate
and Business Transactions of the Lessee in the form of Exhibit
A(1)(a) hereto, addressed to the Owner Participant, the Owner,
Trustee, the Pass Through Trustee, the Indenture Trustee, the
Underwriters and the Original Loan Participants;
(ii) Xxxxxx, Xxxxx & Bockius, special counsel for the Owner
Participant, in the form of Exhibit A(2)(a) hereto and Xxxxx X.
Xxxxxxxx, Assistant General Counsel of NationsBank Corporation of the
Owner Participant, in the form of Exhibit A(2)(b) hereto, each
addressed to the Owner Participant, the Owner Trustee, the Pass
Through Trustee, the Indenture Trustee, the Lessee, the Underwriters
and the Original Loan Participants;
(iii) Xxxxx Xxxxxxxxxx, special counsel for the Indenture
Trustee, in the form of Exhibit A(3)(a) hereto and Xxxxxxx Xx Xxxxxx,
Vice President and Senior Associate Counsel of the Indenture Trustee,
in the form of Exhibit A(3)(b) hereto, each addressed to the Owner
Participant, the Owner Trustee, the Pass Through Trustee, the
Indenture Trustee, the Lessee, the Underwriters and the Original Loan
Participants;
(iv) Xxxxxxxxx, Xxxxxx & Xxxxxxxx, special aviation counsel,
in the form of Exhibit A(4) hereto, addressed to the Owner
Participant, the Owner Trustee, the Pass Through Trustee, the
Indenture Trustee, the Lessee, the Underwriters and the Original
Loan Participants;
(v) [intentionally left blank];
(vi) [intentionally left blank];
(vii) Dickinson, Wright, Moon, Van Dusen & Xxxxxxx, special
counsel for the Owner Trustee, in the form of Exhibit A(5) hereto,
addressed to the Owner Participant, the Owner Trustee, the Pass
Through Trustee, the Indenture Trustee, the Lessee, the Underwriters
and the Original Loan Participants;
(viii) Xxxxx Xxxx & Xxxxxxxx, special counsel to the Lessee,
in the form of Exhibit A(1)(b) hereto, addressed to the Owner
Participant, the Owner Trustee, the Pass Through Trustee, the
Indenture Trustee, the Lessee, the Underwriters and the Original
Loan Participants; and
(ix) Xxxxx Xxxxxxxxxx, special counsel for the Pass Through
Trustee, in the form of Exhibit A(6)(a) hereto and Xxxxxxx Xx
Xxxxxx, Vice President and Senior Associate Counsel of the Pass
Through Trustee, in the form of Exhibit A(6)(b) hereto, each
addressed to the Owner Participant, the Owner Trustee, the Pass
Through Trustee, the Indenture Trustee, the Lessee, the
Underwriters and the Original Loan Participants;
(m) No Indenture Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(n) No Defaults. No Default or Event of Default under the Lease
and no Event of Loss or event, which with the passage of time or if
continued unremedied or unaltered would constitute an Event of Loss,
shall have occurred or be in existence.
(o) Cancellation. Following the Refinancing of the Original Loan
Certificates, the Original Loan Certificates shall have been duly
delivered by the Original Loan Participants to the Indenture Trustee for
cancellation and delivery to the Owner Trustee.
(p) Other Agreements. The Lessee and the Pass Through Trustee
shall have entered into the Pass Through Agreement and the Series
Supplements, all conditions to the effectiveness of each thereof shall
have been satisfied or waived, and the Pass Through Certificates shall
have been issued pursuant to the Series Supplements. The Lessee and the
Underwriters shall have entered into the Underwriting Agreement, all
conditions to the effectiveness thereof shall have been satisfied or
waived, and the Pass Through Certificates shall have been delivered
pursuant to the Underwriting Agreement.
Section 4.02. Opinion of Special Aviation Counsel. Promptly upon
the filing and, where appropriate, recording of the documents specified in
4.01(h)(iii) hereof, pursuant to the Act, the Lessee shall cause Special
Aviation Counsel to deliver to the Owner Participant, the Owner Trustee,
the Pass Through Trustee and the Indenture Trustee an opinion as to (i) the
due recording of such documents and the documents identified in Section
4.01(i) of the Original Participation Agreement and (ii), subject to
customary qualifications, the lack of any intervening documents with
respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby is
subject to the conditions that, prior to or on the Refunding Date, the Lessee
shall have received the certificates and other documents which are referred to
in, or the opinions to be addressed to it under, as the case may be,
paragraphs (d), (g)(ii)-(v), (h)(ii)-(iv), (j), (k) and (l) (ii), (iii), (iv),
(vii), (viii) and (ix) of Section 4.01 hereof and the Underwriters and the
Owner Participant shall have made available the amounts required to be paid by
them pursuant to Section 2.01 hereof.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The Lessee
represents and warrants to the Owner Participant, the Owner Trustee (in its
individual capacity and as Owner Trustee), the Pass Through Trustee (in its
individual capacity and as Pass Through Trustee) and the Indenture Trustee
(in its individual capacity and as Indenture Trustee) that, on the date
hereof and as of the Refunding Date:
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement, the Original Agreements to which it is a party, the other
Operative Agreements to which it is a party, the Pass Through Agreement and
the Series Supplements (the "Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered by the Lessee and constitutes the legal, valid and binding
obligations of the Lessee enforceable against it in accordance with the
terms thereof except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or equitable
principles of general application to or affecting the enforcement of
creditors' rights generally (regardless of whether enforceability is
considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by the Lessee of the Lessee Documents or for the
use and maintenance of the Aircraft except for such registrations,
applications and recordings referred to in the opinions of Special Aviation
Counsel delivered or to be delivered pursuant to Sections 4.01(l)(iv) and
4.02 hereof and except for the filings referred to in Section 4.01(f)
hereof, all of which shall have been duly obtained or made and shall be in
full force and effect on and as of the Refunding Date or as contemplated by
said Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent or approval under, any law, governmental rule or
regulation or the charter documents, as amended, or bylaws, as amended, of
the Lessee or any order, writ, injunction or decree of any court or
governmental authority against the Lessee or by which it or any of its
Properties is bound or any indenture, mortgage or contract or other
agreement or instrument to which the Lessee is a party or by which it or
any of its Properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any Lien upon any
of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or
any of its Property before or by any court or administrative agency
which (A) involve the Aircraft, (B) except for the matters described
under "Legal Proceedings" in the Lessee's Annual Report on Form 10-K for
the fiscal year ended May 31, 1995 (as updated by Note 7 to the
financial statement included in the Lessee's Quarterly Report on Form
10-Q for the fiscal quarter ended August 31, 1995), as to which no
representation is made concerning the Lessee's liability (if any) or the
effect of any adverse determination upon the consolidated financial
condition, business or operations of the Lessee, if adversely
determined, would materially and adversely affect the consolidated
financial condition, business or operations of the Lessee, or (C) if
adversely determined would adversely affect the ability of the Lessee to
perform its obligations under the Lessee Documents;
(i) the Lessee and its subsidiaries have filed or caused to be filed
all tax returns which are required to be filed and has paid or caused to
be paid all taxes shown to be due and payable pursuant to such returns
or pursuant to any assessment received by the Lessee (other than
assessments the payment of which is being contested in good faith by the
Lessee), and the Lessee has no knowledge of any related actual or
proposed deficiency or additional assessment which either in any case or
in the aggregate would materially adversely affect the Lessee's
consolidated financial condition (other than, in any such case,
assessments, the payment of which is being contested in good faith by
the Lessee, as to which no representation is made concerning the
Lessee's liability (if any) or the effect of any adverse determination
upon the Lessee's consolidated financial condition);
(j) except for (A) the filing and, where appropriate, recordation
pursuant to the Act of the Indenture, the Trust Agreement and the Lease,
(B) the filing of the financing statements referred to in Section
4.01(f) hereof and (C) the taking of possession by the Indenture Trustee
of the original counterpart of the Lease and maintaining possession of
the original counterpart of the Lease Supplement delivered on the
Delivery Date, no further action, including any filing or recording of
any document, is necessary or advisable in order (i) to establish the
Owner Trustee's title to and interest in the Aircraft and the Lessor's
Estate as against the Lessee and any third parties, or (ii) to perfect
the first security interests in and mortgage Lien on the Trust Indenture
Estate in favor of the Indenture Trustee;
(k) on the Delivery Date, the Owner Trustee received good and
marketable title to the Aircraft, free and clear of all Liens, except
the rights of the Owner Trustee and the Lessee under the Original Lease,
the rights of the Indenture Trustee under the Original Indenture and the
beneficial interest of the Owner Participant created by the Original
Trust Agreement and the interest of the Original Loan Participants
created by the Original Indenture and the Indenture and Security
Supplement covering the Aircraft;
(l) the Lessee has heretofore delivered to the Owner Participant true
and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1995 and its Quarterly Report on Form 10-Q for
the fiscal quarter ended August 31, 1995, and of the audited
consolidated balance sheet of the Lessee for the fiscal year ended May
31, 1995 and the unaudited consolidated balance sheet of the Lessee as
of August 31, 1995, and the related consolidated statements of income,
changes in common stockholders' investment and cash flows for the fiscal
year and interim reporting period ended on such dates, accompanied
(except in the case of such interim reporting period) by a report
thereon containing opinions without qualification, except as therein
noted, by Xxxxxx Xxxxxxxx & Co., independent public accountants; said
financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied and present fairly
the financial position of the Lessee as of such dates and the results of
its operations and cash flows for such periods and such Annual Reports,
Quarterly Reports and financial statements did not, as of their
respective dates of filing with the SEC, contain any untrue statement of
a material fact or omit a material fact necessary to make the statements
contained therein not misleading and there has been no material adverse
change in the consolidated financial condition of the Lessee since
August 31, 1995;
(m) with respect to ERISA, except as otherwise disclosed:
(i) none of the Pension Plans (as defined at the end of this
Section 6.01(m)) nor their related trusts have been terminated in a
distress termination pursuant to Section 4041(c) of ERISA or by the
Pension Benefit Guaranty Corporation or any successor agency or
instrumentality thereto (the "PBGC") pursuant to Section 4042 of
ERISA, nor have any actions been taken to so terminate any Pension
Plan or related trust and neither the Lessee nor any ERISA Affiliate
has incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee;
(iii) no "accumulated funding deficiency" (as such term is defined
in Section 302 of ERISA or Section 412 of the Code) exists with
respect to any Pension Plan, whether or not waived, nor has any
request for a waiver under Section 412(d) of the Code been, or is
reasonably likely to be, filed with respect to any of the Pension
Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to
make any contribution or payment to any Pension Plan which has
resulted or could reasonably be expected to result in the
imposition of a Lien under Section 302(f) of ERISA or Section
412(n) of the Code;
(v) all Pension Plans are in compliance in all material
respects with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred
or is reasonably likely to incur any material withdrawal liability
pursuant to Section 4201 or 4204 of ERISA or any material
liability under Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming (A) the truth of the representations contained
in Sections 7.03(a)(viii) and 7.09 hereof, (B) the applicability
of an individual or a class prohibited transaction exemption
("PTE") to the transactions contemplated hereby, and (C) the
compliance with all of the conditions of a PTE, the execution and
delivery of this Agreement and the other Operative Agreements and
the consummation of the transactions contemplated hereby and
thereby will not involve any transaction which is prohibited by
Section 406 of ERISA or in connection with which a tax could be
imposed pursuant to Section 4975 of the Code. No part of the
funds to be used by the Lessee in satisfaction of its obligations
under this Agreement or any other of the Operative Agreements to
which the Lessee is a party or to which the Lessee is bound are
the assets of any employee benefit plan subject to Title I of
ERISA, or any individual retirement account or an employee benefit
plan subject to Section 4975 of the Code.
As used in this Section 6.01(m), the term "Pension Plan" means an
employee pension benefit plan as defined in Section 3(2) of ERISA (other
than a multiemployer plan as defined in Section 4001(a)(3) of ERISA)
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and which is maintained, or
contributed to, by the Lessee or any ERISA Affiliate, and the term
"ERISA Affiliate" means any entity which together with the Lessee would
be treated as a single employer under Section 414(b), (c), (m) or (o) of
the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Section 4.01(f) hereof,
no governmental approval of any kind is required of the Owner
Participant or for the Owner Participant's execution of or performance
under this Agreement or any agreement contemplated hereby by reason of
any fact or circumstance of the Lessee, the nature of the Aircraft or
the Lessee's proposed operations or use of the Aircraft;
(p) on the Refunding Date, all premiums with respect to the
insurance required to be provided by the Lessee on or prior to the
Refunding Date under Article 13 of the Lease have been paid by the
Lessee;
(q) on the Refunding Date, all sales or use taxes relating to the
sale of the Aircraft by AVSA to the Owner Trustee which are then or were
theretofore due shall have been paid;
(r) the Lessee is not in default under any mortgage, deed of
trust, indenture, lease or other instrument or agreement to which the
Lessee is a party or by which it or any of its Properties or assets may
be bound, or in violation of any applicable law, which default or
violation would have a material adverse effect on the financial
condition, business or operations of the Lessee or its ability to
perform any of its obligations under the Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event,
which with the passage of time or if continued unremedied or unaltered
would constitute an Event of Loss, has occurred or exists;
(t) the Aircraft has been duly certified by the FAA as to type and
airworthiness; there is in effect with respect to the Aircraft a current
and valid airworthiness certificate issued by the FAA pursuant to the
Act; and there is no fact known to the Lessee which materially adversely
affects the value, utility or condition of the Aircraft;
(u) on the Refunding Date, the Lessee shall not be in default in
the performance of any term or condition of the Purchase Agreement, the
Purchase Agreement Assignment, the Engine Warranty Assignment and the
GTA;
(v) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(w) the Aircraft is fully equipped to operate in commercial service
and will comply with all governmental requirements governing such service;
(x) neither the Lessee nor any of its Affiliates is engaged
principally in the business of extending credit for the purpose of buying
or carrying margin stock (within the meaning of Regulation U of the Board
of Governors of the Federal Reserve System) and no part of the proceeds
from the sale of the Certificates and/or sale of the Aircraft by the Lessee
to the Owner Trustee will be used to purchase or carry any such margin
stock, or to refinance any borrowing, the proceeds of which were used to
purchase or carry any such margin stock;
(y) there are no broker's or underwriter's fees payable in
connection with the transactions contemplated in the Operative Agreements
other than those of the Underwriters and First Chicago Leasing Corporation;
and
(z) the representations and warranties of the Lessee set forth in the
Original Agreements to which it is a party were correct on and as of the
Delivery Date (except to the extent such representations expressly related
solely to a specified earlier date, in which case such warranties and
representations were correct on and as of such earlier date).
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection
with the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to,
or solicited any offer to acquire any of the same from, anyone other than
the Owner Participant and no more than 53 other institutional investors (as
such term is defined in Regulation D promulgated under the Securities Act
of 1933, as amended).
Section 6.03. Certain Covenants of Lessee. The Lessee covenants
and agrees with the Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered all such further acts, conveyances and assurances as the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee or the Owner
Participant shall reasonably require for accomplishing the purposes of
this Agreement, the Trust Agreement, the Indenture, the Tax Indemnity
Agreement, the Lease and the other Operative Agreements to which it is a
party. Without limiting the generality of this Section 6.03(a), the
Lessee will promptly take, or cause to be taken, at the Lessee's cost
and expense, such action with respect to the recording, filing,
re-recording and re-filing of the Indenture, each Indenture and Security
Agreement Supplement, the Lease, each Lease Supplement and any financing
statements or other instruments as may be necessary, or as requested by
the Indenture Trustee and appropriate, to maintain the perfection of the
first security interest and the Lien created by the Indenture, and the
Owner Trustee's title to and interest in the Aircraft and the Lessor's
Estate as against the Lessee and any third parties, or if the Lessee
cannot take, or cause to be taken, such action, will furnish to the
Indenture Trustee and the Owner Trustee timely notice of the necessity
of such action, together with such instruments, in execution form, and
such other information as may be required to enable either of them to
take such action at the Lessee's cost and expense in a timely manner.
(b) The Lessee shall maintain the certificates referred to in
Section 7.01 of the Lease and shall cause the Aircraft to remain duly
registered, in the name of the Owner Trustee, under the Transportation
Code; provided, however, that the Owner Participant, the Owner Trustee and
the Indenture Trustee agree that if at any time after December 31, 2002 the
Lessee has requested their consent to the registration of the Aircraft in
the name of the Owner Trustee (or, if appropriate, in the name of the
Lessee or a sublessee as a "lessee" or a "sublessee"), at the Lessee's
expense, in a country listed in Schedule III hereto with which the United
States then maintains normal and full diplomatic relations, the Owner
Participant, upon receipt by the Owner Participant, the Owner Trustee and
the Indenture Trustee of the assurances and opinion described below, none
of them shall unreasonably withhold their consent to such change in
registration (it being agreed, without limitation, that the inability of
the Lessee to deliver such assurances or such opinion shall constitute
reasonable grounds to withhold such consent).
As a condition to any change in the registration of the Aircraft, the
Owner Participant, the Owner Trustee in its individual and trust capacities,
and the Indenture Trustee shall have received:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease
have been and will be complied with and are and shall be in full
force and effect upon such change of registry;
(B) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft;
(C) that the Owner Trustee's right, title and interest in and to
the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry, that the rights of the Owner Trustee in and
to the Aircraft will not be impaired in such new jurisdiction of
registry and that the new jurisdiction of registry will give effect
to the title and registry of the Aircraft therein substantially to
the same extent as does the Government;
(D) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required),
(y)(i) if such change in registration is made other than in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards at least comparable to those of
the FAA, and (ii) if such change in registration is made in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards in conformity with those set
forth in Section 7.02(a)(i) of the Lease and (z) would not impose
requirements which materially increase the administrative or other
burdens or obligations of the Owner Participant under the Operative
Agreements unless indemnified by the Lessee;
(E) that import and export certificates and any exchange permits
necessary to allow all Rent and other payments provided for under the
Lease, if required, shall have been procured at the Lessee's own cost
and expense by the Lessee;
(F) that the Lessee shall have effected or caused to be effected
at the Lessee's own cost and expense all recordings and filings that
are required to perfect the Lien of the Indenture;
(G) to the effect that the original indemnities (and any
additional indemnities for which the Lessee is then willing to enter
into a binding agreement to indemnify) in favor of the Owner
Participant, the Owner Trustee (in its individual capacity and as
trustee under the Trust Agreement), the Indenture Trustee (in its
individual capacity and as trustee under the Indenture), the Pass
Through Trustee (in its individual capacity and as trustee under the
Pass Through Agreement) and the other Indemnitees under this
Agreement, the Indenture, the Pass Through Agreement and (in the case
of the Owner Participant only) the Tax Indemnity Agreement, afford
each such party substantially the same protection as provided prior
to such change of registry;
(H) that such change will not result in the imposition of, or
increase in the amount of, any Tax (which, for this purpose, includes
the loss of any tax benefits assumed by the Owner Participant to be
available to it based upon the assumptions set forth in Section 2 of
the Original Tax Indemnity Agreement) for which the Lessee has not
agreed to indemnify the Owner Participant, the Indenture Trustee, the
Owner Trustee (or any successor, assign or Affiliate thereof) and the
Trust Estate;
(I) that any value added tax, customs duty, tariff or similar
governmental charge relating to the change in jurisdiction of
registration of the Aircraft shall have been paid in full or
adequately provided for by the Lessee to the satisfaction of the
Owner Trustee, the Indenture Trustee and the Owner Participant;
(J) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participant, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change
of registry, including any reasonable attorneys' fees and expenses;
and
(K) that duties and tariffs, if applicable, shall have been paid
for by the Lessee;
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the governing
law, service-of-process and jurisdictional-submission provisions
thereof) of the Lease and the Indenture are legal, valid, binding and
enforceable in such jurisdiction against the Lessee, any sublessee,
the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participant, the
Owner Trustee, the Indenture Trustee or the Pass Through Trustee
to register or qualify to do business or meet other requirements
not already met in such jurisdiction in connection with the
registration in the new jurisdiction (and the filing and/or
recordation therein of the Indenture or Lease) and the exercise of
any rights or remedies with respect to the Aircraft pursuant to
the Lease or the Indenture or in order to maintain such
registration and the Lien of the Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(D)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than tort
liability which might have been imposed on such owner, lessor or
mortgagee under the laws of the United States or any state thereof
(it being understood that, in the event such latter opinion cannot be
given in a form satisfactory to the Owner Trustee, the Owner
Participant and the Indenture Trustee, such opinion shall be waived,
if insurance reasonably satisfactory to the Owner Participant, the
Indenture Trustee and the Owner Trustee, in its individual capacity,
is provided, at Lessee's expense, to cover such risk and the Lessee
undertakes to keep such insurance in full force and effect);
(E) that the laws of such jurisdiction will not impair the
rights of the Lessor in and to the Aircraft or under the Lease and
(unless the Lessee shall have agreed to provide insurance reasonably
satisfactory to the Indenture Trustee and the Owner Participant
covering the risk of requisition of use of the Aircraft by the
government of registry of the Aircraft) require fair compensation by
the government of such jurisdiction payable in currency freely
convertible into United States Dollars for the loss of use of the
Aircraft in the event of such requisition;
(F) that the Owner Trustee's title to the Aircraft is recognized
and fully enforceable in such jurisdiction, that such jurisdiction
will give effect to the title of the Aircraft therein substantially
to the same extent as does the Government, and that the Lien of the
Indenture shall continue as a first priority, duly perfected lien on
the Aircraft; and
(G) to such further effect with respect to such other matters
as the Owner Participant, the Owner Trustee, or the Indenture
Trustee may reasonably request.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participant such information as may be required
to enable the Owner Trustee and the Owner Participant timely to file any
reports required to be filed by the Owner Trustee as the Lessor and the
Owner Participant under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Refunding Date, the Lease, the Trust
Agreement and the Indenture. The following documents shall be filed and,
where appropriate, recorded on the Refunding Date with the Aeronautics
Authority in the following order of priority: first, the Trust Agreement,
second, the Indenture and third, the Lease with the Indenture attached
thereto.
(e) The Lessee will furnish to the Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1996, an
opinion, reasonably satisfactory to the Owner Participant and the
Indenture Trustee, of Special Aviation Counsel, or other counsel
specified from time to time by the Lessee acceptable to the Lessor and
the Indenture Trustee: (i) stating either (1) that in the opinion of
such counsel such action has been taken with respect to the recording,
filing, re-recording and re-filing of the Lease, the Indenture, the
Trust Agreement, and any supplements to any of them and any financing
statements, continuation statements or other instruments, and all other
action has been taken, as is necessary to maintain the Owner Trustee's
title to and interest in the Aircraft and the Lessor's Estate as against
the Lessee and any third parties and to maintain the perfection of the
security interests created by said documents and reciting the details of
such action, or (2) that in the opinion of such counsel no such action
is necessary to maintain such title or the perfection of such security
interests; (ii) specifying all other action which needs to be taken
during the succeeding 14 months in order to maintain such title and the
perfection of such security interests (which the Lessee agrees timely to
take); and (iii) stating that the Owner Trustee is the owner of legal
title to the Aircraft, and the Aircraft is free and clear of all Liens,
except the security interest created by the Indenture and such as are
permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate
existence except as permitted by Section 6.03(g) hereof and all of its
rights, privileges and franchises necessary in the normal conduct of its
business, except for any corporate right, privilege or franchise (i)
that it determines, in its reasonable, good faith business judgment, is
no longer necessary or desirable in the conduct of its business and (ii)
the loss of which will not materially adversely affect or diminish the
rights of the Holders or the Owner Participant.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of
the assets of the Lessee as an entirety (i) is a domestic corporation
organized and existing under the laws of the United States or a
political subdivision thereof, (ii) is a Citizen of the United States,
(iii) is a U.S. Air Carrier holding an "air carrier operating
certificate" issued under Chapter 447 of the Transportation Code for
aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, (iv) expressly assumes by an instrument in
writing in form and substance satisfactory to the Indenture Trustee, the
Owner Participant and the Owner Trustee all of the Lessee's obligations
hereunder and under the other Operative Agreements, and each other
document contemplated hereby or thereby and the Lessee delivers such
instrument to the Indenture Trustee, the Owner Participant and the Owner
Trustee, (v) provides an opinion from counsel to the Lessee which
counsel shall be reasonably satisfactory to the Owner Participant and
the Indenture Trustee and which opinion shall be reasonably satisfactory
to the Owner Participant and the Indenture Trustee, and an officer's
certificate, each stating that such merger, consolidation, conveyance,
transfer or lease and the instrument noted in clause (iv) above comply
with this Section 6.03(g), that such instrument is a legal, valid and
binding obligation of, and is enforceable against, such survivor or
Person, and that all conditions precedent herein provided for relating
to such transaction have been complied with, and (vi) immediately after
such merger, consolidation or conveyance, transfer or lease, as the case
may be, the surviving company is in compliance with all of the terms and
conditions of this Agreement and the Lease and each other Operative
Agreement and each other document contemplated hereby or thereby;
provided that no such merger, consolidation or conveyance, transfer or
lease shall be permitted if the same gives rise to a Default not capable
of cure within the applicable grace period therefor or an Event of
Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the Lessee
is merged or the Person to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Lessee under this Agreement and the Lease and each other
Operative Agreement and any other document contemplated hereby and thereby
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
conveyance, transfer or lease of all or substantially all of the assets of
the Lessee as an entirety shall have the effect of releasing the Lessee or
any successor corporation which shall theretofore have become such in the
manner prescribed in this Section 6.03(g) from its liability hereunder or
under the other Operative Agreements. Nothing contained herein shall
permit any lease, sublease, or other arrangement for the use, operation or
possession of the Aircraft except in compliance with the applicable
provisions of the Lease.
(h) The Lessee agrees to give prompt written notice to the Owner
Participant, the Owner Trustee and the Indenture Trustee of any change in
the address of its chief executive office (as such term is used in Section
9-103(3) of the Tennessee Uniform Commercial Code) or of any change in its
corporate name.
(i) The Lessee agrees to furnish to the Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second
and third quarterly accounting periods in each fiscal year of the
Lessee, a consolidated balance sheet of the Lessee prepared by it as
of the close of the accounting period then ended, together with the
related consolidated statements of income, retained earnings and cash
flows for such accounting period certified by the chief accounting
officer or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
reports and statements furnished by the Lessee to all of its
stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business
Days after) any Responsible Officer of the Lessee obtaining actual
knowledge of any condition or event which constitutes a Default or
any officer of the Lessee obtaining knowledge of any condition or
event which constitutes an Event of Default, an officer's certificate
specifying the nature and period of existence thereof and what action
the Lessee has taken or is taking or proposes to take with respect
thereto; and
(F) from time to time, such other financial information as the
Lessor, the Owner Participant or the Indenture Trustee may reasonably
request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an employee reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review of, the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or any Event of Default
or if a Default or an Event of Default exists or did exist, specifying the
nature thereof, the period of existence thereof and what action the Lessee has
taken or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and 6.02
hereof and in any other Operative Agreement shall survive the Closings
hereunder and the expiration or other termination of this Agreement and the
other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. (a) [Intentionally Left Blank.]
(b) Owner Participant. The Owner Participant represents and
warrants that its interest in the Lessor's Estate and the Trust Agreement was
acquired by it for its own account and not with a view to resale or
distribution thereof; provided, however, that the disposition by the Owner
Participant of its interest in the Lessor's Estate and the Trust Agreement
shall, subject to the terms and provisions of Section 7.03(d) hereof, at all
times be within its control and the foregoing representation shall not limit
the Owner Participant's right to transfer or sell such interests pursuant to
the terms of this Agreement. Neither the Owner Participant nor anyone
authorized to act on its behalf has directly or indirectly offered any
interest in the Lessor's Estate or the Trust Agreement, or in any similar
security, for sale to, or solicited any offer to acquire any of the same from,
anyone. The Owner Participant further represents and warrants that neither it
nor anyone authorized to act on its behalf has made or will make any offer,
solicitation or sale of any interest in the Lessor's Estate or the Trust
Agreement in violation of the provisions of Section 5 of the Securities Act of
1933, as amended. No representation in this Section 7.01(b) shall include any
action or inaction of the Lessee, the Agent, First Chicago Leasing Corporation
or the Underwriters whether or not purportedly on behalf of the Owner Trustee,
the Owner Participant or any of their Affiliates.
Section 7.02. Citizenship. (a) Generally. Each of the Owner
Trustee, in its individual capacity and as Trustee, and the Owner
Participant severally represents and warrants that it is a Citizen of the
United States on the Refunding Date. If the Owner Participant or the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee, the Indenture Trustee and the Owner
Participant hereby agree that a Default or an Event of Default shall not be
deemed to have occurred and be continuing under the Lease due to
non-compliance by the Lessee with the registration requirements in the Lease
occasioned by the noncompliance of the Owner Participant or the Owner
Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual
capacity, covenants that if at any time it shall have actual knowledge that
it has ceased to be a Citizen of the United States, it will resign
immediately as the Owner Trustee if such citizenship is necessary under the
Transportation Code as in effect at such time or, if it is not necessary
under the Transportation Code as in effect at such time, if it is informed
in writing by the Lessee or the Owner Participant that such lack of United
States citizenship would have any adverse effect on the Lessee or the Owner
Participant. The Owner Trustee, in its individual capacity, further
covenants that if at any time it appears reasonably probable that it will
cease to be a Citizen of the United States based on information that is (i)
known to a Responsible Officer or (ii) generally known to the public, it
will promptly so notify, to the extent permitted by law, all parties to
this Agreement.
(c) Owner Participant. The Owner Participant agrees, solely for
the benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee
and the Owner Trustee, that if at any time when the Aircraft is registered
or the Lessee proposes to register the Aircraft in the United States (i) it
shall cease to be, or determines that it is likely to cease to be, a
Citizen of the United States and (ii) the Aircraft shall or would therefore
become ineligible for registration in the name of the Owner Trustee under
the Transportation Code and regulations then applicable thereunder, then
the Owner Participant shall give notice thereof to the Lessee, the Owner
Trustee and the Indenture Trustee and shall (at its own expense and without
any reimbursement or indemnification from the Lessee) immediately (and in
any event within a period of 15 Business Days following such determination
or, if earlier, within 15 days following actual loss of citizenship) (x)
effect a voting trust or other similar arrangement, (y) transfer in
accordance with the terms of this Agreement and the Trust Agreement all its
rights, title and interest in and to such Trust Agreement, the Lessor's
Estate and this Agreement, or (z) take any other alternative action that
would prevent any deregistration, or maintain the United States
registration, of the Aircraft. It is agreed that the Owner Participant
shall be liable to pay promptly on request (A) to each of the other parties
hereto any actual damages (but not consequential damages) suffered by any
such other party to the extent the same shall result from the
representation and warranty of the Owner Participant in the first sentence
of Section 7.02(a) hereof proving to be untrue as of the Refunding Date;
and (B) to the Lessee, the Indenture Trustee and the Pass Through Trustee
for any damages actually incurred by the Lessee, the Indenture Trustee and
the Pass Through Trustee as a result of the Owner Participant's failure to
comply with its obligations pursuant to the first sentence of this Section
7.02(c); provided, that, the foregoing shall not restrict the Pass Through
Trustee or the Indenture Trustee from asserting against the Owner
Participant any damages actually incurred by the holders of any Pass
Through Certificates. Each party hereto agrees, upon the request and at
the sole expense of the Owner Participant, to cooperate with the Owner
Participant in complying with its obligations under the provisions of the
first sentence of this Section 7.02(c).
Section 7.03. Representations, Warranties and Covenants of the
Owner Participant. (a) Representations, Warranties and Covenants. In
addition to and without limiting its other representations and warranties
provided for in this Article 7, the Owner Participant represents and
warrants that:
(i) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States of
America and it has full corporate power, authority and legal right to
carry on its present business and operations, to own or lease its
Properties and to enter into and to carry out the transactions
contemplated by the Original Agreements to which it is a party, this
Agreement, the Tax Indemnity Agreement, and the Trust Agreement;
(ii) the execution, delivery and performance by it of the Original
Agreements to which it is a party, this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement have been duly authorized by all
necessary corporate action on its part and, assuming the accuracy of the
Lessee's representations in Section 6.01(o) hereof, do not require any
governmental approvals that would be required to be obtained by the
Owner Participant;
(iii) based on the representations, warranties and covenants
contained in Sections 6.01(m)(viii), 6.02 and 7.09 hereof, neither the
execution, delivery or performance by the Owner Participant of the
Original Agreements to which it is a party, this Agreement, the Tax
Indemnity Agreement, and the Trust Agreement nor compliance with the
terms and provisions hereof or thereof, conflicts or will conflict with
or results or will result in a breach or violation of any of the terms,
conditions or provisions of, or will require any consent or approval
under any law, governmental rule or regulation applicable to the Owner
Participant or the charter documents, as amended, or by-laws, as
amended, of the Owner Participant or any order, writ, injunction or
decree of any court or governmental authority against the Owner
Participant or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to
which the Owner Participant is a party or by which it or any of its
Properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any Lien upon
any of its Properties;
(iv) the Original Agreements to which it is a party, this
Agreement, the Tax Indemnity Agreement and the Trust Agreement have been
or on the Refunding Date will be duly executed and delivered by the
Owner Participant and constitute or on the Refunding Date will
constitute the legal, valid and binding obligation of the Owner
Participant enforceable against it in accordance with their terms except
as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws or equitable principles
of general application to or affecting the enforcement of creditors'
rights;
(v) to the best of its knowledge, it is not in default under any
mortgage, deed of trust, indenture, lease or other instrument or agreement
to which the Owner Participant is a party or by which it or any of its
Properties may be bound, or in violation of any applicable law, which
default or violation would have a material adverse effect on the financial
condition, business or operations of the Owner Participant or an adverse
effect on the ability of the Owner Participant to perform its obligations
under the Original Agreements to which it is a party, this Agreement and
the other Operative Agreements to which it is or is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under any of the Original
Agreements or the Operative Agreements to which it is or is to be a party,
and the Owner Participant knows of no pending or threatened actions or
proceedings before any court, administrative agency or tribunal involving
it in connection with the transactions contemplated by this Agreement, the
Original Agreements or the Operative Agreements;
(vii) neither the execution and delivery by it of the Original
Agreements to which it is a party, this Agreement, the Tax Indemnity
Agreement or the Trust Agreement nor the performance of its obligations
hereunder or thereunder requires the consent or approval of or the giving
of notice to, the registration with, or the taking of any other action in
respect of, any governmental authority or agency that would be required to
be obtained or taken by the Owner Participant except for filings
contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the
interests to be acquired by it under this Agreement constitutes assets
(within the meaning of ERISA and any applicable rules and regulations)
of any employee benefit plan subject to Title I of ERISA or of any plan
or individual retirement account subject to Section 4975 of the Code;
(ix) it has a consolidated tangible net worth of not less than
$75,000,000; and
(x) the representations and warranties of the Owner Participant
set forth in the Original Agreements to which it is a party were correct
on and as of the Delivery Date (except to the extent such
representations expressly related solely to a specified earlier date, in
which case such warranties and representations were correct on and as of
such earlier date).
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it
(or an Affiliate thereof) against, on or with respect to the Aircraft or
the Lessor's Estate or the Trust Indenture Estate, and that there will not
be any Lessor's Lien attributable to it (or an Affiliate thereof) against,
on or with respect to the Aircraft or the Lessor's Estate or the Trust
Indenture Estate attributable to it (or an Affiliate thereof) on the
Refunding Date. The Owner Participant agrees with and for the benefit of
the Lessee, the Owner Trustee, the Indenture Trustee and the Pass Through
Trustee that the Owner Participant will, at its own cost and expense, take
such action as may be necessary (by bonding or otherwise, so long as
neither the Lessee's operation and use of the Aircraft nor the validity and
priority of the Lien of the Indenture is impaired) to duly discharge and
satisfy in full, promptly after the same first becomes known to the Owner
Participant, any Lessor's Lien against, on or with respect to the Aircraft
or the Lessor's Estate or the Trust Indenture Estate attributable to the
Owner Participant (or an Affiliate thereof), provided, however, that the
Owner Participant shall not be required to discharge or satisfy such
Lessor's Lien which is being contested by the Owner Participant in good
faith and by appropriate proceedings so long as such proceedings do not
involve any material danger of the sale, forfeiture or loss of the Aircraft
or the Lessor's Estate or the Trust Indenture Estate or any interest in any
thereof or otherwise materially adversely affect the validity or priority
of the Lien of the Indenture.
(c) Indemnity for Lessor's Liens. The Owner Participant agrees to
indemnify and hold harmless the Lessee, the Indenture Trustee and the Pass
Through Trustee from and against any loss, cost, expense or damage which may
be suffered by the Lessee, the Indenture Trustee or the Pass Through Trustee
as the result of the failure of the Owner Participant to discharge and satisfy
any Lessor's Liens attributable to the Owner Participant (or an Affiliate
thereof) and required to be discharged as described in Section 7.03(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time after
all obligations of the Owner Participant under Section 2.01(d) hereof have
been satisfied in full, the Owner Participant may assign, convey or otherwise
transfer to a single institutional investor or an Affiliate of an
institutional investor all (but not less than all) of the Beneficial Interest,
provided that it gives the Lessee and the Indenture Trustee at least 10
Business Days' notice of such assignment, conveyance or other transfer and
provided further that the Owner Participant shall remain liable for all
obligations of the Owner Participant under the Trust Agreement and the
Operative Agreements to which the Owner Participant is a party to the extent
(but only to the extent) incurred on or before the date of such transfer and
provided that the transferee agrees by a written instrument in form and
substance reasonably satisfactory to the Indenture Trustee, the Owner Trustee
and the Lessee to assume primary liability for all obligations as an Owner
Participant under the Trust Agreement and the other Operative Agreements to
which such Owner Participant is a party incurred after the date of transfer
and the Owner Participant shall remain secondarily liable for all such
obligations assumed by its successor as Owner Participant; provided, that the
Owner Participant need not so agree to remain and shall not be so secondarily
liable if (a) such transferee is (i) a bank, savings institution, finance
company, leasing company or trust company, national banking association acting
for its own account or in a fiduciary capacity as trustee or agent under any
pension, retirement, profit sharing or similar trust or fund, insurance
company, fraternal benefit society or corporation acting for its own account
having a combined capital and surplus (or, if applicable, consolidated
tangible net worth or its equivalent) of not less than $75,000,000, (ii) a
subsidiary of any Person described in clause (i) where such Person provides
(A) support for the obligations assumed by such transferee subsidiary
reasonably satisfactory to the Lessee, the Owner Trustee and the Indenture
Trustee or (B) an unconditional guaranty reasonably satisfactory to the
Lessee, the Owner Trustee and the Indenture Trustee of such transferee
subsidiary's obligations, or (iii) an Affiliate of the transferring Owner
Participant, so long as such Affiliate has a combined capital and surplus (or,
if applicable, consolidated tangible net worth or its equivalent) of not less
than $75,000,000, (b) such transferee is legally capable of binding itself to
the obligations of the Owner Participant and expressly agrees to assume all
obligations of the Owner Participant under the Trust Agreement and this
Agreement and (c) such transferee shall provide representations substantially
similar to those contained in Section 7.03(a) hereof. In the event of any such
assignment, conveyance or transfer, the transferee shall become a party to the
Trust Agreement and shall agree to be bound by all the terms of and will
undertake all of the obligations of the Owner Participant contained in the
Trust Agreement and the other Operative Agreements in such manner as is
reasonably satisfactory to the Owner Trustee, the Indenture Trustee and the
Lessee. A transferee hereunder shall be (i) a "U.S. Person" as defined in
Section 7701(a)(30) of the Code (or any successor provision thereto) or if the
transferee shall not be such "U.S. Person" then (A) each Certificate Holder
shall be provided an indemnity in form and substance satisfactory to each such
Certificate Holder, for any Taxes that may be imposed on such Certificate
Holder (currently or in the future) due to such transferee's failure to be
such a "U.S. Person" and (B) such transferee shall be personally liable for
any debt service to the extent that its receipt of rentals is reduced by
reason of any withholding Taxes that result from such transferee's failure to
be such a "U.S. Person" and (ii) a Citizen of the United States or has
established a voting trust, voting powers or other arrangement reasonably
satisfactory to the Indenture Trustee and the Lessee to permit the Owner
Trustee to be the registered owner of the Aircraft under the Transportation
Code. A transferee hereunder shall not be, and in acquiring the Beneficial
Interest shall not use the assets of, an employee benefit plan subject to
Title I of ERISA or an individual retirement account or a plan subject to
Section 4975 of the Code. Assuming the truth of the representations made in
Sections 6.01(m) and 7.06 hereof, no such assignment, conveyance or transfer
shall violate any provision of law or regulation or create a relationship
which would be in violation thereof. The Owner Trustee shall not be on notice
of or otherwise bound by any such assignment, conveyance or transfer unless
and until it shall have received an executed counterpart of the instrument of
such assignment, conveyance or transfer. Upon any such disposition by the
Owner Participant to a transferee as above provided, the transferee shall be
deemed the "Owner Participant" or "Trustor" for all purposes of the Operative
Agreements, and shall be deemed to have made all the payments previously made
by its transferor and to have acquired the same interest in the Lessor's
Estate as theretofore held by its transferor; and each reference therein to
the "Owner Participant" or "Trustor" shall thereafter be deemed a reference to
such transferee. Notwithstanding anything to the contrary contained in this
Section 7.03(d), in no event shall the Owner Participant transfer its interest
in the Beneficial Interest to any entity whose business is that of a
nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer and which competes with the Lessee in one
of its principal lines of business.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
Section 7.04. Representations, Covenants and Warranties of NBD and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, NBD represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi), (vii) and (viii) below and as the Owner Trustee
with respect to items (iii)(B) and (v) that:
(i) it is a banking corporation duly incorporated and validly
existing in good standing under the laws of the State of Michigan with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) at 000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Department and,
assuming the Trust Agreement has been duly authorized, executed and
delivered by the Owner Participant, has full corporate power and authority,
in its individual capacity or as the Owner Trustee, as the case may be, to
carry on its business as now conducted, and to execute, deliver and perform
this Agreement, the Original Agreements and the Operative Agreements to
which it is or is to be a party;
(ii) the execution, delivery and performance by NBD, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement, the Original Agreements and the Operative Agreements to which it
is or is to be party have been duly authorized by all necessary action on
its part, and do not contravene its certificate of incorporation or
by-laws; each of this Agreement, the Original Agreements and the Operative
Agreements to which it is or is to be a party has been duly authorized,
executed and delivered by NBD, either in its individual capacity or as the
Owner Trustee, as the case may be, and neither the execution and delivery
thereof nor NBD's performance of or compliance with any of the terms and
provisions hereof or thereof will violate any Federal or state or local law
or regulation governing NBD's banking or trust powers;
(iii)(A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, and each of the Original
Agreements to which it is a party does, to the extent each such document is
entered into by NBD in its individual capacity, constitute the legal, valid
and binding obligation of NBD in its individual capacity enforceable
against it in such capacity in accordance with its respective terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(B) assuming due authorization, execution and delivery by each other
party thereto, each of the Operative Agreements to which it is or is to be
party when duly executed and delivered will, and each of the Original
Agreements to which it is a party does, to the extent each such document is
entered into by the Owner Trustee in its trust capacity, constitute the
legal, valid and binding obligation of the Owner Trustee enforceable
against it in such capacity in accordance with its respective terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by the Owner Trustee of any of its
obligations thereunder does not contravene any lease, regulation or
contractual restriction binding on the Owner Trustee or any judgement or
order applicable to or binding on it;
(iv) the performance by NBD in its individual capacity of any of its
obligations under this Agreement, the Original Agreements and the
Operative Agreements does not contravene any lease, regulation or
contractual restriction binding on NBD in its individual capacity;
(v) there are no pending or, to its knowledge, threatened actions or
proceedings against NBD before any court or administrative agency which
would materially and adversely affect the ability of NBD, either in its
individual capacity or as the Owner Trustee, as the case may be, to perform
its obligations under this Agreement, the Original Agreements and the
Operative Agreements to which it is or is to be party;
(vi) it shall give the Lessee, the Indenture Trustee and the Owner
Participant at least thirty (30) days' prior written notice in the event of
any change in its chief executive office or name;
(vii) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Original Agreements and the Operative Agreements to which it is or is
to be a party nor the performance of its obligations hereunder or
thereunder, requires on the part of NBD in its individual capacity or any
of its Affiliates the consent or approval of or the giving of notice to,
the registration with, or the taking of any other action in respect of, any
Federal or state or local governmental authority or agency governing its
banking or trust powers;
(viii) on the Delivery Date the Owner Trustee shall have received
whatever title to the Aircraft as was conveyed to it by AVSA, on the
Refunding Date the Aircraft shall be free of Lessor's Liens attributable to
NBD in its individual capacity and NBD in its individual capacity is a
Citizen of the United States; and
(ix) the representations and warranties of the Owner Trustee set
forth in the Original Agreements to which it is a party were correct on and
as of the Delivery Date (except to the extent such representations
expressly related solely to a specified earlier date, in which case such
warranties and representations were correct on and as of such earlier
date).
(b) Lessor's Liens. NBD, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity against, on or with respect
to the Aircraft or the Lessor's Estate or the Trust Indenture Estate, and
that there will not be any such Lessor's Liens against, on or with respect
to the Aircraft or the Lessor's Estate or the Trust Indenture Estate on the
Refunding Date. The Owner Trustee, in its trust capacity, and at the cost
and expense of the Lessee, covenants that it will in its trust capacity
promptly, and in any event within 30 days after the same shall first become
known to it, take such action as may be necessary to discharge duly any
Lessor's Liens attributable to it in its trust capacity. NBD, in its
individual capacity, covenants and agrees that it will at its own expense
take such action as may be necessary to duly discharge and satisfy in full,
promptly, and in any event within 30 days after the same shall first become
known to it, any Lessor's Liens against, on or with respect to the Aircraft
or the Lessor's Estate or the Trust Indenture Estate attributable to it in
its individual capacity or the consolidated group of taxpayers of which it
(in such capacity) is a part which may arise at any time after the date of
this Agreement.
(c) Indemnity for Lessor's Liens. NBD, in its individual
capacity, agrees to indemnify and hold harmless the Lessee, the Indenture
Trustee, the Owner Participant, the Pass Through Trustee and the Owner
Trustee from and against any loss, cost, expense or damage which may be
suffered by the Lessee, the Indenture Trustee, the Owner Participant, the
Pass Through Trustee or the Owner Trustee as a result of the failure of NBD
to discharge and satisfy any Lessor's Liens attributable to it in its
individual capacity, as described in Section 7.04(b) hereof.
(d) Securities Act. None of NBD, the Owner Trustee or any Person
authorized by either of them to act on its behalf has directly or
indirectly offered or sold or will directly or indirectly offer or sell any
interest in the Lessor's Estate, or in any similar security relating to the
Lessor's Estate, or in any security the offering of which for purposes of
the Securities Act of 1933, as amended, would be deemed to be part of the
same offering as the offering of the aforementioned securities to, or
solicited any offer to acquire any of the same from, any Person. NBD
further represents and warrants, in its individual capacity and as the
Owner Trustee, that neither it nor anyone acting on its behalf shall own
the Certificates.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity (other
than as a Loan Participant, the Pass Through Trustee or the Agent) represents
as follows:
(i) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States of
America and has the power and authority to enter into and perform its
obligations under the Indenture, this Agreement and the Original
Agreements to which it is a party and to authenticate the Certificates
to be delivered on the Refunding Date;
(ii) the Indenture and this Agreement, and the authentication of
the Certificates to be delivered on the Refunding Date have been duly
authorized by all necessary action on its part, and neither the
execution and delivery thereof nor its performance of any of the terms
and provisions thereof will violate any Federal, state or local law or
regulation relating to its banking or trust powers or contravene or
result in any breach of, or constitute any default under, its articles
of association or by-laws;
(iii) each of the Indenture, this Agreement and the Original
Agreements and the other Operative Agreements to which it is a party has
been duly executed and delivered by it and, assuming that each such
agreement is the legal, valid and binding obligation of each other party
thereto, is the legal, valid and binding obligation of the Indenture
Trustee, enforceable against the Indenture Trustee in accordance with
its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles
of general application to or affecting the enforcement of creditors'
rights;
(iv) neither the execution and delivery by it of this Agreement
and the Original Agreements and the other Operative Agreements to which
it is or is to be a party, nor the performance by it of any of the
transactions contemplated hereby or thereby, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any Federal, state or local
governmental authority or agency governing its banking and trust powers;
(v) the representations and warranties of the Indenture Trustee
set forth in the Original Agreements to which it is a party were correct
on and as of the Delivery Date (except to the extent such
representations expressly related solely to a specified earlier date, in
which case such warranties and representations were correct on and as of
such earlier date); and
(vi) the Indenture Trustee holds the original counterparts of the
Original Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there
are no Indenture Trustee's Liens attributable to it in its individual
capacity against, on or with respect to the Aircraft or the Lessor's Estate
or the Trust Indenture Estate, and that there will not be any Indenture
Trustee's Liens against, on or with respect to the Aircraft or the Lessor's
Estate or the Trust Indenture Estate on the Refunding Date. The Indenture
Trustee, in its individual capacity, covenants and agrees that it will at
its own expense take such action as may be necessary to duly discharge and
satisfy in full, promptly, and in any event within 30 days after the same
shall first become known to it, any Indenture Trustee's Liens against, on
or with respect to the Aircraft or the Lessor's Estate or the Trust
Indenture Estate.
(c) Indemnity for Indenture Trustee's Liens. The Indenture Trustee,
in its individual capacity, agrees to indemnify and hold harmless the Lessee,
the Owner Participant, the Owner Trustee and the Pass Through Trustee from and
against any loss, cost, expense or damage which may be suffered by the Lessee,
the Indenture Trustee, the Owner Participant, the Owner Trustee or the Pass
Through Trustee as a result of the failure of the Indenture Trustee to
discharge and satisfy any Indenture Trustee's Liens attributable to it in its
individual capacity, as described in Section 7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The Indenture
Trustee agrees to give the Owner Participant notice of any Default promptly
upon a Responsible Officer of the Indenture Trustee having actual knowledge
thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and the Owner Participant,
to execute and deliver the instruments of release from the Lien of the
Indenture which it is required to execute and deliver in accordance with the
provisions of Article XIV of the Indenture, and the Owner Participant agrees,
for the benefit of the Lessee, to cause the Owner Trustee to request the
Indenture Trustee to execute and deliver such instruments of release upon
written notice from the Lessee to make such request.
Section 7.08. Covenant of Quiet Enjoyment. The Owner Participant,
the Indenture Trustee, the Pass Through Trustee and the Owner Trustee
covenants and agrees as to itself only that, so long as no Event of Default
under the Lease has occurred and is continuing, neither such Owner Participant
(or the Owner Trustee, the Indenture Trustee or the Pass Through Trustee, as
the case may be) nor any Person lawfully claiming through such Owner
Participant (or the Owner Trustee, the Indenture Trustee or the Pass Through
Trustee, as the case may be) shall interfere with the Lessee's right quietly
to enjoy the Aircraft during the Term without hindrance or disturbance by such
Owner Participant (or the Owner Trustee, the Indenture Trustee or the Pass
Through Trustee, as the case may be).
Section 7.09. Original Loan Participants' and Pass Through Trustee's
Representations and Warranties. (a) Each Original Loan Participant
represents and warrants that the representations and warranties made by it in
Sections 7.01(a) and 7.06 of the Original Participation Agreement were correct
on and as of the Delivery Date (except to the extent such representations
expressly related solely to a specified earlier date, in which case such
representations and warranties were correct on and as of such earlier date).
(b) The Pass Through Trustee, in its individual capacity (except
with respect to clause (iii) below), represents and warrants as of the date
hereof (except as otherwise provided), as of the Pass Through Closing Date and
as of the Refunding Date that:
(i) it is a validly existing national banking association duly
organized under the laws of the United States of America, holding a valid
certificate to do business as a national banking association with banking
and trust powers and has the corporate power and authority to enter into
and perform its obligations under the Pass Through Agreement, the Series
Supplements and this Agreement and to execute and authenticate the Pass
Through Certificates to be delivered on the Pass Through Closing Date;
(ii) the execution, delivery and performance of this Agreement, the
Pass Through Agreement and the Series Supplements and the performance of
its obligations hereunder and thereunder (including the execution and
authentication of the Pass Through Certificates to be delivered on the
Pass Through Closing Date) have been fully authorized by all necessary
corporate action on its part, and, subject to (A) the registration of
the issuance and sale of the Pass Through Certificates under the
Securities Act, (B) compliance with any applicable state securities laws
and (C) the qualification of the Pass Through Agreement under the Trust
Indenture Act, neither the execution and delivery thereof nor its
performance of any of the terms and provisions thereof will violate any
Federal or New York law or regulation relating to its banking or trust
powers or contravene or result in any breach of, or constitute any
default under its articles of association, or bylaws or the provisions
of any indenture, mortgage, contract or other agreement to which it is a
party or by which it or its properties may be bound or affected; and
(iii) each of this Agreement and the Pass Through Agreement has
been, and as of the Pass Through Closing Date the Series Supplements
will be, duly executed and delivered by it (in its individual and trust
capacities) and, assuming that each such agreement is the legal, valid
and binding obligation of each other party thereto, is or will be, as
the case may be, the legal, valid and binding obligation of the Pass
Through Trustee (in its individual and trust capacities), enforceable in
accordance with its respective terms except as limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 7.10. Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants of the Owner Participant, the
Owner Trustee (in its individual or trust capacity), the Pass Through Trustee
(in its individual or trust capacity) and the Indenture Trustee (in its
individual or trust capacity) provided for in this Article 7, and their
respective obligations under any and all of them, shall survive the Closings
and the expiration or other termination of this Agreement, and the other
Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a) Subject
to compliance by the Lessee with all of its obligations under the Operative
Agreements, each of the Owner Participant, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Lessee covenants and agrees that
if the Lessee elects to terminate the Lease and to purchase the Aircraft
pursuant to Section 4.02(a)(A), (D), (E) or (F) of the Lease, and so long
as no Event of Default shall have occurred and be continuing then, upon
compliance with the applicable provisions of said Section 4.02(a) of the
Lease, the Owner Trustee will transfer to the Lessee, without recourse or
warranty (except as to the absence of Lessor's Liens attributable to the
Owner Trustee) but subject to the Lien of the Indenture, all of the Owner
Trustee's right, title and interest in and to the Aircraft, and if the
Lessee, in connection with such purchase, elects pursuant to Section
4.02(a)(A), (D), (E) or (F) of the Lease to assume the obligations of the
Owner Trustee to the Indenture Trustee and the Holders under the Indenture,
the Certificates and hereunder, and each of the parties shall execute and
deliver appropriate documentation permitting the Lessee to assume such
obligations on the basis of full recourse to the Lessee, maintaining for
the benefit of the Holders the security interest in the Aircraft created by
the Indenture, and upon compliance with the provisions of this Section 7.11
releasing the Owner Participant and the Owner Trustee from all obligations
in respect of the Certificates, the Indenture, this Agreement and all other
Operative Agreements, except any obligations which shall have arisen (or
with respect to events which shall have occurred) prior to such assumption
and take all such other actions as are reasonably necessary to permit such
assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument
satisfactory in form and substance to the Indenture Trustee (A) pursuant
to which the Lessee irrevocably and unconditionally assumes and
undertakes, with full recourse to the Lessee, to pay, satisfy and
discharge when and as due (at the stated maturity thereof, by
acceleration or otherwise) the principal of, Make-Whole Premium, if any,
interest and all other sums owing on all Outstanding Certificates (or on
the Lessee's substituted obligations) in accordance with their terms and
to punctually perform and observe all of the covenants and obligations
hereunder and under the Indenture and the Certificates (as the same may
be amended in connection with such assumption) to be performed or
observed by the Owner Trustee and (B) which contains amendments to the
Indenture, in form and substance satisfactory to the Indenture Trustee
and the Holders, that incorporate therein such provisions from the Lease
and this Agreement as may be appropriate, including, without limitation,
events of default substantially identical in scope and effect to those
set forth in the Lease and covenants substantially identical to the
covenants of the Lessee hereunder and under the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating thereto,
and any other documents which shall be necessary (or reasonably requested
by the Indenture Trustee) to establish the Lessee's title to and interest
in the Aircraft or to reflect the substitution of the Lessee for the Owner
Trustee under the Operative Agreements or to continue the perfection of the
security interests in the Aircraft and the other rights, Property and
interests included in the Trust Indenture Estate for the benefit of the
Holders (or the Lessee's substituted obligations) shall be filed in such
form, manner and places as are necessary or, in the reasonable opinion of
the Indenture Trustee, advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of the
effective date of such assumption with the terms of Article 13 of the Lease
(as it relates to the Indenture Trustee) relating to the insurance with
respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that
as of the effectiveness of the assignment on the date of such assumption
the Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate
from the Lessee that no Event of Default shall have occurred and be
continuing as of the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with
respect to the compliance of the assumption contemplated hereby with the
terms, provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y)
with respect to the continued perfection of the first and prior Lien and
security interest in the Aircraft for the benefit of the Holders of the
Certificates (or the Lessee's substituted obligations) referred to in
paragraph (ii) of this Section 7.11(b) and (z) with respect to the
continued availability of the benefits of Section 1110 of the Bankruptcy
Code to the Indenture Trustee for the benefit of the Holders with
respect to the Aircraft after giving effect to such assumption, (B) from
counsel to the Indenture Trustee and Special Aviation Counsel, a legal
opinion comparable to the respective opinions delivered on the Delivery
Date with such changes therein as may be appropriate in light of such
assumption, and (C) in the case of each opinion described in clause (A)
or (B) above, covering such additional matters as the Indenture Trustee
shall reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Pass
Through Trustee, the Owner Trustee and the Owner Participant in connection
with such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity,
but solely as trustee under the Trust Agreement, shall not incur any
indebtedness for borrowed money except as expressly contemplated herein or
in any other Operative Agreement (excluding the Tax Indemnity Agreement)
and shall not engage in any business or other activity other than the
transactions contemplated herein or in any other Operative Agreement and
all necessary or appropriate activity related thereto.
Section 7.13. Compliance with Trust Agreement, Etc. Each of the
Owner Participant, NBD and the Owner Trustee agrees with the Lessee, the
Indenture Trustee and the Pass Through Trustee that so long as the Lien of
the Indenture shall be in effect it will (i) comply with all of the terms
of the Trust Agreement applicable to it in its respective capacity, the
noncompliance with which would materially adversely affect any such party
and (ii) not take any action, or cause any action to be taken, to amend,
modify or supplement any provision of the Trust Agreement in a manner that
would adversely affect any such party without the prior written consent of
such party. The Owner Trustee confirms for the benefit of the Lessee, the
Indenture Trustee and the Pass Through Trustee that it will comply with the
provisions of Article 2 of the Trust Agreement. Notwithstanding anything
else to the contrary in the Trust Agreement, so long as the Lease remains
in effect, the Owner Participant agrees not to terminate or revoke the
trust created by the Trust Agreement without the consent of the Lessee. If
and so long as the Indenture shall not have been discharged the consent of
the Indenture Trustee shall also be required in connection with any such
termination or revocation and in addition, the Owner Participant will
promptly and duly execute and deliver to the Indenture Trustee such
documents and assurances including, without limitation, conveyances,
financing statements and continuation statements with respect to financing
statements and take such further action as the Indenture Trustee may from
time to time reasonably request and furnish in order to protect the rights
and remedies created or intended to be created in favor of the Indenture
Trustee under the Indenture and to create for the benefit of the
Certificate Holders a valid first priority Lien with respect to, and a
first and prior perfected security interest in, the Trust Indenture Estate.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally.
The Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration
and other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and
intangible), ad valorem, excise and stamp taxes), fees, levies, imposts,
recording duties, charges, assessments or withholdings of any nature
whatsoever, together with any assessments, penalties, fines, additions to
tax or interest thereon (individually, a "Tax," and collectively called
"Taxes"), however imposed (whether imposed upon any Indemnitee, the Lessee,
all or any part of the Aircraft, Airframe, any Engine or any Part or the
Lessor's Estate, Rent or otherwise), by any Federal, state or local
government or taxing authority in the United States, or by any government
or taxing authority of a foreign country or of any political subdivision or
taxing authority thereof or by a territory or possession of the United
States or an international taxing authority relating to:
(i) the acquisition, financing, use or operation of the Aircraft;
(ii) payments under the Original Agreements and the Operative
Agreements;
(iii) the property, or the income or other proceeds received with
respect to the property after an Event of Default under the Lease, by the
Indenture Trustee under the Indenture;
(iv) otherwise with respect to or by reason of the transactions
described in or contemplated by the Original Agreements and the Operative
Agreements;
(v) the payment of the principal or interest or other amounts
payable with respect to the Original Loan Certificates or the
Certificates;
(vi) the Original Loan Certificates, the Certificates or the Pass
Through Certificates or the issuance, acquisition, or refinancing thereof
or the beneficial interests in the Lessor's Estate or the creation thereof
under the Trust Agreement; or
(vii) any assumption by the Lessee pursuant to Section 7.11 of this
Agreement and Section 2.12 of the Indenture.
(b) Exceptions. The indemnity provided for in Section 8.01(a) shall
not extend to any of the following:
(i) With respect to an Indemnitee other than an Original Loan
Participant, Taxes based upon, measured by or with respect to the net or
gross income, items of tax preference or minimum tax or excess profits,
net receipts, value-added taxes (in the nature of an income tax and not
in the nature of a sales, use or similar tax), capital, franchise, net
worth (whether denominated income, excise, capital stock, or doing
business taxes) (other than, in each case, rental, sales, use,
value-added (in the nature of a sales tax), consumption, ad valorem, stamp,
property, or similar taxes) ("Income Taxes"), provided that any such
gross income and gross receipts taxes and any such foreign taxes shall
not be excluded if such Taxes would not have been imposed absent the
location of the Aircraft, Airframe, any Engine or Part in, the presence,
operations or activities of the Lessee or user of the Aircraft,
Airframe, any Engine or Part in, or the making of payments from, such
jurisdiction, and provided further that income taxes on the Trust Estate
shall not be excluded under this paragraph (b)(i) if the Owner
Participant would not have been subject to such taxes in the absence of
the participation of Owner Trustee in the transaction;
(ii) With respect to an Original Loan Participant, Income Taxes
(other than in the case of a Non-U.S. Person, U.S. federal withholding
taxes on amounts payable with respect to such Holder's Loan Certificate)
except to the extent such Income Tax is imposed (including by way of
increase) by any jurisdiction in which the Indemnitee is subject to tax
(A) as a result of the operation, registration, location, presence,
basing or use of the Aircraft, Airframe, any Engine or any Part thereof,
in such jurisdiction (it being understood that (I) the incremental
Income Taxes described in this clause (A) shall not include any U.S.
Federal income taxes and (II) that to the extent such incremental Income
Taxes give rise to any incremental current Tax benefit in another tax
jurisdiction, that such incremental benefit shall offset and decrease
the incremental Income Taxes determined under this clause (A)) or (B)
solely as a result of the place of incorporation, principal office,
corporate domicile or the activities of the Lessor, Owner Participant,
the Owner Trustee, the Indenture Trustee, the Lessee or any sublessee in
such jurisdiction (it being understood that to the extent that any
Income Taxes described under this clause (B) give rise to any
incremental current Tax benefit in another tax jurisdiction or another
tax period, that such incremental Tax benefit shall offset and decrease
the Income Taxes determined under this clause (B)); provided, however,
that the provisions of this paragraph (b)(ii) relating to Income Taxes
shall not exclude from the indemnity described in Section 8.01(a) any
Income Taxes for which the Lessee would be required to indemnify an
Indemnitee (x) so that any payment under the Operative Agreements,
otherwise required to be made on an After-Tax Basis, is made on an
After-Tax Basis or (y) pursuant to the last sentence of Section 8.02 of
this Agreement;
(iii) Taxes imposed with respect to the Aircraft and arising out
of or measured by acts, omissions, events or periods of time (or any
combination of the foregoing) which occur after the later of (A) the
payment in full of all amounts payable by the Lessee pursuant to and in
accordance with the Operative Agreements, or the earlier discharge in
full of the Lessee's payment obligations under and in accordance with
the Lease and the Operative Agreements (and the Certificates in the case
of the Indenture Trustee or the Trust Indenture Estate if the Lessee
shall have assumed the Certificates pursuant to Section 7.11 of this
Agreement), and (B) the earliest of (x) the expiration of the Term of
the Lease and return of the Aircraft in accordance with Article 12 of
the Lease, (y) the termination of the Lease in accordance with the
applicable provisions of the Lease and return of the Aircraft in
accordance with the Lease, or (z) the termination of the Lease in
accordance with the applicable provisions of the Lease and the transfer
of all right, title and interest in the Aircraft to the Lessee pursuant
to its exercise of any of its purchase options set forth in Section
4.02(a) of the Lease, provided that this exclusion (iii) shall not apply
in respect of any payment made after the dates set forth in clauses (A)
and (B) above or with respect to any event or circumstance occurring on,
with or prior to such return or transfer or period prior to such return
or transfer;
(iv) As to the Owner Trustee, Taxes imposed against
the Owner Trustee upon or with respect to any fees for services rendered
in its capacity as trustee under the Trust Agreement or, as to the
Indenture Trustee, Taxes imposed against the Indenture Trustee upon or
with respect to any fees received by it for services rendered in its
capacity as Owner Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have
been imposed but for the willful misconduct or gross negligence of such
Indemnitee (other than gross negligence or willful misconduct not
actually committed by but instead imputed to such Indemnitee by reason
of such Indemnitee's participation in the transactions contemplated by
the Operative Agreements) or the breach by such Indemnitee of any
representation, warranty or covenant contained in the Operative
Agreements or any document delivered in connection therewith (unless
attributable to a breach of representation, warranty or covenant of the
Lessee);
(vi) Taxes imposed on the Owner Trustee or the Owner Participant
or any successor, assign or Affiliate thereof which became payable by
reason of any voluntary or involuntary transfer or disposition by such
Indemnitee subsequent to the Delivery Date, including revocation of the
Trust, of any interest in some or all of the Aircraft, Airframe, Engines
or Parts thereof or its interest in the Lessor's Estate except, in each
case, Taxes following or as a result of the exercise of remedies or in
connection with the exercise by the Lessee of one of its options to
purchase other than at Fair Market Value (it being understood that any
disposition of the Aircraft or the Airframe, any Engine or Part as a
result of the substitution, replacement or modification thereof by the
Lessee or by reason of any action taken by the Lessee or any other user
of the Aircraft, Airframe or any Engine pursuant to Sections 7, 8, or 9
of the Lease shall not be treated as voluntary, and that in the event
that the Lessee exercises any of its purchase options at Fair Market
Value, the Lessee will, to the extent practicable, cooperate to ensure
delivery of the Aircraft in a jurisdiction where there are no sales,
transfer or similar Taxes to be imposed);
(vii) Taxes imposed on the Owner Participant for which
the Lessee is obligated to indemnify the Owner Participant pursuant to
the Tax Indemnity Agreement;
(viii) Taxes imposed on a successor, assign or other transferee
(including, without limitation, a transferee which is a new lending office
of an original Indemnitee) of any entity or Person which on the Refunding
Date is an Indemnitee (for purposes of this clause (viii), an "original
Indemnitee") or such original Indemnitee to the extent that such Taxes
exceed the amount of Taxes that would have been imposed (in the case of
an Original Loan Participant, immediately after giving effect to such
succession, assignment or other transfer) and would have been
indemnifiable pursuant to Section 8.01(a) had there not been a
succession, assignment or other transfer by such original Indemnitee of
any such interest of such Indemnitee in the Aircraft or any part
thereof, any interest in or under any Operative Agreement, or any
proceeds thereunder (it being understood that for purposes of
determining the amount of indemnification that would have been due to
such original Indemnitee with respect to a net income Tax, it shall be
assumed that such original Indemnitee would be subject to taxation on
its income at the highest marginal statutory rate applicable to it);
provided, however, that the exclusion provided by this clause (viii)
shall not apply in the case of a succession, assignment or other
transfer (1) while an Event of Default under the Lease or the Indenture
has occurred and is continuing; (2) required by any provision of the
Operative Agreements (other than pursuant to Section 7.02 hereof) or (3)
in the case of the Owner Participant or any of its Affiliates, to any
Tax other than an Income Tax;
(ix) As to any Original Loan Certificate Holder or Certificate
Holder, any U.S. federal withholding taxes imposed on the payment or
receipt of any amounts payable with respect to the Original Loan
Certificates of an Original Loan Certificate Holder or a Certificate of
a Certificate Holder, as the case may be, which is a Non-U.S. Person,
unless, in the case of an Original Loan Certificate Holder, such
Indemnitee (I) either (A) delivers to the Indenture Trustee and the
Lessor two Treasury Department Forms 4224 with respect to any and all
payments under the Loan Certificates, (B) delivers to the Indenture
Trustee and the Lessor a Treasury Department Form 1001 entitling such
Holder to a complete exemption from such U.S. withholding tax on
interest, or (C) delivers to Indenture Trustee and the Lessor a Treasury
Department Form W-8, in each case, evidencing such Indemnitee's partial
or complete exemption from United States withholding taxes, and (II)
executes and delivers to the Indenture Trustee and the Lessor additional
Treasury Department Forms 4224, 1001, or W-8 (or any successor forms),
as applicable in such manner and at such times as may be necessary to
evidence such exemption (unless and to the extent that, in the case of
any Loan Participant, such Indemnitee is not legally entitled to do so
as a result of a change in law or regulation enacted, adopted or
promulgated after the acquisition by it of its Loan Certificates) (in
the event that the Lessee assumes the debt, an Original Loan Participant
shall be deemed to have become such when it first acquired its Original
Loan Certificate); provided, however, that the provisions of this
paragraph (b)(viii) shall not apply to any withholding taxes for which
the Lessee would be required to indemnify an Original Loan Certificate
Holder so that any payment under the Operative Agreements, otherwise
required to be made on an After-Tax Basis, is made on an After-Tax
Basis;
(x) any Taxes which have been included in the Purchase Price
and which have been paid to the applicable taxing authorities;
(xi) any Taxes which would not have been imposed but for a Lessor's
Lien with respect to the Owner Participant or an Indenture Trustee's Lien
with respect to the Indenture Trustee;
(xii) any Taxes arising under or in connection with any prohibited
transaction, within the meaning of Section 406 of ERISA or Section
4975(c)(1) of the Code ("Prohibited Transaction"); provided, however,
that in the event Prohibited Transaction Exemption 89-88, appearing at
54 Fed. Reg. 42581 (1989), or any other comparable prohibited
transaction exemption, (individually or collectively, a "PTE") is not
valid or is not applicable in any respect to the purchase and holding of
the Pass Through Certificates, then the indemnity provided for in
Section 8.01(a) hereof shall extend to Taxes imposed on the Owner
Participant as the result of any Prohibited Transaction occurring with
respect to the purchase or holding of any Pass Through Certificate by an
employee benefit plan subject to Title I of ERISA or by a plan subject
to Section 4975 of the Code (individually or collectively, an "ERISA
Plan") with respect to which ERISA Plan the Owner Participant is a party
in interest, within the meaning of Section 3(14) of ERISA, or a
disqualified person, within the meaning of Section 4975 of the Code,
except, however, that such indemnity shall not extend to any Taxes
imposed on the Owner Participant as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Pass Through Certificate (A) over which purchase or holding the Owner
Participant or any Affiliate thereof has discretion or control (other
than in the capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16)(B) of ERISA; and provided
further, however, that in the event the PTE is not valid or applicable
in any respect to the purchase and holding of the Pass Through
Certificates and the Lessee had failed to obtain from the manager or
co-manager of the underwriting syndicate of the Pass Through
Certificates a representation that such manager or co-manager has a PTE,
then the indemnity provided for in Section 8.01(a) hereof shall extend
to Taxes imposed on the Owner Participant as the result of any
Prohibited Transaction occurring with respect to the purchase or holding
of any Pass Through Certificate by an ERISA Plan with respect to which
the Owner Participant is a party in interest or a disqualified person,
except, however, that such indemnity shall not extend to Taxes resulting
from any Prohibited Transaction occurring with respect to the purchase
or holding of any Pass Through Certificates by an ERISA Plan with
respect to which the Owner Participant (or any Affiliate thereof) is a
"plan sponsor", within the meaning of Section 3(16)(B) of ERISA; and
(xiii) Taxes imposed by any jurisdiction that would have been imposed on
the Lessor or the Owner Participant for activities in such jurisdiction
unrelated to the transactions contemplated by the Operative Agreements
to the extent imposed on such unrelated activities.
(c) Withholding. The Pass Through Trustee shall withhold any Taxes
required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from or reduction in the rate of
withholding on interest claimed by such holder of a Pass Through
Certificate. The Indenture Trustee shall withhold any Taxes required to be
withheld on any payment to a Holder pursuant to Section 5.09 of the
Indenture. If the Indenture Trustee or the Pass Through Trustee fails to
withhold a Tax required to be withheld with respect to any Holder of a
Certificate or any holder of a Pass Through Certificate or any claim is
otherwise asserted by a taxing authority against the Owner Trustee or Owner
Participant or any of their Affiliates for any withholding tax, the Lessee
will indemnify the Owner Trustee and the Owner Participant and their
Affiliates (and the Indenture Trustee or the Pass Through Trustee, as the
case may be, in turn agrees to indemnify the Lessee) (without regard to
the exclusions set forth in Section 8.01(b) hereof) on an After-Tax Basis
against any such Taxes required to be withheld and any interest and
penalties with respect thereto, along with any other costs (including
reasonable attorney's fees) incurred in connection with any such claim.
The Indenture Trustee or the Pass Through Trustee, as the case may be, in
its individual capacity (and without recourse to the Trust Indenture
Estate), shall indemnify the Lessee on an After-Tax Basis for any payment
the Lessee shall have made pursuant to the preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall
be required to pay with respect to any Tax indemnified against under
Section 8.01 shall be an amount sufficient to restore the Indemnitee, on an
After-Tax Basis, to the same position such party would have been in had
such Tax not been incurred, provided that the calculation of any additional
amounts owing to any Indemnitee as a result of the Lessee's obligation to
indemnify on an After-Tax Basis shall be made without regard to the
exclusions set forth in Section 8.01(b). If any Indemnitee actually
realizes a permanent tax benefit by reason of the payment of any Tax paid
or indemnified against by the Lessee, such Indemnitee shall promptly pay to
the Lessee to the extent such tax benefit was not previously taken into
account in computing such payment, but not before the Lessee shall have
made all payments then due to such Indemnitee under this Agreement, the Tax
Indemnity Agreement, the Original Agreements and any other Operative
Agreement, an amount equal to the lesser of (x) the sum of such permanent
tax benefit plus any other permanent tax benefit actually realized by such
Indemnitee that would not have been realized but for any payment made by
such Indemnitee pursuant to this sentence and not already paid to the
Lessee, and (y) the amount of the payment made under Sections 8.01 and 8.02
by the Lessee to such Indemnitee plus the amount of any other payments by
the Lessee to such Indemnitee theretofore required to be made under
Sections 8.01 and 8.02 (and the excess, if any, of the amount described in
clause (x) above over the amount described in clause (y) above shall be
carried forward and applied to reduce pro tanto any subsequent obligations
of the Lessee to make payments to such Indemnitee pursuant to Section
8.01); provided, however, that notwithstanding the foregoing portions of
this sentence, such Indemnitee shall not be obligated to make any payment
to the Lessee pursuant to this sentence as long as an Event of Default
shall have occurred and be continuing under the Lease. The Lessee shall
reimburse on an After-Tax Basis such Indemnitee (and without regard to
Section 8.01(b), except for clause (v) thereof) for any payment of a tax
benefit pursuant to the preceding sentence (or a tax benefit otherwise
taken into account in calculating the Lessee's indemnity obligation
hereunder) to the extent that such tax benefit is subsequently disallowed
or reduced (including the expiration of any tax credit carryovers or
carrybacks of such Indemnitee that would not otherwise have expired).
Section 8.03. Time of Payment. Any amount payable to an
Indemnitee pursuant to this Article 8 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such
indemnity and the computation of the amount so payable, provided that in
the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04, such amount
shall be payable 30 days after the time such contest is finally resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a
payment or indemnity hereunder, such Indemnitee shall promptly give the
Lessee notice in writing of such claim and shall furnish the Lessee with
copies of any requests for information from any taxing authority relating
to such Taxes with respect to which the Lessee may be required to indemnify
hereunder; provided, however, that the failure of an Indemnitee to give
such notice or furnish such copy shall not terminate any of the rights of
such Indemnitee under this Article 8, except to the extent that the
Lessee's contest rights have been materially and adversely impaired by the
failure to provide such notice or copy. The Indemnitee shall in good
faith, with due diligence and at the Lessee's expense, if timely requested
in writing by the Lessee, contest (or, at the Indemnitee's option, require
the Lessee to contest in the name of the Lessee, if permitted by law) the
validity, applicability or amount of such Taxes by:
(i) resisting payment thereof if lawful and practicable or not paying
the same except under protest if protest is necessary and proper in each
case so long as non-payment will not result in a material risk of the sale,
forfeiture or loss of, or the creation of a Lien other than a Lessor's Lien
on the Aircraft, Airframe or any Engine or any risk of criminal liability;
or
(ii)if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in
which to contest such Taxes, and shall periodically or upon the Lessee's
request advise the Lessee of the progress of such contest; provided,
however, that if the Indemnitee determines in its sole discretion that such
participation will not adversely affect such Indemnitee's contest of any
Taxes not indemnified hereunder, the Lessee shall have the right to
participate in such contest, including, among other rights, the right to
attend governmental or judicial conferences (to the extent unrelated issues
are not discussed) concerning such claim and the right to be consulted in
good faith regarding all submissions to any governmental or other authority
insofar as they relate to the Tax for which indemnification is sought.
Notwithstanding the preceding sentences of this Section 8.04, such
Indemnitee shall not be required to take or continue any action unless the
Lessee shall have (i) agreed to pay and shall pay the Indemnitee on a
current basis all reasonable fees and expenses which such Indemnitee may
incur as a result of contesting such Taxes, (ii) delivered to the
Indemnitee a written acknowledgment of the Lessee's obligation to such
Indemnitee pursuant to this Agreement to the extent that the contest is not
successful and of the inapplicability of any exclusion or defenses thereto,
provided, however, that such acknowledgement shall not preclude the Lessee
from raising defenses to liability under this Agreement if a decision in
such contest is rendered which clearly articulates the cause of such Tax
and the cause, as so articulated, is not one for which the Lessee is
responsible to pay an indemnity hereunder, and (iii) made all payments and
indemnities (other than contested payments and indemnities) then due to the
Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements. In no event shall such
Indemnitee be required to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received an
opinion of independent tax counsel, at the Lessee's expense, selected by
the Lessee and reasonably satisfactory to such Indemnitee ("Tax Counsel")
to the effect that a reasonable basis exists for contesting such claim,
(ii) such Indemnitee (and, if such Indemnitee is not the Owner Participant,
the Owner Participant and such Indemnitee) shall have determined that such
contest will not result in any material risk of loss, sale or forfeiture
of, or the creation of a Lien (other than Lessor's Liens) on, the Aircraft
or any part thereof or interest thereon or in a risk of criminal liability,
or adversely affect the Trust Indenture Estate, (iii) if an Event of
Default shall have occurred and be continuing, the Lessee shall have
provided security for its obligations hereunder reasonably satisfactory to
the Indemnitee, (iv) if such contest shall be conducted in a manner
requiring payment of the claim in advance, the Lessee shall have advanced
sufficient funds, on an interest free basis, to make the payment required,
and agreed to indemnify the Indemnitee against any additional net adverse
tax consequences on an After-Tax Basis to such Indemnitee of such advance
and (v) the issue shall not be the same as an issue previously contested
hereunder and decided adversely, unless the Indemnitee shall have received,
at the Lessee's sole expense, a written opinion, in form and substance
reasonably satisfactory to such Indemnitee, of Tax Counsel, to the effect
that the applicable circumstances or law has changed and, in light thereof,
there is substantial authority within the meaning of Section 6662(d) of the
Code, as interpreted by the Treasury regulations thereunder, or under
similar principles of state or foreign law (as the case may be) for
contesting such claim and (viii) the amount of the indemnity payments the
Lessee would be required to make with respect to such adjustment, when
aggregated with similar adjustments that could be raised in other taxable
years of such Indemnitee is at least $50,000; provided, that in the event
that such Indemnitee is not required under this paragraph to contest any
Tax liability for which the Lessee is obligated to indemnify any
Indemnitee, the Lessee may contest such Tax liability in the name of the
Lessee, if permitted by law.
The Indemnitee shall not appeal and shall not be required to permit
Lessee to appeal any judicial decision unless (i) it receives an opinion of
Tax Counsel, at the Lessee's sole expense, to the effect that Substantial
Authority exists for the Indemnitee's position and (ii) in the case of an
appeal to the U.S. Supreme Court, the amount of the proposed adjustment for
the Lessee's entire fleet exceeds $5,000,000.
Nothing contained in this Section 8.04 shall require any
Indemnitee to contest or continue to contest, or permit Lessee to contest,
a claim which such Indemnitee would otherwise be required to contest
pursuant to this Section 8.04, if such Indemnitee shall waive payment by
Lessee of any amount that might otherwise be payable by Lessee under this
Article 8 in connection with such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund
of all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified
such Indemnitee, and provided there shall not have occurred and be
continuing any Event of Default by the Lessee hereunder or under the Lease
(in which case payment shall not be made to the Lessee until such Event of
Default shall have been cured), such Indemnitee shall pay to the Lessee an
amount equal to the amount of such refund less (x) reasonable expenses not
previously reimbursed, (y) all payments then due to such Indemnitee under
this Article 8 and (z) Taxes imposed with respect to the accrual or
receipt thereof, including interest received attributable thereto, plus any
permanent tax benefit actually realized by such Indemnitee as a result of
any payment by such Indemnitee made pursuant to this sentence; provided,
however, that such amount shall not be payable (a) before such time as the
Lessee shall have made all payments or indemnities then due and payable to
such Indemnitee under this Article 8 and (b) to the extent that the amount
of such payment would exceed (i) the amount of all prior payments by the
Lessee to such Indemnitee pursuant to this Article 8 less (ii) the amount
of all prior payments by such Indemnitee to the Lessee pursuant to this
Article 8.
Any subsequent loss of such refund or tax benefit shall be treated
as a Tax subject to indemnification under the provisions of this Article 8
(in the case of any such tax benefit, without regard to Section 8.01(b)
hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any obligation of the Lessee under this
Article 8, the Lessee shall make such report or return, except for any such
report or return that the Indemnitee has notified the Lessee that it
intends to file, in such manner as will show the ownership of the Aircraft
in the Owner Trustee and shall send a copy of the applicable portions of
such report or return to the Indemnitee and the Owner Trustee or will
notify the Indemnitee of such requirement and make such report or return in
such manner as shall be satisfactory to such Indemnitee and the Owner
Trustee. The Lessee will provide such information reasonably available to
the Lessee as the Indemnitee may reasonably require from the Lessee to
enable the Indemnitee to fulfill its tax filing requirements with respect
to the transactions contemplated by the Operative Agreements (without
duplication of the requirements of Section 3 of Tax Indemnity Agreement)
and any audit information request arising from any such filing. The
Indemnitee will provide such information reasonably available to it as the
Lessee may reasonably require from such Indemnitee to enable the Lessee to
fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns. The Lessee shall
hold the Indemnitee harmless from and against any liabilities, including
penalties, additions to tax, fines and interest, imposed upon or incurred
by such Indemnitee to the extent directly attributable to any insufficiency
or inaccuracy in any return, statement, or report prepared by the Lessee or
information supplied by the Lessee, or directly attributable to the
Lessee's failure to supply reasonably available information to such
Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall survive
the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax
otherwise indemnifiable hereunder by the Lessee and applicable to the
Aircraft, Airframe, any Engine or Parts, to the extent permitted by the
applicable federal, state, local or foreign law, the Lessee shall pay such
tax directly to the relevant Taxing authority and file any returns or
reports required with respect thereto; provided, however, that the Lessee
shall not make any statements or take any action which would indicate that
the Lessee or any Person other than the Owner Trustee or Owner Participant
is the owner of the Aircraft, the Airframe, any Engine or any Part or which
would otherwise be inconsistent with the terms of the Lease or the Tax
Indemnity Agreement and the position thereunder of the Owner Trustee and
the Owner Participant. Copies of such returns or reports, together with
evidence of payment of any tax due, shall be sent by the Lessee to the
Owner Participant within thirty (30) days after the date of each payment by
the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. If, for any
reason, Lessee is required to make any payment with respect to any Taxes
imposed on any Indemnitee in respect of the transactions contemplated by the
Operative Agreements or on the Aircraft, the Airframe, the Engines, the Parts
of any part thereof, which Taxes are not the responsibility of Lessee with
respect to such Indemnitee, then such Indemnitee shall pay to Lessee within 30
days of Lessee's demand therefor an amount which equals the amount actually
paid by Lessee with respect to such Taxes.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify each
Indemnitee against and agrees to protect, defend, save and keep harmless each
Indemnitee from any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs, disbursements and expenses
(including legal fees and expenses (including, without limitation, the
allocated reasonable costs and expenses of in-house counsel to any Original
Loan Participant) and all costs and expenses relating to amendments,
supplements, adjustments, consents, refinancings and waivers under the
Operative Agreements and the Original Agreements except as otherwise provided
in Section 10.01(d)(i) or Section 15 hereof) of every kind and nature (whether
or not any of the transactions contemplated by this Agreement are consummated)
(individually, an "Expense," collectively, "Expenses"), which may be imposed
on, incurred or suffered by or asserted against any Indemnitee, in any way
relating to, based on or arising out of:
(i) the Original Agreements, this Agreement, the Lease, the
Indenture, the Trust Agreement, the Pass Through Trust Agreement, AVSA's
FAA Xxxx of Sale, AVSA's Warranty Xxxx of Sale or any other Operative
Agreement or any other document entered into in connection herewith or any
sublease or transfer or any transactions contemplated hereby or thereby;
(ii) the operation, possession, use, non-use, maintenance, storage,
overhaul, delivery, non-delivery, control, repair or testing of the
Aircraft, Airframe, or any Engine or any engine used in connection with the
Airframe, or any part thereof by the Lessee, any sublessee or any other
Person whatsoever, whether or not such operation, possession, use, non-use,
maintenance, storage, overhaul, delivery, non-delivery, control, repair or
testing is in compliance with the terms of the Lease, including without
limitation, claims for death, personal injury or property damage or other
loss or harm to any Person whatsoever, including, without limitation, any
passengers, shippers or other Persons wherever located, and claims relating
to any laws, rules or regulations, including, without limitation,
environmental control, noise and pollution laws, rules or regulation;
(iii) the manufacture, design, sale, return, purchase, acceptance,
rejection, delivery, non-delivery, condition, repair, modification,
servicing, rebuilding, airworthiness, registration, reregistration, import,
export, performance, non-performance, lease, sublease, transfer,
merchantability, fitness for use, alteration, substitution or replacement
of any Airframe, Engine, or Part under the Lease, the Purchase Agreement,
the Purchase Agreement Assignment, the GTA or the Engine Warranty
Assignment or other transfer of use or possession, or other disposition of
the Aircraft, the Airframe, any Engine or any Part including, without
limitation, latent and other defects, whether or not discoverable, strict
tort liability, and any claims for patent, trademark or copyright
infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements or
the Original Agreements, or the falsity or inaccuracy of any representation
or warranty of the Lessee in any of the Operative Agreements or the
Original Agreements (other than representations and warranties in the Tax
Indemnity Agreement);
(v) the enforcement of the terms of the Operative Agreements
or the Original Agreements and the administration of the Trust Indenture
Estate; and
(vi) the offer, issuance, sale or delivery of any Certificate or
any Pass Through Certificate or any Original Loan Certificate, or any
refunding or refinancing thereof, or interest in the Lessor's Estate or
the Trust Agreement or the Original Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
or the Original Trust Agreement and the Lessor's Estate, the Indenture
or the Original Indenture or the Trust Indenture Estate (including,
without limitation, any claim arising out of the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, or any
other federal or state statute, law or regulation, or at common law or
otherwise relating to securities), or the action or inaction of the
Owner Trustee or Indenture Trustee as trustees, in the manner
contemplated by this Agreement, the Original Participation Agreement,
the Indenture, the Original Indenture, the Indenture and Security
Agreement Supplement, the Trust Agreement or the Original Trust
Agreement and in the case of the Owner Participant, its obligations
arising under Section 6.01 of the Trust Agreement or the Original Trust
Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but
is not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in the
Aircraft, Airframe, any Engine or Part during the Term, whether or not in
the Lessee's possession or control, insofar as such Expense relates to any
activity or event whatsoever involving such item while it is under lease to
the Lessee (or after termination of the Lease in connection with the
exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements and Original Agreements), and such Expense does not
fall within any of the exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a) shall
not extend to any Expense of any Indemnitee to the extent it:
(i) would not have occurred but for the willful misconduct or
gross negligence of such Indemnitee;
(ii) in respect of the Aircraft, is attributable to
acts or events which occur after the Aircraft is no longer part of the
Lessor's Estate or leased under the Lease or, if the Aircraft remains a
part of the Lessor's Estate, after the expiration of the Term (other
than pursuant to Article 17 of the Lease, in which case the indemnity
provided in Section 9.01(a) hereof shall survive for so long as Lessor
shall be entitled to exercise remedies under such Article 17), or to
acts or events which occur after return of possession of the Aircraft by
the Lessee in accordance with the provisions of the Lease but in any
such case only to the extent not fairly attributable to acts or
omissions of the Lessee prior to expiration of the Term, including
without limitation the Lessee's failure to fully discharge all of its
obligations under the Lease, the other Operative Agreements or the
Original Agreements;
(iii) is a Tax, whether or not the Lessee is required to indemnify
therefor pursuant to Article 8 hereof or pursuant to the Tax Indemnity
Agreement;
(iv) is a cost or expense required to be paid by the Owner
Participant or its permitted transferees (and not by the Lessee)
pursuant to this Agreement or any other Operative Agreement (other than
the Owner Participant's obligations under Section 6.01 of the Trust
Agreement) and for which the Lessee is not otherwise obligated to
reimburse the Owner Participant, directly or indirectly;
(v) would not have been incurred by such Indemnitee if such
Indemnitee had not been in breach of its representations or warranties,
or had not defaulted in the observance and performance of the terms and
provisions required to be observed and performed by it, in this
Agreement, the Purchase Agreement Assignment, the Lease, the Indenture,
the Trust Agreement, the Original Agreements or any other Operative
Agreement to which it is a party unless such breach or default shall be
a result of the breach or default of any of the foregoing by the Lessee
or another Indemnitee;
(vi) is a payment required to be made by the Owner Participant
pursuant to Section 2.01(b) hereof, but nothing contained in this
Section 9.01(b)(vi) shall be deemed or construed to limit the
obligations of the Lessee to the Indenture Trustee and Holders of the
Certificates pursuant to Section 3.05 of the Lease;
(vii) is, in the case of the Owner Participant, Lessor's Liens to
the extent attributable to the Owner Participant; in the case of the
Owner Trustee, Lessor's Liens to the extent attributable to the Owner
Trustee; and in the case of the Indenture Trustee, Indenture Trustee's
Liens;
(viii) is, in the case of the Owner Participant or the Owner
Trustee, attributable to the offer or sale by such Indemnitee after the
Delivery Date of any interest in the Aircraft, the Lessor's Estate or
the Trust Agreement or any similar interest (including an offer or sale
resulting from bankruptcy or other proceedings for the relief of debtors
in which such Indemnitee is the debtor), unless in each case such offer
or sale shall occur (x) in connection with a Refinancing or (y) as a
result of exercise of remedies under Section 17 of the Lease; and
(ix) is incurred under or in connection with any prohibited
transaction, within the meaning of Section 406 of ERISA or Section
4975(c)(1) of the Code ("Prohibited Transaction"); provided, however,
that in the event Prohibited Transaction Exemption 89-88, appearing at
54 Fed. Reg. 42581 (1989), or any other comparable prohibited
transaction exemption, (individually or collectively, a "PTE") is not
valid or is not applicable in any respect to the purchase and holding of
the Pass Through Certificates, then the indemnity provided for in
Section 9.01(a) hereof shall extend to any Expense incurred by the Owner
Participant as the result of any Prohibited Transaction occurring with
respect to the purchase or holding of any Pass Through Certificate by an
employee benefit plan subject to Title I of ERISA or by a plan subject
to Section 4975 of the Code (individually or collectively, an "ERISA
Plan") with respect to which the Owner Participant is a party in
interest, within the meaning of Section 3(14) of ERISA, or a
disqualified person, within the meaning of Section 4975 of the Code,
except, however, that such indemnity shall not extend to any Expense
incurred by the Owner Participant as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Pass Through Certificate (A) over which purchase or holding the Owner
Participant (or any Affiliate thereof) has discretion or control (other
than in the capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16)(B) of ERISA; and provided
further, however, that in the event the PTE is not valid or applicable
in any respect to the purchase and holding of the Pass Through
Certificates and the Lessee had failed to obtain from the manager or
co-manager of the underwriting syndicate of the Pass Through
Certificates a representation that such manager or co-manager has a PTE,
then the indemnity provided for in Section 9.01(a) hereof shall extend
to any Expense incurred by the Owner Participant as the result of any
Prohibited Transaction occurring with respect to the purchase or holding
of any Pass Through Certificate by an ERISA Plan with respect to which
the Owner Participant is a party in interest or a disqualified person,
except, however, that such indemnity shall not extend to any Expense
incurred by the Owner Participant as a result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Pass Through Certificates by an ERISA Plan with respect to which the
Owner Participant (or any Affiliate thereof) is a "plan sponsor", within
the meaning of Section 3(16)(B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall be
required to pay with respect to any Expense indemnified against under
Section 9.01 shall be an amount sufficient to restore the Indemnitee, on an
After-Tax Basis, to the same position such party would have been in had
such Expense not been incurred. If any Indemnitee actually realizes a
permanent Tax benefit by reason of the payment of such Expense paid or
indemnified against by the Lessee which was not considered in the
computation thereof, such Indemnitee shall promptly pay to the Lessee, but
not before the Lessee shall have made all payments theretofore due such
Indemnitee under this Agreement, the Original Agreements, the Tax Indemnity
Agreement and any other Operative Agreement, an amount equal to the lesser
of (x) the sum of such Tax benefit plus any other permanent Tax benefit
actually realized by such Indemnitee as the result of any payment made by
such Indemnitee pursuant to this sentence and (y) the amount of such
payment pursuant to this Section 9.02 by the Lessee to such Indemnitee plus
the amount of any other payments by the Lessee to such Indemnitee
theretofore made pursuant to this Section 9.02 less the amount of any
payments by such Indemnitee to the Lessee theretofore made pursuant to this
Section 9.02 (and the excess, if any, of the amount described in clause (x)
above over the amount described in clause (y) above shall be carried
forward and applied to reduce pro tanto any subsequent obligations of the
Lessee to make payments to such Indemnitee pursuant to this Section 9.02),
it being intended that no Indemnitee should realize a net Tax benefit
pursuant to this Section 9.02 unless the Lessee shall first have been made
whole for any payments by it to such Indemnitee pursuant to this Section
9.02; provided, however, that notwithstanding the foregoing portions of
this sentence, such Indemnitee shall not be obligated to make any payment
to the Lessee pursuant to this sentence so long as an Event of Default
shall have occurred and be continuing. Any Taxes that are imposed on any
Indemnitee as a result of the disallowance or reduction of such Tax benefit
referred to in the next preceding sentence in a taxable year subsequent to
the year of allowance and utilization by such Indemnitee (including the
expiration of any tax credit carryovers or carrybacks of such Indemnitee
that would not otherwise have expired) shall be indemnifiable pursuant to
the provisions of Section 8.01 hereof without regard to Section 8.01(b)
hereof.
Section 9.03. Subrogation. Upon the payment in full of any
indemnity pursuant to this Article 9 by the Lessee (but not earlier), the
Lessee shall be subrogated to any right of the Indemnitee, other than with
respect to any of such Indemnitee's insurance policies or in connection
with any indemnity claim the Person indemnified may have against any other
Indemnitee in respect of the matter against which such indemnity has been
made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has knowledge for which the Lessee is, or may be, liable under
this Article 9; provided, however, that failure to give such notice shall
not terminate any of the rights of Indemnitees under this Article 9, except
(with respect to such Indemnitee) to the extent that the Lessee has been
materially prejudiced by the failure to provide such notice. Unless
otherwise provided in the Operative Agreements, any amount payable to an
Indemnitee pursuant to this Article 9 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such
indemnity and the computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery
of all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee
under this Article 9, and provided there shall not have occurred a Payment
Default or an Event of Default (in which case payment shall not be made to
the Lessee until such Payment Default or Event of Default shall have been
cured) such Indemnitee shall pay to the Lessee the amount of any such
recovery, including interest received with respect to the recovery, net of
any Taxes paid or payable as a result of the receipt of the recovery and
interest, plus any net additional permanent income tax benefits actually
realized by Indemnitee as the result of any payment made pursuant to this
sentence less any reasonable costs and expense of any Indemnitee not
reimbursed by the Lessee; provided, however, that such amount shall not be
payable (a) before such time as the Lessee shall have made all payments or
indemnities then due and payable to such Indemnitee under this Article 9 or
(b) to the extent that the amount of such payment would exceed the amount
of all prior payments by the Lessee to such Indemnitee pursuant to this
Article 9, less the amount of all prior payments by such Indemnitee to the
Lessee pursuant to this Article 9. Any subsequent loss of such recovery or
tax benefit shall be subject to indemnification under Article 8 or this
Article 9, as the case may be, but without regard to Section 8.01(b)
hereof, other than Section 8.01(b)(v) hereof.
Section 9.06. Defense of Claims. The Lessee or its insurers
shall have the right (in each such case at the Lessee's sole expense) to
investigate or, provided that (i) the Lessee or its insurers shall not
reserve the right to dispute liability with respect to any insurance
policies pursuant to which coverage is sought, (ii) in the case of the
Lessee, no Event of Default shall have occurred and be continuing and (iii)
the Lessee shall have first acknowledged in writing to such Indemnitee the
Lessee's obligation to indemnify such Indemnitee hereunder in respect of
such claim, defend any such claim covered by insurance for which
indemnification is sought pursuant to this Article 9 and each Indemnitee
shall cooperate with the Lessee or its insurers with respect thereto, and
provided, further, the Lessee shall not be entitled to assume and control
the defense of any such claim if and to the extent such Indemnitee
reasonably objects to such control on the ground that an actual or
potential material conflict of interest exists where it is advisable for
such Indemnitee to be represented by separate counsel. Subject to the
immediately foregoing sentence, where the Lessee or the insurers under a
policy of insurance maintained by the Lessee undertake the defense of an
Indemnitee with respect to such a claim, no additional legal fees or
expenses of such Indemnitee in connection with the defense of such claim
shall be indemnified hereunder unless the fees or expenses were incurred at
the written request of the Lessee or such insurers. Subject to the
requirement of any policy of insurance applicable to a claim, an Indemnitee
may participate at its own expense at any judicial proceeding controlled by
the Lessee or its insurers pursuant to the preceding provisions, to the
extent that such party's participation does not, in the opinion of the
independent counsel appointed by the Lessee or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 9.06.
No Indemnitee shall enter into any settlement or other compromise with
respect to any claim described in this Section 9.06 without the prior
written consent of the Lessee, which consent shall not unreasonably be
withheld or delayed, unless such Indemnitee waives its right to be
indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which the Lessee has not
agreed to discharge or with respect to which the Lessee has not agreed to
indemnify such Indemnitee to such Indemnitee's satisfaction.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall
survive the expiration or other termination of this Agreement, the Tax
Indemnity Agreement, the Trust Agreement, the Indenture, the Purchase
Agreement Assignment, the Engine Warranty Assignment, the Lease and the
other Operative Agreements but, as to such indemnities, only with respect
to losses, liabilities, obligations, damages, penalties, claims, actions,
suits, costs, Expenses and disbursements caused by events occurring or
existing (or fairly attributable to the Lessee's acts or omissions) prior
to or incurred in the process of (i) the return or disposition of the
Aircraft under Article 12 or Article 17 of the Lease, or (ii) the
termination of the Lease or the Indenture or, if later, the return of the
Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's
obligations under the indemnities provided for in this Agreement shall be
those of a primary obligor whether or not the Person indemnified shall also
be indemnified with respect to the same matter under the terms of this
Agreement, the Lease, the Indenture, the Trust Agreement, or any other
document or instrument, and the Person seeking indemnification from the
Lessee pursuant to any provision of this Agreement may proceed directly
against the Lessee without first seeking to enforce any other right of
indemnification.
Section 9.09. Interest. The Lessee will pay to each Indemnitee
on demand, to the extent permitted by applicable law, interest on any
amount of indemnity not paid when due pursuant to this Article 9 until the
same shall be paid, at the Past Due Rate.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a)
Transaction Costs. The Owner Participant shall pay (or reimburse the
Lessee if the Lessee shall have previously made such payment), in addition
to those items set forth in Section 10.01(a) of the Original Participation
Agreement (other than clause (vi) thereof) all fees and expenses of the
following persons relating to the public offering of the Pass Through
Certificates contemplated by the Underwriting Agreement and related to the
transactions contemplated hereby: (i) the fees and expenses of counsel for
the Owner Participant; (ii) the fees and expenses of the transaction
documentation counsel and counsel for the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee, the Original Loan Participants and the
Underwriters (other than those fees, expenses and disbursements payable by
the Underwriters pursuant to the Underwriting Agreement); (iii) the fees
and expenses of Xxxxxxxxx, Xxxxxx & Xxxxxxxx; (iv) any initial fees and
expenses of the Pass Through Trustee and the fees and expenses of the Owner
Trustee and the Indenture Trustee; (v) any compensation, commissions and
discounts payable to the Underwriters pursuant to the Underwriting
Agreement; (vi) the fees, if any, incurred in printing the Pass Through
Certificates; (vii) the fees and expenses incurred in connection with
printing any amendment to the Registration Statement on Form S-3 bearing
Registration No. 33-56569, printing any Preliminary Prospectus or
Prospectus (as such terms are defined in the Underwriting Agreement) for
the offering of the Pass Through Certificates; (viii) the fees and
expenses of Xxxxxx Xxxxxxxx & Co.; (ix) the fees and expenses of Xxxxx'x
and S&P; and (x) the fees and expenses of First Chicago Leasing
Corporation. The fees and expenses described in clauses (ii) through (x)
of this paragraph shall be allocable to the Owner Participant under this
Agreement (1) to the extent incurred specifically with respect to the Owner
Participant or the refunding of the Original Loan Certificates, and (2) to
the extent such fees and expenses are incurred but are not specifically
attributable to the Owner Participant or the refunding of the Original Loan
Certificates, in the proportion that the principal amount of the
Certificates bears to the total amount of the Pass Through Certificates.
The Owner Participant, the Owner Trustee and the Lessee
acknowledge that the percentages for Interim Rent, Basic Rent, Stipulated
Loss Value and Termination Value set forth in the Lease have been prepared
assuming the aggregate amount payable by the Owner Participant pursuant to
the preceding paragraph and Section 10.01 of the Original Participation
Agreement is 1.48% of the Purchase Price (the "Estimated Expense Amount").
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the
entity acting as Owner Trustee, as lessor under the Lease and as Owner
Trustee under the Trust Agreement with respect to the administration of the
Lease and the Lessor's Estate and the continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses and initial
fees relating to the establishment of any replacement trustee) of the
Indenture Trustee, as trustee under the Indenture with respect to the
administration of the Trust Indenture Estate and the continuing fees,
expenses and disbursements (including reasonable counsel fees and initial
fees relating to the establishment of a replacement trustee) of the Pass
Through Trustee shall be paid as Supplemental Rent by the Lessee, including
without limitation any amounts payable to the Indenture Trustee or on
account of requests by the Indenture Trustee for indemnification under
Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of
the foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, the Owner
Participant, the Indenture Trustee and the Pass Through Trustee all
costs and expenses (including reasonable legal fees and expenses)
incurred by any of them in connection with (a) any Default or Event of
Default and any enforcement or collection proceedings resulting
therefrom, or (b) the enforcement of the obligations of the Lessee
hereunder or under the other Operative Agreements, including, without
limitation, the entering into or giving or withholding of any amendments
or supplements or waivers or consents, including without limitation, any
amendment, supplement, waiver or consent resulting from any work-out,
restructuring or similar proceeding relating to the performance or
nonperformance by the Lessee of its obligations under the Operative
Agreements or (c) any amendment, supplement, waiver or consent (whether
or not entered into) under the Original Agreements, this Agreement, the
Lease, the Indenture, the Certificates, the Tax Indemnity Agreement, the
Purchase Agreement Assignment or any other Operative Agreement or
document or instrument delivered pursuant to any of them, which
amendment, supplement, waiver or consent is required by any provision of
any Operative Agreement or is requested by the Lessee or necessitated by
the action or inaction of the Lessee; provided, however, that the Lessee
shall not be responsible for fees and expenses incurred in connection
with the offer, sale or other transfer (whether pursuant to Section
7.03(d) hereof or otherwise) by the Owner Participant or the Owner
Trustee after the Refunding Date of any interest in the Aircraft, the
Lessor's Estate or the Trust Agreement or any similar interest (and the
Owner Participant shall be responsible for all such fees and expenses),
unless such offer, sale or transfer shall occur (A) during a period when
an Event of Default has occurred and is continuing under the Lease, (B)
during a period following an Event of Loss or (C) in connection with the
termination of the Lease or action or direction of the Lessee pursuant
to Section 4.02 or Article 10 of the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee may
resign or may be removed by the Owner Participant, and a successor Owner
Trustee may be appointed and a Person may become Owner Trustee under the Trust
Agreement only in accordance with the provisions of Section 3.11 of the Trust
Agreement and the provisions of paragraphs (b) and (c) of this Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of a
successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement shall
be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust
company having combined capital, surplus and undivided profits of at
least $100,000,000 or a bank or trust company fully guaranteed by a
direct or indirect parent thereof having a combined capital, surplus and
undivided profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement
or agreements, in form and substance reasonably satisfactory to the
Lessee, the Owner Participant, the Pass Through Trustee and the
Indenture Trustee whereby such successor Owner Trustee confirms that it
shall be deemed a party to this Agreement, the Trust Agreement, the
Lease, the Lease Supplement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, the Indenture, the Indenture Supplement and
any other Operative Agreement to which the Owner Trustee is a party and
agrees to be bound by all the terms of such documents applicable to the
Owner Trustee and makes the representations and warranties contained in
Section 7.04 hereof (except that it may be duly incorporated, validly
existing and in good standing under the laws of the United States of
America or any State thereof); and
(v) All filings of Uniform Commercial Code financing and
continuation statements, filings in accordance with the Transportation
Code and amendments thereto shall be made and all further actions taken
in connection with such appointment as may be necessary in connection
with maintaining the validity, perfection and priority of the Lien of
the Indenture and the valid and continued registration of the Aircraft
in accordance with the Transportation Code.
(c) Appointment. For so long as the Aircraft remains registered
under the Transportation Code, the Owner Participant agrees to appoint
promptly a successor Owner Trustee meeting the requirements of Section
11.01(b) hereof in the event the Owner Participant has knowledge that the
Owner Trustee at any time shall not be a Citizen of the United States.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant. The Owner
Participant shall have no obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except
those obligations or duties expressly set forth in this Agreement, the
Trust Agreement, the Tax Indemnity Agreement or any other Operative
Agreement to which the Owner Participant is a party, and the Owner
Participant shall not be liable for the performance by any party hereto of
such other party's obligations or duties hereunder. Under no circumstances
shall the Owner Participant as such be liable to the Lessee, nor shall the
Owner Participant be liable to any Holder, for any action or inaction on
the part of the Owner Trustee or the Indenture Trustee in connection with
this Agreement, the Indenture, the Lease, the Trust Agreement, the Purchase
Agreement Assignment, the Engine Warranty Assignment, any other Operative
Agreement, any Original Agreement, the ownership of the Aircraft, the
administration of the Lessor's Estate or the Trust Indenture Estate or
otherwise, whether or not such action or inaction is caused by the willful
misconduct or gross negligence of the Owner Trustee or the Indenture
Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of
a Certificate shall have no further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal and
interest on all Certificates held by such Holder and all other sums payable
to such Holder under this Agreement, under the Indenture and under such
Certificates shall have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the Trust
Agreement and the Indenture and to all of the terms of said documents, and
the Lessee acknowledges receipt of an executed counterpart of each of the
Trust Agreement and the Indenture; it being agreed that such consent shall
not be construed to require the Lessee's consent to any future supplement
to, or amendment, waiver or modification of, the terms of the Trust
Agreement, the Indenture or the Certificates, except that prior to the
occurrence and continuance of an Event of Default, no section of the
Indenture or the Trust Agreement shall be amended or modified in any manner
which materially adversely affects the Lessee without its consent.
Section 13.02. Further Assurances. The Lessee hereby confirms to the
Owner Participant its covenants set forth in and obligations under the Lease.
The Lessee agrees that, except as otherwise provided in the Indenture, the
Owner Trustee may not enter into any amendment, modification or supplement of,
or give any waiver or consent with respect to, or approve any matter or
document as being satisfactory under the Lease without the prior consent of
the Indenture Trustee and the Owner Participant and that, except as otherwise
provided in the Indenture, upon an Indenture Event of Default, the Indenture
Trustee may act as the Lessor under the Lease to the exclusion of the Owner
Trustee. The Lessee further agrees to deliver to the Indenture Trustee and
the Owner Participant a copy of each notice, statement, request, report or
other communication given or required to be given to the Owner Trustee under
the Lease.
Section 13.03. No Retroactive Application. This Agreement, the
Lease, the Indenture and the Trust Agreement each amend and restate, and the
Tax Indemnity Agreement amends, the respective original agreements with no
intention of retroactive application. The applicable original agreements have
been restated for the convenience of the parties and such amendments and
restatements, and such amendment in the case of the Tax Indemnity Agreement,
are not intended to waive or modify the obligations of any party which accrued
or were to have been performed on or prior to the Refunding Date under such
unamended agreements (or, in the case of this Agreement, the effective date
hereof) or to deprive any party of its rights and remedies in respect thereof.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and
other communications required by this Agreement shall be in writing and
shall be deemed received (a) if given by telecopier, when transmitted and
the appropriate telephonic confirmation received if transmitted on a
Business Day and during normal business hours of the recipient, and
otherwise on the next Business Day following transmission, (b) if given by
certified mail, return receipt requested, postage prepaid five Business
Days after being deposited in the United States mail and (c) if given by
FedEx service (or, if a Default or Event of Default shall have occurred and
be continuing, by other comparable courier service), when received or
personally delivered, addressed:
(a) If to the Lessee, to its office at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxx 00000, Attention: Vice President and Treasurer with a
copy to Senior Vice President and General Counsel at 0000 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxx 00000, telephone (000) 000-0000, facsimile (901)
395-4758; or to such other address as the Lessee shall from time to time
designate in writing to the Lessor, the Indenture Trustee and the Owner
Participant;
(b) If to the Lessor or the Owner Trustee, to its office at 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration Department, telephone (000) 000-0000, facsimile (313)
225-3420; or to such other address as Lessor shall from time to time
designate in writing to the Lessee and the Indenture Trustee, with a copy
to Owner Participant;
(c) If to the Owner Participant, to its office at c/o NationsBanc
Lease Investments, Inc., NationsBank Xxxxxxxxx Xxxxxx, XX 0000-00-00, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention:
Manager of Lease Administration, telephone (000) 000-0000, facsimile (704)
386-0892; or to such other address as the Owner Participant may from time
to time designate in writing to the Lessee and the Indenture Trustee; and
(d) If to the Indenture Trustee or the Pass Through Trustee, to its
office at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Administration, telephone (000) 000-0000, facsimile (718)
242-3529; or to such other address as the Indenture Trustee or the Pass
Through Trustee, as the case may be, shall from time to time designate in
writing to the Lessor, the Lessee, the Indenture Trustee and the Pass
Through Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request the Owner
Participant to participate in up to three refinancings (including the
refinancing contemplated by this Agreement on the Refunding Date), in whole
but not in part, of the Certificates prior to the end of the Basic Term (a
"Refinancing"), provided, that, except in connection with the Refinancing
contemplated by this Agreement on the Refunding Date, such Refinancing may
not occur prior to the fifth anniversary of the Refunding Date. Such
Refinancings may be placed in either the private or public markets and
shall be denominated in United States dollars (or in any other foreign
currency so long as there is no foreign currency risk to the Owner
Participant), and shall be on terms that do not materially adversely affect
the Owner Participant. The Owner Participant agrees to negotiate promptly
in good faith to conclude an agreement with the Lessee as to the terms of
any such Refinancing transaction (including the terms of any debt to be
issued in connection with such refinancing and the documentation to be
executed in connection therewith). Without the prior written consent of
the Owner Participant, the prospectus and other offering materials relating
to any Refinancing in the form of a public offering shall not identify the
Owner Participant and shall not include any financial statements of the
Owner Participant or any Affiliate thereof. In connection with any such
Refinancing in the form of a public offering, the Lessee shall indemnify
the Owner Participant for any liabilities under federal, state or foreign
securities laws resulting from such offering. The aggregate principal
amount of the new Certificates issued in connection with each Refinancing
shall be the same as the aggregate principal amount outstanding on the
Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no
Refinancing will be permitted unless the Owner Participant shall have
received at least 10 Business Days' prior written notice of the closing
date of such Refinancing, the Owner Participant shall have been provided
such longer period required for a reasonable opportunity to review the
relevant documentation and the Owner Participant shall have determined in
good faith that neither it nor the Owner Trustee shall suffer any loss or
expense or bear any increased risk as a result of such Refinancing
(including, without limitation, any risk with respect to taxes or other
adverse consequences to the Owner Participant including the application of
Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which
it has not been or will not have been indemnified by the Lessee in a manner
reasonably satisfactory to the Owner Participant.
Prior to the consummation of any Refinancing pursuant to this
Section 15.01, the Owner Participant and the Lessee shall agree upon a
schedule setting forth each installment of Interim Rent, Basic Rent,
Stipulated Loss Values, Termination Values and EBO Price payable pursuant
to the Lease as a result of the Refinancing in accordance with Section 3.04
of the Lease, and thereafter the amounts set forth in such schedule shall
become the amounts payable under the Lease. Upon the consummation of the
Refinancing, the evidence of indebtedness issued pursuant to the
Refinancing shall be considered "Certificates" for purposes of this
Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall
have no obligation to proceed with any Refinancing transaction as
contemplated by this Section 15.01 unless the Lessee indemnifies the Owner
Trustee and the Owner Participant by agreement in form and substance
satisfactory to each of them, for any liability, obligation (other than the
obligation to pay principal and interest in respect of the refinanced
indebtedness), cost or expense (including, without limitation, reasonable
attorneys' fees and Make-Whole Premium and any other premiums or amounts
due under the Indenture), including any adverse tax consequences or impact,
related to or arising out of any such Refinancing transaction, except to
the extent of amounts included in Transaction Costs and payable by the
Owner Participant as provided in Article 10 hereof.
(d) Each party agrees to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participant,
direction to the Owner Trustee by the Owner Participant to prepay the
Certificates then outstanding; provided, however, that such Refinancing
shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium
and Breakage Costs, if any, and all other sums due and owing on the
Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by
the Lessee under this Agreement, the Indenture, the Lease, the Trust
Agreement, and the Certificates then outstanding shall have been made by
the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participant from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to such Owner Participant, unless the Lessee shall have
agreed to provide an indemnity in respect thereof reasonably
satisfactory in form and substance to the Owner Participant),
certificates and other documents as it may reasonably request, each in
form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of the Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the
Owner Participant, as Supplemental Rent under the Lease, sufficient
funds to pay any Breakage Costs, Make-Whole Premium and any other
amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such
party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing
or would occur immediately after giving effect to such Refinancing;
(viii) Except in the case of the Refinancing contemplated by this
Agreement or the Refunding Date, the Indenture Trustee shall have
received no later than the Business Day next preceding the day 15 days
prior to the effective date of such Refinancing irrevocable notice of
such Refinancing; and
(viii) The Indenture Trustee shall have received no later than the
Business Day next preceding the day 15 days prior to the effective date
of such Refinancing irrevocable notice of such Refinancing; and
(ix) In the event the Lessee shall not prohibit the purchase of the
Refinancing loan certificates by, or with the assets of, an employee
benefit plan, as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA or a plan, which is subject to Section 4975(c) of the
Code, (individually or collectively, an "ERISA Plan"), the Lessee will
permit the placement of the Refinancing loan certificates with an ERISA
Plan only if either (A) if such placement is in the form of pass through
certificates, the sole underwriter or the manager or co-manager of the
underwriting syndicate or the selling or placement agent of the
Refinancing loan certificates represents to the Lessee that it has a
prohibited transaction exemption from the U.S. Department of Labor with
respect to pass through certificates (such as Prohibited Transaction
Exemption 90-24 or any other comparable exemption) or (B) purchasers of
the Refinancing loan certificates provide a representation regarding
their source of funds used in acquiring the Refinancing loan
certificates and, if such purchasers represent that they are using funds
of an ERISA Plan in acquiring the Refinancing loan certificates, such
purchasers further represent that either a prohibited transaction
exemption from the U.S. Department of Labor is available with respect
to their purchase and holding of the Refinancing loan certificates or
that their purchase and holding of the Refinancing loan certificates
will not constitute a prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code. The reliance on any such exemption will
not be conditional on the Owner Participant's representation concerning
its party in interest or other status with respect to ERISA Plans. If
neither exemption referred to in clause (A) or (B) of this paragraph
(viii) is valid or applicable in any respect to the purchase and holding
of the Refinancing loan certificates, or if the representation in clause
(B) of this paragraph (viii) that such purchase and holding will not
constitute a prohibited transaction is not correct, whichever is
applicable then the Lessee shall indemnify the Owner Participant
pursuant to, and to the extent provided for, under Sections 8 and 9
hereof for Taxes and Expenses resulting from any "prohibited
transaction", within the meaning of Section 406 of ERISA or Section
4975(c)(1) of the Code, occurring with respect to the placement of the
Refinancing loan certificates with, or the holding of the Refinancing
loan certificates by, any ERISA Plan with respect to which the Owner
Participant is a party in interest, within the meaning of Section 3(14)
of ERISA, or a disqualified person, within the meaning of Section 4975
of the Code.
Section 15.02. Reoptimization. (a) If a Change in Tax Rate
occurs prior to the end of the Basic Term, then, subject to the terms and
conditions of this Section 15.02 and Section 3.04 of the Lease, the Owner
Participant may, upon 30 days' prior notice to the Lessee, the Indenture
Trustee, the Owner Trustee and the Holders, elect to modify the schedule of
payments of principal of the certificates issued ("Refinancing
Certificates") in connection with any Refinancing effected after the
Refunding Date using private debt (not including debt issued pursuant to an
exemption from registration under the Securities Act relying on Rule 144A
promulgated thereunder but otherwise marketed in a manner substantially
similar to securities registered under the Securities Act, and not
including debt issued in connection with any offering of securities
registered under the Securities Act) due on each remaining Rent Payment
Date on or commencing on the Rent Payment Date next succeeding the date
mutually agreed to by the Owner Participant, the Lessee and the Indenture
Trustee on which the Owner Participant shall make such modification (the
"Reoptimization Date"). Promptly after making such modification, the Owner
Participant shall furnish each party hereto written notice of the amounts
so recalculated.
(b) Adjustments to Refinancing Certificates. On the
Reoptimization Date, subject to the satisfaction on or before the
Reoptimization Date of the conditions set forth in Section 15.02(c), the
Owner Trustee will issue and deliver and the Indenture Trustee will
authenticate, and each holder of a Refinancing Certificate will accept
delivery of, a new Refinancing Certificate or Refinancing Certificates (in
replacement of each Refinancing Certificate then held by such holder, which
Refinancing Certificates shall be surrendered to the Indenture Trustee for
cancellation) containing such changed principal installments (expressed as
a percentage of the original principal amount of such Refinancing
Certificate) as shall have been recalculated by the Owner Participant, but
in the same principal amount as, and containing terms identical to, except
as otherwise contemplated by Section 15.02(d) hereof, the Refinancing
Certificates originally issued in connection with the Operative Agreements.
(c) Conditions to the Obligations of the Holders of the
Refinancing Certificates on the Reoptimization Date. The obligation of
each holder of a Refinancing Certificate to accept delivery of a new
Refinancing Certificate on the Reoptimization Date, and to surrender on
such Reoptimization Date any Refinancing Certificate then held by it, is
subject to the following conditions precedent having been satisfied on or
before the Reoptimization Date:
(i) the requirements of Section 15.02(d) hereof shall have been
satisfied;
(ii) the following documents, in form and substance satisfactory to
such Holder, shall have been duly authorized, executed and delivered by
the party or parties thereto and shall be in full force and effect: (A)
if the payments of Basic Rent, Stipulated Loss Values and Termination
Values with respect to the Term have been changed, an amendment to the
Lease, dated the Reoptimization Date, (B) an amendment to the Indenture
setting forth any changed repayment schedule to the Refinancing
Certificates, dated the Reoptimization Date and (C) replacement
Refinancing Certificates; and
(iii) in connection with any Reoptimization the Owner Participant
shall pay or agree to pay all reasonable costs and expenses incurred by
the Lessee, the Owner Trustee, the Indenture Trustee and each Holder of
a Refinancing Certificate (including, without limitation, reasonable
legal fees and expenses) in connection with any such reoptimization.
(d) Payment Schedules. Except as otherwise provided in this
Section 15.02 as long as the Refinancing Certificates remain outstanding,
the payment schedules for the Refinancing Certificates shall not be
modified.
ARTICLE 16
[INTENTIONALLY LEFT BLANK]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes. It is hereby
agreed between the Owner Participant and the Lessee (but the Lessee makes
no representation to such effect) that it is the intent of the parties for
Federal, state, local and foreign income tax purposes that the Owner
Participant will be treated as the owner of the Aircraft and the Lessee
will be treated as the lessee of the Aircraft.
Section 17.02. [Intentionally Left Blank.]
Section 17.03. Counterparts. This Agreement may be executed by
the parties in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement,
waiver or modification is sought. No such written termination, amendment,
supplement, waiver or modification shall be effective unless a signed copy
shall have been delivered to and executed by the Owner Trustee and the
Indenture Trustee. A copy of each such termination, amendment, supplement,
waiver or modification shall also be delivered to each other party to this
Agreement other than the Original Loan Participants.
The consent of the Pass Through Trustee, in its capacity as a
party to this Agreement and not as a Holder, shall not be required to
modify, amend or supplement this Agreement or to give any consent, waiver,
authorization or approval with respect to this Agreement under the
circumstances in which the consent of the Indenture Trustee would not be
required for such modification, amendment, supplement, consent, waiver or
approval in accordance with Section 8.01(b) of the Indenture, provided that
the Pass Through Trustee shall be entitled to receive an Opinion of Counsel
(as defined in the Pass Through Agreement) necessary, in its sole
discretion, to establish that the Indenture Trustee's consent would not be
required under such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the
Lessee and its successors and permitted assigns, the Owner Participant and
its successors and permitted assigns, the Owner Trustee and its successors
as Owner Trustee (and any additional owner trustee appointed) under the
Trust Agreement, the Indenture Trustee and its successors as Indenture
Trustee (and any additional indenture trustee appointed) under the
Indenture and the Pass Through Trustee and its successors as Pass Through
Trustee (and any additional pass through trustee appointed).
Section 17.07. Concerning the Owner Trustee, the Pass Through
Trustee and the Indenture Trustee. Each of NBD and Chase is entering into
this Agreement solely in their respective capacities (except to the extent
otherwise expressly indicated), in the case of NBD, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, in the case
of Chase (except insofar as it is acting as a Loan Participant or Agent),
not in its individual capacity but solely as Indenture Trustee under the
Indenture and as Pass Through Trustee under the Pass Through Agreement, and
except as otherwise expressly provided in this Agreement or in the Lease,
the Indenture, the Pass Through Agreement or the Trust Agreement, neither
NBD, nor Chase, shall be personally liable for or on account of its
statements, representations, warranties, covenants or obligations under
this Agreement; provided, however, that each of NBD and Chase accepts the
benefits running to it under this Agreement, and each agrees that (except
as otherwise expressly provided in this Agreement or any other Operative
Agreement to which it is a party) it shall be liable in its individual
capacity for (a) its own gross negligence or willful misconduct (whether in
its capacity as trustee or in its individual capacity), (b) any breach of
representations and warranties or any breach of covenants made in its
individual capacity pursuant to or in connection with this Agreement or the
other Operative Agreements to which it is a party, (c) any breach, in the
case of the Owner Trustee, of its covenants made in its individual capacity
in Sections 3.05 and 3.08 of the Indenture, (d) the failure to use ordinary
care in receiving, handling and disbursing funds, (e) in the case of the
Owner Trustee, Lessor's Liens attributable to it in its individual
capacity, (f) in the case of the Indenture Trustee, Indenture Trustee's
Liens and (g) taxes, fees or other charges on, or based on, or measured by,
any fees, commissions or compensation received by it in connection with the
transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any
such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section 17.09. Public Release of Information. Subject to
applicable legal requirements (including, without limitation, securities
laws requirements, other regulatory requirements and other legally
compelled disclosures), so long as there shall not have occurred an Event
of Default or Indenture Event of Default, each party to this Agreement
shall in each instance obtain the prior written approval of each other
party to this Agreement concerning the exact text and timing of news
releases, articles and other information releases to the public media
concerning any Operative Agreements.
Section 17.10. Certain Limitations on Reorganization. The
Indenture Trustee agrees that, if (i) the Lessor's Estate or the trust
created by the Trust Agreement becomes a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to such reorganization
provision, the Owner Participant is held to have recourse liability to the
debtor or the trustee of the debtor directly or indirectly on account of
any amount payable as principal, interest or premium on the Certificates,
and (iii) the Indenture Trustee actually receives any Recourse Amount which
reflects any payment by the Owner Participant on account of (ii) above,
then the Indenture Trustee, as the case may be, shall promptly refund to
the Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such
payment by the Owner Participant on account of clause (ii) above received
by the Indenture Trustee exceeds the amount which would have been received
by the Indenture Trustee if the Owner Participant had not become subject to
the recourse liability referred to in (ii) above. Nothing contained in
this Section shall prevent the Indenture Trustee from enforcing any
individual obligation (and retaining the proceeds thereof) of the Owner
Participant under this Agreement or any other Operative Agreement to the
extent herein or therein provided, for which the Owner Participant has
expressly agreed by the terms of this Agreement to accept individual
responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS AND
IS BEING DELIVERED IN NEW YORK.
Section 17.12. Section 1110 Compliance. The Owner Participant,
the Indenture Trustee and the Lessee agree that the transactions
contemplated by the Operative Agreements are expressly intended to be,
shall be and should be construed so as to be entitled to the benefits and
protection of Section 1110 of the Bankruptcy Code.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on
behalf of itself and each of its Affiliates, agents, directors, officers,
employees and representatives) to use reasonable precautions to keep
confidential, in accordance with its customary procedures for handling
confidential information of this nature, any non-public information
supplied to it pursuant to this Agreement which is identified by the Person
supplying the same as being confidential at the time the same is delivered
to such party, provided that nothing herein shall limit the disclosure of
any such information (i) to the extent required by statute, rule,
regulation or judicial process, (ii) to counsel for any of the parties
hereto, (iii) to bank examiners, auditors, insurance regulators,
accountants or similar regulatory authorities, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party
relating to the transactions contemplated hereby or by any of the Operative
Agreements, (v) to a subsidiary or Affiliate of the parties hereto, (vi) to
any assignee or participant (or prospective assignee or participant) so
long as such assignee or participant (or prospective assignee or
participant) first executes and delivers to the respective party making
such assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of the Owner
Participant or the Owner Trustee (in its individual or trust capacity) to
the Owner Trustee (in its individual or trust capacity) or to the Owner
Participant, as the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and
this Participation Agreement shall be effective this ___ day of October,
1995.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Treasurer and
Managing Director - Structured
Finance
OWNER PARTICIPANT:
NATIONSBANK, N.A.
By:_____________________________________
Name:
Title:
OWNER TRUSTEE:
NBD BANK, not in its individual capacity
except as otherwise expressly provided
herein, but solely as Owner Trustee
By:_____________________________________
Name:
Title:
INDENTURE TRUSTEE:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), not in its individual
capacity except as otherwise expressly
provided herein, but solely as Indenture
Trustee
By:_____________________________________
Name:
Title:
PASS THROUGH TRUSTEE:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), not in its individual
capacity except as otherwise expressly
provided herein, but solely as Pass
Through Trustee
By:_____________________________________
Name:
Title:
ORIGINAL LOAN PARTICIPANTS:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as a Loan Participant and as
Agent
By:_____________________________________
Name:
Title:
BANK OF AMERICA NT & SA
By:_____________________________________
Name:
Title:
CIBC INC.
By:_____________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:_____________________________________
Name:
Title:
SCHEDULE I
CERTIFICATE INFORMATION
1. Federal Express Corporation Pass Through Trust, 1995-B1 Federal Express
Corporation Trust No. N661FE
--------------------------------
Interest Rate: 6.05%
Maturity: March 19, 1996
Principal Amount: $0
2. Federal Express Corporation Pass Through Trust, 1995-B2 Federal Express
Corporation Trust No. N661FE
--------------------------------
Interest Rate: 7.11%
Maturity: January 2, 2014
Principal Amount: $44,715,000
3. Federal Express Corporation Pass Through Trust, 1995-B3 Federal Express
Corporation Trust No. N661FE
--------------------------------
Interest Rate: 7.58%
Maturity: January 2, 2019
Principal Amount: $18,089,000
SCHEDULE II
DEFINITIONS
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement
and the Series Supplements) referred to below, unless otherwise defined in
an Operative Agreement or the context thereof shall otherwise require. In
the case of any conflict between the provisions of this Schedule and the
provisions of any Operative Agreement, the provisions of such Operative
Agreement shall control the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to
agreements shall be deemed to mean and include such agreements as amended
and supplemented from time to time, and (ii) references to parties to
agreements shall be deemed to include the successors and permitted assigns
of such parties.
DEFINED TERMS:
Additional Insureds. As defined in Article 13 of the Lease.
Aeronautics Authority or FAA. As appropriate, the Federal
Aviation Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affiliate. With respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control
with such Person. For the purposes of this definition, "control"
(including "controlled by" and "under common control with") shall mean the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether through the ownership of
voting securities or by contract or otherwise. In no event shall the Owner
Trustee or the Lessor be deemed an Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment received or
deemed to have been received by a Person (the "Original Payment") shall be
supplemented by a further payment to such Person so that the sum of the two
payments shall be equal to the Original Payment, after taking into account
(x) all Taxes that would result from the receipt or accrual of such
payments and (y) any reduction in Taxes that would result from such
increased Taxes. In the case of amounts payable to the Lessor, the Owner
Participant, or any corporate Affiliate of the Owner Participant, it shall
be presumed that such Person is at all times subject to Federal income tax
at the maximum marginal rate generally applicable to corporations from time
to time and actual state, local and foreign income taxes.
Agent. The Chase Manhattan Bank (National Association) and its
successors and permitted assigns as Agent for the Original Loan
Participants pursuant to Article 16 of the Original Participation
Agreement.
Air Carrier. Any U.S. Air Carrier and any "foreign air
carrier" (as defined in the Transportation Code) as to which there is in
force a permit granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty dated the Delivery Date executed
by the Manufacturer and guaranteeing AVSA's Warranty Xxxx of Sale.
Aircraft. The Airframe (or any permitted substitute airframe)
together with the two Engines (or any Replacement Engine or Engines)
whether or not any of such initial or Replacement Engines may from time to
time be installed on such Airframe or may be installed on any other
airframe or on any other aircraft, including any aircraft substituted
pursuant to Section 11.03 of the Lease.
Airframe. The Airbus A300F4-605R aircraft (excluding the
Engines or engines from time to time installed thereon) leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number and manufacturer's
serial number specified in the initial Lease Supplement, including (i) all
Parts in respect thereof and (ii) any replacement airframe which may be
substituted pursuant to Section 11.03 of the Lease.
Amendment No. 1 to the Original Tax Indemnity Agreement.
Amendment No. 1 to the Original Tax Indemnity Agreement, dated as of
October 26, 1995.
Ancillary Agreement. Any written agreement of the Lessee to
which the Lessor is a party or to which the Lessor has consented in writing
entered into on the Delivery Date or the Refunding Date or any date
thereafter in connection with the transactions contemplated by the
Operative Agreements, as such agreement may be amended and supplemented
from time to time with the consent of the Lessor and delivered to the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee and the Owner
Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal
Express Corporation Trust No. N661FE), dated October 25, 1995 among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as
Owner Trustee, the Owner Participant and the Indenture Trustee not in its
individual capacity, but solely as Indenture Trustee, as originally
executed or as amended, modified or supplemented with the consent of all
the parties thereto.
Appraisal. The report prepared by BK Associates, Inc. and
delivered to the Owner Participant (with a copy of such report to the
Lessee) on the Delivery Date pursuant to Section 4.01(n) of the Original
Participation Agreement.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee,
organized and existing under the laws of France, and its successors and
assigns.
AVSA Consent and Agreement. The Consent and Agreement dated as
of October 15, 1995, executed by AVSA, as the same may be amended, modified
or supplemented from time to time.
AVSA's FAA Xxxx of Sale. The xxxx of sale for the Airframe on
AC Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and dated the
Delivery Date.
AVSA's Warranty Xxxx of Sale. The full warranty xxxx of sale
covering the Aircraft (and specifically referring to each Engine) executed
by AVSA as owner of the Aircraft in favor of the Owner Trustee and dated
the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as
amended, and any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e),
(f) or (g) of the Lease which either does or with the giving of notice or
lapse of time or both would constitute an Event of Default.
Basic Rent. The periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day
on the Commencement Date and ending at the end of the day on July 2, 2020,
or such earlier date on which the Lease shall be terminated as provided
therein.
Beneficial Interest. The interest of the Owner Participant
under the Trust Agreement.
Breakage Costs. Has the meaning specified in Schedule II to
the Original Participation Agreement.
Business Day. Any day on which commercial banks are not
authorized or required to close in New York, New York and Memphis,
Tennessee, and after the Lien of the Indenture is discharged, Detroit,
Michigan.
Certificates. The Equipment Trust Certificates (Federal
Express Corporation Trust No. N661FE), issued by the Owner Trustee
pursuant to the Indenture and any certificate issued in exchange therefor
or replacement thereof pursuant to the Indenture.
Change in Tax Rate. Any amendment, modification, deletion,
addition, or change to the Code which is enacted into law after the
Delivery Date which changes the highest marginal statutory rate of Federal
income tax applicable to the Owner Participant (other than a change which
is in the nature of a minimum tax).
Chase. The Chase Manhattan Bank (National Association) and its
successors and permitted assigns.
Citizen of the United States. A citizen of the United States
as defined in Section 40102(a)(15) of the Transportation Code, or any
analogous part of any successor or substituted legislation or regulation at
the time in effect.
Closings. The closing with respect to the acquisition of the
Pass Through Certificates by the Underwriters and the closing with respect
to the refunding of the Original Loan Certificates.
Code. Except as otherwise provided, references to the Code
shall mean the Internal Revenue Code of 1986, as amended from time to time.
Commencement Date. July 2, 1996.
Consent and Agreement. The Consent and Agreement dated as of
October 15, 1995 executed by the Manufacturer, as the same may be amended,
modified or supplemented from time to time.
Consent and Guaranty. The Consent and Guaranty of the
Manufacturer attached to the Purchase Agreement.
Corporate Trust Administration. The principal office of the
Indenture Trustee located at 4 Chase Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx,
Xxx Xxxx 00000, or such other office at which the Indenture Trustee's
corporate trust business shall be administered which the Indenture Trustee
shall have specified by notice in writing to the Lessee, the Owner
Participant and the Owner Trustee.
Corporate Trust Department. The principal office of the Owner
Trustee located at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such
other office at which the Owner Trustee's corporate trust business shall be
administered which the Owner Trustee shall have specified by notice in
writing to the Lessee, the Owner Participant and the Indenture Trustee.
Debt Rate. The weighted average (based on Outstanding
principal amount) rate of interest on the Certificates issued pursuant to
the Indenture.
Default. Any event or condition which with the lapse of time
or the giving of notice, or both, would constitute an Event of Default.
Delivery Date. October 25, 1995.
EBO Price. Has the meaning set forth in Section 4.02(a)(F) of
the Lease.
Engine. Each of the two General Electric CF6-80C2-A5F engines
listed by its manufacturer's serial number in the initial Lease Supplement
and leased pursuant to the Lease, whether or not from time to time
installed on the Airframe or installed on any other airframe or on any
other aircraft, and any Replacement Engine which may from time to time be
substituted for an Engine pursuant to Section 7.02(a)(vii), 10.03, 11.03,
11.04 or 12.02 of the Lease, together with all Parts related thereto.
Except as otherwise provided, at such time as a Replacement Engine shall be
so substituted and the Engine for which the substitution is made shall be
released from the Lien of the Indenture, such replaced Engine shall cease
to be an "Engine" under the Lease. The term "Engines" means, as of any
date of determination, both Engines then leased to the Lessee pursuant to
the Lease.
Engine Consent. The Engine Consent dated as of October 15,
1995, executed by the Engine Manufacturer, as the same may be amended,
modified or supplemented from time to time.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment
(Federal Express Corporation Trust No. N661FE), dated as of October 15,
1995 between the Lessor and the Lessee, as the same may be amended,
modified or supplemented from time to time.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. Has the meaning set forth in Section 7.06 of the
Participation Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16
of the Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use
(A) for a period in excess of 60 days due to theft or disappearance or such
longer period, not to exceed 180 days from the end of such initial 60-day
period, if and so long as the location of such property is known to the
Lessee and the Lessee is diligently pursuing recovery of such property, or
to the end of the Term, if less (unless such theft or disappearance
constitutes an Event of Loss pursuant to (i)(B) or (ii) hereof) or (B) for
a period in excess of 60 days due to the destruction, damage beyond
economic repair or rendition of such property permanently unfit for normal
use by Lessee for any reason whatsoever; (ii) any damage to such property
which results in an insurance settlement with respect to such property on
the basis of a total loss, or constructive or compromised total loss;
(iii) (1) condemnation, confiscation or seizure of, or requisition of
title to such property by the Government, any foreign government or
purported government or any agency or instrumentality thereof, or (2)
condemnation, confiscation, or seizure of, or requisition or taking of, use
of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on
the date on which an insurance settlement with respect to such property on
the basis of a total loss or constructive or compromised total loss shall
occur) or (B) by the Government for a period extending beyond the Term,
provided that no Event of Loss shall be deemed to have occurred, and the
Term shall be extended automatically for a period of six months (or the
date of return of the Aircraft, if shorter, so long as the Lessor receives
at least six months notice of such date of return) beyond the end of the
Term in the event that the Aircraft, the Airframe or any Engine as of the
end of the Lease Term is requisitioned by the Government pursuant to an
activation as part of the Civil Reserve Air Fleet Program described in
Section 7.02(a)(iv) of the Lease; and (iv) as a result of any law, rule,
regulation, order or other action by the Aeronautics Authority or other
governmental body having jurisdiction, the use of the Aircraft or Airframe
in the normal course of air transportation of cargo shall have been
prohibited by virtue of a condition affecting all Airbus A300F-600 series
aircraft equipped with engines of the same make and model as the Engines
for a period of twelve (12) consecutive months, unless the Lessee, prior to
the expiration of such twelve (12) month period, shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of the Aircraft or Airframe or, in any event, if such use of the
Aircraft or the Airframe shall have been prohibited for a period of
twenty-four (24) consecutive months or until the end of the Term, if
earlier. The date of such Event of Loss shall be (s) the 61st day or the
241st day, as the case may be, following loss of such property or its use
due to theft or disappearance (or the end of the Term or the Lessee's
abandonment of diligent efforts to recover such property, if earlier); (t)
the 61st day following the date of any destruction, damage beyond economic
repair or rendition of such property permanently unfit for normal use; (u)
the date of any insurance settlement on the basis of a total loss or
constructive or compromised total loss; (v) the date of any condemnation,
confiscation, seizure or requisition of title of such property; (w) the
181st day following condemnation, confiscation, seizure or requisition for
use of such property by a foreign government referred to in clause
(iii)(2)(A) above (or the end of the Term or the date of any insurance
settlement described therein, if earlier than such 181st day); (x) the
last day of the Term in the case of requisition for use of such property by
the Government; (y) the last day of the 12 month or 24 month period,
referred to in clause (iv) above (or if earlier, the end of the Term or
abandonment of the Lessee's efforts to restore the normal use of the
Aircraft). An Event of Loss with respect to the Aircraft shall be deemed
to have occurred if any Event of Loss occurs with respect to the Airframe.
If an Event of Loss described in any of clauses (i) (A), (iii) or (iv)
above shall occur, Lessor may elect, within 30 days following the date upon
which such Event of Loss is deemed to have occurred, to waive such Event of
Loss and the consequences thereof.
Excepted Payments. Collectively, (i) indemnity or other
payments (and interest thereon to the extent provided in the Operative
Agreements) paid or payable by the Lessee in respect of the Owner
Participant, the Owner Trustee in its individual capacity or any of their
respective successors, permitted assigns, directors, officers, employees,
servants and agents or Affiliates, pursuant to the Participation Agreement
or any indemnity hereafter granted to the Owner Participant or the Owner
Trustee in its individual capacity pursuant to the Lease or the
Participation Agreement, (ii) proceeds of public liability insurance (or
government indemnities in lieu thereof) in respect of the Aircraft payable
as a result of insurance claims paid for the benefit of, or losses suffered
by, the Owner Trustee or the Indenture Trustee in their respective
individual capacities or by the Owner Participant, or their respective
successors, permitted assigns or Affiliates, (iii) proceeds of insurance
maintained with respect to the Aircraft by the Owner Participant (whether
directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Section 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) payments constituting
increases in Interim Rent or Basic Rent attributable to payments arising
pursuant to Section 5 of the Tax Indemnity Agreement and (vi) any right to
demand, collect or otherwise receive and enforce the payment of any amount
described in clauses (i) through (v) above.
Expense; Expenses. Have the meaning specified in Section
9.01(a) of the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the
Lessee has exercised its option to renew the Lease pursuant to the second
paragraph of Section 4.01(a) thereof and with respect to which the
conditions set forth in the second paragraph of Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and
equal in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and
willing lessor unaffiliated with such lessee, neither being under any
compulsion to lease the Aircraft. In such determination, it shall be
assumed that the Aircraft is in the condition required under the Lease in
the case of return of the Aircraft pursuant to Article 12 of the Lease.
Fair Market Rental shall be determined in accordance with the provisions of
Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and
equal in amount to, the value which would be obtained in an arm's-length
transaction between an informed and willing purchaser under no compulsion
to buy and an informed and willing seller unaffiliated with such purchaser
and under no compulsion to sell, assuming that the Aircraft (or other
property) is unencumbered by the Lease. Unless otherwise provided in the
applicable provisions of any Operative Agreement, in such determination it
shall be assumed that the Aircraft is in the condition required under the
Lease in the case of return of the Aircraft pursuant to Article 12 of the
Lease; provided that in connection with any determination pursuant to or
for the purposes of Article 17 of the Lease, the Aircraft shall be
appraised on an "as is, where is" basis. Fair Market Value shall be
determined in accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States
Federal Aviation Administration and any successor agency or agencies
thereto.
Fixed Renewal Rent. Semi-annual payments during the Fixed
Renewal Term equal to 50% of the average actual semi-annual Basic Rent
payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee
has exercised its option to renew the Lease pursuant to the first paragraph
of Section 4.01(a) thereof and with respect to which the conditions set
forth in such Section 4.01(a) are met.
French Pledge Agreement. The French Pledge Agreement dated as
of October 15, 1995 between the Owner Trustee and the Indenture Trustee.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991
between the Engine Manufacturer and the Lessee related to the purchase by
the Lessee of the Engines as originally executed or as modified, amended or
supplemented in accordance with the terms thereof, but only insofar as the
General Terms Agreement relates to the Engines, to the extent assigned to
the Owner Trustee pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of
any particular time, the Person in whose name a Certificate shall be
registered (but not including the holder of any Pass Through Certificate).
Indemnitee. Each of NBD, in its individual capacity and as
Owner Trustee and Lessor, the Agent (to the extent set forth in Articles 8
and 9 of the Original Participation Agreement), the Owner Participant, the
Original Loan Participants (to the extent set forth in Articles 8 and 9 of
the Original Participation Agreement), the Indenture Trustee, in its
individual capacity and as trustee, any Owner Participant Guarantor, and
any successor (including any trustee which may succeed to the Lessor's
interest under the Lease), Affiliate, assign, officer, director, employee,
agent and servant of any of the foregoing, the Lessor's Estate and the
Trust Indenture Estate.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N661FE) dated as of October 15, 1995, as
amended and restated as of October 26, 1995, between the Lessor and the
Indenture Trustee, as supplemented by the Indenture and Security Agreement
Supplement, and as said Indenture may from time to time be further
supplemented or amended, including any amendment or supplement thereto
entered into from time to time pursuant to the applicable provisions of the
Indenture.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N661FE) dated October 25, 1995, as such Indenture and Security Agreement
Supplement shall be amended or supplemented from time to time and any other
supplement to the Indenture, substantially in the form of Exhibit A to the
Indenture.
Indenture Default. Any event or condition which with the lapse
of time or the giving of notice, or both, would constitute an Indenture
Event of Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in
Section 7.01 of the Indenture.
Indenture Trustee. The Chase Manhattan Bank (National
Association), a national banking association, not in its individual
capacity but solely as Indenture Trustee under the Indenture and each other
Person which may from time to time be acting as successor trustee under the
Indenture.
Indenture Trustee's Liens. Any Lien on the Trust Indenture
Estate resulting from (i) claims against the Indenture Trustee not related
to the administration of the Trust Indenture Estate or any transactions
pursuant to the Indenture or any document included in the Trust Indenture
Estate or (ii) any act or omission of the Indenture Trustee which is not
related to the transactions contemplated by the Operative Agreements or is
in violation of any of the terms of the Operative Agreements.
Independent Investment Banker. An independent investment
banking institution of national standing appointed by the Lessee that is
independent in fact, does not have any direct financial interests, or any
material indirect financial interest, in the Lessee or any Affiliate of the
Lessee, and is not connected with the Lessee or any Affiliate of the
Lessee, as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, that if the
Indenture Trustee shall not have received written notice of such an
appointment at least 10 days prior to the Prepayment Date, "Independent
Investment Banker" shall mean such an institution appointed by the
Indenture Trustee.
Interim Rent. The periodic rent payable for the Aircraft
throughout the Interim Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Interim Term. The period commencing on the Owner Participant
Payment Date and ending at the end of the day immediately preceding the
Commencement Date.
Invoice. The invoice for the Aircraft given by AVSA to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust
No. N661FE) dated as of October 15, 1995, as amended and restated as of
October 26, 1995, entered into by the Lessor and the Lessee concurrently
with the execution and delivery of the Indenture, as said Lease may from
time to time be supplemented or amended, or its terms waived or modified,
to the extent permitted by, and in accordance with, the terms of the
Indenture, including, without limitation, supplementation by one or more
Lease Supplements entered into pursuant to the applicable provisions of the
Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N661FE) dated October 25, 1995, as such Lease
Supplement shall be amended or supplemented from time to time and any other
supplement to the Lease, substantially in the form of Exhibit A to the
Lease.
Lease Term. The period commencing on the Delivery Date and
ending at the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation,
and its successors and permitted assigns.
Lessee Documents. Has the meaning set forth in Section 6.01(b)
of the Participation Agreement.
Lessor. NBD Bank, a Michigan banking corporation, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement,
and its successors and permitted assigns.
Lessor's Estate. All estate, right, title and interest of the
Owner Trustee in and to the Aircraft, the Lease, any Lease Supplement, the
Participation Agreement, AVSA's FAA Xxxx of Sale, AVSA's Warranty Xxxx of
Sale, the Airbus Guaranty, the Purchase Agreement, the Purchase Agreement
Assignment, the Consent and Agreement, the AVSA Consent and Agreement, the
Consent and Guaranty (to the extent assigned by the Purchase Agreement
Assignment), the GTA, the Engine Warranty Assignment, the Engine Consent,
any warranty with respect to the Airframe and the Engines, all amounts of
Interim Rent, Basic Rent and Supplemental Rent, including without
limitation, insurance proceeds (other than insurance proceeds payable to or
for the benefit of the Owner Trustee in its individual capacity, the Owner
Participant or the Indenture Trustee) and requisition, indemnity or other
payments of any kind for or with respect to the Aircraft (except amounts
owing to the Owner Participant, to the Indenture Trustee, to the Owner
Trustee in its individual capacity, or to any of their respective
directors, officers, employees and agents pursuant to Articles 8 and 9 of
the Participation Agreement). Notwithstanding the foregoing, "Lessor's
Estate" shall (i) not include any Excepted Payment and (ii) include all
property intended to be subjected to the Indenture by the Granting Clause
thereof.
Lessor's Liens. Liens on the Lessor's Estate or the Trust
Indenture Estate arising as a result of (i) claims against the Lessor, in
its individual capacity or as Owner Trustee, or the Owner Participant, in
each case not related to the transactions contemplated by the Operative
Agreements, (ii) acts or omissions of the Lessor in its individual capacity
or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or
expressly prohibited under the Operative Agreements and any act or omission
of the Owner Participant which is in violation of any of the terms of the
Operative Agreements, (iii) Taxes or Expenses imposed against the Lessor,
in its individual capacity or as Owner Trustee, Owner Participant, Lessor's
Estate or the trust created by the Trust Agreement which are not required
to be indemnified against by the Lessee pursuant to the Participation
Agreement by reason of Section 8.01(b) or 9.01(b) thereof and which are not
required to be indemnified against by the Lessee pursuant to the Tax
Indemnity Agreement, or (iv) claims against the Lessor or the Owner
Participant arising from the voluntary transfer by the Lessor or the Owner
Participant of its interests in the Aircraft other than a transfer of the
Aircraft pursuant to Section 4.02(a) or Article 10 or 11 of the Lease and
other than a transfer pursuant to the exercise of the remedies set forth in
Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease
or security interest or other similar interest.
Majority in Interest of Certificate Holders. As of a
particular date of determination, the Holders of more than 50% of the
aggregate unpaid principal amount of all Certificates outstanding as of
such date excluding for purposes of this definition any Certificates held
by (i) the Owner Trustee or the Owner Participant or any interests of the
Owner Participant unless all Certificates then outstanding shall be held by
the Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Make-Whole Premium. An amount determined as of the day before
the applicable Prepayment Date (or date of purchase, as the case may be)
which an Independent Investment Banker determines to be equal to the
excess, if any, of (i) the present values of all remaining scheduled
payments of such principal amount or portion thereof and interest thereon
(excluding interest accrued from the immediately preceding Payment Date to
such Prepayment Date or date of purchase, as the case may be) to the
Maturity of such Certificate in accordance with generally accepted
financial practices assuming a 360-day year consisting of twelve 30-day
months at a discount rate equal to the Treasury Yield, all as determined by
the Independent Investment Banker over (ii) the unpaid principal amount of
such Certificate.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France, and its successors and assigns.
Maturity. With respect to any Certificate, the date on which
the final principal amount of such Certificate is scheduled to be due and
payable.
Moody's. Xxxxx'x Investors Service, Inc.
NBD. NBD Bank, a Michigan banking corporation.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Interim Rent and Basic Rent set forth in Schedule II of
the Lease, discounted at a rate per semi-annual period equal to the Debt
Rate.
Non-U.S. Person. Any Person other than (i) a citizen or
resident of the United States, as defined in Section 7701(a)(30) of the
Code, (ii) a corporation, partnership or other entity created or organized
in or under the laws of the United States or any political subdivision
thereof or therein, or (iii) any estate or trust that is subject to United
States federal income taxation regardless of the source of its income.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no
longer suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the
Indenture, a certificate signed by a Responsible Officer of the Lessee or
the Owner Trustee, as the case may be, and delivered to the Indenture
Trustee. Each such certificate shall include the statements provided for
in Section 15.07 of the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Xxxx of Sale, AVSA's Warranty Xxxx of Sale, the
Airbus Guaranty, the Purchase Agreement, the Purchase Agreement Assignment,
the GTA, the Engine Warranty Assignment, the French Pledge Agreement, the
Lease, the Lease Supplement, the Owner Participant Guaranty, if any, the
Owner Trustee Guaranty, if any, any Ancillary Agreement entered into by or
with the written consent of the Indenture Trustee, which by its terms is an
Operative Agreement, the Certificates outstanding at the time of reference,
the Indenture, the Indenture and Security Agreement Supplement, the Consent
and Agreement, the AVSA Consent and Agreement, the Consent and Guaranty (to
the extent assigned by the Purchase Agreement Assignment), the Engine
Consent and the Tax Indemnity Agreement, each as amended from time to time.
Opinion of Counsel. When delivered pursuant to the Indenture,
a written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Xxxxx Xxxx & Xxxxxxxx or
a successor firm or (iii) other counsel designated by the Lessee and
reasonably satisfactory to the Indenture Trustee and (b) for the Owner
Trustee or the Indenture Trustee, an attorney selected by such Person and,
in the case of the Owner Trustee, reasonably satisfactory to the Indenture
Trustee.
Original Agreements. The documents and instruments delivered
on the Delivery Date in connection with the transactions contemplated by
the Original Participation Agreement.
Original Indenture. The Trust Indenture, Mortgage and Security
Agreement (Federal Express Corporation Trust No. N661FE) dated as of
October 15, 1995 between the Owner Trustee and the Indenture Trustee, which
together with the Indenture and Security Agreement Supplement No. 1
(Federal Express Corporation Trust No. N661FE) dated October 25, 1995
attached thereto was recorded as one instrument by the FAA on October 25,
1995 and assigned Conveyance Number 2A267994.
Original Lease. The Lease Agreement (Federal Express
Corporation Trust No. N661FE) dated as of October 15, 1995 between the
Owner Trustee as lessor, and the Lessee, which together with Lease
Supplement Xx. 0 (Xxxxxxx Xxxxxxx Xxxxxxxxxxx Xxxxx Xx. X000XX) dated
October 25, 1995 attached thereto was recorded as one instrument by the FAA
on October 25, 1995 and assigned Conveyance Number 2A267995.
Original Loan Certificates. The loan certificates issued on
the Delivery Date to the Original Loan Participants.
Original Loan Participants. The entities listed on Schedule I
to the Original Participation Agreement and their successors and assigns
(other than any assignees in connection with the Refunding Date).
Original Participation Agreement. The Participation Agreement
(Federal Express Corporation Trust No. N661FE) among the Lessee, the Owner
Participant, the Indenture Trustee, the Owner Trustee and the Original Loan
Participants as it was originally executed as of October 1, 1995.
Original Tax Indemnity Agreement. The Tax Indemnity Agreement
(Federal Express Corporation Trust No. N661FE) between the Lessee and the
Owner Participant as it was originally executed as of October 15, 1995.
Original Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N661FE) between the Owner Participant and the Owner
Trustee as it was originally executed as of October 1, 1995 and filed with
the FAA on October 25, 1995.
Outstanding. When used with respect to Certificates, as of the
date of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation pursuant
to Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary
amount has been theretofore deposited with the Indenture
Trustee in trust for the Holders of such Certificates pursuant
to Section 14.01 of the Indenture; provided, that if such
Certificates are to be prepaid, notice of such prepayment has
been duly given pursuant to the Indenture or provision therefor
satisfactory to the Indenture Trustee has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to
Article II of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's
Estate.
Owner Participant Amount. The amount described in Section 2.03
of the Participation Agreement and set forth on Schedule II to the Lease.
Owner Participant Guarantor. The provider of an Owner
Participant Guaranty.
Owner Participant Guaranty. Any guaranty delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Owner Participant Payment Date. March 19, 1996.
Owner Trustee. NBD, not in its individual capacity, but solely
as Owner Trustee under the Trust Agreement, and its successors and
permitted assigns.
Owner Trustee Guarantor. The provider of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance
with Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated
net after-tax book yield and aggregate after-tax cash during the Interim
Term and the Basic Term utilizing the multiple investment sinking fund
method of analysis, computed on the basis of the same methodology and
assumptions as were utilized by the Owner Participant in determining
Interim Rent, Basic Rent, Stipulated Loss Value and Termination Value
percentages or the EBO Price, as the case may be, as such assumptions may
be adjusted for events which have been the basis of adjustments to Rent
pursuant to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal
Express Corporation Trust No. N661FE), dated as of October 1, 1995, as
amended and restated as of October 26, 1995, among the Lessee, the Original
Loan Participants, the Owner Trustee not in its individual capacity except
as otherwise expressly provided therein, but solely as owner trustee, the
Owner Participant, the Indenture Trustee not in its individual capacity
except as otherwise expressly provided therein, but solely as indenture
trustee and the Pass Through Trustee not in its individual capacity except
as otherwise expressly provided therein, but solely as pass through
trustee, as amended, modified or supplemented, or the terms thereof waived.
Parts. All appliances, parts, components, instruments,
appurtenances, accessories, furnishings and other equipment of whatever
nature (other than complete Engines or engines) which may from time to time
be incorporated or installed in or attached to the Airframe or any Engine
or, prior to replacement thereof in accordance with the Lease, which may be
removed therefrom.
Pass Through Agreement. The Pass Through Trust Agreement dated
as of February 1, 1993, as amended and restated as of October 1, 1995
between the Lessee and the Pass Through Trustee, as such Pass Through
Agreement may be modified, supplemented or amended from time to time in
accordance with the provisions thereof.
Pass Through Certificates. Any of the 1995 Pass Through
Certificates, Series B1, 1995 Pass Through Certificates, Series B2 or 1995
Pass Through Certificates, Series B3, in each case as issued by the related
Pass Through Trust; and "Pass Through Certificates" means all of the Pass
Through Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale
of the Pass Through Certificates to the Underwriters pursuant to the
Underwriting Agreement takes place.
Pass Through Trust. The Federal Express Pass Through Trust,
1995-B1, Federal Express Pass Through Trust, 1995-B2 or Federal Express
Pass Through Trust, 1995-B3, in each case formed pursuant to the related
Series Supplement in accordance with the Pass Through Agreement; and "Pass
Through Trusts" means all of such Pass Through Trusts.
Pass Through Trustee. The Chase Manhattan Bank (National
Association), a national banking association, in its capacity as Pass
Through Trustee under the Pass Through Agreement and each Pass Through
Trust, and its successors and permitted assigns as Pass Through Trustee
thereunder.
Past Due Rate. In respect of (A) any amount payable to the
Owner Participant or the Owner Trustee a rate per annum during the period
from and including the due date to but excluding the date on which such
amount is paid in full equal to 2% plus the Debt Rate and (B) any principal
of or interest on any Certificate or any other amount payable under the
Indenture, any Certificate or any other Operative Agreement that is not
paid when due (whether at Maturity, by acceleration, by optional or
mandatory prepayment or otherwise) to any Holder, the Indenture Trustee or
the Pass Through Trustee, a rate per annum during the period from and
including the due date to but excluding the date on which such amount is
paid in full equal to (i) in the case of any such amount payable to the
Holder of any Certificate, 2% plus the interest rate applicable to such
Certificate and (ii) in the case of any other such amount, 2% plus the Debt
Rate.
Payment Date. The Owner Participant Payment Date, and each
January 2 and July 2 commencing July 2, 1996.
Payment Default. Any event specified in Section 16.01(a) or
16.01(b) of the Lease which with the giving of notice or lapse of time or
both would constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership,
joint venture, joint stock company, trust, unincorporated organization,
association, corporation, institution, entity or government (federal,
state, local, foreign or any agency, instrumentality, division or body
thereof).
Preliminary Term. The period commencing on the Delivery Date
and ending at the end of the day on the day immediately preceding the Owner
Participant Payment Date.
Premium Termination Date. With respect to the Certificates
having a Maturity in 2014, November 7, 2007 and with respect to the
Certificates having a Maturity in 2019, October 7, 2017.
Prepayment Date. Has the meaning specified in Section 6.02(b)
of the Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b)
of the Indenture.
Proposed Termination Date. Has the meaning specified in
Section 10.01(a) of the Lease.
Purchase Agreement. The Airbus A300-600R Freighter Purchase
Agreement, dated as of July 3, 1991 between AVSA and the Lessee, including
all exhibits, appendices and letter agreements attached thereto as
originally executed or as modified, amended or supplemented in accordance
with the terms thereof, but only to the extent that the foregoing relates
to the Aircraft and to the extent assigned pursuant to the Purchase
Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement
Assignment (Federal Express Corporation Trust No. N661FE), dated as of
October 15, 1995 between the Lessor and the Lessee, as the same may be
amended, modified or supplemented from time to time.
Purchase Price. Has the meaning specified in Schedule II to
the Original Participation Agreement.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), March 4, 1996 for the
Owner Participant Payment Date, December 18 for January 2 Payment Dates and
June 17 for July 2 Payment Dates, whether or not such date is a Business
Day.
Recourse Amount. Has the meaning specified in Section 17.10 of
the Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged
pursuant to Section 15.01 of the Participation Agreement.
Refunding Date. A Business Day on which the refunding of the
Original Loan Certificates occurs, the expected date thereof having been
specified by the Lessee in a written notice given to the parties to the
Participation Agreement and the Underwriters at least three (3) Business
Days prior to such expected Refunding Date.
Register. Has the meaning set forth in Section 3.02 of the
Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Remaining Weighted Average Life. For any Certificate, as of
any determination date, the number of years obtained by dividing (a) the
sum of the products obtained by multiplying (i) the amount of each then
remaining mandatory sinking fund redemption payment of principal, including
the payment due on the Maturity of such Certificate, by (ii) the number of
years (calculated to the nearest one-twelfth) which will elapse between
such determination date, and the date on which such payment is scheduled to
be made, by (b) the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in
accordance with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the
Lessee has exercised its option to renew the Lease pursuant to Section
4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as
Interim Rent, Basic Rent, Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. Each January 2 and July 2 commencing July
2, 1996.
Reoptimization Date. Has the meaning specified in Section
15.02(a) of the Participation Agreement.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or
an engine of the same or another manufacturer) manufactured after October
22, 1994 of the same or of equal or greater value, remaining useful life
and utility as the Engine being replaced, together with all Parts relating
to such engine; provided, however, that if such replacement engine is not a
General Electric CF6-80C2-A5F engine, such replacement engine must then be
commonly used in the commercial aviation industry on Airbus A300-600
airframes.
Responsible Officer. With respect to the Owner Trustee or the
Indenture Trustee, any officer in its Corporate Trust Department or
Corporate Trust Administration, as the case may be, designated by such
Person to perform obligations under the Operative Agreements, with respect
to the Owner Participant, the president or any vice president with direct
responsibility for the transactions contemplated by the Operative
Agreements, and with respect to any other party, any corporate officer or
(except in the case of the Owner Participant) other employee of a party
who, in the normal performance of his or her operational responsibilities,
with respect to the subject matter of any covenant, agreement or obligation
of such party pursuant to any Operative Agreement, would have
responsibility for and knowledge of such matter and the requirements of any
Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
SEC. The Securities and Exchange Commission of the United
States and any successor agencies or authorities.
Securities Act. The Securities Act of 1933, as amended.
Series Supplement. The Series Supplement 1995-B1 to be
executed and delivered by the Lessee and the Pass Through Trustee, the
Series Supplement 1995-B2 to be executed and delivered by the Lessee and
the Pass Through Trustee or the Series Supplement 1995-B3 to be executed
and delivered by the Lessee and the Pass Through Trustee, in each case as
such Series Supplement may be modified, supplemented or amended from time
to time in accordance with the provisions thereof and "Series Supplements"
means all of such Series Supplements.
Sinking Fund Redemption Date. Has the meaning specified in
Section 6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in
Section 6.06 of the Indenture.
Special Aviation Counsel. Xxxxxxxxx, Xxxxxx & Xxxxxxxx.
Stipulated Loss Value. As of any Stipulated Loss Value
Determination Date during the Term, the amount determined by multiplying
the Purchase Price by the percentage set forth in Schedule III of the Lease
under the heading "Stipulated Loss Value Factor" opposite such date (as
such Schedule III may be adjusted from time to time as provided in Section
3.04 of the Lease), and during any Renewal Term, the amount determined
pursuant to Section 4.01(b) of the Lease. Notwithstanding any other
provisions of the Lease or the Participation Agreement or the Indenture,
each Stipulated Loss Value shall be, under any circumstances and in any
event, an amount, together with so much of the arrears portion of Interim
Rent and Basic Rent due and owing through the date of payment of Stipulated
Loss Value as does not constitute an Excepted Payment, at least sufficient
to pay in full as of such date of payment the aggregate unpaid principal
amount of and accrued interest on the Certificates outstanding on such date
of payment. Subject to the immediately preceding sentence, it is
understood and agreed that the amounts set forth on Schedule III of the
Lease, for dates other than Rent Payment Dates on which arrears Interim
Rent and Basic Rent is due, fully reflect appropriate Interim Rent and
Basic Rent accruals and credits of unearned Interim Rent and Basic Rent
and, accordingly, no further accrual or credit shall be required whenever
Stipulated Loss Value is to be calculated with reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth
on Schedule III of the Lease under the heading "Stipulated Loss Value
Date."
Substantial Authority. For Federal income tax purposes, shall
have the meaning applicable for purposes of Section 6662 of the Code and
relevant Treasury regulations.
Supplemental Rent. All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or
under the Participation Agreement or Tax Indemnity Agreement or any
Ancillary Agreement or any other Operative Agreement to the Lessor, the
Owner Participant or others, including, without limitation, payments of
Stipulated Loss Value, EBO Price and amounts calculated by reference to
Termination Value and all amounts required to be paid by Lessee under the
agreements, covenants and indemnities contained in the Lease or in the
Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Interim Rent and Basic Rent.
Tax. Shall have the meaning set forth in Section 8.01(a) of
the Participation Agreement.
Tax Indemnity Agreement. The Original Tax Indemnity Agreement
as amended by Amendment No. 1 to the Original Tax Indemnity Agreement, as
from time to time modified, amended or supplemented pursuant to its
applicable provisions.
Term. The Preliminary Term, the Interim Term and the Basic
Term of the lease for the Aircraft under the Lease and, if renewed pursuant
to Section 4.01 of the Lease, each Renewal Term for the Aircraft for which
the Lease is renewed, or such earlier date on which the Lease is terminated
pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term
that is on or after July 2, 2001 in the case of Article 10 of the Lease,
and in the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment
Date falling on July 2, 2011 or July 2, 2013, (ii) Section 4.02(a)(D) or
(E) of the Lease, a Rent Payment Date that is on or after the fifth
anniversary of the Commencement Date and (iii) Section 4.02(a)(F) of the
Lease, July 2, 2015.
Termination Value. As of any Termination Date, the amount
determined by multiplying the Purchase Price by the percentage set forth in
Schedule IV of the Lease under the heading "Termination Value Factor"
opposite such Termination Date (as such Schedule IV may be adjusted from
time to time as provided in Section 3.04 of the Lease). Notwithstanding
any other provisions of the Lease, the Participation Agreement or the
Indenture, each Termination Value shall be, under any circumstances and in
any event, an amount, together with so much of the arrears portion of Basic
Rent due and owing through the date of payment of any amount calculated by
reference to Termination Value as does not constitute an Excepted Payment,
at least sufficient to pay in full as of such date of payment the aggregate
unpaid principal amount of and accrued interest on the Certificates
outstanding on such date of payment. Subject to the immediately preceding
sentence, it is understood and agreed that the amounts set forth on
Schedule IV of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals
and credits of unearned Basic Rent and, accordingly, no further accrual or
credit shall be required whenever Termination Value is to be calculated
with reference to any such date.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code
(which, among other things, recodified the Federal Aviation Act of 1958, as
amended to the time of such recodification), as amended and in effect on
the date of the Lease or as subsequently amended, or any successor or
substituted legislation at the time in effect and applicable, and the
regulations promulgated pursuant thereto.
Treasury Yield. (i) In the case of a Certificate having a
Maturity within one year after the Prepayment Date the average yield to
maturity on a government bond equivalent basis of the applicable United
States Treasury Xxxx due the week of Maturity of such Certificate and (ii)
in the case of a Certificate having a Maturity one year or more after the
Prepayment Date, the average yield of the most actively traded United
States Treasury Note (as reported by Cantor Xxxxxxxxxx Securities Corp. on
page 5 of Telerate Systems, Inc., a financial news service, or if such
report is not available, a source deemed comparable by the Independent
Investment Banker selected to determine the Make-Whole Premium and
reasonably acceptable to the Lessee) corresponding in maturity to the
Remaining Weighted Average Life of such Certificate (or, if there is no
corresponding maturity, an interpolation of maturities by the Independent
Investment Banker), in each case determined by the Independent Investment
Banker selected to determine the Make-Whole Premium based on the average of
the yields to stated maturity determined from the bid prices as of 10:00
a.m. and 2:00 p.m. New York time, on the second Business Day preceding the
Prepayment Date.
Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N661FE), dated as of October 1, 1995, as amended and
restated as of October 26, 1995, between the Owner Participant and the
Owner Trustee in its individual capacity, as from time to time modified,
amended or supplemented pursuant to its applicable provisions and in
accordance with the Operative Agreements.
Trust Indenture Act. The Trust Indenture Act of 1939, as
amended.
Trust Indenture Estate. All estate, right, title and interest
of the Indenture Trustee in and to any of the property, rights, interests
and privileges granted to the Indenture Trustee pursuant to the Granting
Clause of the Indenture, other than Excepted Payments and any and all other
rights of the Owner Trustee or the Owner Participant expressly reserved to
the Owner Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. The several Underwriters named in the
Underwriting Agreement.
Underwriting Agreement. The Underwriting Agreement dated
October 26, 1995 among the Lessee, Xxxxxxx Sachs & Co., X.X. Xxxxxx
Securities Inc. and Xxxxxx Xxxxxxx & Co. Incorporated.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which
there is in force a certificate issued pursuant to Section 41102(a) or
Section 41103 of the Transportation Code, and as to which there is in force
an air carrier operating certificate issued pursuant to Chapter 447 of the
Transportation Code and Part 121 of the regulations under such
Transportation Code, for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, or which may operate as an
air carrier by certification or otherwise under any successor or substitute
provision thereof or in absence thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the
Code.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Japan
Austria Luxembourg
Belgium Malaysia
Brazil Mexico
Canada Netherlands
Denmark New Zealand
Egypt Norway
Finland Philippines
France Portugal
Germany Republic of China
(Taiwan)
Greece
Hong Kong Singapore
Iceland Sweden
India Switzerland
Indonesia Thailand
Ireland United Kingdom
EXHIBIT A(1)(a)
[Letterhead of Federal Express]
[Refunding Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N661FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express Corporation, a
Delaware corporation ("Federal"), and am familiar with the transactions
contemplated by the Participation Agreement (Federal Express Corporation
Trust No. N661FE), dated as of October 1, 1995, as amended and restated as
of October 26, 1995 (the "Participation Agreement"), among Federal, as
Lessee, NationsBank, N.A., as Owner Participant, The Chase Manhattan Bank
(National Association), Bank of America NT & SA, CIBC Inc. and The First
National Bank of Chicago, as Original Loan Participants, NBD Bank, a
Michigan banking corporation, not in its individual capacity, except as
otherwise stated, but solely as Owner Trustee under the Trust Agreement,
The Chase Manhattan Bank (National Association), a national banking
association, not in its individual capacity, except as otherwise stated,
but solely as Indenture Trustee under the Indenture and The Chase Manhattan
Bank (National Association), as Pass Through Trustee, relating to the
Aircraft. This opinion is being delivered pursuant to Section 4.01(l)(i)
of the Participation Agreement. Capitalized terms not otherwise defined
herein have the meaning assigned thereto in the Participation Agreement.
The Participation Agreement provides, among other things, for
the refinancing in full of the Original Loan Certificates evidencing the
Original Loan Participants' participation in the payment of the Purchase
Price of one Airbus A300F4-605R aircraft (the "Aircraft"), using the
proceeds from the public offering of the Pass Through Certificates. Three
Series of Pass Through Certificates will be issued by three Pass Through
Trusts formed to acquire, among other securities, the Certificates bearing
a particular interest rate and having a particular Maturity that will be
issued under the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N661FE) dated as of October 15, 1995, as amended and
restated as of October 26, 1995, as supplemented by the related Indenture
and Security Agreement Supplement ("Indenture"), between the Owner Trustee
and the Indenture Trustee.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision
executed counterparts of the Operative Agreements, the Pass Through
Agreement and each Series Supplement (the "Transaction Agreements"). We
have relied upon originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, documents and other
instruments as in our judgment are relevant to rendering the opinions
expressed below. As to any facts material to the opinions expressed below
(other than any thereof relating to Federal), we have relied upon the
representations and warranties made in the Transaction Agreements, the
accuracy of which we have not independently investigated or verified. In
such examination, we have assumed the genuineness of all signatures (other
than the signatures of Federal) and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. We have also assumed that each of the
parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements
and that each such Transaction Agreement has been duly authorized, executed
and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Original Agreements and the Transaction Agreements to which it is a party.
Federal is duly qualified to do business and is in good standing in the
State of Tennessee and each other state of the United States in which its
operations or the nature of its business requires Federal so to qualify,
except where the failure so to qualify would not have a material adverse
impact on Federal or its business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material
to the operation of the routes flown by it and the conduct of its business
and operations as currently conducted, and each such certificate,
franchise, license, permit, right and concession and consent is in full
force and effect.
3. Each of the Original Agreements and the Transaction
Agreements to which Federal is a party has or had, on the date of execution
thereof, been duly authorized, executed and delivered by Federal and
together constitute the legal, valid and binding obligation of Federal
enforceable against Federal in accordance with its and their terms.
4. Neither the execution and delivery by Federal of the
Original Agreements and the Transaction Agreements to which Federal is a
party, nor the consummation of any of the transactions by Federal
contemplated thereby, nor the performance of the obligations thereunder by
Federal, did at the time of execution and delivery, or does presently (a)
require any stockholder approval or violate the certificate of
incorporation or by-laws of Federal or (b) conflict with or contravene the
provisions of, or constitutes a default under, or result in the creation of
any Lien (other than Liens permitted under Section 6.01(a) of the Lease)
upon the property of Federal under any law, governmental rule or
regulation, or the charter or bylaws of Federal or any order, writ,
injunction or decree of any court or governmental authority against Federal
or by which any of its properties may be bound or any indenture, mortgage,
contract or other agreement known to me to which Federal is a party or by
which it may be bound or, require the approval or consent of any trustee or
the holders of any indebtedness or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Original Agreements and the Transaction Agreements to which it is a party,
nor the consummation of any of the transactions by Federal contemplated
thereby, nor the performance of the obligations thereunder by Federal, did
or does, as the case may be, require the consent or approval of, the giving
of notice to, or (except as described or contemplated in the Participation
Agreement and the Lease, all of which are required to be performed on or
prior to the Refunding Date and which shall have been accomplished on or
prior to the Refunding Date) the registration with, or the taking of any
other action in respect of, the FAA, the Securities and Exchange Commission
or any other authority or agency of the federal government or of the State
of Tennessee other than (a) the registration of the issuance and sale of
the Pass Through Certificates under the Securities Act, (b) compliance with
the securities laws of each applicable state, and (c) the filing of the
Indenture, the Lease and the Trust Agreement with the FAA.
6. There are no pending, or to my knowledge, threatened
actions or proceedings before or by any court or administrative agency
which individually (or in the aggregate in the case of any group of related
lawsuits) (i) is expected to have a material adverse effect on (A) except
for the matters described under "Legal Proceedings" in Federal's Annual
Report on Form 10-K for the fiscal year ended May 31, 1995 (as updated by
Note 7 to the financial statement included in the Lessee's Quarterly Report
on Form 10-Q for the fiscal quarter ended August 31, 1995), as to which I
can express no opinion at this time concerning Federal's liability (if any)
or the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of Federal, the financial condition
of Federal or (B) the ability of Federal to perform its obligations under
the Original Agreements or the Transaction Agreements, or (ii) involves the
Aircraft.
7. Except for the filing and, where appropriate, recording
pursuant to the Transportation Code of the Lease, the Indenture, the Trust
Agreement, the filing of the financing statements referred to in Section
4.01(f) of the Participation Agreement and the taking of possession by the
Indenture Trustee of the original counterpart of the Lease and maintaining
possession of the original counterpart of the Lease Supplement delivered on
the Delivery Date, no further action, including any filing or recording of
any document is necessary or advisable in order to establish and perfect
the Owner Trustee's title to and interest in the Aircraft as against
Federal and any third parties, or to perfect the first security interests
in and mortgage Lien on the Trust Indenture Estate in favor of the
Indenture Trustee in each case with respect to such portion of the Aircraft
as is covered by the recording system established by the Transportation
Code.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
9. On the Delivery Date the Owner Trustee received valid title
to the Aircraft free and clear of all Liens on file with the FAA, except
for Liens permitted under Section 6.01(a) of the Lease. Pursuant to the
Original Participation Agreement the Aircraft was duly delivered to the
Owner Trustee. Federal, as Lessee, duly accepted the Aircraft under the
Original Lease and the Lease Supplement and the Term commenced on the
Delivery Date.
10. Federal's principal place of business and chief executive
office (as such term is defined in the Uniform Commercial Code in effect in
the State of Tennessee) are located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxxxxxx.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Original Agreements and the Transaction Agreements to
which Federal is a party are based upon the assumption for purposes of such
opinions and without independent analysis that, notwithstanding the
respective choice of laws clauses in the Original Agreements and the
Transaction Agreements, the governing law with respect to each of the
Original Agreements and the Transaction Agreements is identical in all
relevant respects to the law of the State of Tennessee. Insofar as the
foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally
(whether such enforceability is considered in a proceeding in equity or at
law). The enforceability of the remedies provided under the Lease may also
be limited by applicable laws which may affect the remedies provided
therein but which do not in my opinion affect the validity of the Lease or
make such remedies inadequate for the practical realization of the benefits
intended to be provided thereby.
I do not express any opinion as to matters governed by any law
other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9 above, I
have relied on the opinion of Xxxxxxxxx, Xxxxxx & Xxxxxxxx of even date
herewith, to the extent such matters are addressed in such counsel's
opinion and subject to the assumptions and qualifications expressed
therein.
This opinion is delivered to you solely for your use in
connection with the transactions described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
I rendered an opinion dated October 25, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. I hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxxx X. Xxxxx
SCHEDULE A
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase ManhattOan Bank (National Association)
0 Xxxxx Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
NationsBank, N.A.
c/o NationsBanc Lease Investments, Inc.
NationsBank Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Underwriters
------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(1)(b)
[Letterhead of Xxxxx Xxxx & Xxxxxxxx]
[Refunding Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N661FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal
Express Corporation Trust No. N661FE), dated as of October 1, 1995, as
amended and restated as of October 26, 1995 (the "Participation
Agreement"), among Federal Express, as Lessee, NationsBank, N.A., as Owner
Participant, The Chase Manhattan Bank (National Association), Bank of
America NT & SA, CIBC Inc. and The First National Bank of Chicago, as the
Original Loan Participants, NBD Bank, a Michigan banking corporation, not
in its individual capacity but solely as Owner Trustee under the Trust
Agreement, The Chase Manhattan Bank (National Association), a national
banking association, not in its individual capacity, except as otherwise
stated, but solely as Indenture Trustee under the Indenture, and The Chase
Manhattan Bank (National Association), as Pass Through Trustee, relating to
the Aircraft. This opinion is being delivered pursuant to Section
4.01(l)(viii) of the Participation Agreement. Capitalized terms not
otherwise defined herein have the meanings assigned thereto in the
Participation Agreement.
Pursuant to the Original Participation Agreement, the Owner
Participant and the Original Loan Participants participated in the payment
of the Purchase Price of one Airbus A300F4-605R Aircraft which was
purchased by the Owner Trustee pursuant to AVSA's FAA Xxxx of Sale and
AVSA's Warranty Xxxx of Sale, subjected to the Lien of the Original
Indenture and leased to Federal Express under the Original Lease. The
Participation Agreement provides, among other things, for the refinancing
of the Original Loan Certificates using the proceeds from the public
offering of the Pass Through Certificates. Three Series of Pass Through
Certificates will be issued by separate Pass Through Trusts, each formed to
acquire, among other securities, the Certificates bearing a particular
interest rate and having a particular Maturity that will be issued under
the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Original Agreements, the Operative
Agreements, the Pass Through Certificates, the Pass Through Agreement and
each Series Supplement. We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as
originals and the conformity with the originals of all documents submitted
to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made
in or pursuant to the Participation Agreement, the Original Participation
Agreement and the other documents referred to therein, the accuracy of
which we have not independently verified. In addition, we have, when
relevant facts were not independently established by us, relied, to the
extent we deemed such reliance proper, upon certificates of public
officials and certificates, telegrams and other written or telephoned
statements of officers of the parties referred to herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft and
the other property included in the Lessor's Estate as may not be covered by
the recording system established by the FAA pursuant to Section 44107 of
the Transportation Code, no filing or recording of any document or other
action was or is necessary in order to establish the Owner Trustee's title
thereto and interest therein as against Federal Express and any third
parties.
2. The Lease creates a valid leasehold interest in the
Aircraft, the entitlement thereof to the benefits of recordation under the
Transportation Code being subject to the due and timely filing and, where
appropriate, recording of (A) the Lease, with the Indenture attached as an
exhibit, (B) the Indenture and (C) the Trust Agreement.
3. The execution, delivery and performance of the Original
Participation Agreement, the Participation Agreement, the Original Trust
Agreement, the Trust Agreement, the Original Indenture, the Indenture, the
Indenture and Security Agreement Supplement, the Original Lease, the Lease
and the Lease Supplement by the Owner Trustee in its individual or trust
capacity, as the case may be, and the issuance, execution, delivery and
performance of the Certificates by the Owner Trustee in its trust capacity
do not violate, and fully comply with, any laws and governmental rules and
regulations of the State of New York that may be applicable to the Owner
Trustee in its individual or trust capacity, as the case may be. The
opinion set forth in this paragraph 3 is rendered without regard to the
effect, if any, on such issuance (in the case of the Certificates),
execution, delivery or performance or the taking of any other action, the
conduct of any other business or the exercise of any other powers by NBD
Bank in its individual or in a trust capacity in the State of New York not
related to the transactions contemplated by the Original Agreements, the
Operative Agreements, the Pass Through Agreement or the Series Supplements.
We have assumed that NBD Bank has made the filings necessary to comply with
Section 131.3 of the Banking Law of the State of New York, however we
express no opinion as to whether NBD Bank is required to comply with said
Section 131.3.
4. (a) Each of the Original Agreements, the Operative
Agreements, the Pass Through Agreement and each of the Series Supplements
to which Federal Express is a party has been duly authorized, executed and
delivered by Federal Express.
(b) The execution, delivery and performance by Federal Express
of each of the Original Agreements and each of the Operative Agreements to
which Federal Express is a party, the Pass Through Agreement and each
Series Supplement do not violate, and fully comply with, any laws and
governmental rules and regulations of the State of New York that may be
applicable to Federal Express. The opinion set forth in this paragraph
4(b) is rendered without regard to the taking of any other action or the
conduct of any other business by Federal Express in the State of New York
other than the transactions contemplated by the Original Agreements, the
Operative Agreements, the Pass Through Agreement or each Series Supplement.
5. Assuming (i) the due authorization, execution and delivery
of the Original Agreements, the Operative Agreements, the Pass Through
Agreement and each Series Supplement by each of the parties to each such
document (other than Federal Express), (ii) that the execution, delivery
and performance by each of the Operative Agreements, the Pass Through
Agreement and each Series Supplement by each of the parties thereto will
not violate the respective parties' constituent documents, (iii) the due
authorization, execution, issue and delivery by the Owner Trustee, and the
due authentication by the Indenture Trustee, of the Certificates to be
issued under the Indenture in accordance with the terms of the Indenture,
(iv) that the Original Loan Certificates are delivered by the Original Loan
Participants to the Indenture Trustee for cancellation and are cancelled,
(v) the due authorization, execution, issuance, delivery and authentication
by the Pass Through Trustee of the Pass Through Certificates to be issued
under the Pass Through Agreement and the Series Supplement relating to such
Pass Through Certificates, in each case in accordance with the terms of the
Pass Through Agreement and such Series Supplement, and (vi) that the form
of each Operative Agreement, the Pass Through Agreement and each Series
Supplement is in compliance with all applicable laws and governmental rules
and regulations (other than Federal laws and the laws of the State of New
York), then: (A) each Operative Agreement, the Pass Through Agreement and
each Series Supplement in form constitutes a legal, valid and binding
agreement of each party thereto enforceable against each such party in
accordance with its terms; (B) the Original Indenture created, and the
Indenture creates, for the benefit of the Holders, the security interest in
the Trust Indenture Estate that they purport to create; (C) the
Certificates, when issued to and acquired by the Pass Through Trustee, will
be legal, valid and binding obligations of the Owner Trustee enforceable
against the Owner Trustee in accordance with their terms and the terms of
the Indenture and will be entitled to the benefits of the Indenture,
including the benefit of the security interest created thereby; (D) the
Pass Through Certificates, when issued to and acquired by the Underwriters
in accordance with the Underwriting Agreement, will be legal, valid and
binding obligations of the Pass Through Trustee enforceable against the
Pass Through Trustee in accordance with their terms and will be entitled to
the benefits of the Pass Through Agreement and the Series Supplement
relating thereto; and (E) the beneficial interest of the Owner Participant
under the Trust Agreement in and to the properties which are part of the
Trust Indenture Estate is subject, to the extent provided in the Indenture,
to the Lien of the Indenture in favor of the Holders. The opinions set
forth in this paragraph 5 are subject to the due filing and recording,
where appropriate, with the FAA of the documents referred to in paragraph 2
above.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee
pledged and mortgaged by it pursuant to the Indenture in and to the
Aircraft and the Lease) have been pledged and mortgaged with the Indenture
Trustee as part of the Trust Indenture Estate (subject to the due filing
and, where appropriate, recording of those documents referred to in
paragraph 2 above and the financing statements referred to in Section
4.01(f) of the Participation Agreement), and the beneficial interests of
the Owner Participant under the Trust Agreement in and to such properties
are subject, to the extent provided in the Indenture, to the Lien of the
Indenture in favor of the Holders of the Certificates issued and to be
issued under the Indenture.
7. The Indenture creates, as security for the Certificates
duly issued and to be issued under the Indenture, the first priority
security interest in the Aircraft it purports to create, the perfection and
rank thereof being subject to the registration with the FAA of the Aircraft
in the name of the Owner Trustee and the due and timely filing and, where
appropriate, recording in accordance with the Transportation Code of the
documents referred to in paragraph 2 above. We express no opinion with
respect to the status of any security interest in any portion of the
Aircraft which does not constitute an "aircraft" or "aircraft engine", as
defined in paragraphs (6) and (7) of Section 40102(a) of the Transportation
Code.
8. Federal Express's participation in the transactions
contemplated by the Operative Agreements, the Pass Through Agreement and
each Series Supplement does not and will not constitute a violation of
Section 7 of the Securities Exchange Act of 1934.
9. It is not necessary, in connection with the creation of the
beneficial interests of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Indenture
Trustee.
The foregoing opinions are subject to the following
qualifications:
(a) To the extent that this opinion relates to matters involving
Federal aviation law, we have relied, with your consent, without
independent investigation and verification and subject to the assumptions
and qualifications contained therein, upon the opinion of Xxxxxxxxx, Xxxxxx
& Xxxxxxxx to be delivered to you and dated the date hereof. We have also
relied, with your consent, on the opinion dated the date hereof of Xxxxxx
X. Xxxxx, Vice President - Law of the Lessee, for purposes of the matters
stated in paragraphs 4(a) and as to all matters of Tennessee law.
(b) We are qualified to practice law in the State of New York, and
we do not purport to be experts on, or to express any opinion herein
concerning, any laws other than the laws of the State of New York, the laws
of the United States and the General Corporation Law of the State of
Delaware.
(c) The opinion contained in paragraph 5 above as to enforceability
is subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity which may affect the
remedies provided in the agreements referred to in said opinions, which
laws and principles, however, do not in our opinion make the remedies
provided in said agreements inadequate for the practical realization of the
benefits of the security intended to be provided thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other Person
without our prior written consent.
(e) We rendered an opinion dated October 25, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxx Xxxx & Xxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
NationsBank, N.A.
c/o NationsBanc Lease Investments, Inc.
NationsBank Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Underwriters
------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(2)(a)
[Letterhead of Xxxxxx, Xxxxx & Xxxxxxx]
[Refunding Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N661FE
Ladies and Gentlemen:
We have acted as special counsel for NationsBank, N.A., a
national banking association (the "Owner Participant"), in connection with
the transactions contemplated by (i) the Participation Agreement, dated as
of October 1, 1995, as amended and restated as of October 26, 1995 (the
"Participation Agreement"), among Federal Express Corporation, as Lessee
(the "Lessee"), the Owner Participant, The Chase Manhattan Bank (National
Association), Bank of America NT & SA, CIBC Inc. and The First National
Bank of Chicago, as the Original Loan Participants (the "Original Loan
Participants"), NBD Bank, a Michigan banking corporation, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement
(the "Owner Trustee"), The Chase Manhattan Bank (National Association), a
national banking association, not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee under the Indenture (the
"Indenture Trustee"), and The Chase Manhattan Bank (National Association),
as Pass Through Trustee, (ii) the Trust Agreement, dated as of October 1,
1995, as amended and restated as of October 26, 1995 (the "Trust
Agreement"), by and between the Owner Participant and the Owner Trustee and
(iii) the Tax Indemnity Agreement, dated as of October 15, 1995, as amended
by Amendment No. 1 thereto dated as of October 26, 1995 (the "Tax Indemnity
Agreement"), by and between the Owner Participant and the Lessee. This
opinion is delivered pursuant to Section 4.01(l)(ii) of the Participation
Agreement. Unless otherwise defined herein, all capitalized terms used
herein shall have the respective defined meanings set forth in the
Participation Agreement.
In connection with our opinions herein, we have examined
executed counterparts of (i) the Original Participation Agreement, the
Original Trust Agreement and the Original Tax Indemnity Agreement
(collectively, the "Original Owner Participant Documents") and (ii) the
Participation Agreement, the Trust Agreement and the Tax Indemnity
Agreement (collectively, the "Owner Participant Documents"). We have
further examined and relied upon the accuracy of original, certified,
conformed, photographic or telecopied copies of such records, agreements,
certificates, instruments and other documents as we have deemed necessary
or appropriate to enable us to render the opinions expressed herein. In
all such examinations, we have assumed the genuineness of signatures on
original documents, the authenticity of all documents submitted to us as
originals and the conformity to such original documents of all copies
submitted to us as certified, conformed, photographic or telecopied copies
and the authenticity of such latter documents, and as to certificates and
telegraphic and telephonic confirmations given by public officials, we have
assumed the same to have been properly given and to be accurate. As to
various questions of fact material to our opinions, we have relied solely
upon the accuracy of the statements, representations and warranties made in
the Original Owner Participant Documents and the Owner Participant
Documents, and we have made no independent investigation or inquiry with
respect to such factual matters.
With your consent, and for purposes of this opinion, we have
assumed the accuracy of the following matters, but we have not made any
independent investigation or inquiry with respect thereto and we render no
opinion on such matters:
(a) That the execution and delivery and performance of each of the
Original Owner Participant Documents and the Owner Participant Documents by
each of the parties thereto did not or will not, as the case may be,
violate the respective parties' constituent documents.
(b) That each of the parties to the Original Owner Participant
Documents and the Owner Participant Documents had or has, as the case may
be, full power, authority and legal right to enter into and perform its
respective obligations under the Original Owner Participant Documents and
the Owner Participant Documents to which it is a party.
(c) The Original Owner Participant Documents and the Owner
Participant Documents, at the time of execution and delivery by the Owner
Participant, were or will have been, as the case may be, duly authorized
and validly executed and delivered by all parties thereto (other than the
Owner Participant) and constituted or will constitute, as the case may be,
the legal, valid and binding obligations of such parties, enforceable
against such parties in accordance with their terms.
(d) The parties to the Original Owner Participant Documents and the
Owner Participant Documents (other than the Owner Participant, as to which
we have not assumed the acquisition of all consents, permits and approvals
under New York law) at the time of execution and delivery by the Owner
Participant, obtained or have obtained, as the case may be, and there were
or are, as the case may be, in full force and effect at such time, any and
all required consents, permits and approvals required by or from any and
all federal, state, local or foreign governmental agencies and authorities
in connection with the transactions contemplated thereby, to the extent
necessary for the legality, validity, binding effect or enforceability of
the Original Owner Participant Documents and the Owner Participant
Documents.
We have been retained as special counsel to the Owner
Participant in connection with the transactions contemplated by the
Participation Agreement, and have not generally represented the Owner
Participant in its business activities and are not familiar with the nature
and extent of such other activities. Accordingly, we also have assumed
without investigation that such other activities are not of such a nature
as to cause the transactions contemplated by the Participation Agreement to
be governed by laws or regulations of the State of New York or the United
States of America applicable only because of such other activities (such as
laws relating specifically to the banking, securities, insurance or utility
industries) and not applicable to business corporations generally.
Based upon the foregoing, we are of the opinion that:
(1) The Original Owner Participant Documents on the date of execution
thereof constituted, and the Owner Participant Documents constitute legal,
valid and binding obligations of the Owner Participant, enforceable against
the Owner Participant in accordance with their respective terms, except as
the enforceability thereof may be limited by (a) applicable bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors', mortgagees' and lessors'
rights generally, (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity) and
(c) with respect to the indemnification provisions set forth in the
Original Owner Participant Documents and the Owner Participant Documents,
considerations of public policy.
(2) Neither the execution and delivery of the Original Owner Participant
Documents and the Owner Participant Documents by the Owner Participant nor
the consummation by the Owner Participant of any of the transactions
therein contemplated, or the fulfillment of, or compliance with, the terms
and provisions of any thereof, (A) required or requires, as the case may
be, for its validity that the Owner Participant obtain the consent or
approval of, give notice to, register with, or take any other action with
respect to, any governmental authority or agency of the State of New York
or the Federal government of the United States, or (B) contravened or
contravenes any law, governmental rule or regulation of the State of New
York or the Federal government of the United States or any governmental
authority or agency thereof.
In rendering the foregoing opinions, we have relied, with your
consent, on the opinion of even date herewith of Xxxxx X. Xxxxxxxx,
Assistant General Counsel of NationsBank Corporation, as to the matters set
forth therein (i) that are governed by the laws of the State of New York,
and (ii) relating to the due authorization, execution and delivery of the
Original Owner Participant Documents and the Owner Participant Documents by
the Owner Participant under the laws of the United States of America, and
our opinions are subject to the same limitations and exceptions as set
forth therein.
The foregoing opinions are subject, however, to the
qualification that we express no opinion as to matters relating to the
title to or sufficiency of description of any property or collateral
described in the Original Owner Participant Documents and the Owner
Participant Documents or the perfection or relative priority of any lien or
security interest created with respect to such property or collateral
thereunder. In addition, we express no opinion as to matters governed by
(i) any tax laws, (ii) the Transportation Code, or by any other laws,
statutes, rules or regulations of the United States particularly relating
to the acquisition, ownership, registration, leasing, use or sale of the
Aircraft, the Airframe or the Engines other than such laws relating to
personal property generally, (iii) any securities laws and (iv) laws
pertaining to the Owner Participant solely because of the business
activities of the Owner Participant and not applicable to business
corporations generally.
We are licensed to practice law in the State of New York and we
express no opinions herein as to the laws of any state or jurisdiction
other than the laws of the State of New York and the laws of the United
States of America.
This opinion is furnished by us at your request and at the
Owner Participant's request for your sole benefit, and we agree that you
and your successors and permitted assigns may rely on the opinions
expressed herein. No other Person or entity shall be entitled to rely on
the opinions expressed herein without our express written consent. This
opinion shall not be published or reproduced in any manner or distributed
or circulated to any person or entity without our express written consent;
provided that no such consent shall be necessary for the reproduction,
circulation or distribution of this opinion to (i) the special counsel,
auditors or public accountants of the persons named on Schedule A hereto or
(ii) bank examiners or similar regulatory authorities. Our opinion is
limited to the matters stated herein, and no opinion is implied or may be
inferred beyond the matters expressly stated herein.
We rendered an opinion dated October 25, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxxx, Xxxxx & Bockius
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
NationsBank, N.A.
c/o NationsBanc Lease Investments, Inc.
NationsBank Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Underwriters
------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(2)(b)
[Letterhead of NationsBank Corporation]
[Refunding Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N661FE
Ladies and Gentlemen:
I have acted as counsel to NationsBank, N.A., a national
banking association (the "Owner Participant"), and in that capacity have
acted as counsel to the Owner Participant in connection with the
transactions contemplated by (i) the Participation Agreement, dated as of
October 1, 1995, as amended and restated as of October 26, 1995 (the
"Participation Agreement"), among Federal Express Corporation, as Lessee
(the "Lessee"), the Owner Participant, The Chase Manhattan Bank (National
Association), Bank of America NT & SA, CIBC Inc. and The First National
Bank of Chicago, as the Original Loan Participants (the "Original Loan
Participants"), NBD Bank, a Michigan banking corporation, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement
(the "Owner Trustee"), The Chase Manhattan Bank (National Association), a
national banking association, not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee under the Indenture (the
"Indenture Trustee"), and The Chase Manhattan Bank (National Association),
as Pass Through Trustee (the "Pass Through Trustee), (ii) the Trust
Agreement, dated as of October 1, 1995, as amended and restated as of
October 26, 1995 (the "Trust Agreement"), by and between the Owner
Participant and the Owner Trustee and (iii) the Tax Indemnity Agreement,
dated as of October 15, 1995, as amended by Amendment No. 1 thereto (the
"Tax Indemnity Agreement"), by and between the Owner Participant and the
Lessee. This opinion is delivered pursuant to Section 4.01(l)(ii) of the
Participation Agreement. Unless otherwise defined herein, all capitalized
terms used herein shall have the respective defined meanings set forth in
the Participation Agreement.
For purposes of the opinions expressed below, I have examined
executed counterparts or copies of the Original Participation Agreement,
the Original Trust Agreement, the Original Tax Indemnity Agreement, the
Participation Agreement, the Trust Agreement and the Tax Indemnity
Agreement (collectively, the "Owner Participant Documents"), I have further
examined and relied upon the accuracy of original, certified, conformed,
photographic or telecopied copies of such records, agreements, certificates
and other documents as we have deemed necessary or appropriate to enable us
to render the opinions expressed herein. In all such examinations, I have
assumed the genuineness of signatures on original documents and the
conformity to such original documents of all copies submitted to me as
certified, conformed, photographic or telecopied copies, and as to
certificates and telegraphic and telephonic confirmations given by public
officials, I have assumed the same to have been properly given and to be
accurate. As to various questions of fact material to my opinions, I have
relied solely upon the accuracy of the statements, representations and
warranties made in the Participation Agreement, the Trust Agreement and the
Tax Indemnity Agreement. I have assumed, except with regard to the Owner
Participant, that the Participation Agreement, the Trust Agreement and the
Tax Indemnity Agreement have been duly authorized, executed and delivered
by the respective parties thereto and that they constitute the legal, valid
and binding obligations of each party thereto enforceable against each such
party in accordance with their respective terms.
Based upon the foregoing and such other information as I have
deemed necessary for purposes hereof, and subject to the assumptions,
qualifications and reliance's set forth herein, I am of the opinion that:
1. The Owner Participant is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America and has the full corporate power, authority and
legal right to carry on its present business and operations, to own or
lease its Properties and enter into and to carry out the transactions
contemplated by each of the Owner Participant Documents.
2. The Owner Participant has duly authorized, executed and delivered
each of the Owner Participant Documents.
2. None of the execution, delivery or performance by the Owner
Participant of the Owner Participant Documents, nor the compliance with the
terms and provisions thereof by the Owner Participant did not or does not,
as the case may be, (a) required or require, as the case may be, the
consent or approval of, the giving of notice to, the registration with, the
recording or filing of any document with or the taking or any other action
with respect to any governmental authority or agency of the State of North
Carolina or of the federal government of the United States; or (b) violated
or violate, as the case may be, any law, governmental rule or regulation of
the State of North Carolina or of the federal government of the United
States or any governmental authority or agency thereof; or (c) resulted or
result, as the case may be, in the breach of any of the terms, conditions
or provisions of the Articles of Association or By-Laws of the Owner
Participant; or (d) to the best of my knowledge, conflicted or conflict, as
the case may be, with any judgment or order applicable to or binding upon
the Owner Participant or its properties, or violated or violate, as the
case may be, or (except as contemplated by the Owner Participant Documents)
subject the Trust Estate to any lien under any indenture, mortgage, bank
credit agreement, note or bond purchase agreement, long-term lease, license
or contract or any other agreement or instrument to which the Owner
Participant is a party or by which the Owner Participant is bound.
4. There are no actions, suits, investigations or proceedings
pending or, to the best of my knowledge, threatened against or affecting
the Owner Participant or any of its properties in any court or before any
administrative agency or arbitrator, which, if adversely determined, would
materially adversely affect the ability of the Owner Participant to perform
its obligations under any of the Owner Participant Documents, and there are
no pending or, to the best of my knowledge, threatened actions or
proceedings before any court, administrative agency or tribunal involving
the Owner Participant in connection with the transactions contemplated by
any of the Owner Participant Documents.
I am authorized to practice law in the State of North Carolina
and do not hold myself out as an expert on the law of any state other than
the State of North Carolina. Consequently, the foregoing opinions are
limited to the federal laws of the United States of America and the laws of
the State of Carolina, and I express no opinion as to the laws of any other
state or jurisdiction. Further, I have made no investigation and express
no opinion, as to any aviation law or other laws, statutes, rules or
regulations applicable due to the particular nature of the equipment
subject to the Lease, and I express no opinion as to any tax or securities
laws.
This opinion is furnished by me at your request for your sole
benefit, and I agree that you and your successors and permitted assigns may
rely on the opinions expressed herein.
This opinion is furnished by me as counsel to the Owner
Participant for your sole benefit and for the benefit of your successors
and assigns and no other person or entity shall rely on this opinion
without my express written consent. This opinion shall not be published or
reproduced in any manner or distributed or circulated to any person or
entity without my express written consent; provided that no such consent
shall be necessary for the reproduction, circulation or distribution of
this opinion to (i) the special counsel, auditors or public accountants of
the persons named on Schedule A hereto or (ii) bank examiners or similar
regulatory authorities. My opinion is limited to the matters stated
herein, and no opinion is implied or may be inferred beyond the matters
expressly stated herein. My opinion is limited to the matters stated
herein, and no opinion is implied or may be inferred beyond the matters
expressly stated herein.
We rendered an opinion dated October 25, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxx X. Xxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
NationsBank, N.A.
c/o NationsBanc Lease Investments, Inc.
NationsBank Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Underwriters
------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(3)(a)
[Letterhead of Xxxxx Xxxxxxxxxx]
[Refunding Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N661FE
Ladies and Gentlemen:
We have acted as special counsel to The Chase Manhattan Bank
(National Association), a national banking association (the "Indenture
Trustee"), in connection with the transactions contemplated by (i) the
Trust Indenture, Mortgage and Security Agreement (Federal Express
Corporation Trust No. N661FE) dated as of October 15, 1995 (the "Original
Indenture") between NBD Bank (the "Owner Trustee") and the Indenture
Trustee, (ii) the Participation Agreement (Federal Express Corporation
Trust No. N661FE) dated as of October 1, 1995 (the "Original Participation
Agreement") among Federal Express Corporation ("Federal Express"),
NationsBank, N.A., as Owner Participant (the "Owner Participant"), The
Chase Manhattan Bank (National Association), Bank of America NT & SA, CIBC
Inc. and The First National Bank of Chicago, as Original Loan Participants
(the "Original Loan Participants"), the Owner Trustee and the Indenture
Trustee, (iii) the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N661FE) dated as of October 15, 1995, as amended and
restated as of October 26, 1995 (as amended and restated, the "Indenture")
between the Owner Trustee and the Indenture Trustee, and (iv) the
Participation Agreement (Federal Express Corporation Trust No. N661FE)
dated as of October 1, 1995, as amended and restated as of October 26, 1995
(as amended and restated, the "Participation Agreement") among Federal
Express, the Owner Participant, the Original Loan Participants, the Owner
Trustee, the Indenture Trustee, and The Chase Manhattan Bank (National
Association), as Pass Through Trustee. Further, we have advised the
Indenture Trustee with respect to the authentication of one or more
equipment trust certificates (the "Certificates") referred to in the
Indenture issued on the date hereof.
This opinion is being delivered pursuant to Section
4.01(l)(iii) of the Participation Agreement. Capitalized terms used herein
and not otherwise defined herein shall have the respective meanings set
forth or referred to in the Participation Agreement. Additionally, The
Chase Manhattan Bank (National Association), in its capacity as Agent and
as an Original Loan Participant, is sometimes referred to herein as the
"New York Loan Participant". We have not served as counsel for or advised
the New York Loan Participant in connection with the transactions
contemplated by the Participation Agreement, the Indenture or any of the
other Operative Agreements and references herein to the Indenture Trustee,
in its individual capacity, exclude The Chase Manhattan Bank (National
Association) in its capacity as the New York Loan Participant.
In connection with the opinions expressed herein, we have
reviewed executed counterparts of the Operative Agreements and the Original
Agreements to which the Indenture Trustee is a party (which we previously
reviewed). We have also examined and relied upon the accuracy of the
originals or certified, conformed, photocopied or telecopied copies of such
corporate records, certificates, instruments and other documents as we have
deemed necessary or appropriate to enable us to render the opinions
expressed herein. In all such examinations, we have assumed the
genuineness of signatures on original documents and the conformity to such
original documents of all copies submitted to us as certified, conformed,
photocopied or telecopied copies, and as to certificates and telegraphic
and telephonic confirmations given by public officials, we have assumed the
same to have been properly given and to be accurate. As to all matters of
fact material to our opinions, we have, when relevant facts were not
independently established, relied upon representations and warranties
contained in the Operative Agreements and upon the statements and
certificates furnished to us.
Based upon and subject to the foregoing and the qualifications
hereinafter set forth, we are of the opinion that:
1. The Indenture Trustee is a national banking association duly
organized and validly existing in good standing under the laws of the
United States of America holding a valid certificate to do business as a
national banking association, with banking and trust powers, and has the
corporate power and authority to execute, deliver and perform its
obligations under the Indenture, the Participation Agreement and the other
Operative Agreements to which it is or is to be a party, and to
authenticate the Certificates to be delivered on the date hereof and had on
the date of execution thereof the corporate power and authority to execute,
deliver and perform its obligations under the Original Indenture, the
Original Participation Agreement and the other Original Agreements to which
it was a party.
2. The Indenture Trustee, in its individual and trust capacities,
has duly authorized, executed and delivered the Indenture, the
Participation Agreement and each of the other Operative Agreements to which
it is a party and as of the date of execution thereof had duly authorized,
executed and delivered the Original Indenture, the Original Participation
Agreement and each of the other Original Agreements to which it was a
party.
3. Each of the Indenture, the Participation Agreement and the other
Operative Agreements to which it is a party constitutes, and on the date of
execution thereof, the Original Indenture, the Original Participation
Agreement and the other Original Agreements to which it was a party
constituted, a legal, valid and binding obligation of the Indenture Trustee
in its trust capacity (and, to the extent provided in each such document,
in its individual capacity) enforceable against the Indenture Trustee in
its trust capacity (and, to the extent provided in each such document, in
its individual capacity) in accordance with its terms thereof, except as
the enforceability thereof may be limited by (a) general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law), (b) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and (c) public policy considerations (in the case of
the indemnity provisions contained therein).
4. The Certificates delivered on the date hereof have been duly
authenticated and delivered by the Indenture Trustee in accordance with the
terms of the Indenture.
5. The execution, delivery, and performance by the Indenture Trustee
of the Indenture, the Participation Agreement and each of the other
Operative Agreements to which it is a party are not in violation of the
Articles of Association or By-laws of the Indenture Trustee or any law,
governmental rule or regulation of the United States of America or the
State of New York governing the banking or trust powers of the Indenture
Trustee. The execution, delivery, and performance by the Indenture Trustee
of the Original Indenture, the Original Participation Agreement and each of
the other Original Agreements to which it was a party were not on the date
of execution thereof in violation of the Articles of Association or By-laws
of the Indenture Trustee or any law, governmental rule or regulation of the
United States of America or the State of New York governing the banking or
trust powers of the Indenture Trustee.
6. Neither the execution and delivery by the Indenture Trustee, in
its individual or trust capacity, as the case may be, of the Original
Indenture, the Indenture, the Original Participation Agreement, the
Participation Agreement or any of the other Operative Agreements or
Original Agreements to which it is or was, as the case may be, a party, nor
the consummation by the Indenture Trustee, in its individual or trust
capacity, as the case may be, of any of the transactions contemplated in
the Indenture or the Participation Agreement requires, or required on the
date of execution thereof in the case of the Original Indenture and the
Original Participation Agreement, consent or approval of, giving of notice
to, or registration with, or taking of any other action with respect to,
any federal or state governmental authority or agency having jurisdiction
over the Indenture Trustee.
7. There are no fees, taxes or other governmental charges payable by
the Certificate Holders, the Owner Trustee, the Indenture Trustee (except
taxes imposed on fees payable to the Indenture Trustee) to the State of New
York or any political subdivision thereof in connection with the execution,
delivery or performance of any of the Operative Agreements or in connection
with the issuance and acquisition of the Certificates issued to the
Certificate Holders or the beneficial interests of the Certificate Holders
in the Trust Indenture Estate. Neither the Indenture Trustee nor the trust
created under the Indenture will be subject to any fee, tax or other
governmental charge under the laws of the State of New York or any
political subdivision thereof in existence on the date hereof, on, based on
or measured by, directly or indirectly, the gross receipts, net income or
value of the Trust Indenture Estate. There is no fee, tax or other
governmental charge (other than as such as may be imposed upon the New York
Loan Participant) under the laws of the State of New York or any political
subdivision thereof in existence on the date hereof, on, based on or
measured by any payments under the Certificates issued to the Certificate
Holders by reason of the creation of the trust under the Indenture pursuant
to the laws of the State of New York or the Indenture Trustee's performance
of its duties under the Indenture within the State of New York. We express
no opinion, however, as to whether or not any fees, taxes or other charges
are now or hereafter may be payable by the Original Loan Participants, the
Owner Participant or the New York Loan Participant to the State of New York
or any political subdivision thereof in connection with (x) the execution,
delivery or performance by any of the Indenture, the Participation
Agreement or any of the other Operative Agreements, (y) the making by the
Owner Participant of its investment in the Aircraft, (z) with respect to
the New York Loan Participant, the issuance and ownership of the Original
Loan Certificates issued to the New York Loan Participant.
We express no opinion as to the laws of any jurisdiction other
than the laws of the State of New York and the federal laws of the United
States of America. In addition, we express no opinion herein as to (i) any
federal or state securities laws, (ii) any tax laws, (iii) any aviation
laws including, without limitation, the Transportation Code, (iv) any laws,
statutes, rules or regulations applicable to the particular nature of the
equipment acquired or to be acquired by the Owner Trustee, or (v) ERISA or
any other pension and employee benefit laws, rules or regulations. In
addition, we express no opinion as to the right, title or interest in or to
the Trust Estate on the part of any Person. We also express no opinion as
to the perfection or priority of any security interest created by any of
the Operative Agreements.
In rendering the opinions expressed herein, we have assumed
that (a) each of the Indenture, the Participation Agreement and the other
Operative Agreements has been duly authorized, executed and delivered by
the respective parties thereto (other than the Indenture Trustee) and
constitutes and on the date of execution thereof, the Original Indenture
and the Original Participation Agreement constituted, a legal, valid and
binding obligation of each of such parties (other than the Indenture
Trustee), enforceable against each of such parties in accordance with the
terms thereof, (b) each of such parties (other than the Indenture Trustee)
has the requisite power, authority and legal right to enter into and
perform its respective obligations under the Indenture, the Participation
Agreement and each of the other Operative Agreements to which it is a party
and (c) the transactions provided for in the Operative Agreements are not
within the prohibitions of Section 406 of ERISA or Section 4975 of the
Internal Revenue Code of 1986, as amended.
This opinion is furnished by us for the sole benefit of the
addressees hereof, each of whom we understand and agree may rely upon the
opinions set forth herein. No other person or entity is entitled to rely
on this opinion without our express written consent. This opinion is
limited to the matters stated herein and no opinion is implied or may be
inferred beyond the matters expressly stated herein.
We rendered an opinion dated October 25, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxx Xxxxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
NationsBank, N.A.
c/o NationsBanc Lease Investments, Inc.
NationsBank Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Underwriters
------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(3)(b)
[Letterhead of The Chase Manhattan Bank, N.A.]
[Refunding Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N661FE
Ladies and Gentlemen:
As Vice President and Senior Associate Counsel to The Chase
Manhattan Bank (National Association), a national banking association (the
"Indenture Trustee"), I advise you as follows with respect to the
authorization, execution and delivery by the Indenture Trustee of (i) the
Trust Indenture, Mortgage and Security Agreement (Federal Express
Corporation Trust No. N661FE) dated as of October 15, 1995 (the "Original
Indenture") between NBD Bank (the "Owner Trustee") and the Indenture
Trustee, (ii) the Participation Agreement (Federal Express Corporation
Trust No. N661FE) dated as of October 1, 1995 (the "Original Participation
Agreement") among Federal Express Corporation ("Federal Express"),
NationsBank, N.A., as Owner Participant (the "Owner Participant"), The
Chase Manhattan Bank (National Association), Bank of America NT & SA, CIBC
Inc. and The First National Bank of Chicago, as Original Loan Participants
(the "Original Loan Participants"), the Owner Trustee and the Indenture
Trustee, (iii) the Trust Indenture and Security Agreement (Federal Express
Corporation Trust No. N661FE) dated as of October 15, 1995, as amended and
restated as of October 26, 1995 (as amended and restated, the "Indenture")
between the Owner Trustee and the Indenture Trustee, and (iv) the
Participation Agreement (Federal Express Corporation Trust No. N661FE)
dated as of October 1, 1995, as amended and restated as of October 26, 1995
(as amended and restated, the "Participation Agreement") among Federal
Express, the Owner Participant, the Original Loan Participants, the Owner
Trustee, the Indenture Trustee, and The Chase Manhattan Bank (National
Association), as Pass Through Trustee. Further, we have advised the
Indenture Trustee with respect to the authentication of one or more
equipment trust certificates (the "Certificates") referred to in the
Indenture issued on the date hereof.
Unless otherwise defined herein, capitalized terms used herein
shall have the respective meanings attributed thereto in the Participation
Agreement. The Chase Manhattan Bank (National Association), in its
capacity as Agent and as a Loan Participant, is sometimes referred to
herein as the "New York Loan Participant". I have not served as counsel
for or advised the New York Loan Participant in connection with the
transactions contemplated by the Participation Agreement, the Indenture or
any of the other Operative Agreements and references herein to the
Indenture Trustee, in its individual capacity, exclude The Chase Manhattan
Bank (National Association) in its capacity as the New York Loan
Participant.
I have reviewed executed counterparts of the Operative
Agreements and the Original Agreements to which the Indenture Trustee is a
party (which we previously reviewed). I have also examined the originals,
or certified, conformed, photocopied or telecopied copies of such corporate
records, certificates, instruments and other documents as I have deemed
necessary to appropriate to enable me to render the opinions expressed
herein, including, without limitation, certified copies of the By-laws of
the Indenture Trustee, a certificate of the secretary of the Indenture
Trustee as to certain matters, including the incumbency of the officer of
the Indenture Trustee who executed the Indenture and the Participation
Agreement and who authenticated the Certificates and a certificate of the
Comptroller of the Currency, Washington, D.C., dated September 23, 1965, as
to the Indenture Trustee's existence and authority to do business as a
national banking association and to act in a fiduciary capacity.
In all such examinations, I have assumed the genuineness of
signatures on original documents (other than those of the Indenture
Trustee) and the conformity to such original documents of all copies
submitted to me as certified, conformed, photocopied or telecopied copies,
and as to certificates and telegraphic and telephonic confirmations given
by public officials, I have assumed the same to have been properly given
and to be accurate. As to all matters of fact material to my opinions, I
have, when relevant facts were not independently established, relied upon
statements, representations and warranties contained in the Operative
Agreements and upon the statements and certificates furnished to me.
A. Based upon the foregoing and subject to the limitations
expressed in paragraph B below, I am of the opinion that: (i) the
execution, delivery and performance by the Indenture Trustee of the
Indenture, the Participation Agreement and each of the other Operative
Agreements to which it is a party are not, to my knowledge, in violation of
any judgment, order, indenture, mortgage, bank credit agreement, note or
bond purchase agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it or its properties may be
bound and (ii) the execution, delivery and performance by the Indenture
Trustee of the Original Indenture, the Original Participation Agreement and
each of the other Original Agreements to which it was a party were not on
the date of execution thereof, to my knowledge, in violation of any
judgment, order, indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it or its properties may be
bound.
B. I am qualified to practice law in the State of New York and
I express no opinion as to any laws other than the laws of the State of New
York and the federal laws of the United States of America. Further,
without limiting the generality of the foregoing, I express no opinion with
respect to (i) the citizenship of the Indenture Trustee, the Transportation
Code and the regulations promulgated thereunder, the impact of the
Transportation Code upon matters set forth in this opinion or any other
aviation or other laws, rules or regulations applicable to the particular
nature of the equipment to be acquired by the Owner Trustee; (ii) federal
securities laws, including, without limitation, the Securities Act of 1933,
as amended, and the Trust Indenture Act of 1939, as amended, or state
securities or blue sky laws; (iii) title to any property, real or personal
or the priority or perfection of any liens or security interests; (iv) the
authority or power of the Indenture Trustee under the laws of any
jurisdiction other than New York or federal laws of the United States of
America to exercise any rights or remedies set forth in the Operative
Agreements or to perform any duties or obligations on its part to be
performed other than those that can be performed in the State of New York;
or (v) ERISA.
This opinion is being furnished only to the parties to whom
this opinion is addressed and is solely for their benefit, and no other
person or entity shall be entitled to rely on this opinion without my
express prior written consent. This opinion may not be used, circulated,
quoted, published or otherwise referred to for any purpose without my
express prior written consent. This opinion is limited to the matters
stated herein, and no opinion is implied or may be inferred beyond the
opinions expressly stated herein.
We rendered an opinion dated October 25, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Xxxxxxx Xx Xxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
NationsBank, N.A.
c/o NationsBanc Lease Investments, Inc.
NationsBank Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Underwriters
------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(4)
[Letterhead of Xxxxxxxxx, Xxxxxx & Xxxxxxxx]
[Refunding Date]
To the Parties Named on Schedule A attached hereto
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.01(l)(iv) of the Participation Agreement (Federal Express Corporation
Trust No. N661FE), dated as of October 1, 1995, as amended and restated as
of October 26, 1995 (the "Participation Agreement") among Federal Express
Corporation, as Lessee (the "Lessee"), NationsBank, N.A., as Owner
Participant (the "Owner Participant"), The Chase Manhattan Bank (National
Association), Bank of America NT & SA, CIBC Inc. and The First National
Bank of Chicago, as the Original Loan Participants (the "Original Loan
Participants"), NBD Bank, not in its individual capacity but solely as
Owner Trustee (the "Owner Trustee"), The Chase Manhattan Bank (National
Association), as Indenture Trustee (the "Indenture Trustee") and The Chase
Manhattan Bank (National Association), as Pass Through Trustee, with
respect to that portion of Subtitle VII of Title 49 of the United States
Code relative to the recordation of instruments and the registration of
aircraft thereunder.
The capitalized terms herein shall, unless otherwise defined,
have the same meanings given them in the Participation Agreement or in
Annex I attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at
the respective times listed below:
(a) Trust Agreement (Federal Express Corporation Trust No. N661FE)
dated as of October 1, 1995, as amended and restated as of October
26, 1995 (the "Trust Agreement") between the Owner Participant and
the Owner Trustee, which Trust Agreement amends and restates the
Original Trust Agreement, which Trust Agreement was filed at ____
_.m., C.D.T.;
(b) Trust Indenture and Security Agreement (Federal Express Corporation
Trust No. N661FE) dated as of October 15, 1995, as amended and
restated as of October 26, 1995 and executed on October __, 1995
(the "Indenture") between the Owner Trustee and the Indenture
Trustee, which Indenture amends and restates the Original Indenture,
which Indenture was filed at ____ _.m., C.D.T.; and,
(c) Lease Agreement (Federal Express Corporation Trust No. N661FE)
dated as of October 15, 1995, as amended and restated as of
October 26, 1995 (the "Lease") between the Owner Trustee, as
lessor, and the Lessee, as lessee, which Lease amends and restates
the Original Lease, with the Indenture attached thereto, which Lease
with the Indenture attached thereto was filed at ____ _.m., C.D.T.
The Confidential Omissions were intentionally omitted from the FAA
filing counterparts of the Lease and the Indenture, as containing
confidential financial information.
Based upon our examination of the above described instruments and of
such records of the FAA as we deemed necessary to render this opinion, it
is our opinion that:
1. AC Form 8050-2 Aircraft Xxxx of Sale dated October 25, 1995 (the
"FAA Xxxx of Sale") from AVSA S.A.R.L., as seller, conveying title to the
Airframe to the Owner Trustee has been duly recorded by the FAA on October
25, 1995 and assigned Conveyance No. ________;
2. the Indenture and the Lease with the Indenture attached are in due
form for recordation by and have been duly filed for recordation with the
FAA pursuant to and in accordance with the provisions of 49 U.S.C. Section
44107;
3. the Trust Agreement is in due form for filing and has been duly
filed with the FAA pursuant to and in accordance with the provisions of 49
U.S.C. Section 44103(a);
4. the Original Trust Agreement was duly filed with the FAA on
October 25, 1995 pursuant to and in accordance with the provisions of 49
U.S.C. Section 44103(a);
5. the Original Indenture with the Indenture and Security Agreement
Supplement attached has been duly filed with and duly recorded by the FAA
pursuant to and in accordance with the provisions of 49 U.S.C. Section
44107;
6. the Original Lease with the Lease Supplement, the Original
Indenture and the Indenture and Security Agreement Supplement attached was
duly filed with and duly recorded by the FAA pursuant to and in accordance
with the provisions of 49 U.S.C. Section 44107;
7. the Airframe is duly registered in the name of the Owner Trustee
pursuant to and in accordance with the provisions of 49 U.S.C. Section
44103(a);
8. the Owner Trustee has valid legal title to the Airframe and the
Aircraft is free and clear of all Liens, except (i) the security interest
created by the Original Indenture, as amended and restated by the
Indenture, as supplemented by the Indenture and Security Agreement
Supplement, and (ii) the rights of the parties under the Original Lease, as
amended and restated by the Lease, as supplemented by the Lease Supplement;
9. the Original Indenture, as amended and restated by the Indenture,
as supplemented by the Indenture and Security Agreement Supplement,
constitutes a duly perfected first priority security interest in the
Aircraft and a duly perfected first assignment of all the right, title and
interest of the Owner Trustee in, to and under the Original Lease, as
amended and restated by the Lease, as supplemented by the Lease Supplement
(insofar as such assignment affects an interest covered by the recording
system established by the FAA pursuant to 49 U.S.C. Section 44107), and no
other registration of the Airframe or filings other than filings with the
FAA (which have been duly effected) are necessary in order to perfect in
any applicable jurisdiction in the United States (A) the Owner Trustee's
title to the Airframe or (B) such security interest and assignment (insofar
as such assignment affects an interest covered by the recording system
established by the FAA pursuant to 49 U.S.C. Section 44107), it being
understood that no opinion is expressed as to the validity, priority or
enforceability of such security interest and assignment under local law or
as to the recognition of the perfection of such security interest and
assignment as against third parties in any legal proceeding outside the
United States;
10. no authorization, approval, consent, license or order of, or
registration with, or the giving of notice to, the FAA is required for the
valid authorization, delivery and performance of the Original Lease, as
amended and restated by the Lease, as supplemented by the Lease Supplement,
the Original Indenture, as amended and restated by the Indenture, as
supplemented by the Indenture and Security Agreement Supplement, or the
Original Trust Agreement, as amended and restated by the Trust Agreement,
except for such filings as are referred to in our opinion dated October 25,
1995 (which have been duly effected) and the filings referred to in clauses
(a), (b) and (c) above; and,
11. neither the authorization, issuance and delivery of the
Certificates, the execution and delivery by the parties thereto of the
Original Trust Agreement, the Trust Agreement, the Original Indenture, the
Indenture, the Indenture and Security Agreement Supplement, the Original
Participation Agreement, the Participation Agreement, the FAA Xxxx of Sale,
the Original Lease, the Lease and the Lease Supplement or the performance
by the parties thereto of: (i) the Original Trust Agreement, as amended
and restated by the Trust Agreement; (ii) the Original Indenture, as
amended and restated by the Indenture, as supplemented by the Indenture and
Security Agreement Supplement; (iii) the Original Participation Agreement,
as amended and restated by the Participation Agreement; and (iv) the
Original Lease, as amended and restated by the Lease, as supplemented by
the Lease Supplement, in accordance with the provisions thereof, nor the
consummation by the parties thereto of any of the transactions contemplated
thereby, requires the consent or approval of, or the giving of notice to,
or the registration with, or the taking of any other action in respect of,
the FAA except for the filings, the recordations and the filings for
recordation specified elsewhere in this opinion.
No opinion is expressed as to the Airframe during any period or
periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws of
the United States. In rendering this opinion, we were subject to the
accuracy of the FAA, its employees and agents, in the filing, indexing and
recording of instruments filed with the FAA and in the search for
encumbrance cross-reference index cards for the Engines. Further, in
rendering this opinion we are assuming the validity and enforceability of
the above described instruments under local law. Since our examination was
limited to records maintained by the FAA, our opinion does not cover liens
which are perfected without the filing of notice thereof with the FAA, such
as federal tax liens, liens arising under 29 U.S.C. Section 1368(a),
possessory artisan's liens, or matters of which the parties have actual
notice. In rendering this opinion we are assuming that there are no
documents with respect to the Aircraft which have been filed for recording
under the recording system of the FAA but have not yet been listed in the
available records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of the
Assistant Chief Counsel for the Aeronautical Center dated October __, 1995
and have continued to rely upon the opinion of the Assistant Chief Counsel
for the Aeronautical Center dated __________, 1995, copies of which are
attached hereto.
Annex I
Certain Definitions
Airframe, Engines and Aircraft
One (1) Airbus Industrie A300F4-605R aircraft bearing
manufacturer's serial number 760 and U.S. Registration No. N661FE (the
"Airframe") and two (2) General Electric CF6-80C2-A5F aircraft engines
bearing manufacturer's serial numbers 705-231 and 705-232 (the "Engines")
(the Airframe and the Engines are referred to collectively as the
"Aircraft").
Original Trust Agreement
Trust Agreement (Federal Express Corporation Trust No. N661FE)
dated as of October 1, 1995 between the Owner Participant and the Owner
Trustee, which was filed with the FAA on October 25, 1995.
Original Indenture
Trust Indenture, Mortgage and Security Agreement (Federal
Express Corporation Trust No. N661FE) dated as of October 15, 1995 between
the Owner Trustee and the Indenture Trustee, which together with the
Indenture and Security Agreement Supplement (as hereinafter defined)
attached thereto was recorded as one instrument by the FAA on October 25,
1995 and assigned Conveyance No. 2A267994.
Indenture and Security Agreement Supplement
Indenture and Security Agreement Supplement No. 1 (Federal
Express Corporation Trust No. N661FE) dated October 25, 1995 between the
Owner Trustee and the Indenture Trustee, with respect to the Aircraft,
which was attached to and recorded by the FAA as one instrument with the
Original Indenture.
Original Lease
Lease Agreement (Federal Express Corporation Trust No. N661FE)
dated as of October 15, 1995 between the Owner Trustee, as lessor, and the
Lessee, which together with the Lease Supplement (as hereinafter defined),
the Original Indenture and the Indenture and Security Agreement Supplement
attached thereto was recorded as one instrument by the FAA on October 25,
1995 and assigned Conveyance No. 2A267995.
Lease Supplement
Lease Supplement Xx. 0 (Xxxxxxx Xxxxxxx Xxxxxxxxxxx Xxxxx Xx.
X000XX) dated October 25, 1995 between the Owner Trustee, as lessor, and
the Lessee, with respect to the Aircraft, which was attached to and
recorded by the FAA as one instrument with the Original Lease.
Confidential Omissions
The Lease was filed with the FAA, with (i) the Owner
Participant Amount, the Interim Rent and Basic Rent (Schedule II), (ii) the
Stipulated Loss Values (Schedule III), (iii) the Termination Values
(Schedule IV), (iv) the Purchase Option Schedule (Schedule V) omitted from
the FAA filing counterpart thereof as containing confidential financial
information; and (v) the purchase price under Section 4.02(a)(F) set forth
in Ancillary Agreement I, which was not attached to the FAA filing
counterpart of the Lease or otherwise filed with the FAA for recordation as
containing confidential financial information.
The Indenture was filed with the FAA, with the Schedule of
Principal Payments (Schedule I) omitted from the FAA filing counterpart
thereof as containing confidential financial information.
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
NationsBank, N.A.
c/o NationsBanc Lease Investments, Inc.
NationsBank Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Underwriters
------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(5)
[Letterhead of Dickinson, Wright, Moon, Van Dusen & Xxxxxxx]
[Refunding Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N661FE
-------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to NBD Bank, a Michigan
banking corporation ("NBD"), in connection with the Trust Agreement
(Federal Express Corporation Trust No. N661FE), dated as of October 1,
1995, as amended and restated as of October 26, 1995 (the "Trust
Agreement"), between NBD and NationsBank, N.A., a national banking
association (the "Trustor" or "Owner Participant"). Pursuant to the
Participation Agreement (Federal Express Corporation Trust No. N661FE),
dated as of October 1, 1995, as amended and restated as of October 26, 1995
(the "Participation Agreement"), among Federal Express Corporation, as
Lessee, the Owner Participant, The Chase Manhattan Bank (National
Association), Bank of America NT & SA, CIBC Inc. and The First National
Bank of Chicago, as Original Loan Participants, NBD, not in its individual
capacity except as specifically set forth therein but solely as Owner
Trustee (the "Owner Trustee") under the Trust Agreement, The Chase
Manhattan Bank (National Association), as Indenture Trustee and The Chase
Manhattan Bank (National Association), as Pass Through Trustee, one Airbus
A300F4-605R aircraft bearing U.S. Registration No. N661FE (the
"Aircraft") is being refinanced. This opinion is being furnished pursuant
to Section 4.01(l)(vii) of the Participation Agreement. Capitalized terms
used herein and not otherwise defined are used as defined in the
Participation Agreement, except that references herein to any instrument
shall mean such instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Trust Agreement;
(c) The Indenture;
(d) The Indenture and Security Agreement Supplement No. 1 dated
October 25, 1995;
(e) The Lease;
(f) The Lease Supplement dated October 25, 1995 (each of the
documents identified in paragraphs (a) through (f) above being
collectively referred to as the "Owner Trustee Documents"); and
(g) The Certificates being issued today (the "Certificates").
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
public officials and of corporate officers and other representatives of NBD
and such other instruments as we have deemed necessary and relevant as the
basis for our opinion. Moreover, as to certain facts material to the
opinions expressed herein, we have relied upon representations and
warranties contained in the Owner Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary and relevant, and subject
to the assumptions, exceptions and qualifications set forth below, we
advise you that, in our opinion:
1. NBD is a Michigan banking corporation duly organized and validly
existing under the laws of the State of the Michigan, with banking and
trust powers, is a "citizen of the United States" within the meaning of
Section 40102(a)(15) of the Transportation Code, and each of NBD and the
Owner Trustee, as the case may be, has or had, on the date of execution
thereof, full power, authority and legal right to execute, deliver and
perform each of the Owner Trustee Documents to which it is or is to be a
party and to issue, execute, deliver and perform the Certificates.
2. Each of NBD and the Owner Trustee, as the case may be, has duly
authorized, executed and delivered each Owner Trustee Document; each Owner
Trustee Document constitutes a legal, valid and binding obligation of the
Owner Trustee (and, to the extent set forth in the respective Owner Trustee
Document, of NBD) enforceable against the Owner Trustee (and, to the extent
set forth in the respective Owner Trustee Document, against NBD) in
accordance with its terms; and the Trust Agreement constitutes a legal,
valid and binding obligation of the Owner Participant enforceable against
the Owner Participant in accordance with its terms.
3. The Certificates have been duly issued, executed and delivered by
the Owner Trustee, pursuant to authorization contained in the Trust
Agreement, and constitute the legal, valid and binding obligations of the
Owner Trustee enforceable against the Owner Trustee in accordance with
their terms and the terms of the Indenture; and the Certificates are
entitled to the benefits and security afforded by the Indenture in
accordance with their terms and the terms of the Indenture.
4. On the Delivery Date, the Owner Trustee received from AVSA such
title to the Aircraft as AVSA conveyed to the Owner Trustee, subject to the
rights of the Owner Trustee and the Lessee under the Original Lease and the
security interest created pursuant to the Original Indenture and the
Indenture Supplement; and to our knowledge, there exist no Liens affecting
the title of the Owner Trustee to the Lessor's Estate resulting from claims
against NBD not related to the ownership of the Lessor's Estate or the
administration of the Lessor's Estate or any other transaction pursuant to
the Indenture or any document included in the Trust Indenture Estate.
5. All of the properties which are part of the Trust Indenture
Estate have been pledged and mortgaged with the Indenture Trustee as part
of the Trust Indenture Estate, and the beneficial interest of the Owner
Participant under the Trust Agreement in and to such properties is subject,
to the extent provided in the Indenture, to the Lien of the Indenture in
favor of the Holders of the Certificates.
6. To the extent that the Uniform Commercial Code of the State of
Michigan (the "UCC") is applicable, except for the Indenture Trustee's
taking possession of all monies and securities (including instruments)
constituting part of the Trust Indenture Estate, no action, including the
filing or recording of any document, is necessary (i) to create under the
UCC the security interest in the Trust Indenture Estate (including the
grant and assignment unto the Indenture Trustee of the security interest in
all estate, right, title and interest of the Owner Trustee in, to and under
the Lease) which the Indenture by its terms purports to create in favor of
the Indenture Trustee, and (ii) to perfect in the State of Michigan such
security interest, except for the filing of a UCC financing statement in
the office of the Secretary of State of the State of Michigan, which filing
has been duly effected, and the filing of continuation statements with
respect thereto required to be filed at periodic intervals under the UCC.
7. The Trust Agreement duly creates a legal and valid trust under
Michigan law, the trust created by the Trust Agreement has been duly
created and exists for the benefit of the Owner Participant, and the Trust
Agreement and the Indenture Supplement create for the benefit of the Owner
Participant the interest in the properties referred to in Section 1.02 of
the Trust Agreement which the Trust Agreement by its terms purports to
create, which interest is subject and subordinate to the security interests
created by the Indenture to the extent provided in the Indenture.
8. Neither the authorization, execution and delivery by the Owner
Trustee or NBD, as the case may be, of the Owner Trustee Documents, nor the
issuance, execution and delivery by the Owner Trustee of the Certificates
nor the fulfillment or compliance by the Owner Trustee or NBD with the
respective terms and provisions thereof nor the consummation of any of the
transactions by the Owner Trustee or NBD, as the case may be, contemplated
thereby, requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Michigan or the United
States of America governing the banking or trust powers of NBD.
9. The execution, delivery and performance by the Owner Trustee or
NBD, as the case may be, of each of the Owner Trustee Documents and the
issuance, execution, delivery and performance of the Certificates by the
Owner Trustee are not or were not, on the date of execution thereof, in
violation of the articles of incorporation or by-laws of NBD or of any law,
governmental rule, or regulation of the State of Michigan or the United
States of America governing the banking or trust powers of NBD or, to our
knowledge, of any indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it is bound or, to our
knowledge, of any judgment or order of the State of Michigan or the United
States of America relating to the banking or trust powers of NBD.
10. Assuming that (i) the Aircraft is not used in Michigan and is
not physically located in Michigan at the commencement or termination of
the Term or during such Term, (ii) in connection with any sale of the
Aircraft, such Aircraft will not be physically delivered in Michigan to a
buyer nor be shipped from a point within Michigan to a buyer, and (iii) the
trust created by the Trust Agreement is treated as a grantor trust for
federal income tax purposes within the contemplation of Sections 671
through 678 of the Internal Revenue Code of 1986, there are no fees, taxes,
or other charges (except taxes imposed on fees payable to the Owner
Trustee) payable to the State of Michigan or any political subdivision
thereof in connection with the execution, delivery or performance by the
Owner Trustee, the Indenture Trustee, the Lessee or the Owner Participant,
as the case may be, of the Owner Trustee Documents or in connection with
the making by the Owner Participant of its investment in the Aircraft or
its acquisition of the beneficial interest in the Lessor's Estate or in
connection with the issuance and acquisition of the Certificates, and
neither the Owner Trustee, the Lessor's Estate nor the trust created by the
Trust Agreement will be subject to any fee, tax or other governmental
charge (except taxes on fees payable to the Owner Trustee) under the laws
of the State of Michigan or any political subdivision thereof on, based on
or measured by, directly or indirectly, the gross receipts, net income or
value of the Lessor's Estate solely by reason of the creation or continued
existence of the trust under the terms of the Trust Agreement pursuant to
the laws of the State of Michigan or the Owner Trustee's performance of its
duties under the Trust Agreement.
11. There is no fee, tax or other governmental charge under the laws
of the State of Michigan or any political subdivision thereof in existence
on the date hereof on, based on or measured by any payments under the
Certificates or the beneficial interests in the Lessor's Estate, by reason
of the creation of the trust under the Trust Agreement, pursuant to the
laws of the State of Michigan or the Owner Trustee's performance of its
duties under the Trust Agreement, within the State of Michigan, which would
not have been imposed if NBD did not have its principal place of business
and did not perform its obligations under the Owner Trustee Documents in
the State of Michigan.
12. Neither a Michigan court nor a federal court applying federal
law or Michigan law, if all relevant issues are properly presented to and
considered by such court, would permit the Owner Participant to terminate
the Trust Agreement, except as otherwise provided in the Trust Agreement or
with the consent of the Indenture Trustee, until the Lien of the Indenture
on the Trust Estate has been released and until payment in full of the
principal of, Make-Whole Premium, if any, and interest on, the
Certificates.
13. Under the laws of the State of Michigan, as long as the Trust
Agreement has not been terminated in accordance with its terms or with the
consent of the Indenture Trustee, creditors of any person that is an Owner
Participant, holders of a lien against the assets of any such person and
representatives of creditors of any such person, such as trustees,
receivers or liquidators (whether or not any insolvency proceeding has been
commenced) (collectively, the "Creditors") may acquire legal, valid and
enforceable claims and liens, as to the Trust Estate, only against the
rights of such Owner Participant under the Trust Agreement or in the Trust
Estate, and may not through the enforcement of such Creditor's rights,
acquire any greater rights than the rights of the Owner Participant with
respect to the Trust Agreement or the Trust Estate.
14. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting NBD or the
Owner Trustee, as the case may be, or any of its properties in any court or
before any administrative agency or arbitrator, which, if adversely
determined, would materially adversely affect the ability of NBD or the
Owner Trustee, as the case may be, to perform its obligations under any of
the Owner Trustee Documents, and there are no pending or, to our knowledge,
threatened actions or proceedings before any court, administrative agency
or tribunal involving NBD or the Owner Trustee, as the case may be, in
connection with the transactions contemplated by any of the Owner Trustee
Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. The foregoing opinions are limited to the laws of the State
of Michigan and applicable federal laws. We express no opinion with
respect to (i) federal securities laws, including the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the
Trust Indenture Act of 1939, as amended, and the Investment Company Act of
1940, as amended, (ii) Part A of Subtitle VII of Title 49 of the United
States Code, as amended (except with respect to the opinion set forth in
paragraph 1 above concerning the citizenship of NBD), (iii) state
securities or blue sky laws, or (iv) laws, rules and regulations applicable
to the particular nature of the Aircraft acquired by the Owner Trustee.
Insofar as any Owner Trustee Documents and the Certificates expressed to be
governed by the laws of a jurisdiction other than the State of Michigan, we
have assumed that all such documents are legal, valid, binding and
enforceable in accordance with their terms under such laws (as to which we
express no opinion).
B. The foregoing opinions regarding enforceability, except for
the opinions set forth in paragraphs 12 and 13 above, are subject to (i)
applicable bankruptcy, insolvency, moratorium, reorganization, receivership
and other laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law) and (iii) the
effect of applicable public policy on the enforceability or provisions
relating to indemnification.
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than NBD and the Owner
Trustee, of the Owner Trustee Documents to which each is a party and that
each of such parties has the full power, authority and legal right to
execute and deliver, and perform under the terms of, each such document.
D. The opinion set forth in paragraph 1 above concerning the
citizenship of NBD is based upon the Affidavit of Citizenship, and we have
not independently verified the facts supporting such opinion.
E. We have assumed the due authentication of the Certificates
by the Indenture Trustee.
F. We have assumed that all signatures (other than those of
the Owner Trustee or NBD) on documents and instruments examined by us are
genuine, that all documents and instruments submitted to us as originals
are authentic, and that all documents and instruments submitted to us as
copies conform with the originals, which facts we have not independently
verified.
G. We do not purport to be experts in respect of, or express
any opinion concerning, aviation law or other laws, rules or regulations
applicable to the particular nature of the equipment to be acquired by the
Owner Trustee.
H. Except as otherwise provided in paragraph 7, no opinion is
expressed as to the creation, attachment, perfection or priority of any
mortgage or security interest, of any instrument or document creating a
lien or security interest, or of the Indenture or as to the nature or
validity of title to any part of the Trust Estate. I. We have assumed
that the Participation Agreement and the transactions contemplated thereby
are not within the prohibitions of Section 406 of the Employee Retirement
Income Security Act of 1974.
J. Whenever our opinion, with respect to the existence or
absence of facts, is qualified by the phrase "to our knowledge" or a phrase
of similar import, it is intended to indicate that during the course of our
representation in connection with the Owner Trustee Documents, the lawyers
in our firm who have been principally involved in representing NBD and the
Owner Trustee in connection with the Owner Trustee Documents have not
obtained actual knowledge of the existence or absence of such facts, as the
case may be, without the implication that we have made any investigation or
inquiry to determine the existence or absence of such facts.
K. The foregoing opinions are given as of the date hereof
only, and do not contemplate, and no opinion is given or intended, with
respect to subsequent changes in law or fact.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent, except that the law firm of Xxxxx Xxxx & Xxxxxxxx may rely
on this opinion in connection with the rendering of its opinion dated the
date hereof in connection with the financing described herein.
We rendered an opinion dated October 25, 1995 (the "Delivery
Date Opinion"), a copy of which is attached hereto, in connection with the
financing and acquisition of the Aircraft on such date. We hereby consent
and agree that the addressees hereto who were not addressees to the
Delivery Date Opinion may rely on the Delivery Date Opinion as fully and
with the same force and effect as if such addressees were originally named
therein on the date of the Delivery Date Opinion.
Very truly yours,
Dickinson, Wright, Moon, Van Dusen & Xxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
NationsBank, N.A.
c/o NationsBanc Lease Investments, Inc.
NationsBank Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Underwriters
------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(6)(a)
[Letterhead of Xxxxx Xxxxxxxxxx]
[Refunding Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N661FE
Ladies and Gentlemen:
We have acted as special counsel to The Chase Manhattan Bank
(National Association), a national banking association, acting as Pass
Through Trustee (the "Pass Through Trustee") with respect to the Pass
Through Trust Agreement dated as of February 1, 1993, as amended and
restated as of October 1, 1995 (the "Pass Through Trust Agreement"), as
supplemented by the Series Supplements dated the date hereof, designated as
Series Supplement 1995-B1, 1995-B2 and 1995-B3, respectively (the "Series
Supplements"). We have advised the Pass Through Trustee with respect to
the Pass Through Agreement, the Series Supplements and the Participation
Agreement relating to the Pass Through Trust Agreement and each designated
Series Supplement (the "Participation Agreement") among the parties listed
therein. Additionally, we have advised the Pass Through Trustee with
respect to the Pass Through Certificates (the "Certificates") issued on the
date hereof.
This opinion is being delivered pursuant to Section 4.01(l)(ix)
of the Participation Agreement. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings set forth or
referred to in the Participation Agreement, the Pass Through Trust
Agreement or the Series Supplements, as applicable.
In connection with the opinions expressed herein, we have
reviewed executed counterparts of the Operative Agreements, the Pass
Through Trust Agreement and the Series Supplements. We have also examined
and relied upon the accuracy of the originals or certified, conformed,
photocopied or telecopied copies of such corporate records, certificates,
instruments and other documents as we have deemed necessary or appropriate
to enable us to render the opinions expressed herein. In all such
examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies
submitted to us as certified, conformed, photocopied or telecopied copies,
and as to certificates and telegraphic and telephonic confirmations given
by public officials, we have assumed the same to have been properly given
and to be accurate. As to all matters of fact material to our opinions, we
have, when relevant facts were not independently established, relied upon
representations and warranties contained in the Operative Agreements, the
Pass Through Trust Agreement and the Series Supplements and upon the
statements and certificates furnished to us.
Based upon and subject to the foregoing and the qualifications
hereinafter set forth, we are of the opinion that:
1. The Pass Through Trustee is a national banking association duly
organized and validly existing in good standing under the laws of the
United States of America holding a valid certificate to do business as a
national banking association, with banking and trust powers, and has the
corporate power and authority to execute, deliver and perform its
obligations under the Participation Agreement, the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the other Operative
Agreements to which it is a party. Upon execution of the Series
Supplements, the Pass Through Trustee will be deemed to have duly executed
the Pass Through Trust Agreement and thereupon become the Pass Through
Trustee under the Pass Through Trust Agreement and the Series Supplements
for all purposes thereof.
2. The Pass Through Trustee, in its individual and trust capacities,
has duly authorized, executed and delivered the Participation Agreement,
the Pass Through Trust Agreement and the Series Supplements and each of the
other Operative Agreements to which it is a party.
3. Each of the Participation Agreement, the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the other Operative
Agreements to which it is a party constitutes the legal, valid and binding
obligation of the Pass Through Trustee in its trust capacity (and, to the
extent provided in each such document, in its individual capacity)
enforceable against the Pass Through Trustee in its trust capacity (and, to
the extent provided in each such document, in its individual capacity) in
accordance with its terms thereof, except as the enforceability thereof may
be limited by (a) general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law), (b)
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and (c) public policy
considerations (in the case of the indemnity provisions contained therein).
4. The Certificates have been duly authorized and validly executed,
issued, delivered and authenticated by the Pass Through Trustee pursuant to
the Pass Through Trust Agreement and the Series Supplements; and the
Certificates acquired by the Underwriters under the Underwriting Agreement
are enforceable against the Pass Through Trustee and are entitled to the
benefits of the related Pass Through Trust Agreement and the related Series
Supplements, except as the enforceability thereof may be limited by (a)
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), (b) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights
of creditors generally and (c) public policy considerations (in the case of
the indemnity provisions contained therein).
5. The execution, delivery, and performance by the Pass Through
Trustee in its trust capacity (and, to the extent provided in each such
document, in its individual capacity), of the Participation Agreement, the
Pass Through Trust Agreement and the Series Supplements and each of the
other Operative Agreements to which it is a party and the consummation of
the transactions therein contemplated and compliance with the terms
thereof, and the issuance of the Certificates thereunder are not in
violation of the Articles of Association or By-laws of the Pass Through
Trustee or any law, governmental rule or regulation of the United States of
America or the State of New York governing the banking or trust powers of
the Pass Through Trustee or constitute a default under, or result in the
creation or the imposition of any Lien upon any property or assets of the
Pass Through Trustee, under any indenture, mortgage or other agreement or
instrument known to us to which the Pass Through Trustee is a party or by
which it or any of its property is bound, or any New York or Federal law,
rule or regulation governing the Pass Through Trustee's banking or trust
powers, or of any judgment, order or decree known to us to be applicable to
the Pass Through Trustee, in its individual or trust capacity, of any
court, regulatory body, administrative agency, government or governmental
body having jurisdiction over the Pass Through Trustee, in its individual
or trust capacity, or its properties.
6. Neither the execution and delivery by the Pass Through Trustee,
in its individual or trust capacity, as the case may be, of the
Participation Agreement, the Pass Through Trust Agreement, the Series
Supplements, the Certificates or any of the other Operative Agreements to
which it is a party, nor the consummation by the Pass Through Trustee, in
its individual or trust capacity, as the case may be, of any of the
transactions contemplated in the Participation Agreement, the Pass Through
Trust Agreement, the Series Supplements, the Certificates or any of the
other Operative Agreements to which it is a party requires consent or
approval of, giving of notice to, or registration with, or taking of any
other action with respect to, any Federal or state governmental authority
or agency having jurisdiction over the Pass Through Trustee.
7. There are no taxes, fees or other governmental charges payable
under the laws of the State of New York or any political subdivision
thereof in connection with the execution, delivery and performance by the
Pass Through Trustee, in its individual or trust capacity, as the case may
be, of the Participation Agreement, the Pass Through Trust Agreement, the
Series Supplements and the other Operative Agreements to which it is a
party or in connection with the execution, issuance and delivery of the
Certificates by the Pass Through Trustee, pursuant to the Series
Supplements.
8. Neither the trusts created by the Pass Through Trust Agreement
and the Series Supplements nor the Pass Through Trustee, in its individual
or trust capacity, as the case may be, nor their respective Affiliates,
successors or assigns, will be subject to any tax (including, without
limitation, net or gross income, tangible or intangible property, net
worth, capital, franchise or doing business tax), fee or other governmental
charge under the laws of the State of New York or any political subdivision
thereof (other than taxes imposed on the fees received by The Chase
Manhattan Bank (National Association) for acting as Pass Through Trustee
under the Series Supplements). Certificate holders who are not residents
of or otherwise subject to tax in New York will not be subject to any tax
(including, without limitation, net or gross income, tangible or intangible
property, net worth, capital, franchise or doing business tax), fee or
other governmental charge under the laws of the State of New York or any
political subdivision thereof as a result of purchasing, owning (including
receiving payments with respect to) or selling a Certificate. There are no
applicable taxes under the laws of the State of New York or any political
subdivision thereof upon or with respect to (a) the construction,
mortgaging, financing, refinancing, purchase, acquisition, acceptance,
rejection, delivery, nondelivery, transport, location, ownership,
insurance, control, assembly, possession, repossession, operation, use,
condition, maintenance, repair, sale, return, abandonment, replacement,
preparation, installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of title,
transfer of registration, exportation or other application or disposition
of the Aircraft or any interest in any thereof, (b) payments of Rent or
other receipts, income or earnings arising therefrom or received with
respect to the Aircraft or any interest in any thereof or payable pursuant
to the Lease, (c) any amount paid or payable pursuant to any Operative
Agreements, (d) the Aircraft or any interest therein or the applicability
of the Lease to the Aircraft or any interest in any thereof, (e) any or all
of the Operative Agreements, any or all of the Certificates or any interest
in any or all thereof or the offering, registration, reregistration,
issuance, acquisition, modification, assumption, reissuance, refinancing or
refunding of any or all thereof, and any other documents contemplated
thereby and amendments or supplements hereto and thereto, (f) the payment
of the principal of, or interest or premium on, or other amounts payable
with respect to, any or all of the Certificates, whether as originally
issued or pursuant to any refinancing, refunding, assumption, modification
or reissuance, or any other obligation evidencing any loan in replacement
of the loan evidenced by any or all of the Certificates, or (g) otherwise
with respect to or in connection with the transactions contemplated by the
Pass Through Trust Agreement, the Series Supplements, the Certificates and
the Operative Agreements, which would not have been imposed if the Pass
Through Trustee had not had its principal place of business in, had not
performed (either in its individual capacity or as Pass Through Trustee)
any or all of its administrative duties under the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the Operative
Agreements in, and had not engaged in any activities unrelated to the
transactions contemplated by the Pass Through Trust Agreement, the Series
Supplements, the Certificates and the Operative Agreements in, the State of
New York.
With respect to the opinions set forth in paragraphs 7 and 8
above, with your permission we have relied upon, and this opinion is
limited by, the assumptions set forth in the discussion entitled "Certain
New York Taxes" in the Prospectus Supplement to the Prospectus forming part
of Registration Number No. 33-56569 (the "Registration Statement") for the
registration of the Certificates with the Securities and Exchange
Commission. In addition, we have assumed that each Pass Through Trust (as
defined in the Registration Statement) will constitute a grantor trust
under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended (the "Code"), and will not be classified as a corporation
or as a Partnership (as defined in Section 7701 of the Code), and each Pass
Through Trust does not otherwise engage in business in New York. We
express no opinion as to the correctness of the foregoing assumptions and
we have conducted no independent investigation in this regard.
We express no opinion as to the laws of any jurisdiction other
than the laws of the State of New York and the Federal laws of the United
States of America. In addition, we express no opinion herein as to (i) any
Federal or state securities laws or blue sky laws and assume that the
Certificates have been registered, issued and sold in compliance with all
applicable Federal and state securities and blue sky laws and that the Pass
Through Trust Agreement and the Series Supplements have been duly qualified
under the provisions of the Trust Indenture Act of 1939, as amended, (ii)
any tax laws, (iii) any aviation laws including, without limitation, the
Transportation Code, (iv) any laws, statutes, rules or regulations
applicable to the particular nature of the equipment acquired or to be
acquired by the Owner Trustee, or (v) ERISA or any other pension and
employee benefit laws, rules or regulations. In addition, we express no
opinion as to the right, title or interest in or to the Trust Estate on the
part of any Person. We also express no opinion as to the perfection or
priority of any security interest created by any of the Operative
Agreements.
In rendering the opinions expressed herein, we have assumed
that (a) each of the Participation Agreement, the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the other Operative
Agreements has been duly authorized, executed and delivered by the
respective parties thereto (other than the Pass Through Trustee) and
constitutes a legal, valid and binding obligation of each of such parties
(other than the Pass Through Trustee), enforceable against each of such
parties in accordance with the terms thereof, (b) each of such parties
(other than the Pass Through Trustee) has the requisite power, authority
and legal right to enter into and perform its respective obligations under
the Participation Agreement, the Pass Through Trust Agreement, the Series
Supplements, the Certificates and each of the other Operative Agreements to
which it is a party and (c) the transactions provided for in the Operative
Agreements are not within the prohibitions of Section 406 of ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended.
This opinion is furnished by us for the sole benefit of the
addressees hereof, each of whom we understand and agree may rely upon the
opinions set forth herein. No other person or entity is entitled to rely
on this opinion without our express written consent. This opinion is
limited to the matters stated herein and no opinion is implied or may be
inferred beyond the matters expressly stated herein.
Very truly yours,
Xxxxx Xxxxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
NationsBank, N.A.
c/o NationsBanc Lease Investments, Inc.
NationsBank Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Underwriters
------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT A(6)(b)
[Letterhead of The Chase Manhattan Bank, N.A.]
[Refunding Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N661FE
Ladies and Gentlemen:
As Vice President and Senior Associate Counsel to The Chase Manhattan
Bank (National Association), a national banking association, acting as Pass
Through Trustee (the "Pass Through Trustee") with respect to the Pass
Through Trust Agreement dated as of February 1, 1993, as amended and
restated as of October 1, 1995 (the "Pass Through Trust Agreement"), as
supplemented by the Series Supplements dated the date hereof, designated as
Series Supplement 1995-B1, 1995-B2 and 1995-B3, respectively (the "Series
Supplements"), I advise you as follows with respect to the authorization,
execution and delivery by the Pass Through Trustee of (i) the Series
Supplements and (ii) the Participation Agreement (Federal Express
Corporation Trust No. N661FE) dated as of October 1, 1995, as amended and
restated as of October 26, 1995 (as amended and restated, the
"Participation Agreement") among the parties listed therein. Additionally,
I have advised the Pass Through Trustee with respect to the Pass Through
Certificates (the "Certificates") issued on the date hereof.
Unless otherwise defined herein, capitalized terms used herein
shall have the respective meanings attributed thereto in the Participation
Agreement, the Pass Through Trust Agreement or the Series Supplements, as
applicable.
I have reviewed executed counterparts of the Pass Through Trust
Agreement, the Series Supplements, the Certificates, the Participation
Agreement and the other Operative Agreements to which the Pass Through
Trustee is a party. I have also examined the originals, or certified,
conformed, photocopied or telecopied copies of such corporate records,
certificates, instruments and other documents as I have deemed necessary to
appropriate to enable me to render the opinions expressed herein,
including, without limitation, certified copies of the By-laws of the Pass
Through Trustee, a certificate of the secretary of the Pass Through Trustee
as to certain matters, including the incumbency of the officer of the Pass
Through Trustee who executed the Pass Through Trust Agreement, the Series
Supplements, the Participation Agreement and the other certificates
executed and delivered in connection with the transactions contemplated by
any of the foregoing and who authenticated the Certificates and a
certificate of the Comptroller of the Currency, Washington, D.C., dated
September 23, 1965, as to the Pass Through Trustee's existence and
authority to do business as a national banking association and to act in a
fiduciary capacity.
In all such examinations, I have assumed the genuineness of
signatures on original documents (other than those of the Pass Through
Trustee) and the conformity to such original documents of all copies
submitted to me as certified, conformed, photocopied or telecopied copies,
and as to certificates and telegraphic and telephonic confirmations given
by public officials, I have assumed the same to have been properly given
and to be accurate. As to all matters of fact material to my opinions, I
have, when relevant facts were not independently established, relied upon
statements, representations and warranties contained in the Operative
Agreements, the Pass Through Trust Agreement, the Series Supplements and
the Certificates and upon the statements and certificates furnished to me.
A. Based upon the foregoing and subject to the limitations
expressed in paragraph B below, I am of the opinion that: the execution,
delivery and performance by the Pass Through Trustee of the Series
Supplements, the Certificates, the Participation Agreement and each of the
other Operative Agreements to which it is a party are not, to my knowledge,
in violation of any judgment, order, indenture, mortgage, bank credit
agreement, note or bond purchase agreement, long-term lease, license or
other agreement or instrument to which it is a party or by which it or its
properties may be bound. Upon execution of the Series Supplements, the
Pass Through Trustee will be deemed to have duly executed the Pass Through
Trust Agreement and thereupon become the Pass Through Trustee under the
Pass Through Trust Agreement and the Series Supplements for all purposes
thereof.
B. I am qualified to practice law in the State of New York and
I express no opinion as to any laws other than the laws of the State of New
York and the federal laws of the United States of America. Further,
without limiting the generality of the foregoing, I express no opinion with
respect to (i) the citizenship of the Pass Through Trustee, the
Transportation Code and the regulations promulgated thereunder, the impact
of the Transportation Code upon matters set forth in this opinion or any
other aviation or other laws, rules or regulations applicable to the
particular nature of the equipment acquired by the Owner Trustee; (ii)
federal securities laws, including, without limitation, the Securities Act
of 1933, as amended, and the Trust Indenture Act of 1939, as amended, or
state securities or blue sky laws; (iii) title to any property, real or
personal or the priority or perfection of any liens or security interests;
(iv) the authority or power of the Pass Through Trustee under the laws of
any jurisdiction other than New York or federal laws of the United States
of America to exercise any rights or remedies set forth in the Pass Through
Trust Agreement, the Series Supplements or the Operative Agreements or to
perform any duties or obligations on its part to be performed other than
those that can be performed in the State of New York; or (v) ERISA.
This opinion is being furnished only to the parties to whom this opinion is
addressed and is solely for their benefit, and no other person or entity
shall be entitled to rely on this opinion without my express prior written
consent. This opinion may not be used, circulated, quoted, published or
otherwise referred to for any purpose without my express prior written
consent. This opinion is limited to the matters stated herein, and no
opinion is implied or may be inferred beyond the opinions expressly stated
herein.
Very truly yours,
Xxxxxxx Xx Xxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
NationsBank, N.A.
c/o NationsBanc Lease Investments, Inc.
NationsBank Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Underwriters
------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Original Loan Participants
--------------------------
The Chase Manhattan Bank (National Association)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA
GPO Account Admin. #5693
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The First National Bank of Chicago
Transportation Division
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.g]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.c.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.f]
/dpw/cw/037/07853/042/8K/XXXXX/FILING.2/ex4e1.3.ed
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N663FE)
Dated as of October 26, 1995
among
FEDERAL EXPRESS CORPORATION,
Lessee
CHRYSLER CAPITAL CORPORATION,
Owner Participant
NBD BANK,
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as
Owner Trustee,
Owner Trustee
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as
Indenture Trustee,
Indenture Trustee
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
Not in Its Individual Capacity
Except as Otherwise Expressly
Set Forth Herein, but Solely as
Pass Through Trustee,
Pass Through Trustee
______________________________
LEVERAGED LEASE OF ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 766, REGISTRATION NO. N663FE
TABLE OF CONTENTS
Page
Initial Recitals........................................................ 1
ARTICLE 1
DEFINITIONS............................................................. 3
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds........................................ 3
Section 2.02. Certificates............................................. 4
Section 2.03. Owner Participant's Instructions to Owner Trustee........ 5
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent,
Stipulated Loss Values, Termination Values
and EBO Price......................................... 5
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date......................... 6
Section 3.02. Commitments to Participate in Purchase Price............. 6
Section 3.03. Owner Participant's Instructions to Owner Trustee........ 8
Section 3.04. Transaction Costs........................................ 9
Section 3.05. Postponement of Delivery Date............................ 9
Section 3.06. Closing.................................................. 10
Section 3.07. Owner Participant Payment................................ 11
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date).......... 11
Section 4.02. Conditions Precedent (Delivery Date)..................... 19
Section 4.03. Opinion of Special Aviation Counsel upon Registration.... 26
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations............. 26
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties.................. 27
Section 6.02. Offering by Lessee....................................... 33
Section 6.03. Certain Covenants of Lessee.............................. 33
Section 6.04. Survival of Representations and Warranties............... 41
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests
in Lessor's Estate.................................... 41
Section 7.02. Citizenship.............................................. 41
Section 7.03. Representations, Warranties and Covenants of the Owner
Participant........................................... 43
Section 7.04. Representations, Covenants and Warranties of NBD and the
Owner Trustee......................................... 47
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee..................................... 50
Section 7.06. Indenture Trustee's Notice of Default.................... 51
Section 7.07. Releases from Indenture.................................. 51
Section 7.08. Covenant of Quiet Enjoyment.............................. 52
Section 7.09. Pass Through Trustee's Representations and Warranties.... 52
Section 7.10. Survival of Representations, Warranties and Covenants.... 53
Section 7.11. Lessee's Assumption of the Certificates.................. 53
Section 7.12. Indebtedness of Owner Trustee............................ 55
Section 7.13. Compliance with Trust Agreement, Etc..................... 55
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes......................... 56
Section 8.02. After-Tax Basis.......................................... 61
Section 8.03. Time of Payment.......................................... 62
Section 8.04. Contests................................................. 62
Section 8.05. Refunds.................................................. 64
Section 8.06. Lessee's Reports......................................... 64
Section 8.07. Survival of Obligations.................................. 65
Section 8.08. Payment of Taxes......................................... 65
Section 8.09. Reimbursements by Indemnitees Generally.................. 65
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally................................................ 66
Section 9.02. After-Tax Basis.......................................... 69
Section 9.03. Subrogation.............................................. 70
Section 9.04. Notice and Payment....................................... 70
Section 9.05. Refunds.................................................. 71
Section 9.06. Defense of Claims........................................ 71
Section 9.07. Survival of Obligations.................................. 72
Section 9.08. Effect of Other Indemnities.............................. 72
Section 9.09. Interest................................................. 72
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs....................... 72
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee.................. 74
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant.................... 76
Section 12.02. Interest of Holders of Certificates..................... 76
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents.................... 76
Section 13.02. Further Assurances...................................... 77
ARTICLE 14
NOTICES
Section 14.01. Notices................................................. 77
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing............................................. 78
Section 15.02. Reoptimization.......................................... 81
ARTICLE 16
[INTENTIONALLY LEFT BLANK]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes.......................... 83
Section 17.02. Collateral Account...................................... 83
Section 17.03. Counterparts............................................ 84
Section 17.04. No Oral Modifications................................... 84
Section 17.05. Captions................................................ 84
Section 17.06. Successors and Assigns.................................. 84
Section 17.07. Concerning the Owner Trustee, the Pass Through
Trustee and the Indenture Trustee.................... 85
Section 17.08. Severability............................................ 85
Section 17.09. Public Release of Information........................... 85
Section 17.10. Certain Limitations on Reorganization................... 86
Section 17.11. GOVERNING LAW........................................... 86
Section 17.12. Section 1110 Compliance................................. 86
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality......................................... 87
SCHEDULE I Certificate Information
SCHEDULE II Definitions
SCHEDULE III Permitted Country List
SCHEDULE IV Purchase Price, Owner Participant's Commitment and Debt
Portion
EXHIBIT A(1)(a)(i) Opinion of Lessee's Counsel (Certificate Closing Date)
EXHIBIT A(1)(a)(ii) Opinion of Lessee's Counsel (Delivery Date)
EXHIBIT A(1)(b)(i) Opinion of Lessee's Special Counsel (Certificate
Closing Date)
EXHIBIT A(1)(b)(ii) Opinion of Lessee's Special Counsel (Delivery Date)
EXHIBIT A(2)(a) Opinion of Owner Participant's Special Counsel
EXHIBIT A(2)(b) Opinion of Owner Participant's Counsel
EXHIBIT A(3)(a) Opinion of Indenture Trustee's Special Counsel
EXHIBIT A(3)(b) Opinion of Indenture Trustee's Counsel
EXHIBIT A(4)(a) Opinion of Owner Trustee's Counsel
EXHIBIT A(4)(b) Opinion of Owner Trustee's Counsel
EXHIBIT A(5)(a) Opinion of Pass Through Trustee's Special Counsel
EXHIBIT A(5)(b) Opinion of Pass Through Trustee's Counsel
EXHIBIT A(6) Opinion of Engine Manufacturer's Counsel
EXHIBIT A(7) Opinion of Manufacturer's and AVSA's Counsel
EXHIBIT A(8) Opinion of Special Aviation Counsel
EXHIBIT B Form of Lease Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Trust Agreement
EXHIBIT E Form of Purchase Agreement Assignment, Consent and
Agreement, AVSA Consent and Agreement
EXHIBIT F Form of Engine Warranty Assignment and Engine Consent
PARTICIPATION AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N663FE)
PARTICIPATION AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO.
N663FE) dated as of October 26, 1995 (this "Agreement") among FEDERAL
EXPRESS CORPORATION, a Delaware corporation (herein, together with its
successors and permitted assigns, the "Lessee"), CHRYSLER CAPITAL
CORPORATION, a Delaware corporation (herein, together with its successors
and permitted assigns, the "Owner Participant"), NBD BANK, a Michigan
banking corporation, not in its individual capacity, except as otherwise
expressly stated herein, but solely as owner trustee under the Trust
Agreement referred to below (in such capacity as trustee, together with its
successors and permitted assigns, the "Owner Trustee"), THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), a national banking association, not in its
individual capacity, except as otherwise expressly stated herein, but
solely as indenture trustee under the Indenture referred to below (in such
capacity as trustee, together with its successors and permitted assigns,
the "Indenture Trustee") and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national banking association, not in its individual
capacity, except as otherwise expressly stated herein, but solely as pass
through trustee (in such capacity as trustee, together with its successors
and permitted assigns, the "Pass Through Trustee").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1 hereof.
WHEREAS, the Owner Participant has entered into the Trust
Agreement with the Owner Trustee in its individual capacity, substantially
in the form of Exhibit D hereto, pursuant to which Trust Agreement NBD
agrees, among other things, to hold the Lessor's Estate in trust for the
benefit of the Owner Participant on the terms specified in the Trust
Agreement, subject to the Lien of the Indenture.
WHEREAS, on the Pass Through Closing Date, a closing will occur
with respect to the public offering of Pass Through Certificates issued by
each Pass Through Trust, an allocable amount of the proceeds of which
offering will be used by the Pass Through Trustee to purchase for each such
Pass Through Trust the Certificates of the interest rate and Maturity
applicable thereto.
WHEREAS, concurrently with the execution and delivery hereof, the
Owner Trustee and the Indenture Trustee are entering into the Indenture for
the benefit of the Pass Through Trustee, pursuant to which the Owner
Trustee is issuing the Certificates to the Pass Through Trustee as evidence
of the loans made by the Pass Through Trustee to the Owner Trustee, the
proceeds of which loans will be deposited by the Owner Trustee in the
Collateral Account.
WHEREAS, prior to the Delivery Date, the Certificates will be
secured by the Liquid Collateral.
WHEREAS, pursuant to the terms of the Trust Agreement, the Owner
Trustee is authorized and directed by the Owner Participant:
(a) on the Delivery Date, to purchase the Aircraft from AVSA;
(b) on the Certificate Closing Date, to execute and deliver the
Lease substantially in the form of Exhibit B hereto, pursuant to which,
subject to the terms and conditions set forth in said Lease, the Owner
Trustee agrees to lease to the Lessee, and the Lessee agrees to lease
from the Owner Trustee, the Aircraft on the Delivery Date, such Lease to
be effected by the execution and delivery of a Lease Supplement, in the
form of Exhibit A to the Lease, covering the Aircraft and incorporating
by reference all of the terms of the Lease;
(c) on the Certificate Closing Date, to execute and deliver the
Indenture, substantially in the form of Exhibit C hereto, for the
benefit of the Holders from time to time of the Certificates, pursuant
to which the Owner Trustee agrees, among other things, (A) to deposit,
mortgage and pledge with the Indenture Trustee, as part of the Trust
Indenture Estate, all of the Lessor's Estate but not Excepted Payments,
(B) on the Certificate Closing Date, to issue Certificates substantially
in the form set forth in Exhibit B to the Indenture, the proceeds of the
sale of which will be held by the Owner Trustee in the Collateral
Account until released on the Delivery Date for use by the Owner Trustee
(or, in certain circumstances, the Lessee) towards payment of the
Purchase Price for the Aircraft, and (C) on the Delivery Date, to
execute and deliver the Indenture and Security Agreement Supplement,
substantially in the form of Exhibit A to the Indenture, covering the
Aircraft and supplementing the Indenture;
(d) on the Certificate Closing Date, to execute and deliver the
Purchase Agreement Assignment, whereby the Lessee assigns to the Owner
Trustee the right to purchase the Aircraft from AVSA and certain of the
Lessee's rights and interests under the Purchase Agreement and the
Consent and Guaranty to the extent that the same relate to the Aircraft
(except to the extent reserved in said Purchase Agreement Assignment),
which Purchase Agreement Assignment is to include as an annex a Consent
and Agreement executed by the Manufacturer and the AVSA Consent and
Agreement executed by AVSA, said Purchase Agreement Assignment, Consent
and Agreement and AVSA Consent and Agreement to be substantially in the
form of Exhibit E hereto; and
(e) on the Certificate Closing Date, to execute and deliver the
Engine Warranty Assignment, whereby the Lessee assigns to the Owner
Trustee certain of the Lessee's rights and interests under the GTA to
the extent that the same relate to the Engines (except to the extent
reserved in the Engine Warranty Assignment), which Engine Warranty
Assignment is to include as an annex a Consent executed by the Engine
Manufacturer, said Engine Warranty Assignment and Engine Consent to be
substantially in the form of Exhibit F hereto.
WHEREAS, on the Delivery Date pursuant to and subject to the terms
and conditions of this Agreement, the Purchase Agreement Assignment, the
Engine Warranty Assignment, AVSA's FAA Xxxx of Sale, AVSA's Warranty Xxxx
of Sale and the Airbus Guaranty, the Owner Trustee will purchase, and
receive title to, the Aircraft from AVSA and lease the Aircraft to the
Lessee pursuant to the Lease (or, in certain, circumstances, the Lessee
will purchase the Aircraft).
NOW, THEREFORE, in consideration of the mutual covenants contained
in this Agreement and other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise specifically provided herein, the definitions set
forth in Schedule II hereto are incorporated herein for all purposes of
this Agreement and shall be equally applicable to both the singular and the
plural forms of the terms so defined.
ARTICLE 2
ISSUANCE OF PASS THROUGH CERTIFICATES;
ISSUANCE AND PURCHASE OF CERTIFICATES
Section 2.01. Transfer of Funds.
(a) On or before the Pass Through Closing Date, the Pass Through
Trustee and the Lessee, in accordance with the Pass Through Agreement,
shall enter into the Series Supplements, and, subject to the terms and
conditions set forth therein, on the Pass Through Closing Date (i) the
Lessee shall direct the Underwriters to execute a wire transfer or intra-bank
transfer to the Pass Through Trustee in the amount of the total
proceeds payable pursuant to the Underwriting Agreement with respect to the
Pass Through Certificates and (ii) the Pass Through Trustee shall deliver
the Pass Through Certificates to the Underwriters upon receipt by the Pass
Through Trustee of such proceeds.
(b) Subject to the satisfaction or waiver of the conditions set
forth herein, on the Certificate Closing Date, on behalf of each Pass
Through Trust, from an allocable amount of the proceeds of sale of the
related Pass Through Certificates, the Pass Through Trustee shall purchase
the Certificates specified for such Pass Through Trust on Schedule I
hereto. For each Pass Through Trust, the Pass Through Trustee shall pay an
amount equal to the principal amount of Certificates of the Maturity and
having the interest rate that relates to such Pass Through Trust, which
amounts in the aggregate shall equal the aggregate principal amount of the
Certificates as specified in Section 2.04 of the Indenture. The aggregate
amount payable by the Pass Through Trustee pursuant to this Section 2.01(b)
shall be payable by wire transfer or intra-bank transfer to the Indenture
Trustee on behalf of the Owner Trustee.
(c) On the Certificate Closing Date, the Indenture Trustee shall,
on behalf of the Owner Trustee, deposit, by wire transfer or intra-bank
transfer, the amounts received by it pursuant to Section 2.01(b) hereof in
the Collateral Account pursuant to the Indenture.
(d) On the Certificate Closing Date concurrently with the events
specified in Section 2.01(b) hereof, the parties hereto shall execute and
deliver, to the extent they are parties thereto, and consent to the
execution and delivery of (if they are not parties thereto), the Lease, the
Indenture and the Trust Agreement, and the other documents listed in
Section 4.01(d) hereof, and the Owner Trustee shall execute and deliver to
the Indenture Trustee for authentication, and the Indenture Trustee shall
authenticate and deliver to the applicable Pass Through Trustee, upon the
request of the Owner Trustee, the Certificates as provided in Section 2.02
hereof.
(e) The Closings shall take place at the offices of Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 2.02. Certificates. Subject to the satisfaction or
waiver of the conditions set forth herein, on the Certificate Closing Date,
the Owner Participant will instruct the Owner Trustee to execute and
deliver to the Indenture Trustee, and the Indenture Trustee shall
authenticate and deliver, upon the request of the Owner Trustee, to the
Pass Through Trustee for each Pass Through Trust, the Certificates
specified for such Pass Through Trust on Schedule I attached hereto, which
(i) shall be issued in the principal amount and in the Maturity set forth
for such Certificate in Schedule I hereto, (ii) shall bear interest at the
interest rate set forth for such Certificate in Schedule I hereto, (iii)
shall be issued in such form and on such terms as are specified in the
Indenture, (iv) shall be dated and authenticated on the Certificate Closing
Date and shall bear interest from the Certificate Closing Date and (v)
shall be registered in the name of the Pass Through Trustee on behalf of
such Pass Through Trust.
Section 2.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the issuance of Certificates in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the action specified in Section 1.01 (other than clause (c)) of the
Trust Agreement and confirmation that all conditions to closing set forth
in Section 4.01 hereof were either met to the satisfaction of the Owner
Participant or, if not so met, were in any event waived by it.
Section 2.04. Pre-Delivery Date Adjustments to Basic Rent,
Stipulated Loss Values, Termination Values and EBO Price. (a) On or prior
to the Delivery Date, the percentages for Basic Rent referred to in
Schedule II of the Lease and for Stipulated Loss Value and Termination
Value in Schedule III and Schedule IV, respectively, of the Lease and the
EBO Price shall be adjusted (upward or downward), subject to the procedures
set forth in Section 3.04 of the Lease and the minimum value established by
Section 3.05 of the Lease and the definitions of Stipulated Loss Value and
Termination Value, to reflect changes in the pricing assumptions with
respect to (i) the Delivery Date being other than November 20, 1995, (ii) a
different rate of interest or amortization schedule assumed by the Owner
Participant in calculating such percentages from that assumed by the Owner
Participant in originally calculating such percentages, (iii) Transaction
Costs being other than as assumed in Section 10.01 hereof, (iv) any change
in the length of the Interim Term or the Basic Term and (v) a change in the
Internal Revenue Code or the Treasury Regulations promulgated thereunder or
a publication by the Internal Revenue Service of any Revenue Ruling or
Revenue Procedure or any informational release or adverse judicial decision
(a "Change in Tax Law") which occurs after the date that is two days prior
to the execution of this Agreement but on or prior to the Delivery Date.
(b) If after the date that is two days prior to the execution of
this Agreement but on or prior to the Delivery Date, a Change in Tax Law is
proposed relating to depreciation or the accrual of rent, and on or prior
to the Delivery Date either (I) the Owner Participant provides a memorandum
of counsel that concludes there is a significant likelihood that such
Change in Tax Law (insofar as it affects the transaction) will be enacted
or become effective in substantially the form proposed, and if enacted or
effective, would adversely affect either component of the Owner's Economic
Return by more than 50 basis points, then the Lessee shall provide for
either (A) a rent adjustment in the manner described in Section 3.04 of the
Lease based on the assumption that such Change in Tax Law will occur or (B)
an indemnity reasonably satisfactory to the Owner Participant regarding
such Change in Tax Law that would preserve the Owner's Economic Return or
(II) the Lessee provides a memorandum of counsel that concludes there is a
significant likelihood that such Change in Tax Law (insofar as it effects
the transaction) will be enacted or become effective in substantially the
form proposed, and if enacted or effective, would enhance either component
of the Owner's Economic Return by more than 50 basis points, then the Owner
Participant will enter into an agreement with the Lessee in form and
substance reasonably satisfactory to both parties pursuant to which the
Owner Participant will agree that upon such proposed Change in Tax Law
becoming effective, the Owner Participant shall make payments directly to
the Lessee from time to time such that taking into account the Change in
Tax Law and such payments, the benefit of such Change in Tax Law will be
passed through to the Lessee while preserving the Owner's Economic Return.
(c) If, as a result of an adjustment to the percentages for
Interim Rent and Basic Rent referred to in Schedule II of the Lease
pursuant to clause (a) or (b) of this Section 2.04, the Net Present Value
of Rents assuming such adjustments increases by more than 1.50% from the Net
Present Value of Rents prior to such adjustments, the Lessee will have the
right to terminate its commitment to lease the Aircraft from the Owner
Trustee and will have no further obligations other than as described in
Section 3.05 hereof.
ARTICLE 3
PARTICIPATION IN INVESTMENT ON DELIVERY DATE;
DELIVERY OF AIRCRAFT
Section 3.01. Lessee's Notice of Delivery Date. The Lessee
agrees to give the Owner Participant, the Indenture Trustee, the Owner
Trustee and the Pass Through Trustee at least three (3) Business Days'
written or facsimile notice prior to the Delivery Date (which notice shall
be effective only if received not later than 10:00 a.m. (New York City
time) on the date that is at least three (3) Business Days prior to the
Delivery Date), which Delivery Notice shall specify the amount of the
Purchase Price, the amount of the Owner Participant's Commitment, the Debt
Portion, the Delivery Date for the Aircraft, the serial number of the
Airframe and each Engine, and the Aeronautics Authority registration number
for the Aircraft.
Section 3.02. Commitments to Participate in Purchase Price. (a)
Participation in Purchase Price. Subject to the terms and conditions of
this Agreement, on the Delivery Date, (i) the Indenture Trustee agrees to
release the Debt Portion or such lesser amount as may then be held in the
Collateral Account together with the Lessee Shortfall (as defined in clause
(iii) below), if any, to the Owner Trustee for application to the Purchase
Price as provided below, (ii) the Owner Participant agrees to participate
in the Lessor's payment of the Purchase Price by making an investment in
the beneficial ownership of the Lessor's Estate in an amount equal to that
percentage of the Purchase Price set forth opposite the Owner Participant's
name in Schedule IV hereto, (iii) the Lessee agrees to pay to the Indenture
Trustee the excess, if any, of (I) the Debt Portion over (II) the amount as
may then be held in the Collateral Account (the "Lessee Shortfall") as
provided in Section 17.02(a) hereof, and (iv) pursuant to the Purchase
Agreement as assigned pursuant to the Purchase Agreement Assignment, AVSA
shall sell the Aircraft to the Owner Trustee and the Owner Trustee shall
immediately thereafter lease the Aircraft to the Lessee pursuant to the
Lease. In consideration for the assignment to the Owner Trustee by the
Lessee under the Purchase Agreement Assignment of the Lessee's right to
purchase the Aircraft for the remaining balance due under the Purchase
Agreement and for the transfer of title to the Aircraft from AVSA to the
Owner Trustee, the following cash payments will be made by wire transfer of
immediately available funds on the Delivery Date: (A) by the Owner Trustee
to AVSA, an amount equal to the remaining balance due to AVSA under the
Purchase Agreement for the Aircraft, as evidenced by the Invoice, (B) by
the Owner Trustee to the Lessee, an amount equal to the Purchase Price
minus the cash payment to AVSA pursuant to clause (A) above and (C) by the
Indenture Trustee, on behalf of the Owner Trustee, to the Lessee the excess
of any amounts as may then be held in the Collateral Account over the Debt
Portion.
(b) Payment of Commitment. The Owner Participant agrees, subject
to the terms and conditions of this Agreement, to make the amount of its
Commitment available for and on account of the Owner Trustee on the
Delivery Date specified in the Delivery Notice pursuant to Section 3.03
hereof by wire transfer, initiated by 10:00 a.m. (New York City time on
such day) of such amount in immediately available funds, to NBD for deposit
in its account at NBD Bank, ABA No. 000-000-000, Account: NBD NATL
DET/TRUST, BNF = Corp Trust Dept (G/L #325604), OBI = FedEx Corp Trust No.
N663FE, Account #0000000-00, Attention: Xxxxx X'Xxxxxxxx. The amount of
the Owner Participant's Commitment shall be held for the account of the
Owner Participant by NBD until released by the Owner Participant or its
special counsel at closing or until returned to the Owner Participant in
accordance with Section 3.02(c) hereof.
(c) Delayed Delivery. Subject to the provisions of Section 3.05
hereof, if the closing of the transactions contemplated by the Operative
Agreements shall not have been consummated by 2:00 p.m. (New York City
time), or such earlier time as directed by the Lessee, on the Scheduled
Delivery Date, the Owner Trustee shall, if instructed in writing by the
Lessee, at the risk and expense of the Lessee, use its reasonable best
efforts to cause the Owner Participant's Commitment to be invested and
reinvested to the extent practicable at the direction received by it from
the Lessee (with a copy to the Owner Participant), at the risk of the
Lessee, in Permitted Investments consisting of either commercial paper or
time deposits; provided, however, that in the absence of instructions by
2:00 p.m. (New York City time) the Owner Trustee shall use its reasonable
best efforts to cause such amount or the proceeds thereof to be invested
and reinvested to the extent practicable in overnight Eurodollar time
deposits. Earnings on any such investments shall be applied to the
Lessee's payment obligations, if any, to the Owner Participant or the Owner
Trustee under the next two paragraphs to the extent of such obligations,
and the balance, if any, of such earnings remaining after such application
shall be paid in accordance with the Lessee's written instructions.
If for any reason (i) the Operative Agreements shall not be
executed and delivered by the respective parties thereto and/or the
Delivery Date shall not occur (whether by reason of a failure to meet a
condition precedent thereto set forth in Article 4 hereof or otherwise) on
or before the third Business Day after the Scheduled Delivery Date or, if
earlier, the Cut-Off Date, or (ii) the Lessee has notified the Owner
Trustee (with a copy to the Owner Participant) prior to 2:00 p.m. (New
York City time) on any date after the Scheduled Delivery Date that it does
not intend to go forward to close the transactions contemplated hereby for
such Delivery Date, the Owner Participant may cancel any funding
arrangements made to fund its Commitment on the Scheduled Delivery Date but
the Owner Participant's Commitment hereunder with respect to the Aircraft
shall not (except as otherwise expressly contemplated in a signed term
sheet between the Owner Participant and the Lessee) be terminated thereby
until the Cut-Off Date, whereupon the Owner Participant's Commitment
hereunder shall terminate. On such third Business Day or the Cut-Off Date,
as the case may be, or the earliest practicable Business Day thereafter,
the Owner Trustee shall return the amounts held by it hereunder to the
Owner Participant, provided that the Owner Trustee shall have had a
reasonable time to liquidate any Permitted Investments it has been
authorized to invest in pursuant to the preceding paragraph and to obtain
the proceeds therefrom in funds of the type originally received, and the
Lessee shall pay interest on such funds to the Owner Participant at the
Base Rate minus 50 basis points, such interest to be payable for the period
from and including such Scheduled Delivery Date to but excluding the date
such funds are returned to the Owner Participant in accordance with the
terms hereof; provided that if any such funds are returned to the Owner
Participant after 2:00 p.m. (New York City time) on any such date, such
funds shall be deemed for purposes of this paragraph to have been returned
on the next succeeding Business Day.
The Lessee shall reimburse the Owner Trustee on demand for any
loss incurred by the Owner Trustee as a result of the investment of funds
by the Owner Trustee in accordance with the terms of this Section 3.02(c).
Further, the Lessee shall indemnify the Owner Trustee and hold it harmless
from and against any cost or expense the Owner Trustee may incur as a
result of any investment of funds or transfer of funds referred to herein
in accordance with the terms hereof. The Owner Trustee shall not be liable
for failure to invest such funds except as otherwise provided herein or for
any losses incurred on such investments except for any losses arising out
of its own gross negligence or willful misconduct.
Section 3.03. Owner Participant's Instructions to Owner Trustee.
The Owner Participant agrees that the release of its Commitment in
accordance with the terms hereof shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee
to take the action specified in Section 1.01(c) of the Trust Agreement and
confirmation that all conditions to closing set forth in Section 4.02
hereof were either met to the satisfaction of the Owner Participant or, if
not so met, were in any event waived by it.
Section 3.04. Transaction Costs. If the transactions
contemplated by this Article 3 are consummated, as and when any portion of
Transaction Costs becomes due and payable, the Owner Participant shall, as
soon as practicable upon receipt of bills or invoices for the amounts
payable make such payments or, if the Lessee shall have already made such
payment, shall reimburse the Lessee therefor or shall, as soon as
practicable, furnish the Owner Trustee funds sufficient to, and the Owner
Trustee shall, as soon as practicable, make payment of such portion to the
Person or Persons entitled to payment upon presentation to the Owner
Trustee of bills or invoices for the amount of such payment. If, in breach
of a signed term sheet or this Agreement, the Owner Participant shall fail
to make the full amount of its Commitment available in accordance with
Section 3.02 hereof, the Lessee shall have no obligation to pay any costs
and expenses incurred by the Owner Participant in connection with the
transactions contemplated by this Agreement (but the Lessee shall be
obligated to pay all other Transaction Costs) and neither the fact of the
Lessee's agreement in Section 3.05 hereof to purchase the Aircraft nor the
requirement in Section 3.05 hereof that the Owner Participant shall assign
its interest to another equity investor identified by the Lessee shall be
deemed to constitute a waiver or release of any right which the Lessee may
have against the Owner Participant in such circumstances.
Section 3.05. Postponement of Delivery Date. (a) If the Owner
Participant shall for any reason not make the full amount of its Commitment
available when required in accordance with the terms of Section 3.02
hereof, the Owner Trustee will promptly give each party confirmed facsimile
notice thereof and the Lessee shall postpone the Delivery Date for a period
of not more than five (5) Business Days, but in no event later than the
Cut-Off Date. Notwithstanding the foregoing, if for any reason other than
the failure of the Manufacturer or AVSA to deliver the Aircraft, the Lessee
does not enter into the Lease Supplement with the Owner Trustee on or prior
to the Cut-Off Date, the Indenture Trustee and the Pass Through Trustee
agree that either (i) the Lessee shall cause the Owner Participant to
assign to another equity investor identified by the Lessee its interest in
the Lessor's Estate pursuant to Section 7.03(d) hereof and cause such
successor Owner Participant to so close on such transactions, provided that
the election contained in this clause (i) may be exercised by the Lessee
only if the Owner Participant fails to make available its Commitment in
breach of a signed term sheet or this Agreement or if the Lessee is
entitled by virtue of Section 2.04(c) hereof to terminate its commitment to
lease the Aircraft from the Owner Trustee or (ii) the Lessee shall purchase
the Aircraft and assume all of the obligations of the Owner Trustee under
the Certificates upon satisfaction of the requirements set forth in Section
4.02 hereof, as the same may be modified by the provisions of Section 7.11
hereof and as otherwise necessary to reflect a full recourse secured
aircraft financing of the Lessee. The Lessee agrees to elect either clause
(i) or (ii) of the previous sentence if the Lessee does not enter into the
Lease Supplement with the Owner Trustee on or prior to the Cut-Off Date as
specified in such sentence and agrees to perform the undertakings
associated with such election. If the Lessee has elected clause (i) of the
second preceding sentence hereof, the Owner Participant agrees to assign
its interest in the Lessor's Estate as provided in said clause (i). In
case of any such election (but subject to the satisfaction of the
conditions precedent specified herein), the Indenture Trustee shall release
the Debt Portion or such lesser amount as may then be held in the
Collateral Account for application to the payments contemplated in the last
sentence of Section 3.02(a) hereof.
(b) Release of Obligations. If the Delivery Date has not
occurred on or prior to the Cut-Off Date as a result of a failure of the
Manufacturer or AVSA to deliver the Aircraft, then, in such event, the
Owner Trustee shall not purchase the Aircraft from AVSA, and the parties to
the Operative Agreements shall have no further obligations or liabilities
under any of said Operative Agreements with respect to the Aircraft,
including the obligation of the Owner Participant to participate in the
payment of the Purchase Price, and such documents shall terminate and have
no further force or effect with respect to the Aircraft; provided, however,
that the Lessee shall provide, no later than the Business Day next
preceding the date 15 days prior to the Cut-Off Date, notice of prepayment
to the Indenture Trustee and the Certificates shall be prepaid on such date
as provided in Section 6.02(a)(vi) of the Indenture and Section 17.02(c)
hereof and provided further, that (i) the Lessee's obligation to pay any
Transaction Costs as provided in Section 3.04 hereof (to the extent such
section is applicable) and to indemnify such parties to the extent provided
in such documents, shall not be diminished or modified in any respect and
(ii) the obligations of the Owner Trustee, the Indenture Trustee and the
Lessee to return funds and pay interest, costs, expenses and other amounts
thereon or in respect thereof as provided in Section 3.02 hereof shall
continue.
(c) Optional Postponement. Without limiting the provisions of
Section 3.02(c) hereof, the Scheduled Delivery Date may be postponed from
time to time (but in no event shall the Delivery Date be later than the
Cut-Off Date) for any reason, other than pursuant to Section 3.05(a)
hereof, if the Lessee gives the Owner Participant, the Indenture Trustee,
the Owner Trustee and the Pass Through Trustee confirmed facsimile notice
(or telephone notice followed by written confirmation) of such postponement
and notice of the date to which the Delivery Date has been postponed, such
notice of postponement to be received by each party no later than 11:00
a.m. (New York City time) on the Business Day preceding the Scheduled
Delivery Date.
Section 3.06. Closing. The closing with respect to the purchase
and lease of the Aircraft on the Delivery Date shall take place at the
offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
Section 3.07. Owner Participant Payment. The Owner Participant
agrees with the Lessee and only with the Lessee on behalf of the Owner
Trustee to make available to the Owner Trustee funds sufficient to pay to
the Indenture Trustee on the Owner Participant Payment Date an amount equal
to the amounts of principal (if any) and, to the extent accrued from the
Delivery Date, the interest scheduled to be paid on the Certificates on
such date (the "Owner Participant Amount"), and the Owner Trustee shall
upon receipt thereof make such funds available to the Indenture Trustee to
pay (together with the amounts received from the Lessee pursuant to Section
17.02(b) hereof) amounts due and owing under the Certificates on the Owner
Participant Payment Date, provided that the Owner Participant shall not be
obligated to make such funds available if an Event of Default under the
Lease shall have occurred and be continuing on the date on which such funds
are to be made available. If the Owner Participant does not make such
funds available when otherwise required to do so, the Lessee shall be
obligated to make an advance pursuant to Section 3.05 of the Lease in an
amount sufficient to pay in full the amounts of principal and interest due
on the Certificates on such date for which the Owner Participant is liable
pursuant to the preceding sentence. Such obligations shall not, nor shall
they be construed to, make the Owner Participant directly liable on the
Certificates or in any way convert the Certificates to recourse loans
against the Owner Participant.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent (Certificate Closing Date).
The obligations of the Owner Trustee, the Owner Participant, the Lessee,
the Indenture Trustee and the Pass Through Trustee on behalf of each Pass
Through Trust to participate in the transactions contemplated hereby on the
Certificate Closing Date are subject to the fulfillment to the satisfaction
of such party (or waiver by such party), prior to or on the Certificate
Closing Date, of the following conditions precedent (it being understood
that receipt by the Lessee of any of the following documents shall not be a
condition precedent to the obligations of any party):
(a) Certificates. On the Certificate Closing Date, there shall
have been duly issued and delivered by the Owner Trustee to the Pass
Through Trustee for each Pass Through Trust, against payment therefor, a
Certificate, substantially in the form set forth in Exhibit B to the
Indenture, duly authenticated, dated the Certificate Closing Date and
registered in the name of the Pass Through Trustee on behalf of such
Pass Through Trust, in the principal amounts, Maturity, bearing the
interest rate and the other economic terms specified in the Series
Supplements and otherwise as provided in Section 2.04 of the Indenture.
The Pass Through Certificates shall be registered under the Securities
Act, any applicable state securities laws shall have been complied with,
and the Pass Through Agreement shall have been qualified under the Trust
Indenture Act.
(b) Legal Investment. On the Certificate Closing Date, no change
shall have occurred after the date which is two days prior to the
signing of this Agreement in applicable laws or regulations, or
interpretations of any such laws or regulations by applicable regulatory
authorities, which, in the opinion of the Owner Participant or its
special counsel, the Pass Through Trustee or the Indenture Trustee or
their special counsel, would make it illegal for the Owner Participant,
the Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance
issued by regulatory authorities for the Owner Participant, the Lessee,
the Owner Trustee, the Pass Through Trustee or the Indenture Trustee, to
participate in the transaction to be consummated on the Certificate
Closing Date; and no action or proceeding shall have been instituted nor
shall governmental action before any court, governmental authority or
agency be threatened which in the opinion of counsel for the Owner
Participant, the Pass Through Trustee or the Indenture Trustee is not
frivolous, nor shall any order have been issued or proposed to be issued
by any court, or governmental authority or agency, as of the Certificate
Closing Date, to set aside, restrain, enjoin or prevent the consummation
of any of the transactions contemplated by this Agreement or by any of
the other Operative Agreements.
(c) Underwriters. The Underwriters shall have transferred the
funds specified in Section 2.01(a) hereof and all conditions under the
Underwriting Agreement shall have been satisfied or waived.
(d) Operative Documents. This Agreement and the following documents
shall have been duly authorized, executed and delivered by the respective
party or parties thereto, shall, to the extent that the forms thereof are
not attached hereto, each be satisfactory in form and substance to the
Lessee, the Indenture Trustee, the Pass Through Trustee, the Owner Trustee
and the Owner Participant (each acting directly or by authorization to its
special counsel) and shall each be in full force and effect; there shall
not have occurred any default thereunder, or any event which with the lapse
of time or the giving of notice or both would be a default thereunder, and
copies executed or certified as requested by the Lessee, the Owner Trustee,
the Owner Participant, the Indenture Trustee or the Pass Through Trustee,
as the case may be, of such documents shall have been delivered to the
Lessee, the Owner Participant, the Indenture Trustee and the Pass Through
Trustee:
(i) the Lease;
(ii) the Indenture;
(iii) in the case of the Owner Participant only, the Tax Indemnity
Agreement;
(iv) the Purchase Agreement and the Consent and Guaranty;
(v) the Purchase Agreement Assignment and the French Pledge
Agreement with respect thereto;
(vi) the Consent and Agreement and the AVSA Consent and
Agreement;
(vii) the GTA;
(viii) the Engine Warranty Assignment;
(ix) the Engine Consent;
(x) the Trust Agreement; and
(xi) Ancillary Agreement I.
Copies executed or certified as requested by the Lessee, the
Indenture Trustee or the Owner Participant, as the case may be, of the
documents set forth above shall have been delivered to the Owner
Participant, the Lessee, the Indenture Trustee and the Owner Trustee
(provided that the sole "chattel-paper original" of the Lease and
Ancillary Agreement I, together with executed copies of the Indenture
Documents, shall be delivered to the Indenture Trustee).
(e) Approvals. All approvals and consents of any trustees or
holders of any indebtedness or obligations of the Lessee, which in the
opinion of the Owner Participant, the Pass Through Trustee or the
Indenture Trustee are required in connection with any transaction
contemplated by this Agreement, shall have been duly obtained.
(f) Financing Statements. Uniform Commercial Code ("UCC")
financing statements covering all the security interests (and other
interests) created by or pursuant to the Granting Clause of the
Indenture shall have been executed and delivered by the Owner Trustee,
as debtor, and by the Indenture Trustee, as secured party, for and on
behalf of the Holders, and such financing statements shall have been
duly filed or duly submitted for filing in the State of Michigan, and
all other actions shall have been taken which, in the opinion of the
Owner Participant, the Pass Through Trustee and the Underwriters, are
necessary to perfect and protect such security interests and other
interests created by or pursuant to the Granting Clause of the
Indenture.
(g) Corporate Documents. Except when such Person is the
delivering party, the Owner Participant, the Owner Trustee, the Lessee,
the Pass Through Trustee and the Indenture Trustee (acting directly or
by authorization to its counsel) shall have received the following, in
each case in form and substance satisfactory to it:
(i) a copy of the certificate of incorporation and by-laws of
the Lessee, certified by the Secretary or an Assistant Secretary
of the Lessee as of the Certificate Closing Date, and a copy of
the resolutions of the board of directors of the Lessee, certified
as such as of the Certificate Closing Date by such Secretary or
Assistant Secretary, duly authorizing the lease by the Lessee of
the Aircraft under the Lease and the execution, delivery and
performance by the Lessee of this Agreement, the Lease, the Tax
Indemnity Agreement, the Pass Through Agreement, the Series
Supplements, the other Operative Agreements to which the Lessee is
or is to be a party and each other document to be executed and
delivered by the Lessee in connection with the transactions
contemplated hereby;
(ii) a copy of the certificate of incorporation and by-laws of
the Owner Participant, certified by the Secretary or an Assistant
Secretary of the Owner Participant as of the Certificate Closing
Date, and a copy of the resolutions of the board of directors of
the Owner Participant, certified as such as of the Certificate
Closing Date by such Secretary or Assistant Secretary, duly
authorizing the execution, delivery and performance by the Owner
Participant of this Agreement, the Tax Indemnity Agreement, the
Trust Agreement, the other Operative Agreements to which the Owner
Participant is or is to be a party and each other document to be
executed and delivered by the Owner Participant in connection with
the transactions contemplated hereby;
(iii) a copy of the articles of incorporation and by-laws and
other instruments of NBD, certified by the Secretary or an
Assistant Secretary of NBD as of the Certificate Closing Date (or
other like instruments satisfactory to the Lessee and the Owner
Participant) and evidence authorizing the execution, delivery and
performance by NBD or the Owner Trustee, as the case may be, of
this Agreement, the Trust Agreement and each of the other
Operative Agreements to which it is or is to be a party, whether
in its individual capacity or as Owner Trustee and each other
document to be executed and delivered by the Owner Trustee in
connection with the transactions contemplated hereby;
(iv) a copy of the articles of association and by-laws and
other instruments of Chase and a copy of the resolutions of the
board of directors of Chase, certified by the Secretary or an
Assistant Secretary of Chase as of the Certificate Closing Date
(or other like instruments satisfactory to the Lessee and the
Owner Participant) duly authorizing the execution, delivery and
performance by Chase (in its capacity as the entity acting as
Indenture Trustee) or the Indenture Trustee, as the case may be,
of this Agreement and each of the other Operative Agreements to
which it is or is to be a party, whether in its individual
capacity or as Indenture Trustee and each other document to be
executed and delivered by the Indenture Trustee in connection with
the transactions contemplated hereby;
(v) a copy of the articles of association and by-laws and
other instruments of Chase and a copy of the resolutions of the
board of directors of Chase, certified by the Secretary or an
Assistant Secretary of Chase as of the Certificate Closing Date
(or other like instruments satisfactory to the Lessee and the
Owner Participant) duly authorizing the execution, delivery and
performance by Chase (in its capacity as the entity acting as Pass
Through Trustee) or the Pass Through Trustee, as the case may be,
of this Agreement, the Pass Through Agreement, the Series
Supplements and each other document to be executed or
authenticated by or on behalf of the Pass Through Trustee in
connection with the transactions contemplated hereby; and
(vi) such other documents, evidences, materials, and
information with respect to the Lessee, the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee and the Owner
Participant as the Indenture Trustee, the Pass Through Trustee or
the Owner Participant may reasonably request in order to establish
the consummation of the transactions contemplated by this
Agreement.
(h) Officer's Certificate of Lessee. On the Certificate Closing
Date, the following statements shall be true, and the Owner Participant,
the Owner Trustee, the Pass Through Trustee and the Indenture Trustee shall
have received a certificate signed by the Vice President and Treasurer or
any other duly authorized officer of the Lessee, dated the Certificate
Closing Date, stating that:
(i) the representations and warranties of the Lessee contained
in the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Certificate Closing
Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such certificate shall state that such representations
and warranties were true and correct on and as of such earlier date);
(ii) except for the matters described under "Legal Proceedings"
in the Lessee's Annual Report on Form 10-K for the fiscal year ended
May 31, 1995 (as updated by Note 7 to the financial statement
included in the Lessee's Quarterly Report on Form 10-Q for the fiscal
quarter ended August 31, 1995), as to which such officer will make no
certification concerning the liability of the Lessee (if any), or the
effect of any adverse determination upon the consolidated financial
condition, business or operations of the Lessee, no material adverse
change has occurred in the financial condition, business or
operations of the Lessee from that shown in the unaudited
consolidated financial statements of the Lessee as of August 31, 1995
and nothing has occurred which will, in the judgment of such officer,
materially adversely affect the ability of the Lessee to carry on its
business or to perform its obligations under this Agreement and each
other Operative Agreement to which it is a party; and
(iii) no event has occurred and is continuing which
constitutes a Default or an Event of Default under the Lease.
(i) Officer's Certificate of Owner Participant. On the Certificate
Closing Date, the following statements shall be true, and the Lessee, the
Pass Through Trustee, the Owner Trustee and the Indenture Trustee shall
have received a certificate from the Owner Participant, signed by a duly
authorized officer of the Owner Participant, dated the Certificate Closing
Date, stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement to which it is a party and in any certificate
delivered pursuant hereto or thereto, are true and correct on and as
of the Certificate Closing Date as though made on and as of such date
(except to the extent that such representations and warranties relate
solely to an earlier date, in which case such certificate shall state
that such representations and warranties were true and correct on and
as of such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes,
due to any action or inaction on the part of the Owner Participant,
an Indenture Default or an Indenture Event of Default.
(j) Other Officer's Certificates. On the Certificate Closing Date,
the following statements shall be true, and the Owner Participant, the
Lessee, the Pass Through Trustee, the Owner Trustee and the Indenture
Trustee shall have received a certificate from each of NBD and the Owner
Trustee (in the case of the Lessee, the Owner Participant, the Pass Through
Trustee and the Indenture Trustee), Chase in its capacity as the entity
acting as Indenture Trustee (in the case of the Lessee, the Owner
Participant, the Pass Through Trustee and the Owner Trustee) and Chase in
its capacity as the entity acting as Pass Through Trustee (in the case of
the Lessee, the Owner Participant, the Indenture Trustee and the Owner
Trustee) signed by a duly authorized officer of NBD and Chase,
respectively, dated the Certificate Closing Date, stating with respect to
NBD and the Owner Trustee, Chase (other than in its capacity as Pass
Through Trustee) and the Indenture Trustee or Chase (other than in its
capacity as Indenture Trustee) and the Pass Through Trustee, as the case
may be, that:
(i) the representations and warranties of the Owner Trustee in
its individual capacity and as Owner Trustee, of the Indenture
Trustee in its individual capacity (other than in its capacity as
Pass Through Trustee) and as Indenture Trustee, and of the Pass
Through Trustee in its individual capacity (other than in its
capacity as Indenture Trustee) and as Pass Through Trustee, contained
in this Agreement, the Lease, the Trust Agreement and the Indenture
and in any certificate delivered pursuant hereto or thereto are true
and correct on and as of the Certificate Closing Date as though made
on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of the Owner Trustee in its individual capacity
or as trustee, and of the Indenture Trustee in its individual
capacity (other than in its capacity as Pass Through Trustee) or as
trustee, an Event of Default or an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or NBD and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
(k) Legal Opinions. The Owner Participant, the Lessee, the Owner
Trustee, the Indenture Trustee and the Pass Through Trustee (acting
directly or by authorization to its special counsel) shall have received
from the following counsel their respective legal opinions in each case
satisfactory to the Owner Participant, the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee, as the case may be, as to
scope and substance (and covering such other matters as the recipient may
reasonably request) and dated the Certificate Closing Date:
(i) Xxxxxx X. Xxxxx, Esq., Vice President, Law - Corporate and
Business Transactions of the Lessee in the form of Exhibit A(1)(a)(i)
hereto, addressed to the Owner Participant, the Owner Trustee, the
Pass Through Trustee, the Indenture Trustee and the Underwriters;
(ii) Xxxxxx, Xxxxx & Bockius, special counsel for the Owner
Participant, in the form of Exhibit A(2)(a) hereto and Xxx Xxxxxxx,
Esq., Group Counsel of the Owner Participant, in the form of Exhibit
A(2)(b) hereto, each addressed to the Owner Participant, the Owner
Trustee, the Pass Through Trustee, the Indenture Trustee, the Lessee
and the Underwriters;
(iii) Xxxxx Xxxxxxxxxx, special counsel for the Indenture
Trustee, in the form of Exhibit A(3)(a) hereto and Xxxxxxx Xx
Xxxxxx, Vice President and Senior Associate Counsel of the
Indenture Trustee, in the form of Exhibit A(3)(b) hereto, each
addressed to the Owner Participant, the Owner Trustee, the Pass
Through Trustee, the Indenture Trustee, the Lessee and the
Underwriters;
(iv) Dickinson, Wright, Moon, Van Dusen & Xxxxxxx, special
counsel for the Owner Trustee, in the form of Exhibit A(4)(a)
hereto, addressed to the Owner Participant, the Owner Trustee, the
Pass Through Trustee, the Indenture Trustee, the Lessee and the
Underwriters;
(v) Xxxxx Xxxx & Xxxxxxxx, special counsel for the Lessee, in
the form of Exhibit A(1)(b)(i) hereto, addressed to the Owner
Participant, the Owner Trustee, the Pass Through Trustee, the
Indenture Trustee, the Lessee and the Underwriters; and
(vi) Xxxxx Xxxxxxxxxx, special counsel for the Pass Through
Trustee, in the form of Exhibit A(5)(a) hereto and Xxxxxxx Xx Xxxxxx,
Vice President and Senior Associate Counsel of the Pass Through
Trustee, in the form of Exhibit A(5)(b) hereto, each addressed to the
Owner Participant, the Owner Trustee, the Pass Through Trustee, the
Indenture Trustee, the Lessee and the Underwriters.
(l) No Indenture Default. No Indenture Event of Default or
Indenture Default has occurred and is continuing.
(m) Event of Default; Default. No Default or Event of Default under
the Lease shall have occurred or be in existence.
(n) Other Agreements. The Lessee and the Pass Through Trustee
shall have entered into the Pass Through Agreement and the Series
Supplements, all conditions to the effectiveness of each thereof shall
have been satisfied or waived, and the Pass Through Certificates shall
have been issued pursuant to the Series Supplements. The Lessee and the
Underwriters shall have entered into the Underwriting Agreement, all
conditions to the effectiveness thereof shall have been satisfied or
waived, and the Pass Through Certificates shall have been delivered
pursuant to the Underwriting Agreement.
(o) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements
referred to in subparagraph (f) of this Section 4.01, or in connection with
the issuance of the Certificates shall have been duly paid or caused to be
paid in full; and (B) all sales or use taxes and duties related to the
consummation of the transactions contemplated by the Operative Agreements
on the Certificate Closing Date which are then due and payable shall have
been duly paid in full.
Section 4.02. Conditions Precedent (Delivery Date). The obligations
of the Owner Trustee, the Owner Participant, the Lessee, the Indenture Trustee
and the Pass Through Trustee on behalf of each Pass Through Trust to
participate in the transactions contemplated hereby on the Delivery Date are
subject to the fulfillment to the satisfaction of each party (or waiver by
such party), prior to or on the Delivery Date, of the following conditions
precedent (it being understood that receipt by the Lessee of any of the
following documents shall not be a condition precedent to the obligation of
any party):
(a) Notice, etc. Each party hereto shall have received a Delivery
Notice pursuant to Section 3.01 hereof at least three (3) Business Days
prior to the Delivery Date.
(b) Legal Investment. No change shall have occurred after the date
which is two days prior to the Delivery Date in applicable laws or
regulations, or interpretations of any such laws or regulations by
applicable regulatory authorities, which, in the opinion of the Owner
Participant or its special counsel, the Pass Through Trustee or the
Indenture Trustee, would make it illegal for the Owner Participant, the
Lessee, the Owner Trustee, the Pass Through Trustee or the Indenture
Trustee, and no change in circumstances shall have occurred which would
otherwise make it illegal or otherwise in contravention of guidance issued
by regulatory authorities for the Owner Participant, the Lessee, the Owner
Trustee, the Pass Through Trustee or the Indenture Trustee, to participate
in the transaction to be consummated on the Delivery Date; and no action or
proceeding shall have been instituted nor shall governmental action before
any court, governmental authority or agency be threatened which in the
opinion of counsel for the Owner Participant, the Pass Through Trustee or
the Indenture Trustee is not frivolous, nor shall any order have been
issued or proposed to be issued by any court, or governmental authority or
agency, as of the Delivery Date, to set aside, restrain, enjoin or prevent
the consummation of any of the transactions contemplated by this Agreement
or by any of the other Operative Agreements.
(c) Documents. The documents referred to in Section 4.01(d) hereof
shall each be in full force and effect and the following documents shall
have been duly authorized, executed and delivered by the respective party
or parties thereto, shall to the extent that the forms thereof are not
attached hereto each be satisfactory in form and substance to the Lessee,
the Indenture Trustee, the Pass Through Trustee, the Owner Trustee and the
Owner Participant (each acting directly or by authorization to its special
counsel) and shall each be in full force and effect, and there shall not
have occurred any default thereunder or any event which with the lapse of
time or giving of notice or both would constitute a default thereunder:
(i) the Lease Supplement covering the Aircraft, dated the Delivery
Date;
(ii) an Indenture and Security Agreement Supplement covering the
Aircraft, dated the Delivery Date;
(iii) the Invoice; and
(iv) AVSA's FAA Xxxx of Sale, AVSA's Warranty Xxxx of Sale and the
Airbus Guaranty.
Copies executed or certified as requested by the Lessee, the
Indenture Trustee or the Owner Participant, as the case may be, of the
documents set forth above shall have been delivered to the Owner
Participant, the Lessee, the Indenture Trustee and the Owner Trustee
(provided that the sole "chattel-paper original" of the Lease
Supplement, together with executed copies of the Indenture Documents,
shall be delivered to the Indenture Trustee).
(d) Legal Opinions. The Owner Participant, the Lessee, the Owner
Trustee, the Indenture Trustee and the Pass Through Trustee (each acting
directly or by authorization to its special counsel) shall have received
from the following counsel their respective legal opinions, in each case
satisfactory to the Owner Participant, the Lessee, the Owner Trustee, the
Indenture Trustee, or the Pass Through Trustee, as the case may be, as to
scope and substance (and covering such other matters as the recipient may
reasonably request) and dated the Delivery Date:
(i) Xxxxxx X. Xxxxx, Esq., Vice President, Law - Corporate and
Business Transactions of the Lessee in the form of Exhibit
A(1)(a)(ii) hereto, addressed to the Owner Participant, the Owner
Trustee, the Pass Through Trustee, the Indenture Trustee and the
Underwriters;
(ii) Xxxxx Xxxx & Xxxxxxxx, special counsel for the Lessee, in
the form of Exhibit A(1)(b)(ii) hereto, addressed to the Owner
Participant, the Owner Trustee, the Pass Through Trustee, the
Indenture Trustee, the Lessee and the Underwriters;
(iii) Xxxxxxxxx, Xxxxxx & Xxxxxxxx, in the form of Exhibit A(8)
hereto, addressed to the Owner Participant, the Owner Trustee, the
Pass Through Trustee, the Indenture Trustee, the Lessee and the
Underwriter;
(iv) counsel for the Engine Manufacturer, in the form of Exhibit
A(6) hereto, addressed to the Owner Participant, the Owner Trustee,
the Pass Through Trustee, the Indenture Trustee, the Lessee and the
Underwriters;
(v) Xxxxxxxx Chance, counsel for AVSA and the Manufacturer in
the form of Exhibit A(7) hereto and addressed to the Owner
Participant, the Owner Trustee, the Pass Through Trustee, the
Indenture Trustee, the Lessee and the Underwriters;
(vi) Dickinson, Wright, Moon, Van Dusen & Xxxxxxx, special
counsel for the Owner Trustee, in the form of Exhibit A(4)(b)
hereto, addressed to the Owner Participant, the Owner Trustee, the
Pass Through Trustee, the Indenture Trustee, the Lessee and the
Underwriters; and
(vii) in the case of the Owner Participant only, Xxxxxx, Xxxxx &
Bockius, tax counsel for the Owner Participant, addressed to the
Owner Participant with respect to certain tax matters.
(e) Title, Airworthiness and Registration. On the Delivery Date,
the following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received evidence from the Lessee reasonably satisfactory to each such Person
to the effect that:
(i) the Owner Trustee has good and marketable title (subject to
filing and recording of AVSA's FAA Xxxx of Sale with the Aeronautics
Authority) to the Aircraft, free and clear of Liens, except the
rights of the Owner Trustee and the Lessee under the Lease and the
Lease Supplement covering the Aircraft, the rights of the Indenture
Trustee under the Indenture and the beneficial interest of the Owner
Participant created by the Trust Agreement and the interest of the
Certificate Holders created by the Indenture and Security Supplement
covering the Aircraft, which evidence shall include AVSA's FAA Xxxx
of Sale, AVSA's Warranty Xxxx of Sale and the Airbus Guaranty;
(ii) the Aircraft has been duly certified by the Aeronautics
Authority as to type and airworthiness in accordance with the terms
of the Operative Agreements;
(iii) AVSA's FAA Xxxx of Sale, the Lease and Lease Supplement
covering the Aircraft, the Indenture and the Indenture and Security
Agreement Supplement covering the Aircraft and the Trust Agreement
shall have been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the Aeronautics
Authority pursuant to the Transportation Code; and
(iv) application to the Aeronautics Authority for registration
of the Aircraft in the name of the Owner Trustee shall have been
duly made.
(f) Financing Statements. A UCC notice filing describing the Lease
as a lease shall have been executed and delivered by the Owner Trustee, as
lessor, and the Lessee, as lessee (which filing shall name the Indenture
Trustee as assignee of the Owner Trustee) and shall have been duly filed in
the State of Tennessee.
(g) Payments. The Owner Participant shall have made available its
Commitment to the Owner Trustee and the other payments contemplated by
Section 3.02 hereof shall have been made.
(h) Report of Aircraft Expert. The Owner Participant shall have
received a report prepared by BK Associates, Inc. addressed to the Owner
Participant (with a copy of such report to the Lessee) which report shall
be in form and substance satisfactory to the Owner Participant to the
effect, among other things, that on the Delivery Date:
(i) (A) the estimated fair market value of the Aircraft net of
any cost to the Owner Participant or the Owner Trustee of return at
the end of the Basic Term and any Fixed Renewal Term (determined
without including in such value any increase or decrease for
inflation or deflation during the Term) is equal to or greater than
20% of the Purchase Price for the Aircraft and (B) at least 20% of
the useful economic life of the Aircraft will be remaining at the end
of the Basic Term and any Fixed Renewal Term;
(ii) the estimated useful life of the Aircraft is at least 133%
of the Lease Term and any Fixed Renewal Term;
(iii) the Purchase Price of the Aircraft is equal to the fair
market value of the Aircraft on the Delivery Date;
(iv) on the Delivery Date, the Aircraft will not require any
modifications, improvements or additions in order to be rendered
complete for its intended purpose by the Lessee;
(v) the amount payable by the Lessee upon the exercise of its
purchase option pursuant to Section 4.02(a)(F) of the Lease equals or
exceeds the currently estimated Fair Market Value of the Aircraft on
such date (taking into account inflation or deflation to such date);
and
(vi) the Aircraft is not limited use property.
(i) Insurance. Each of the Indenture Trustee, the Pass Through
Trustee, the Owner Trustee and the Owner Participant shall have received
such evidence as it deems appropriate, including, without limitation, an
independent insurance broker's report, together with certificates of
insurance from such broker, in form and substance satisfactory to the
Indenture Trustee and the Pass Through Trustee (to the extent of their
interests thereunder) or the Owner Participant, as the case may be, to
establish that the insurance required by Article 13 of the Lease is in
effect.
(j) Payment of Taxes. (A) All taxes, fees, charges, assessments,
costs and other expenses then due and payable in connection with the
execution, delivery, recording and filing of all financing statements and
the documents and instruments referred to in subparagraphs (e) and (f) of
this Section 4.02, or in connection with the purchase of the Aircraft by
the Owner Trustee and the making by the Owner Participant of its equity
investment shall have been duly paid or caused to be paid in full; and (B)
all sales or use taxes and duties related to the consummation of the
transactions contemplated by the Operative Agreements on the Delivery Date
which are then due and payable shall have been duly paid in full.
(k) No Indenture Event of Default. No Indenture Event of Default or
Indenture Default attributable to either NBD or the Owner Trustee has
occurred and is continuing.
(l) Event of Default; Default; Event of Loss. No Default or Event
of Default under the Lease and no Event of Loss or event which with the
passage of time or if continued unremedied or unaltered would constitute an
Event of Loss, shall have occurred or be in existence.
(m) Governmental Compliance. All appropriate action required to have
been taken by the FAA, or any governmental or political agency, subdivision
or instrumentality of the United States, prior to the Delivery Date in
connection with the transactions contemplated by this Agreement shall have
been taken, and all orders, permits, waivers, authorizations, exemptions
and approvals (collectively "permits") of such entities required to be in
effect on the Delivery Date in connection with the transactions
contemplated by this Agreement shall have been issued, and all such permits
shall be in full force and effect on the Delivery Date.
(n) Officer's Certificate of Lessee. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Owner
Trustee, the Pass Through Trustee and the Indenture Trustee shall have
received a certificate signed by the Vice President and Treasurer or any
other duly authorized officer of the Lessee, dated the Delivery Date,
stating that:
(i) the representations and warranties of the Lessee contained
in the Operative Agreements to which it is a party (excluding the Tax
Indemnity Agreement) and in any certificate delivered pursuant hereto
or thereto are true and correct on and as of the Delivery Date as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such certificate shall state that such representations and
warranties were true and correct on and as of such earlier date);
(ii) except for the matters described under "Legal Proceedings"
in the Lessee's Annual Report on Form 10-K for the fiscal year ended
May 31, 1995 (as updated by Note 7 to the financial statement
included in the Lessee's Quarterly Report on Form 10-Q for the fiscal
quarter ended August 31, 1995), as to which such officer will make no
certification concerning the liability of the Lessee (if any), or the
effect of any adverse determination upon the consolidated financial
condition, business or operations of the Lessee, no material adverse
change has occurred in the financial condition, business or
operations of the Lessee from that shown in the unaudited
consolidated financial statements of the Lessee as of August 31, 1995
and nothing has occurred which will, in the judgment of such officer,
materially adversely affect the ability of the Lessee to carry on its
business or to perform its obligations under this Agreement and each
other Operative Agreement to which it is a party; and
(iii) no event has occurred and is continuing, or would result
from the purchase, sale, mortgage, or lease of the Aircraft, which
constitutes an Event of Loss (or event which with the passage of time
would become an Event of Loss) with respect to the Airframe or any
Engine, or a Default or an Event of Default under the Lease.
(o) Officer's Certificate of Owner Participant. On the Delivery
Date, the following statements shall be true, and the Lessee, the Pass
Through Trustee, the Owner Trustee and the Indenture Trustee shall have
received a certificate from the Owner Participant, signed by a duly
authorized officer of the Owner Participant, dated the Delivery Date,
stating that:
(i) the representations and warranties of the Owner Participant
contained in this Agreement, the Trust Agreement and any other
Operative Agreement to which it is a party and in any certificate
delivered pursuant hereto or thereto, are true and correct on and as
of the Delivery Date as though made on and as of such date (except to
the extent that such representations and warranties relate solely to
an earlier date, in which case such certificate shall state that such
representations and warranties were true and correct on and as of
such earlier date);
(ii) no Lessor's Liens attributable to the Owner Participant
exist; and
(iii) no event has occurred and is continuing which constitutes,
due to any action or inaction on the part of the Owner Participant,
an Indenture Default or an Indenture Event of Default.
(p) Other Officer's Certificates. On the Delivery Date, the
following statements shall be true, and the Owner Participant, the Lessee,
the Pass Through Trustee, the Owner Trustee and the Indenture Trustee shall
have received a certificate from each of NBD and the Owner Trustee (in the
case of the Lessee, the Owner Participant, the Pass Through Trustee and the
Indenture Trustee), Chase in its capacity as the entity acting as Indenture
Trustee (in the case of the Lessee, the Owner Participant, the Pass Through
Trustee and the Owner Trustee) and Chase in its capacity as the entity
acting as Pass Through Trustee (in the case of the Lessee, the Owner
Participant, the Indenture and the Owner Trustee) signed by a duly
authorized officer of NBD and Chase, respectively, dated the Delivery Date,
stating with respect to NBD and the Owner Trustee, Chase (other than in its
capacity as Pass Through Trustee) and the Indenture Trustee or Chase (other
than in its capacity as Indenture Trustee) and the Pass Through Trustee, as
the case may be, that:
(i) the representations and warranties of the Owner Trustee in
its individual capacity and as Owner Trustee, of the Indenture
Trustee in its individual capacity (other than in its capacity as
Pass Through Trustee) and as Indenture Trustee, and of the Pass
Through Trustee in its individual capacity (other than in its
capacity as Indenture Trustee) and as Pass Through Trustee contained
in this Agreement, the Lease, the Trust Agreement and the Indenture
and in any certificate delivered pursuant hereto or thereto are true
and correct on and as of the Delivery Date as though made on and as
of such date (except to the extent that such representations and
warranties relate solely to an earlier date, in which case such
certificate shall state that such representations and warranties were
true and correct on and as of such earlier date);
(ii) to the best of its knowledge, no event has occurred and is
continuing, which constitutes or which, but for the lapse of time or
the giving of notice, or both, would constitute, due to any action or
omission on the part of the Owner Trustee in its individual capacity
or as trustee, and of the Indenture Trustee in its individual
capacity (other than in its capacity as Pass Through Trustee) or as
trustee, an Event of Default or an Indenture Event of Default; and
(iii) there are no Lessor's Liens attributable to the Owner
Trustee or NBD and no Indenture Trustee's Liens affecting the Trust
Indenture Estate or the Lessor's Estate or any part thereof.
Section 4.03. Opinion of Special Aviation Counsel upon
Registration. Promptly upon the registration of the Aircraft and the
filing and, where appropriate, recordation pursuant to the Transportation
Code, of AVSA's FAA Xxxx of Sale, the Trust Agreement, the Lease (with the
Lease Supplement covering the Aircraft, the Indenture and the Indenture and
Security Agreement Supplement covering the Aircraft attached as exhibits)
and the Indenture (with the Indenture and Security Agreement Supplement
covering the Aircraft attached as an exhibit), the Lessee shall cause
Special Aviation Counsel to deliver to the Owner Participant, the Lessee,
the Owner Trustee and the Indenture Trustee an opinion as to (i) the due
registration of the Aircraft in the name of the Owner Trustee, (ii) the due
recording pursuant to the Transportation Code of AVSA's FAA Xxxx of Sale,
the Trust Agreement, the Lease (with such Lease Supplement, the Indenture
and such Indenture and Security Agreement Supplement attached as exhibits),
and the Indenture (with such Indenture and Security Agreement Supplement
attached as an exhibit), and (iii), subject to customary qualifications,
the lack of any intervening documents with respect to the Aircraft.
ARTICLE 5
CONDITIONS PRECEDENT TO LESSEE'S OBLIGATIONS
Section 5.01. Conditions Precedent to Lessee's Obligations. The
Lessee's obligation to participate in the transactions contemplated hereby on
the Certificate Closing Date is subject to the conditions that, prior to or
on the Certificate Closing Date, the Lessee shall have received the
certificates and other documents which are referred to in, or the opinions
to be addressed to it under, as the case may be, paragraphs (d), (g)(ii)-(v),
(i), (j), (k)(ii)-(vi) of Section 4.01 hereof and the Underwriters
shall have made available the amounts required to be paid by them pursuant
to Section 2.01 hereof, and the Lessee's obligation to participate in the
transactions contemplated hereby on the Delivery Date, is subject to the
conditions that, on or prior to the Delivery Date, the Lessee shall have
received the documents which are referred to in, or the opinions to be
addressed to it under, as the case may be, paragraphs (c) and (d)(ii)-(v)
of Section 4.02 hereof and the Indenture Trustee shall have released the
Debt Portion from (or such lesser amount as may then be held in) the
Collateral Account.
ARTICLE 6
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Lessee's Representations and Warranties. The
Lessee represents and warrants to the Owner Participant, the Owner Trustee
(in its individual capacity and as Owner Trustee), the Pass Through Trustee
(in its individual capacity and as Pass Through Trustee) and the Indenture
Trustee (in its individual capacity and as Indenture Trustee) that, on the
date hereof and as of the Certificate Closing Date and the Delivery Date:
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of Delaware with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee,
and is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which it has intrastate routes, or
offices or major overhaul facilities or in which other activities of the
Lessee require such qualification;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its Properties and to enter into and perform its obligations under
this Agreement and the other Operative Agreements to which it is or is to
be a party, the Pass Through Agreement and the Series Supplements (the
"Lessee Documents");
(c) the Lessee is an "air carrier" within the meaning of the
Transportation Code and a holder of a certificate under Sections 41102(a)
and 41103 of the Transportation Code and a "citizen of the United States"
within the meaning of Section 40102(a)(15) of the Transportation Code
holding an "air carrier operating certificate" issued under Chapter 447 of
the Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively
"permits") which are material to the operation of the routes flown by it
and the conduct of its business and operations as currently conducted and
each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents
by the Lessee have been duly authorized by all necessary corporate action
on the part of the Lessee and do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, and each such document has been duly executed
and delivered or, in the case of the Operative Agreements identified in
Section 4.02(c) hereof, will on the Delivery Date be executed and delivered
by the Lessee and constitutes (or will constitute, as the case may be) the
legal, valid and binding obligations of the Lessee enforceable against it
in accordance with the terms thereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by the Lessee of the Lessee Documents or for the
use and maintenance of the Aircraft except for such registrations,
applications and recordings referred to in the opinions of Special Aviation
Counsel delivered or to be delivered pursuant to Sections 4.02(d)(iii) and
4.03 hereof and except for the filings referred to in Section 4.01(f) and
Section 4.02(f) hereof, all of which shall have been duly obtained or made
and shall be in full force and effect on and as of the Certificate Closing
Date or the Delivery Date, as contemplated by said Sections;
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a
breach or violation of any of the terms, conditions or provisions of, or
will require any consent (other than the Consent and Agreement, the AVSA
Consent and Agreement, the Engine Consent and the Consent and Guaranty) or
approval under, any law, governmental rule or regulation or the charter
documents, as amended, or bylaws, as amended, of the Lessee or any order,
writ, injunction or decree of any court or governmental authority against
the Lessee or by which it or any of its Properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Lessee is a party or by which it or any of its Properties is bound, or
constitutes or will constitute a default thereunder or results or will
result in the imposition of any Lien upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee,
threatened actions, suits, investigations or proceedings (whether or not
purportedly on behalf of the Lessee) against or affecting the Lessee or any
of its Property before or by any court or administrative agency which (A)
involve the Aircraft, (B) except for the matters described under "Legal
Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year
ended May 31, 1995 (as updated by Note 7 to the financial statement
included in the Lessee's Quarterly Report on Form 10-Q for the fiscal
quarter ended August 31, 1995), as to which no representation is made
concerning the Lessee's liability (if any) or the effect of any adverse
determination upon the consolidated financial condition, business or
operations of the Lessee, if adversely determined, would materially and
adversely affect the consolidated financial condition, business or
operations of the Lessee, or (C) if adversely determined would adversely
affect the ability of the Lessee to perform its obligations under the
Lessee Documents;
(i) the Lessee and its subsidiaries have filed or caused to be filed
all tax returns which are required to be filed and has paid or caused to be
paid all taxes shown to be due and payable pursuant to such returns or
pursuant to any assessment received by the Lessee (other than assessments
the payment of which is being contested in good faith by the Lessee), and
the Lessee has no knowledge of any related actual or proposed deficiency or
additional assessment which either in any case or in the aggregate would
materially adversely affect the Lessee's consolidated financial condition
(other than, in any such case, assessments, the payment of which is being
contested in good faith by the Lessee, as to which no representation is
made concerning the Lessee's liability (if any) or the effect of any
adverse determination upon the Lessee's consolidated financial condition);
(j) except for (A) the registration in the Owner Trustee's name of
the Aircraft pursuant to the Transportation Code, (B) the filing and, where
appropriate, recordation pursuant to the Transportation Code of the
Indenture, the Trust Agreement, the Indenture and Security Agreement
Supplement covering the Aircraft, the Lease, the Lease Supplement covering
the Aircraft and AVSA's FAA Xxxx of Sale, (C) the filing of the financing
statements referred to in Sections 4.01(f) and 4.02(f) hereof and (D)(x) on
the Certificate Closing Date, the taking of possession by the Indenture
Trustee of the Liquid Collateral and maintaining possession by the
Indenture Trustee thereof as contemplated in Section 2.14(a) of the
Indenture and (y) on the Delivery Date, the taking of possession by the
Indenture Trustee of the original counterpart of the Lease and the Lease
Supplement covering the Aircraft, no further action, including any filing
or recording of any document, is necessary or advisable in order (i) to
establish the Owner Trustee's title to and interest in the Aircraft and the
Lessor's Estate as against the Lessee and any third parties, or (ii) to
perfect the first security interests in and mortgage Lien on the Trust
Indenture Estate in favor of the Indenture Trustee;
(k) on the Delivery Date, the Owner Trustee will receive good and
marketable title to the Aircraft, free and clear of all Liens, except
the rights of the Owner Trustee and the Lessee under the Lease and the
Lease Supplement, the rights of the Indenture Trustee under the
Indenture and the beneficial interest of the Owner Participant created
by the Trust Agreement;
(l) the Lessee has heretofore delivered to the Owner Participant true
and correct copies of the Lessee's Annual Report on Form 10-K for the
fiscal year ended May 31, 1995 and its Quarterly Report on Form 10-Q for
the fiscal quarter ended August 31, 1995, and of the audited consolidated
balance sheet of the Lessee for the fiscal year ended May 31, 1995 and the
unaudited consolidated balance sheet of the Lessee as of August 31, 1995,
and the related consolidated statements of income, changes in common
stockholders' investment and cash flows for the fiscal year and interim
reporting period ended on such dates, accompanied (except in the case of
such interim reporting period) by a report thereon containing opinions
without qualification, except as therein noted, by Xxxxxx Xxxxxxxx & Co.,
independent public accountants; said financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Lessee as of such dates and the results of its operations and cash flows
for such periods and such Annual Reports, Quarterly Reports and financial
statements did not, as of their respective dates of filing with the SEC,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading and there
has been no material adverse change in the consolidated financial condition
of the Lessee since August 31, 1995;
(m) with respect to ERISA, except as otherwise disclosed:
(i) none of the Pension Plans (as defined at the end of this
Section 6.01(m)) nor their related trusts have been terminated in a
distress termination pursuant to Section 4041(c) of ERISA or by the
Pension Benefit Guaranty Corporation or any successor agency or
instrumentality thereto (the "PBGC") pursuant to Section 4042 of
ERISA, nor have any actions been taken to so terminate any Pension
Plan or related trust and neither the Lessee nor any ERISA Affiliate
has incurred or could reasonably be expected to incur any material
liability with respect to a Pension Plan under Section 4062, 4063,
4064 or 4069 of ERISA;
(ii) there have been no "reportable events" (as such term is
defined in Section 4043(b) of ERISA) with respect to any Pension Plan
which have resulted or could reasonably be expected to result in any
material liability of the Lessee;
(iii) no "accumulated funding deficiency" (as such term is
defined in Section 302 of ERISA or Section 412 of the Code) exists
with respect to any Pension Plan, whether or not waived, nor has
any request for a waiver under Section 412(d) of the Code been, or
is reasonably likely to be, filed with respect to any of the
Pension Plans;
(iv) neither the Lessee nor any ERISA Affiliate has failed to
make any contribution or payment to any Pension Plan which has
resulted or could reasonably be expected to result in the
imposition of a Lien under Section 302(f) of ERISA or Section
412(n) of the Code;
(v) all Pension Plans are in compliance in all material
respects with all applicable provisions of ERISA and the Code;
(vi) neither the Lessee nor any ERISA Affiliate has incurred
or is reasonably likely to incur any material withdrawal liability
pursuant to Section 4201 or 4204 of ERISA or any material
liability under Section 515 of ERISA;
(vii) to the best of the Lessee's knowledge, neither the Lessee
nor any ERISA Affiliate has engaged in a "prohibited transaction"
(within the meaning of Section 4975 of the Code or Section 406 of
ERISA) which could reasonably be expected to subject the Lessee to
the tax or penalties on prohibited transactions imposed by Section
4975 of the Code or Section 502 of ERISA; and
(viii) assuming (A) the truth of the representations contained in
Sections 7.03(a)(viii) and 7.09 hereof, (B) the applicability of an
individual or a class prohibited transaction exemption ("PTE") to the
transactions contemplated hereby, and (C) the compliance with all of
the conditions of a PTE, the execution and delivery of this Agreement
and the other Operative Agreements and the consummation of the
transactions contemplated hereby and thereby will not involve any
transaction which is prohibited by Section 406 of ERISA or in
connection with which a tax could be imposed pursuant to Section 4975
of the Code. No part of the funds to be used by the Lessee in
satisfaction of its obligations under this Agreement or any other of
the Operative Agreements to which the Lessee is a party or to which
the Lessee is bound are the assets of any employee benefit plan
subject to Title I of ERISA, or any individual retirement account or
an employee benefit plan subject to Section 4975 of the Code.
As used in this Section 6.01(m), the term "Pension Plan" means an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and which is maintained, or contributed to,
by the Lessee or any ERISA Affiliate, and the term "ERISA Affiliate" means
any entity which together with the Lessee would be treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code;
(n) the Lessee is a Citizen of the United States;
(o) except for the filings referred to in Sections 4.01(f), 4.02(e)
and 4.02(f) hereof, no governmental approval of any kind is required of the
Owner Participant or for the Owner Participant's execution of or
performance under this Agreement or any agreement contemplated hereby by
reason of any fact or circumstance of the Lessee, the nature of the
Aircraft or the Lessee's proposed operations or use of the Aircraft;
(p) on the Delivery Date, all premiums with respect to the insurance
required to be provided by the Lessee on or prior to the Delivery Date
under Article 13 of the Lease shall have been paid by the Lessee;
(q) on the Delivery Date, all sales or use taxes relating to the
sale of the Aircraft by AVSA to the Owner Trustee which are then due shall
have been paid;
(r) the Lessee is not in default under any mortgage, deed of trust,
indenture, lease or other instrument or agreement to which the Lessee is a
party or by which it or any of its Properties or assets may be bound, or in
violation of any applicable law, which default or violation would have a
material adverse effect on the financial condition, business or operations
of the Lessee or its ability to perform any of its obligations under the
Lessee Documents;
(s) no Default or Event of Default or Event of Loss or event, which
with the passage of time or if continued unremedied or unaltered would
constitute an Event of Loss, has occurred or exists;
(t) on the Delivery Date, the Aircraft will be in such condition so
as to enable the airworthiness certificate of such Aircraft to be in good
standing under the Transportation Code; the Aircraft will be duly certified
by the FAA as to type and airworthiness; there will be in effect with
respect to the Aircraft a current and valid airworthiness certificate
issued by the FAA pursuant to the Transportation Code; and there will be no
fact known to the Lessee which materially adversely affects the value,
utility or condition of the Aircraft;
(u) the Lessee shall not be in default in the performance of any
term or condition of the Purchase Agreement, the Purchase Agreement
Assignment, the Engine Warranty Assignment and the GTA;
(v) neither the Lessee nor any subsidiary of the Lessee is an
"investment company" or a company "controlled by an investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(w) the Aircraft will be fully equipped to operate in commercial
service upon delivery on the Delivery Date and will comply with all
governmental requirements governing such service;
(x) neither the Lessee nor any of its Affiliates is engaged
principally in the business of extending credit for the purpose of buying
or carrying margin stock (within the meaning of Regulation U of the Board
of Governors of the Federal Reserve System) and no part of the proceeds
from the sale of the Certificates and/or sale of the Aircraft by the Lessee
to the Owner Trustee will be used to purchase or carry any such margin
stock, or to refinance any borrowing, the proceeds of which were used to
purchase or carry any such margin stock; and
(y) there are no broker's or underwriter's fees payable in
connection with the transactions contemplated in the Operative Agreements
other than those of the Underwriters and First Chicago Leasing Corporation.
Section 6.02. Offering by Lessee. The Lessee represents and
warrants that it has authorized no one to act on its behalf in connection with
the offer or sale of any interest in the Lessor's Estate or the Trust
Agreement other than First Chicago Leasing Corporation. Neither the Lessee
nor, based on representations of First Chicago Leasing Corporation, anyone
acting on its behalf has directly or indirectly offered any interest in the
Lessor's Estate or the Trust Agreement, or similar interests, for sale to, or
solicited any offer to acquire any of the same from, anyone other than the
Owner Participant and no more than 53 other institutional investors (as such
term is defined in Regulation D promulgated under the Securities Act of 1933,
as amended).
Section 6.03. Certain Covenants of Lessee. The Lessee covenants and
agrees with the Owner Participant, the Owner Trustee (in its individual
capacity and as Owner Trustee), the Pass Through Trustee (in its individual
capacity and as Pass Through Trustee) and the Indenture Trustee (in its
individual capacity and as Indenture Trustee) as follows:
(a) The Lessee will cause to be done, executed, acknowledged and
delivered all such further acts, conveyances and assurances as the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee or the Owner
Participant shall reasonably require for accomplishing the purposes of this
Agreement, the Trust Agreement, the Purchase Agreement, the Purchase
Agreement Assignment, the GTA, the Engine Warranty Assignment, the
Indenture, the Indenture and Security Agreement Supplement, the Tax
Indemnity Agreement, the Lease and the Lease Supplement and the other
Operative Agreements to which it is a party. Without limiting the
generality of this Section 6.03(a), the Lessee will promptly take, or cause
to be taken, at the Lessee's cost and expense, such action with respect to
the recording, filing, re-recording and re-filing of the Indenture, each
Indenture and Security Agreement Supplement, the Lease, each Lease
Supplement and any financing statements or other instruments as may be
necessary, or as requested by the Indenture Trustee and appropriate, to
maintain the perfection of the first security interest and the Lien created
by the Indenture, and the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties, or if the Lessee cannot take, or cause to be taken, such action,
will furnish to the Indenture Trustee and the Owner Trustee timely notice
of the necessity of such action, together with such instruments, in
execution form, and such other information as may be required to enable
either of them to take such action at the Lessee's cost and expense in a
timely manner.
(b) From and after the Delivery Date, the Lessee shall maintain the
certificates referred to in Section 7.01 of the Lease and shall cause the
Aircraft to be duly registered, and at all times to remain duly registered,
in the name of the Owner Trustee, under the Transportation Code, and shall
furnish to the Owner Trustee such information as may be required to enable
the Owner Trustee to make application for such registration; provided,
however, that the Owner Participant, the Owner Trustee and the Indenture
Trustee agree that if at any time after December 31, 2002 the Lessee has
requested their consent to the registration of the Aircraft in the name of
the Owner Trustee (or, if appropriate, in the name of the Lessee or a
sublessee as a "lessee" or a "sublessee"), at the Lessee's expense, in any
country in which a permitted foreign sublessee could be located pursuant to
Section 7.02(a)(i) of the Lease with which the United States then maintains
normal diplomatic relations, the Owner Participant, upon receipt by the
Owner Participant, the Owner Trustee and the Indenture Trustee of the
assurances and opinion described below, none of them shall unreasonably
withhold their consent to such change in registration (it being agreed,
without limitation, that the inability of the Lessee to deliver such
assurances or such opinion shall constitute reasonable grounds to withhold
such consent).
As a condition to any change in the registration of the Aircraft, the
Owner Participant, the Owner Trustee in its individual and trust capacities,
and the Indenture Trustee shall have received:
(i) assurances satisfactory to them:
(A) to the effect that the insurance provisions of the Lease
have been and will be complied with and are and shall be in full
force and effect upon such change of registry;
(B) as to the continuation of the Lien of the Indenture as a
first priority, duly perfected Lien on the Aircraft;
(C) that the Owner Trustee's right, title and interest in and to
the Aircraft is recognized and fully enforceable in the new
jurisdiction of registry, that the rights of the Owner Trustee in and
to the Aircraft will not be impaired in such new jurisdiction of
registry and that the new jurisdiction of registry will give effect
to the title and registry of the Aircraft therein substantially to
the same extent as does the Government;
(D) that such new country of registry (x) would provide
substantially equivalent protection for the rights of owner
participants, lessors or lenders in similar transactions as provided
under United States law (except that, in the absence of restrictions
under the laws of such country on rights and remedies of lessors and
secured parties similar to those imposed by Sections 362 and 363 of
the Bankruptcy Code, rights and remedies similar to those available
under Section 1110 of the Bankruptcy Code shall not be required),
(y)(i) if such change in registration is made other than in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards at least comparable to those of
the FAA, and (ii) if such change in registration is made in
connection with a sublease permitted under Section 7.02(a)(i) of the
Lease, imposes maintenance standards in conformity with those set
forth in Section 7.02(a)(i) of the Lease and (z) would not impose
requirements which materially increase the administrative or other
burdens or obligations of the Owner Participant under the Operative
Agreements unless indemnified by the Lessee;
(E) that import and export certificates and any exchange permits
necessary to allow all Rent and other payments provided for under the
Lease, if required, shall have been procured at the Lessee's own cost
and expense by the Lessee;
(F) that the Lessee shall have effected or caused to be effected
at the Lessee's own cost and expense all recordings and filings that
are required to perfect the Lien of the Indenture;
(G) to the effect that the original indemnities (and any
additional indemnities for which the Lessee is then willing to enter
into a binding agreement to indemnify) in favor of the Owner
Participant, the Owner Trustee (in its individual capacity and as
trustee under the Trust Agreement), the Indenture Trustee (in its
individual capacity and as trustee under the Indenture), the Pass
Through Trustee (in its individual capacity and as trustee under the
Pass Through Agreement) and the other Indemnitees under this
Agreement, the Indenture, the Pass Through Agreement and (in the case
of the Owner Participant only) the Tax Indemnity Agreement, afford
each such party substantially the same protection as provided prior
to such change of registry;
(H) that such change will not result in the imposition of, or
increase in the amount of, any Tax (which, for this purpose, includes
the loss of any tax benefits assumed by the Owner Participant to be
available to it based upon the assumptions set forth in Section 2 of
the Tax Indemnity Agreement) for which the Lessee has not agreed to
indemnify the Owner Participant, the Indenture Trustee, the Owner
Trustee (or any successor, assign or Affiliate thereof) and the Trust
Estate;
(I) that any value added tax, customs duty, tariff or similar
governmental charge relating to the change in jurisdiction of
registration of the Aircraft shall have been paid in full or
adequately provided for by the Lessee to the satisfaction of the
Owner Trustee, the Indenture Trustee and the Owner Participant;
(J) of the payment by the Lessee of any reasonable fees and
expenses of the Owner Participant, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee in connection with such change
of registry, including any reasonable attorneys' fees and expenses;
and
(K) that duties and tariffs, if applicable, shall have been paid
for by the Lessee;
(ii) a favorable opinion of counsel (reasonably satisfactory to the
Owner Trustee, the Indenture Trustee and the Owner Participant) in the new
jurisdiction of registry, addressed and reasonably satisfactory to such
parties in scope, form and substance, to the effect:
(A) that the terms (including, without limitation, the governing
law, service-of-process and jurisdictional-submission provisions
thereof) of the Lease and the Indenture are legal, valid, binding and
enforceable in such jurisdiction against the Lessee, any sublessee,
the Owner Trustee and the Indenture Trustee, respectively;
(B) that it is not necessary for the Owner Participant, the Owner
Trustee, the Indenture Trustee or the Pass Through Trustee to
register or qualify to do business or meet other requirements not
already met in such jurisdiction in connection with the registration
in the new jurisdiction (and the filing and/or recordation therein of
the Indenture or Lease) and the exercise of any rights or remedies
with respect to the Aircraft pursuant to the Lease or the Indenture
or in order to maintain such registration and the Lien of the
Indenture;
(C) that the courts of such jurisdiction would provide
substantially equivalent protection to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee as
provided under United States law (with the exception described in
paragraph (b)(i)(D)(x) of this Section 6.03) in respect of the
transactions contemplated hereby, including, without limitation, the
remedies provided in the Indenture and the Lease;
(D) that there is no tort liability of the beneficial owner,
record owner, lessor or mortgagee of an aircraft not in possession
thereof under the laws of such jurisdiction, other than tort
liability which might have been imposed on such owner, lessor or
mortgagee under the laws of the United States or any state thereof
(it being understood that, in the event such latter opinion cannot be
given in a form satisfactory to the Owner Trustee, the Owner
Participant and the Indenture Trustee, such opinion shall be waived,
if insurance reasonably satisfactory to the Owner Participant, the
Indenture Trustee and the Owner Trustee, in its individual capacity,
is provided, at Lessee's expense, to cover such risk and the Lessee
undertakes to keep such insurance in full force and effect);
(E) that the laws of such jurisdiction will not impair the
rights of the Lessor in and to the Aircraft or under the Lease and
(unless the Lessee shall have agreed to provide insurance reasonably
satisfactory to the Indenture Trustee and the Owner Participant
covering the risk of requisition of use of the Aircraft by the
government of registry of the Aircraft) require fair compensation by
the government of such jurisdiction payable in currency freely
convertible into United States Dollars for the loss of use of the
Aircraft in the event of such requisition;
(F) that the Owner Trustee's title to the Aircraft is recognized
and fully enforceable in such jurisdiction, that such jurisdiction
will give effect to the title of the Aircraft therein substantially
to the same extent as does the Government, and that the Lien of the
Indenture shall continue as a first priority, duly perfected lien on
the Aircraft; and
(G) to such further effect with respect to such other matters as
the Owner Participant, the Owner Trustee, or the Indenture Trustee may
reasonably request.
(c) The Lessee shall promptly file any reports, or furnish to the
Owner Trustee and the Owner Participant such information as may be required
to enable the Owner Trustee and the Owner Participant timely to file any
reports required to be filed by the Owner Trustee as the Lessor and the
Owner Participant under the Lease with any governmental authority.
(d) The Lessee will cause the Special Aviation Counsel to file, and
where appropriate record, on the Delivery Date, AVSA's FAA Xxxx of Sale,
the Lease, the Lease Supplement, the Trust Agreement, the Indenture and the
Indenture and Security Agreement Supplement. The following documents shall
be filed and, where appropriate, recorded on the Delivery Date with the
Aeronautics Authority in the following order of priority: first, AVSA's
FAA Xxxx of Sale, second, the application for registration of the Aircraft
in the Owner Trustee's name, with the Trust Agreement and the affidavit of
the Owner Trustee attached thereto, third, the Indenture with the Indenture
and Security Agreement Supplement attached thereto, and fourth, the Lease
with the Lease Supplement, the Indenture and the Indenture and Security
Agreement Supplement attached thereto.
(e) The Lessee will furnish to the Owner Participant, the Owner
Trustee and the Indenture Trustee annually after the execution of this
Agreement, by March 15 of each year, commencing with the year 1997, an
opinion, reasonably satisfactory to the Owner Participant and the Indenture
Trustee, of Special Aviation Counsel, or other counsel specified from time
to time by the Lessee acceptable to the Lessor and the Indenture Trustee:
(i) stating either (1) that in the opinion of such counsel such action has
been taken with respect to the recording, filing, re-recording and
re-filing of the Lease, the Indenture, the Trust Agreement, and any
supplements to any of them and any financing statements, continuation
statements or other instruments, and all other action has been taken, as is
necessary to maintain the Owner Trustee's title to and interest in the
Aircraft and the Lessor's Estate as against the Lessee and any third
parties and to maintain the perfection of the security interests created by
said documents and reciting the details of such action, or (2) that in the
opinion of such counsel no such action is necessary to maintain such title
or the perfection of such security interests; (ii) specifying all other
action which needs to be taken during the succeeding 14 months in order to
maintain such title and the perfection of such security interests (which
the Lessee agrees timely to take); and (iii) stating that the Owner Trustee
is the owner of legal title to the Aircraft, and the Aircraft is free and
clear of all Liens, except the security interest created by the Indenture
and such as are permitted by the Lease and the Indenture.
(f) The Lessee shall at all times maintain its corporate existence
except as permitted by Section 6.03(g) hereof and all of its rights,
privileges and franchises necessary in the normal conduct of its business,
except for any corporate right, privilege or franchise (i) that it
determines, in its reasonable, good faith business judgment, is no longer
necessary or desirable in the conduct of its business and (ii) the loss of
which will not materially adversely affect or diminish the rights of the
Holders or the Owner Participant.
(g) The Lessee shall not enter into any merger or consolidation, or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless the surviving corporation or Person which
acquires by conveyance, transfer or lease all or substantially all of the
assets of the Lessee as an entirety (i) is a domestic corporation organized
and existing under the laws of the United States or a political subdivision
thereof, (ii) is a Citizen of the United States, (iii) is a U.S. Air
Carrier holding an "air carrier operating certificate" issued under Chapter
447 of the Transportation Code for aircraft capable of carrying ten (10) or
more individuals or 6,000 pounds or more of cargo, (iv) expressly assumes
by an instrument in writing in form and substance satisfactory to the
Indenture Trustee, the Owner Participant and the Owner Trustee all of the
Lessee's obligations hereunder and under the other Operative Agreements,
and each other document contemplated hereby or thereby and the Lessee
delivers such instrument to the Indenture Trustee, the Owner Participant
and the Owner Trustee, (v) provides an opinion from counsel to the Lessee
which counsel shall be reasonably satisfactory to the Owner Participant and
the Indenture Trustee and which opinion shall be reasonably satisfactory to
the Owner Participant and the Indenture Trustee, and an officer's
certificate, each stating that such merger, consolidation, conveyance,
transfer or lease and the instrument noted in clause (iv) above comply with
this Section 6.03(g), that such instrument is a legal, valid and binding
obligation of, and is enforceable against, such survivor or Person, and
that all conditions precedent herein provided for relating to such
transaction have been complied with, and (vi) immediately after such
merger, consolidation or conveyance, transfer or lease, as the case may be,
the surviving company is in compliance with all of the terms and conditions
of this Agreement and the Lease and each other Operative Agreement and each
other document contemplated hereby or thereby; provided that no such merger,
consolidation or conveyance, transfer or lease shall be permitted if the
same gives rise to a Default not capable of cure within the applicable
grace period therefor or an Event of Default.
Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Lessee and the
satisfaction of the conditions specified in this Section 6.03(g), the
successor corporation formed by such consolidation or into which the
Lessee is merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Lessee under this Agreement and the Lease
and each other Operative Agreement and any other document contemplated
hereby and thereby to which the Lessee is a party with the same effect
as if such successor corporation had been named as the Lessee herein and
therein. No such conveyance, transfer or lease of all or substantially
all of the assets of the Lessee as an entirety shall have the effect of
releasing the Lessee or any successor corporation which shall
theretofore have become such in the manner prescribed in this Section
6.03(g) from its liability hereunder or under the other Operative
Agreements. Nothing contained herein shall permit any lease, sublease,
or other arrangement for the use, operation or possession of the
Aircraft except in compliance with the applicable provisions of the
Lease.
(h) The Lessee agrees to give prompt written notice to the Owner
Participant, the Owner Trustee and the Indenture Trustee of any change in
the address of its chief executive office (as such term is used in Section
9-103(3) of the Tennessee Uniform Commercial Code) or of any change in its
corporate name.
(i) The Lessee agrees to furnish to the Owner Participant, the
Lessor and the Indenture Trustee:
(A) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the Lessee, a
consolidated balance sheet as of the end of such fiscal year, and the
related consolidated statements of income, common stockholders'
equity, retained earnings and cash flows of the Lessee for the fiscal
year then ended as prepared and certified by the Lessee's independent
certified public accountants, including their opinion;
(B) within sixty (60) days after the end of the first, second
and third quarterly accounting periods in each fiscal year of the
Lessee, a consolidated balance sheet of the Lessee prepared by it as
of the close of the accounting period then ended, together with the
related consolidated statements of income, retained earnings and cash
flows for such accounting period certified by the chief accounting
officer or a financial vice president of the Lessee;
(C) promptly upon their general transmission, copies of all
reports and statements furnished by the Lessee to all of its
stockholders;
(D) promptly after filing with the SEC, copies of the Lessee's
Annual Reports on Form 10-K (including all corresponding annual
reports to shareholders), Quarterly Reports on Form 10-Q and, if
requested, any registration statement or prospectus filed by the
Lessee with any securities exchange or with the SEC;
(E) promptly upon (and in any event within five (5) Business
Days after) any Responsible Officer of the Lessee obtaining actual
knowledge of any condition or event which constitutes a Default or
any officer of the Lessee obtaining knowledge of any condition or
event which constitutes an Event of Default, an officer's certificate
specifying the nature and period of existence thereof and what action
the Lessee has taken or is taking or proposes to take with respect
thereto; and
(F) from time to time, such other financial information as the
Lessor, the Owner Participant or the Indenture Trustee may reasonably
request.
Concurrently with the delivery of the financial statements referred
to in clause (A) above, the Lessee shall deliver to the Lessor, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee a certificate
of the Lessee, signed by any one of the President, the Chief Financial
Officer, the General Counsel, the Treasurer or the principal accounting
officer of the Lessee, stating that the signer, or an employee reporting to
same, is familiar with the relevant terms of this Agreement and the Lease and
the signer has reviewed, or has caused to be made under such Person's
supervision a review of, the activities of the Lessee and that, to the best of
his or her knowledge, there does not exist any Default or any Event of Default
or if a Default or an Event of Default exists or did exist, specifying the
nature thereof, the period of existence thereof and what action the Lessee has
taken or proposes to take with respect thereto.
Section 6.04. Survival of Representations and Warranties. The
representations and warranties of the Lessee provided in Sections 6.01 and
6.02 hereof and in any other Operative Agreement shall survive the Closings
and the delivery of the Aircraft hereunder and the expiration or other
termination of this Agreement and the other Operative Agreements.
ARTICLE 7
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Acquisitions and Offerings of Interests in Lessor's
Estate. (a) [Intentionally Left Blank.]
(b) Owner Participant. The Owner Participant represents and
warrants that its interest in the Lessor's Estate and the Trust Agreement is
being acquired by it for its own account and not with a view to resale or
distribution thereof; provided, however, that the disposition by the Owner
Participant of its interest in the Lessor's Estate and the Trust Agreement
shall, subject to the terms and provisions of Section 7.03(d) hereof, at all
times be within its control and the foregoing representation shall not limit
the Owner Participant's right to transfer or sell such interests pursuant to
the terms of this Agreement. Neither the Owner Participant nor anyone
authorized to act on its behalf has directly or indirectly offered any
interest in the Lessor's Estate or the Trust Agreement, or in any similar
security, for sale to, or solicited any offer to acquire any of the same from,
anyone. The Owner Participant further represents and warrants that neither it
nor anyone authorized to act on its behalf has made or will make any offer,
solicitation or sale of any interest in the Lessor's Estate or the Trust
Agreement in violation of the provisions of Section 5 of the Securities Act of
1933, as amended. No representation in this Section 7.01(b) shall include any
action or inaction of the Lessee, First Chicago Leasing Corporation or the
Underwriters whether or not purportedly on behalf of the Owner Trustee, the
Owner Participant or any of their Affiliates.
Section 7.02. Citizenship. (a) Generally. Each of the Owner
Trustee, in its individual capacity and as Trustee, and the Owner
Participant severally represents and warrants that it is a Citizen of the
United States on the Delivery Date. If the Owner Participant or the Owner
Trustee in its individual capacity does not comply with the requirements of
this Section 7.02, the Owner Trustee, the Indenture Trustee and the Owner
Participant hereby agree that a Default or an Event of Default shall not be
deemed to have occurred and be continuing under the Lease due to
non-compliance by the Lessee with the registration requirements in the Lease
occasioned by the noncompliance of the Owner Participant or the Owner
Trustee.
(b) Owner Trustee. The Owner Trustee, in its individual capacity,
covenants that if at any time it shall have actual knowledge that it has
ceased to be a Citizen of the United States, it will resign immediately as the
Owner Trustee if such citizenship is necessary under the Transportation Code
as in effect at such time or, if it is not necessary under the Transportation
Code as in effect at such time, if it is informed in writing by the Lessee or
the Owner Participant that such lack of United States citizenship would have
any adverse effect on the Lessee or the Owner Participant. The Owner Trustee,
in its individual capacity, further covenants that if at any time it appears
reasonably probable that it will cease to be a Citizen of the United States
based on information that is (i) known to a Responsible Officer or (ii)
generally known to the public, it will promptly so notify, to the extent
permitted by law, all parties to this Agreement.
(c) Owner Participant. The Owner Participant agrees, solely for
the benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee
and the Owner Trustee, that if at any time when the Aircraft is registered
or the Lessee proposes to register the Aircraft in the United States (i) it
shall cease to be, or determines that it is likely to cease to be, a
Citizen of the United States and (ii) the Aircraft shall or would therefore
become ineligible for registration in the name of the Owner Trustee under
the Transportation Code and regulations then applicable thereunder, then
the Owner Participant shall give notice thereof to the Lessee, the Owner
Trustee and the Indenture Trustee and shall (at its own expense and without
any reimbursement or indemnification from the Lessee) immediately (and in
any event within a period of 15 Business Days following such determination
or, if earlier, within 15 days following actual loss of citizenship) (x)
effect a voting trust or other similar arrangement, (y) transfer in
accordance with the terms of this Agreement and the Trust Agreement all its
rights, title and interest in and to such Trust Agreement, the Lessor's
Estate and this Agreement, or (z) take any other alternative action that
would prevent any deregistration, or maintain the United States
registration, of the Aircraft. It is agreed that the Owner Participant
shall be liable to pay promptly on request (A) to each of the other parties
hereto any actual damages (but not consequential damages) suffered by any
such other party to the extent the same shall result from the
representation and warranty of the Owner Participant in the first sentence
of Section 7.02(a) hereof proving to be untrue as of the Delivery Date; and
(B) to the Lessee, the Indenture Trustee and the Pass Through Trustee for
any damages actually incurred by the Lessee, the Indenture Trustee and the
Pass Through Trustee as a result of the Owner Participant's failure to
comply with its obligations pursuant to the first sentence of this Section
7.02(c); provided, that, the foregoing shall not restrict the Pass Through
Trustee or the Indenture Trustee from asserting against the Owner
Participant any damages actually incurred by the holders of any Pass
Through Certificates. Each party hereto agrees, upon the request and at
the sole expense of the Owner Participant, to cooperate with the Owner
Participant in complying with its obligations under the provisions of the
first sentence of this Section 7.02(c).
Section 7.03. Representations, Warranties and Covenants of the Owner
Participant. (a) Representations, Warranties and Covenants. In addition to
and without limiting its other representations and warranties provided for in
this Article 7, the Owner Participant represents and warrants on the date
hereof and as of the Certificate Closing Date and the Delivery Date that:
(i) it is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware and it has full corporate
power, authority and legal right to carry on its present business and
operations, to own or lease its Properties and to enter into and to carry
out the transactions contemplated by this Agreement, the Tax Indemnity
Agreement, and the Trust Agreement;
(ii) the execution, delivery and performance by it of this Agreement,
the Tax Indemnity Agreement, and the Trust Agreement have been duly
authorized by all necessary corporate action on its part and, assuming the
accuracy of the Lessee's representations in Section 6.01(o) hereof, do not
require any governmental approvals that would be required to be obtained by
the Owner Participant;
(iii) based on the representations, warranties and covenants
contained in Sections 6.01(m)(viii) and 6.02 hereof, neither the
execution, delivery or performance by the Owner Participant of this
Agreement, the Tax Indemnity Agreement, and the Trust Agreement nor
compliance with the terms and provisions hereof or thereof, conflicts or
will conflict with or results or will result in a breach or violation of
any of the terms, conditions or provisions of, or will require any
consent or approval under any law, governmental rule or regulation
applicable to the Owner Participant or the charter documents, as
amended, or by-laws, as amended, of the Owner Participant or any order,
writ, injunction or decree of any court or governmental authority
against the Owner Participant or by which it or any of its Properties is
bound or any indenture, mortgage or contract or other agreement or
instrument to which the Owner Participant is a party or by which it or
any of its Properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any
Lien upon any of its Properties;
(iv) this Agreement, the Tax Indemnity Agreement and the Trust
Agreement have been or on the Certificate Closing Date will be duly
executed and delivered by the Owner Participant and constitute, or on the
Certificate Closing Date will constitute, the legal, valid and binding
obligation of the Owner Participant enforceable against it in accordance
with their terms except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights;
(v) to the best of its knowledge, it is not in default under any
mortgage, deed of trust, indenture, lease or other instrument or agreement
to which the Owner Participant is a party or by which it or any of its
Properties may be bound, or in violation of any applicable law, which
default or violation would have a material adverse effect on the financial
condition, business or operations of the Owner Participant or an adverse
effect on the ability of the Owner Participant to perform its obligations
under this Agreement and the other Operative Agreements to which it is or
is to be a party;
(vi) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under any of the Operative
Agreements to which it is or is to be a party, and the Owner Participant
knows of no pending or threatened actions or proceedings before any court,
administrative agency or tribunal involving it in connection with the
transactions contemplated by this Agreement or the other Operative
Agreements;
(vii) neither the execution and delivery by it of this Agreement, the
Tax Indemnity Agreement or the Trust Agreement nor the performance of its
obligations hereunder or thereunder requires the consent or approval of or
the giving of notice to, the registration with, or the taking of any other
action in respect of, any governmental authority or agency that would be
required to be obtained or taken by the Owner Participant except for
filings contemplated by this Agreement;
(viii) no part of the funds to be used by it to acquire the interests
to be acquired by it under this Agreement constitutes assets (within the
meaning of ERISA and any applicable rules and regulations) of any employee
benefit plan subject to Title I of ERISA or of any plan or individual
retirement account subject to Section 4975 of the Code; and
(ix) it has a consolidated tangible net worth of not less than
$75,000,000.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or
to the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for
use of the Aircraft, other than such laws, rules or regulations relating to
the citizenship requirements of the Owner Participant under applicable
aviation law.
(b) Lessor's Liens. The Owner Participant further represents,
warrants and covenants that there are no Lessor's Liens attributable to it (or
an Affiliate thereof) against, on or with respect to the Aircraft or the
Lessor's Estate or the Trust Indenture Estate, and that there will not be any
Lessor's Lien attributable to it (or an Affiliate thereof) against, on or with
respect to the Aircraft or the Lessor's Estate or the Trust Indenture Estate
attributable to it (or an Affiliate thereof) on the Certificate Closing Date.
The Owner Participant agrees with and for the benefit of the Lessee, the Owner
Trustee, the Indenture Trustee and the Pass Through Trustee that the Owner
Participant will, at its own cost and expense, take such action as may be
necessary (by bonding or otherwise, so long as neither the Lessee's operation
and use of the Aircraft nor the validity and priority of the Lien of the
Indenture is impaired) to duly discharge and satisfy in full, promptly after
the same first becomes known to the Owner Participant, any Lessor's Lien
against, on or with respect to the Aircraft or the Lessor's Estate or the
Trust Indenture Estate attributable to the Owner Participant (or an Affiliate
thereof), provided, however, that the Owner Participant shall not be required
to discharge or satisfy such Lessor's Lien which is being contested by the
Owner Participant in good faith and by appropriate proceedings so long as such
proceedings do not involve any material danger of the sale, forfeiture or loss
of the Aircraft or the Lessor's Estate or the Trust Indenture Estate or any
interest in any thereof or otherwise materially adversely affect the validity
or priority of the Lien of the Indenture.
(c) Indemnity for Lessor's Liens. The Owner Participant agrees to
indemnify and hold harmless the Lessee, the Indenture Trustee and the Pass
Through Trustee from and against any loss, cost, expense or damage which may
be suffered by the Lessee, the Indenture Trustee or the Pass Through Trustee
as the result of the failure of the Owner Participant to discharge and satisfy
any Lessor's Liens attributable to the Owner Participant (or an Affiliate
thereof) and required to be discharged as described in Section 7.03(b) hereof.
(d) Assignment of Interests of Owner Participant. At any time
after all obligations of the Owner Participant under Section 3.07 hereof
have been satisfied in full (or upon the direction of the Lessee if Section
3.05(a)(i) hereof shall be applicable), the Owner Participant may (or
shall, as the case may be) assign, convey or otherwise transfer to a single
institutional investor or an Affiliate of an institutional investor all
(but not less than all) of the Beneficial Interest, provided that it gives
the Lessee and the Indenture Trustee at least 10 Business Days' notice of
such assignment, conveyance or other transfer and provided further that the
Owner Participant shall remain liable for all obligations of the Owner
Participant under the Trust Agreement and the Operative Agreements to which
the Owner Participant is a party to the extent (but only to the extent)
incurred on or before the date of such transfer and provided that the
transferee agrees by a written instrument in form and substance reasonably
satisfactory to the Indenture Trustee, the Owner Trustee and the Lessee to
assume primary liability for all obligations as an Owner Participant under
the Trust Agreement and the other Operative Agreements to which such Owner
Participant is a party incurred after the date of transfer and the Owner
Participant shall remain secondarily liable for all such obligations
assumed by its successor as Owner Participant; provided, that the Owner
Participant need not so agree to remain and shall not be so secondarily
liable if (a) such transferee is (i) a bank, savings institution, finance
company, leasing company or trust company, national banking association
acting for its own account or in a fiduciary capacity as trustee or agent
under any pension, retirement, profit sharing or similar trust or fund,
insurance company, fraternal benefit society or corporation acting for its
own account having a combined capital and surplus (or, if applicable,
consolidated tangible net worth or its equivalent) of not less than
$75,000,000, (ii) a direct or indirect subsidiary of any Person described
in clause (i) where such Person provides (A) support for the obligations
assumed by such transferee subsidiary reasonably satisfactory to the
Lessee, the Owner Trustee and the Indenture Trustee or (B) an unconditional
guaranty reasonably satisfactory to the Lessee, the Owner Trustee and the
Indenture Trustee of such transferee subsidiary's obligations, or (iii) an
Affiliate of the transferring Owner Participant, so long as such Affiliate
has a combined capital and surplus (or, if applicable, consolidated
tangible net worth or its equivalent) of not less than $75,000,000, (b)
such transferee is legally capable of binding itself to the obligations of
the Owner Participant and expressly agrees to assume all obligations of the
Owner Participant under the Trust Agreement and this Agreement and (c) such
transferee shall provide representations substantially similar to those
contained in Section 7.03(a) hereof. In the event of any such assignment,
conveyance or transfer, the transferee shall become a party to the Trust
Agreement and shall agree to be bound by all the terms of and will
undertake all of the obligations of the Owner Participant contained in the
Trust Agreement and the other Operative Agreements in such manner as is
reasonably satisfactory to the Owner Trustee, the Indenture Trustee and the
Lessee. A transferee hereunder shall be (i) a "U.S. Person" as defined in
Section 7701(a)(30) of the Code (or any successor provision thereto) or if
the transferee shall not be such "U.S. Person" then (A) each Certificate
Holder shall be provided an indemnity in form and substance satisfactory to
each such Certificate Holder, for any Taxes that may be imposed on such
Certificate Holder (currently or in the future) due to such transferee's
failure to be such a "U.S. Person" and (B) such transferee shall be
personally liable for any debt service to the extent that its receipt of
rentals is reduced by reason of any withholding Taxes that result from such
transferee's failure to be such a "U.S. Person" and (ii) a Citizen of the
United States or has established a voting trust, voting powers or other
arrangement reasonably satisfactory to the Indenture Trustee and the Lessee
to permit the Owner Trustee to be the registered owner of the Aircraft
under the Transportation Code. A transferee hereunder shall not be, and in
acquiring the Beneficial Interest shall not use the assets of, an employee
benefit plan subject to Title I of ERISA or an individual retirement
account or a plan subject to Section 4975 of the Code. Assuming the truth
of the representations made in Section 6.01(m) hereof, no such assignment,
conveyance or transfer shall violate any provision of law or regulation or
create a relationship which would be in violation thereof. The Owner
Trustee shall not be on notice of or otherwise bound by any such
assignment, conveyance or transfer unless and until it shall have received
an executed counterpart of the instrument of such assignment, conveyance or
transfer. Upon any such disposition by the Owner Participant to a
transferee as above provided, the transferee shall be deemed the "Owner
Participant" or "Trustor" for all purposes of the Operative Agreements, and
shall be deemed to have made all the payments previously made by its
transferor and to have acquired the same interest in the Lessor's Estate as
theretofore held by its transferor; and each reference therein to the
"Owner Participant" or "Trustor" shall thereafter be deemed a reference to
such transferee. Notwithstanding anything to the contrary contained in
this Section 7.03(d), in no event shall the Owner Participant transfer its
interest in the Beneficial Interest to any entity whose business is that of
a nationwide or worldwide overnight or expedited delivery small package air
courier, cargo or freight deliverer and which competes with the Lessee in
one of its principal lines of business.
(e) Actions with Respect to Lessor's Estate, Etc. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
Section 7.04. Representations, Covenants and Warranties of NBD and
the Owner Trustee. (a) In addition to and without limiting its other
representations and warranties provided for in this Article 7, NBD represents
and warrants, in its individual capacity with respect to items (i), (ii),
(iii)(A), (iv), (v), (vi), (vii) and (viii) below and as the Owner Trustee
with respect to items (iii)(B) and (v) on the date hereof, on the Certificate
Closing Date and on the Delivery Date that:
(i) it is a banking corporation duly incorporated and validly
existing in good standing under the laws of the State of Michigan with its
principal place of business and chief executive office (as such terms are
used in Article 9 of the Uniform Commercial Code) at 000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Department and,
assuming the Trust Agreement has been duly authorized, executed and
delivered by the Owner Participant, has full corporate power and authority,
in its individual capacity or as the Owner Trustee, as the case may be, to
carry on its business as now conducted, and to execute, deliver and perform
this Agreement and the Operative Agreements to which it is or is to be a
party;
(ii) the execution, delivery and performance by NBD, either in its
individual capacity or as the Owner Trustee, as the case may be, of this
Agreement and the Operative Agreements to which it is or is to be party
have been duly authorized by all necessary action on its part, and do
not contravene its certificate of incorporation or by-laws; each of this
Agreement and the other Operative Agreements to which it is or is to be
a party has been duly authorized, and has been duly executed and
delivered or, in the case of the Operative Agreements identified in
Section 4.02(c) hereof, will on the Delivery Date be duly executed and
delivered by NBD, either in its individual capacity or as the Owner
Trustee, as the case may be, and neither the execution and delivery
thereof nor NBD's performance of or compliance with any of the terms and
provisions hereof or thereof will violate any Federal or state or local
law or regulation governing NBD's banking or trust powers;
(iii)(A) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, to the extent each such
document is entered into by NBD in its individual capacity, constitute the
legal, valid and binding obligation of NBD in its individual capacity
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(B) assuming due authorization, execution and delivery by each other
party thereto, each of the Operative Agreements to which it is or is to be
party when duly executed and delivered will, to the extent each such
document is entered into by the Owner Trustee in its trust capacity,
constitute the legal, valid and binding obligation of the Owner Trustee
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors' rights
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the performance by the Owner Trustee of any of its
obligations thereunder does not contravene any lease, regulation or
contractual restriction binding on the Owner Trustee or any judgement or
order applicable to or binding on it;
(iv) the performance by NBD in its individual capacity of any of
its obligations under this Agreement and the other Operative Agreements
does not contravene any lease, regulation or contractual restriction
binding on NBD in its individual capacity;
(v) there are no pending or, to its knowledge, threatened
actions or proceedings against NBD before any court or administrative
agency which would materially and adversely affect the ability of NBD,
either in its individual capacity or as the Owner Trustee, as the case
may be, to perform its obligations under this Agreement and the
Operative Agreements to which it is or is to be party;
(vi) it shall give the Lessee, the Indenture Trustee and the
Owner Participant at least thirty (30) days' prior written notice in the
event of any change in its chief executive office or name;
(vii) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Operative Agreements to which it is or is to be a party nor the
performance of its obligations hereunder or thereunder, requires on the
part of NBD in its individual capacity or any of its Affiliates the consent
or approval of or the giving of notice to, the registration with, or the
taking of any other action in respect of, any Federal or state or local
governmental authority or agency governing its banking or trust powers; and
(viii) on the Certificate Closing Date, the Owner Trustee shall own
good title to the proceeds arising from the issuance and sale of the
Certificates, which proceeds shall be free of Lessor's Liens attributable
to NBD in its individual capacity and on the Delivery Date the Owner
Trustee shall have received whatever title to the Aircraft as was conveyed
to it by AVSA, the Aircraft shall be free of Lessor's Liens attributable to
NBD in its individual capacity and NBD in its individual capacity is a
Citizen of the United States.
(b) Lessor's Liens. NBD, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens
attributable to it in its individual capacity against, on or with respect to
the Lessor's Estate or the Trust Indenture Estate (and as at the Delivery
Date, the Aircraft), and that there will not be any such Lessor's Liens
against, on or with respect to the Lessor's Estate or the Trust Indenture
Estate on the Certificate Closing Date or the Delivery Date. The Owner
Trustee, in its trust capacity, and at the cost and expense of the Lessee,
covenants that it will in its trust capacity promptly, and in any event within
30 days after the same shall first become known to it, take such action as may
be necessary to discharge duly any Lessor's Liens attributable to it in its
trust capacity. NBD, in its individual capacity, covenants and agrees that it
will at its own expense take such action as may be necessary to duly discharge
and satisfy in full, promptly, and in any event within 30 days after the same
shall first become known to it, any Lessor's Liens against, on or with respect
to the Lessor's Estate or the Trust Indenture Estate or, following the
Delivery Date, the Aircraft, attributable to it in its individual capacity or
the consolidated group of taxpayers of which it (in such capacity) is a part
which may arise at any time after the date of this Agreement.
(c) Indemnity for Lessor's Liens. NBD, in its individual capacity,
agrees to indemnify and hold harmless the Lessee, the Indenture Trustee,
the Owner Participant, the Pass Through Trustee and the Owner Trustee from
and against any loss, cost, expense or damage which may be suffered by the
Lessee, the Indenture Trustee, the Owner Participant, the Pass Through
Trustee or the Owner Trustee as a result of the failure of NBD to discharge
and satisfy any Lessor's Liens attributable to it in its individual
capacity, as described in Section 7.04(b) hereof.
(d) Securities Act. None of NBD, the Owner Trustee or any Person
authorized by either of them to act on its behalf has directly or indirectly
offered or sold or will directly or indirectly offer or sell any interest in
the Lessor's Estate, or in any similar security relating to the Lessor's
Estate, or in any security the offering of which for purposes of the
Securities Act of 1933, as amended, would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or solicited any
offer to acquire any of the same from, any Person. NBD further represents and
warrants, in its individual capacity and as the Owner Trustee, that neither it
nor anyone acting on its behalf shall own the Certificates.
Section 7.05. Representations, Warranties and Covenants of the
Indenture Trustee. (a) The Indenture Trustee in its individual capacity (other
than as the Pass Through Trustee) represents on the date hereof, on the
Certificate Closing Date and on the Delivery Date as follows:
(i) it is a national banking association duly organized
and validly existing in good standing under the laws of the United
States of America and has the power and authority to enter into and
perform its obligations under the Indenture and this Agreement and the
other Operative Agreements to which it is or is to be a party and to
authenticate the Certificates to be delivered on the Certificate Closing
Date;
(ii) the Indenture and this Agreement and the other Operative
Agreements to which it is or is to be a party, and the authentication of
the Certificates to be delivered on the Certificate Closing Date have been
duly authorized by all necessary action on its part, and neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any Federal, state or local law or
regulation relating to its banking or trust powers or contravene or result
in any breach of, or constitute any default under, its articles of
association or by-laws;
(iii) each of the Indenture, this Agreement and the other
Operative Agreements to which it is or is to be a party has been duly
executed and delivered or, in the case of the Operative Agreements
identified in Section 4.02(c) hereof, will on the Delivery Date be
executed and delivered by it and, assuming that each such agreement is
the legal, valid and binding obligation of each other party thereto, is
(or will be, as the case may be), the legal, valid and binding obligation
of the Indenture Trustee, enforceable against the Indenture Trustee in
accordance with its terms except as such enforceability may be limited
by bankruptcy, insolvency, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights;
(iv) neither the execution and delivery by it of this
Agreement and the other Operative Agreements to which it is or is to be
a party, nor the performance by it of any of the transactions
contemplated hereby or thereby, requires the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any Federal, state or local governmental authority
or agency governing its banking and trust powers; and
(v) on the Certificate Closing Date, the Indenture
Trustee holds the Liquid Collateral on behalf of the Owner Trustee and
on the Delivery Date, the Indenture Trustee will hold the original
counterparts of the Lease and the Lease Supplement.
(b) Indenture Trustee's Liens. The Indenture Trustee, in its
individual capacity, further represents, warrants and covenants that there
are no Indenture Trustee's Liens attributable to it in its individual
capacity against, on or with respect to the Lessor's Estate or the Trust
Indenture Estate or, as at and following the Delivery Date, the Aircraft,
and that there will not be any Indenture Trustee's Liens against, on or
with respect to the Lessor's Estate or the Trust Indenture Estate on the
Certificate Closing Date or the Delivery Date. The Indenture Trustee, in
its individual capacity, covenants and agrees that it will at its own
expense take such action as may be necessary to duly discharge and satisfy
in full, promptly, and in any event within 30 days after the same shall
first become known to it, any Indenture Trustee's Liens against, on or with
respect to the Aircraft or the Lessor's Estate or the Trust Indenture
Estate.
(c) Indemnity for Indenture Trustee's Liens. The Indenture
Trustee, in its individual capacity, agrees to indemnify and hold harmless
the Lessee, the Owner Participant, the Owner Trustee and the Pass Through
Trustee from and against any loss, cost, expense or damage which may be
suffered by the Lessee, the Indenture Trustee, the Owner Participant, the
Owner Trustee or the Pass Through Trustee as a result of the failure of the
Indenture Trustee to discharge and satisfy any Indenture Trustee's Liens
attributable to it in its individual capacity, as described in Section
7.05(b) hereof.
Section 7.06. Indenture Trustee's Notice of Default. The
Indenture Trustee agrees to give the Owner Participant notice of any
Default promptly upon a Responsible Officer of the Indenture Trustee having
actual knowledge thereof.
Section 7.07. Releases from Indenture. The Indenture Trustee
covenants and agrees, for the benefit of the Lessee and the Owner
Participant, to execute and deliver the instruments of release from the
Lien of the Indenture which it is required to execute and deliver in
accordance with the provisions of Article XIV of the Indenture, and the
Owner Participant agrees, for the benefit of the Lessee, to cause the Owner
Trustee to request the Indenture Trustee to execute and deliver such
instruments of release upon written notice from the Lessee to make such
request.
Section 7.08. Covenant of Quiet Enjoyment. The Owner
Participant, the Indenture Trustee, the Pass Through Trustee and the Owner
Trustee covenants and agrees as to itself only that, so long as no Event of
Default under the Lease has occurred and is continuing, neither such Owner
Participant (or the Owner Trustee, the Indenture Trustee or the Pass
Through Trustee, as the case may be) nor any Person lawfully claiming
through such Owner Participant (or the Owner Trustee, the Indenture Trustee
or the Pass Through Trustee, as the case may be) shall interfere with the
Lessee's right quietly to enjoy the Aircraft during the Term without
hindrance or disturbance by such Owner Participant (or the Owner Trustee,
the Indenture Trustee or the Pass Through Trustee, as the case may be).
Section 7.09. Pass Through Trustee's Representations and
Warranties. (a) The Pass Through Trustee, in its individual capacity
(except with respect to clause (iii) below), represents and warrants as of
the date hereof (except as otherwise provided), as of the date hereof and
as of Pass Through Closing Date, the Certificate Closing Date and the
Delivery Date that:
(i) it is a validly existing national banking association duly
organized under the laws of the United States of America, holding a
valid certificate to do business as a national banking association with
banking and trust powers and has the corporate power and authority to
enter into and perform its obligations under the Pass Through Agreement,
the Series Supplements and this Agreement and to execute and
authenticate the Pass Through Certificates to be delivered on the Pass
Through Closing Date;
(ii) the execution, delivery and performance of this Agreement, the
Pass Through Agreement and the Series Supplements and the performance of
its obligations hereunder and thereunder (including the execution and
authentication of the Pass Through Certificates to be delivered on the
Pass Through Closing Date) have been fully authorized by all necessary
corporate action on its part, and, subject to (A) the registration of
the issuance and sale of the Pass Through Certificates under the
Securities Act, (B) compliance with any applicable state securities laws
and (C) the qualification of the Pass Through Agreement under the Trust
Indenture Act, neither the execution and delivery thereof nor its
performance of any of the terms and provisions thereof will violate any
Federal or New York law or regulation relating to its banking or trust
powers or contravene or result in any breach of, or constitute any
default under its articles of association, or bylaws or the provisions
of any indenture, mortgage, contract or other agreement to which it is a
party or by which it or its properties may be bound or affected; and
(iii) each of this Agreement and the Pass Through Agreement has
been, and as of the Pass Through Closing Date the Series Supplements
will be, duly executed and delivered by it (in its individual and trust
capacities) and, assuming that each such agreement is the legal, valid
and binding obligation of each other party thereto, is or will be, as
the case may be, the legal, valid and binding obligation of the Pass
Through Trustee (in its individual and trust capacities), enforceable in
accordance with its respective terms except as limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 7.10. Survival of Representations, Warranties and
Covenants. The representations, warranties and covenants of the Owner
Participant, the Owner Trustee (in its individual or trust capacity), the
Pass Through Trustee (in its individual or trust capacity) and the
Indenture Trustee (in its individual or trust capacity) provided for in
this Article 7, and their respective obligations under any and all of them,
shall survive the Closings, the delivery of the Aircraft and the expiration
or other termination of this Agreement and the other Operative Agreements.
Section 7.11. Lessee's Assumption of the Certificates. (a)
Subject to compliance by the Lessee with all of its obligations under the
Operative Agreements, each of the Owner Participant, the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee and the Lessee covenants and
agrees that if the Lessee elects to terminate the Lease and to purchase the
Aircraft pursuant to Section 4.02(a)(A), (D), (E) or (F) of the Lease, and
so long as no Event of Default shall have occurred and be continuing then,
upon compliance with the applicable provisions of said Section 4.02(a) of
the Lease, the Owner Trustee will transfer to the Lessee, without recourse
or warranty (except as to the absence of Lessor's Liens attributable to the
Owner Trustee) but subject to the Lien of the Indenture, all of the Owner
Trustee's right, title and interest in and to the Aircraft, and if the
Lessee, in connection with such purchase, elects pursuant to Section
4.02(a)(A), (D), (E) or (F) of the Lease to assume the obligations of the
Owner Trustee to the Indenture Trustee and the Holders under the Indenture,
the Certificates and hereunder, and each of the parties shall execute and
deliver appropriate documentation permitting the Lessee to assume such
obligations on the basis of full recourse to the Lessee, maintaining for
the benefit of the Holders the security interest in the Aircraft created by
the Indenture, and upon compliance with the provisions of this Section 7.11
releasing the Owner Participant and the Owner Trustee from all obligations
in respect of the Certificates, the Indenture, this Agreement and all other
Operative Agreements, except any obligations which shall have arisen (or
with respect to events which shall have occurred) prior to such assumption
and take all such other actions as are reasonably necessary to permit such
assumption by the Lessee.
(b) In connection with such assumption:
(i) the Lessee shall execute and deliver an instrument
satisfactory in form and substance to the Indenture Trustee (A) pursuant
to which the Lessee irrevocably and unconditionally assumes and
undertakes, with full recourse to the Lessee, to pay, satisfy and
discharge when and as due (at the stated maturity thereof, by
acceleration or otherwise) the principal of, Make-Whole Premium, if any,
interest and all other sums owing on all Outstanding Certificates (or on
the Lessee's substituted obligations) in accordance with their terms and
to punctually perform and observe all of the covenants and obligations
hereunder and under the Indenture and the Certificates (as the same may
be amended in connection with such assumption) to be performed or
observed by the Owner Trustee and (B) which contains amendments to the
Indenture, in form and substance satisfactory to the Indenture Trustee
and the Holders, that incorporate therein such provisions from the Lease
and this Agreement as may be appropriate, including, without limitation,
events of default substantially identical in scope and effect to those
set forth in the Lease and covenants substantially identical to the
covenants of the Lessee hereunder and under the Lease;
(ii) the instrument referred to in paragraph (i) of this Section
7.11(b), any Uniform Commercial Code financing statements relating
thereto, and any other documents which shall be necessary (or reasonably
requested by the Indenture Trustee) to establish the Lessee's title to
and interest in the Aircraft or to reflect the substitution of the
Lessee for the Owner Trustee under the Operative Agreements or to
continue the perfection of the security interests in the Aircraft and
the other rights, Property and interests included in the Trust Indenture
Estate for the benefit of the Holders (or the Lessee's substituted
obligations) shall be filed in such form, manner and places as are
necessary or, in the reasonable opinion of the Indenture Trustee,
advisable for such purpose;
(iii) the Indenture Trustee shall have received an insurance report
dated the effective date of such assumption of an independent insurance
broker and certificates of insurance, each in form and substance
satisfactory to the Indenture Trustee, as to the due compliance as of
the effective date of such assumption with the terms of Article 13 of
the Lease (as it relates to the Indenture Trustee) relating to the
insurance with respect to the Aircraft;
(iv) the Indenture Trustee shall have received evidence that as of
the effectiveness of the assignment on the date of such assumption the
Aircraft is free and clear of all Liens other than the Lien of the
Indenture and other Permitted Liens;
(v) the Indenture Trustee shall have received a certificate from
the Lessee that no Event of Default shall have occurred and be
continuing as of the effective date of such assumption; and
(vi) the Indenture Trustee shall have received (A) from counsel for
the Lessee (who may be the Lessee's General Counsel) a legal opinion, in
form and substance satisfactory to the Indenture Trustee (w) with
respect to the compliance of the assumption contemplated hereby with the
terms, provisions and conditions hereof, (x) with respect to the due
authorization, execution, delivery, validity and enforceability of the
instrument referred to in paragraph (i) of this Section 7.11(b), (y)
with respect to the continued perfection of the first and prior Lien and
security interest in the Aircraft for the benefit of the Holders of the
Certificates (or the Lessee's substituted obligations) referred to in
paragraph (ii) of this Section 7.11(b) and (z) with respect to the
continued availability of the benefits of Section 1110 of the Bankruptcy
Code to the Indenture Trustee for the benefit of the Holders with
respect to the Aircraft after giving effect to such assumption, (B) from
counsel to the Indenture Trustee and Special Aviation Counsel, a legal
opinion comparable to the respective opinions delivered on the
Certificate Closing Date or the Delivery Date, as the case may be, with
such changes therein as may be appropriate in light of such assumption,
and (C) in the case of each opinion described in clause (A) or (B)
above, covering such additional matters as the Indenture Trustee shall
reasonably request.
(c) The Lessee shall pay all reasonable expenses (including
reasonable fees and expenses of counsel) of the Indenture Trustee, the Pass
Through Trustee, the Owner Trustee and the Owner Participant in connection
with such assumption.
Section 7.12. Indebtedness of Owner Trustee. So long as the
Indenture is in effect, the Owner Trustee, not in its individual capacity,
but solely as trustee under the Trust Agreement, shall not incur any
indebtedness for borrowed money except as expressly contemplated herein or
in any other Operative Agreement (excluding the Tax Indemnity Agreement)
and shall not engage in any business or other activity other than the
transactions contemplated herein or in any other Operative Agreement and
all necessary or appropriate activity related thereto.
Section 7.13. Compliance with Trust Agreement, Etc. Each of the
Owner Participant, NBD and the Owner Trustee agrees with the Lessee, the
Indenture Trustee and the Pass Through Trustee that so long as the Lien of
the Indenture shall be in effect it will (i) comply with all of the terms
of the Trust Agreement applicable to it in its respective capacity, the
noncompliance with which would materially adversely affect any such party
and (ii) not take any action, or cause any action to be taken, to amend,
modify or supplement any provision of the Trust Agreement in a manner that
would adversely affect any such party without the prior written consent of
such party. The Owner Trustee confirms for the benefit of the Lessee, the
Indenture Trustee and the Pass Through Trustee that it will comply with the
provisions of Article 2 of the Trust Agreement. Notwithstanding anything
else to the contrary in the Trust Agreement, so long as the Lease remains
in effect, the Owner Participant agrees not to terminate or revoke the
trust created by the Trust Agreement without the consent of the Lessee. If
and so long as the Indenture shall not have been discharged the consent of
the Indenture Trustee shall also be required in connection with any such
termination or revocation and in addition, the Owner Participant will
promptly and duly execute and deliver to the Indenture Trustee such
documents and assurances including, without limitation, conveyances,
financing statements and continuation statements with respect to financing
statements and take such further action as the Indenture Trustee may from
time to time reasonably request and furnish in order to protect the rights
and remedies created or intended to be created in favor of the Indenture
Trustee under the Indenture and to create for the benefit of the
Certificate Holders a valid first priority Lien with respect to, and a
first and prior perfected security interest in, the Trust Indenture Estate.
ARTICLE 8
TAXES
Section 8.01. Lessee's Obligation to Pay Taxes. (a) Generally.
The Lessee agrees promptly to pay when due, and to indemnify and hold each
Indemnitee harmless from all license, recording, documentary, registration
and other fees and all taxes (including, without limitation, income, gross
receipts, sales, rental, use, value added, property (tangible and
intangible), ad valorem, excise and stamp taxes), fees, levies, imposts,
recording duties, charges, assessments or withholdings of any nature
whatsoever, together with any assessments, penalties, fines, additions to
tax or interest thereon (individually, a "Tax," and collectively called
"Taxes"), however imposed (whether imposed upon any Indemnitee, the Lessee,
all or any part of the Aircraft, Airframe, any Engine or any Part or the
Lessor's Estate, Rent or otherwise), by any Federal, state or local
government or taxing authority in the United States, or by any government
or taxing authority of a foreign country or of any political subdivision or
taxing authority thereof or by a territory or possession of the United
States or an international taxing authority relating to:
(i) the acquisition, financing, use or operation of the Aircraft;
(ii) payments under the Operative Agreements;
(iii) the property, or the income or other proceeds received with
respect to the property after an Event of Default under the Lease, by
the Indenture Trustee under the Indenture;
(iv) otherwise with respect to or by reason of the transactions
described in or contemplated by the Operative Agreements;
(v) the payment of the principal or interest or other amounts
payable with respect to the Certificates;
(vi) the Certificates or the Pass Through Certificates or the
issuance, acquisition, or refinancing thereof or the beneficial
interests in the Lessor's Estate or the creation thereof under the Trust
Agreement; or
(vii) any assumption by the Lessee pursuant to Section 7.11 of this
Agreement and Section 2.12 of the Indenture.
(b) Exceptions. The indemnity provided for in Section 8.01(a)
shall not extend to any of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by
or with respect to the net or gross income, items of tax preference or
minimum tax or excess profits, net receipts, value-added taxes (in the
nature of an income tax and not in the nature of a sales, use or similar
tax), capital, franchise, net worth (whether denominated income, excise,
capital stock, or doing business taxes) (other than, in each case,
rental, sales, use, transfer, value-added (in the nature of a sales, use
or similar tax and not in the nature of an income tax), consumption, ad
valorem, stamp, property, or similar taxes) ("Income Taxes"), provided
that any such gross income and gross receipts taxes and any such foreign
taxes shall not be excluded if such Taxes would not have been imposed
absent the location of the Aircraft, Airframe, any Engine or Part in,
the presence, operations or activities of the Lessee and/or its
Affiliates or any other user of the Aircraft, Airframe, any Engine or
Part in, the making of payments from, or any other Lessee (and/or Lessee
Affiliate) or other user contact with, such jurisdiction, and provided
further that income taxes on the Trust Estate shall not be excluded
under this paragraph (b)(i) if the Owner Participant would not have been
subject to such taxes in the absence of the participation of Owner
Trustee in the transaction;
(ii) [Intentionally left blank];
(iii) Taxes imposed with respect to the Aircraft and arising out of
or measured by acts, omissions, events or periods of time (or any
combination of the foregoing) which occur after the later of (A) the
payment in full of all amounts payable by the Lessee pursuant to and in
accordance with the Operative Agreements, or the earlier discharge in
full of the Lessee's payment obligations under and in accordance with
the Lease and the Operative Agreements (and the Certificates in the case
of the Indenture Trustee or the Trust Indenture Estate if the Lessee
shall have assumed the Certificates pursuant to Section 7.11 of this
Agreement), and (B) the earliest of (x) the expiration of the Term of
the Lease and return of the Aircraft in accordance with Article 12 of
the Lease, (y) the termination of the Lease in accordance with the
applicable provisions of the Lease and return of the Aircraft in
accordance with the Lease, or (z) the termination of the Lease in
accordance with the applicable provisions of the Lease and the transfer
of all right, title and interest in the Aircraft to the Lessee pursuant
to its exercise of any of its purchase options set forth in Section
4.02(a) of the Lease, provided that this exclusion (iii) shall not apply
in respect of any payment made after the dates set forth in clauses (A)
and (B) above or with respect to any event or circumstance occurring on,
with or prior to such return or transfer or period prior to such return
or transfer;
(iv) As to the Owner Trustee, Taxes imposed against the Owner
Trustee upon or with respect to any fees for services rendered in its
capacity as trustee under the Trust Agreement or, as to the Indenture
Trustee, Taxes imposed against the Indenture Trustee upon or with
respect to any fees received by it for services rendered in its capacity
as Owner Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have been
imposed but for the willful misconduct or gross negligence of such
Indemnitee (other than gross negligence or willful misconduct not
actually committed by but instead imputed to such Indemnitee by reason
of such Indemnitee's participation in the transactions contemplated by
the Operative Agreements) or the breach by such Indemnitee of any
representation, warranty or covenant contained in the Operative
Agreements or any document delivered in connection therewith (unless
attributable to a breach of representation, warranty or covenant of the
Lessee);
(vi) Taxes imposed on the Owner Trustee or the Owner Participant or
any successor, assign or Affiliate thereof which became payable by
reason of any voluntary or involuntary transfer or disposition by such
Indemnitee subsequent to the Delivery Date, including revocation of the
Trust, of any interest in some or all of the Aircraft, Airframe, Engines
or Parts thereof or its interest in the Lessor's Estate except, in each
case, Taxes following or as a result of the exercise of remedies or in
connection with the exercise by the Lessee of one of its options to
purchase other than at Fair Market Value (it being understood that any
disposition of the Aircraft or the Airframe, any Engine or Part as a
result of the substitution, replacement or modification thereof by the
Lessee or by reason of any action taken by the Lessee or any other user
of the Aircraft, Airframe or any Engine pursuant to Sections 7, 8, or 9
of the Lease shall not be treated as a voluntary or involuntary transfer
or disposition, and that in the event that the Lessee exercises any of
its purchase options at Fair Market Value, the Lessee will, to the
extent practicable, cooperate to ensure delivery of the Aircraft in a
jurisdiction where there are no sales, transfer or similar Taxes to be
imposed);
(vii) Taxes imposed on the Owner Participant for which the Lessee
is obligated to indemnify the Owner Participant pursuant to the Tax
Indemnity Agreement;
(viii) Taxes imposed on a successor, assign or other transferee of
the Owner Participant that is not a U.S. Person or of any other
original Indemnitee (including, without limitation, a transferee which
is a new lending office of an original Indemnitee) (other than the
Owner Trustee) which on the Certificate Closing Date is an Indemnitee
(for purposes of this clause (viii), an "original Indemnitee") or such
original Indemnitee to the extent that such Taxes exceed the amount of
Taxes that would have been imposed and would have been indemnifiable
pursuant to Section 8.01(a) had there not been a succession, assignment
or other transfer by such original Indemnitee of any such interest of
such Indemnitee in the Aircraft or any part thereof, any interest in or
under any Operative Agreement, or any proceeds thereunder (it being
understood that for purposes of determining the amount of
indemnification that would have been due to such original Indemnitee
with respect to a net income Tax, it shall be assumed that such original
Indemnitee would be subject to taxation on its income at the highest
marginal statutory rate applicable to it); provided, however, that the
exclusion provided by this clause (viii) shall not apply in the case of
a succession, assignment or other transfer (1) while an Event of Default
under the Lease or the Indenture has occurred and is continuing; (2)
required by any provision of the Operative Agreements (other than
pursuant to Section 7.02 hereof) or (3) in the case of the Owner
Participant or any of its Affiliates, to any Tax other than an Income
Tax;
(ix) [Intentionally Left Blank];
(x) any Taxes which have been included in the Purchase Price and
which have been paid to the applicable taxing authorities;
(xi) any Taxes which would not have been imposed but for a Lessor's
Lien with respect to the Owner Participant or an Indenture Trustee's
Lien with respect to the Indenture Trustee;
(xii) any Taxes arising under or in connection with any prohibited
transaction, within the meaning of Section 406 of ERISA or Section
4975(c)(1) of the Code ("Prohibited Transaction"); provided, however,
that in the event Prohibited Transaction Exemption 89-88, appearing at
54 Fed. Reg. 42581 (1989), or any other comparable prohibited
transaction exemption, (individually or collectively, a "PTE") is not
valid or is not applicable in any respect to the purchase and holding of
the Pass Through Certificates, then the indemnity provided for in
Section 8.01(a) hereof shall extend to Taxes imposed on the Owner
Participant as the result of any Prohibited Transaction occurring with
respect to the purchase or holding of any Pass Through Certificate by an
employee benefit plan subject to Title I of ERISA or by a plan subject
to Section 4975 of the Code (individually or collectively, an "ERISA
Plan") with respect to which ERISA Plan the Owner Participant is a party
in interest, within the meaning of Section 3(14) of ERISA, or a
disqualified person, within the meaning of Section 4975 of the Code,
except, however, that such indemnity shall not extend to any Taxes
imposed on the Owner Participant as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Pass Through Certificate (A) over which purchase or holding the Owner
Participant or any Affiliate thereof has discretion or control (other
than in the capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16)(B) of ERISA; and provided
further, however, that in the event the PTE is not valid or applicable
in any respect to the purchase and holding of the Pass Through
Certificates and the Lessee had failed to obtain from the manager or
co-manager of the underwriting syndicate of the Pass Through
Certificates a representation that such manager or co-manager has a PTE,
then the indemnity provided for in Section 8.01(a) hereof shall extend
to Taxes imposed on the Owner Participant as the result of any
Prohibited Transaction occurring with respect to the purchase or holding
of any Pass Through Certificate by an ERISA Plan with respect to which
the Owner Participant is a party in interest or a disqualified person,
except, however, that such indemnity shall not extend to Taxes resulting
from any Prohibited Transaction occurring with respect to the purchase
or holding of any Pass Through Certificates by an ERISA Plan with
respect to which the Owner Participant (or any Affiliate thereof) is a
"plan sponsor", within the meaning of Section 3(16)(B) of ERISA; and
(xiii)Taxes imposed by any jurisdiction that would have been imposed on
the Lessor or the Owner Participant for activities in such jurisdiction
unrelated to the transactions contemplated by the Operative Agreements
to the extent imposed on such unrelated activities.
(c) Withholding. The Pass Through Trustee shall withhold any
Taxes required to be withheld on payments to any holder of a Pass Through
Certificate who is a Non-U.S. Person except to the extent that such holder
of a Pass Through Certificate has furnished evidence to the Pass Through
Trustee sufficient under applicable law to entitle such holder of a Pass
Through Certificate to any exemption from or reduction in the rate of
withholding on interest claimed by such holder of a Pass Through
Certificate. The Indenture Trustee shall withhold any Taxes required to be
withheld on any payment to a Holder pursuant to Section 5.09 of the
Indenture. If the Indenture Trustee or the Pass Through Trustee fails to
withhold a Tax required to be withheld with respect to any Holder of a
Certificate or any holder of a Pass Through Certificate or any claim is
otherwise asserted by a taxing authority against the Owner Trustee or Owner
Participant or any of their Affiliates for any withholding tax, the Lessee
will indemnify the Owner Trustee and the Owner Participant and their
Affiliates (and the Indenture Trustee or the Pass Through Trustee, as the
case may be, in turn agrees to indemnify the Lessee) (without regard to
the exclusions set forth in Section 8.01(b) hereof) on an After-Tax Basis
against any such Taxes required to be withheld and any interest and
penalties with respect thereto, along with any other costs (including
reasonable attorney's fees) incurred in connection with any such claim.
The Indenture Trustee or the Pass Through Trustee, as the case may be, in
its individual capacity (and without recourse to the Trust Indenture
Estate), shall indemnify the Lessee on an After-Tax Basis for any payment
the Lessee shall have made pursuant to the preceding sentence.
Section 8.02. After-Tax Basis. The amount which the Lessee shall
be required to pay with respect to any Tax indemnified against under
Section 8.01 shall be an amount sufficient to restore the Indemnitee, on an
After-Tax Basis, to the same position such party would have been in had
such Tax not been incurred, provided that the calculation of any additional
amounts owing to any Indemnitee as a result of the Lessee's obligation to
indemnify on an After-Tax Basis shall be made without regard to the
exclusions set forth in Section 8.01(b). If any Indemnitee actually
realizes a permanent tax benefit by reason of the payment of any Tax paid
or indemnified against by the Lessee, such Indemnitee shall promptly pay to
the Lessee to the extent such tax benefit was not previously taken into
account in computing such payment, but not before the Lessee shall have
made all payments then due to such Indemnitee under this Agreement, the Tax
Indemnity Agreement and any other Operative Agreement, an amount equal to
the lesser of (x) the sum of such permanent tax benefit plus any other
permanent tax benefit actually realized by such Indemnitee that would not
have been realized but for any payment made by such Indemnitee pursuant to
this sentence and not already paid to the Lessee, and (y) the amount of the
payment made under Sections 8.01 and 8.02 by the Lessee to such Indemnitee
plus the amount of any other payments by the Lessee to such Indemnitee
theretofore required to be made under Sections 8.01 and 8.02 (and the
excess, if any, of the amount described in clause (x) above over the amount
described in clause (y) above shall be carried forward and applied to
reduce pro tanto any subsequent obligations of the Lessee to make payments
to such Indemnitee pursuant to Section 8.01); provided, however, that
notwithstanding the foregoing portions of this sentence, such Indemnitee
shall not be obligated to make any payment to the Lessee pursuant to this
sentence as long as an Event of Default shall have occurred and be
continuing under the Lease. The Lessee shall reimburse on an After-Tax
Basis such Indemnitee (and without regard to Section 8.01(b), except for
clause (v) thereof) for any payment of a tax benefit pursuant to the
preceding sentence (or a tax benefit otherwise taken into account in
calculating the Lessee's indemnity obligation hereunder) to the extent that
such tax benefit is subsequently disallowed or reduced (including the
expiration of any tax credit carryovers or carrybacks of such Indemnitee
that would not otherwise have expired).
Section 8.03. Time of Payment. Any amount payable to an
Indemnitee pursuant to this Article 8 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such
indemnity and the computation of the amount so payable, provided that in
the case of amounts which are being contested by the Lessee in good faith
or by the Indemnitee in either case pursuant to Section 8.04, such amount
shall be payable 30 days after the time such contest is finally resolved.
Section 8.04. Contests. If a written claim is made against any
Indemnitee for Taxes with respect to which the Lessee is liable for a
payment or indemnity hereunder, such Indemnitee shall promptly give the
Lessee notice in writing of such claim and shall furnish the Lessee with
copies of any requests for information from any taxing authority relating
to such Taxes with respect to which the Lessee may be required to indemnify
hereunder; provided, however, that the failure of an Indemnitee to give
such notice or furnish such copy shall not terminate any of the rights of
such Indemnitee under this Article 8, except to the extent that the
Lessee's contest rights have been materially and adversely impaired by the
failure to provide such notice or copy. The Lessee may, at its option,
contest or, if required by law, require the Indemnitee to contest in good
faith, with due diligence and at the Lessee's expense, if timely requested
in writing by the Lessee, the validity, applicability or amount of such
Taxes by:
(i) resisting payment thereof if lawful and practicable or not
paying the same except under protest if protest is necessary and proper
in each case so long as non-payment will not result in a material risk
of the sale, forfeiture or loss of, or the creation of a Lien other than
a Lessor's Lien on the Aircraft, Airframe or any Engine or any risk of
criminal liability; or
(ii) if the payment be made, using reasonable efforts to obtain a
refund thereof in appropriate administrative and judicial proceedings.
If the Indemnitee, after reasonable discussion with the Lessee and
consideration in good faith of any suggestion made by the Lessee as to the
method of pursuing such contest, elects to conduct the contest, such
Indemnitee shall control the contest and shall determine the manner in
which to contest such Taxes, and shall periodically or upon the Lessee's
request advise the Lessee of the progress of such contest; provided,
however, that the Lessee shall have the right to be consulted in good faith
with respect to any contest, including governmental and judicial
conferences and the right to be consulted in good faith regarding all
related submissions to any governmental or other authority, provided,
however, that the Lessee shall be permitted to participate in any such
contest only (x) with respect to issues that can be separated on audit from
any Taxes for which the Lessee is not required to indemnify the Indemnitee
hereunder, and (y) if the Indemnitee shall have determined that in its
judgement, exercised in its sole discretion, neither such participation nor
the separation of issues will adversely affect the Indemnitee.
Notwithstanding the preceding sentences of this Section 8.04, such
Indemnitee shall not be required to take or continue any action unless the
Lessee shall have (i) agreed to pay and shall pay the Indemnitee on a
current basis all reasonable fees and expenses which such Indemnitee may
incur as a result of contesting such Taxes, (ii) delivered to the
Indemnitee a written acknowledgment of the Lessee's obligation to such
Indemnitee pursuant to this Agreement to the extent that the contest is not
successful and of the inapplicability of any exclusion or defenses thereto,
provided, however, that such acknowledgement shall not preclude the Lessee
from raising defenses to liability under this Agreement if a decision in
such contest is rendered which clearly articulates the cause of such Tax
and the cause, as so articulated, is not one for which the Lessee is
responsible to pay an indemnity hereunder, and (iii) made all payments and
indemnities (other than contested payments and indemnities) then due to the
Indemnitee hereunder or with respect to any of the transactions
contemplated by or under the Operative Agreements. In no event shall such
Indemnitee be required to contest pursuant to this Section 8.04 the
imposition of any Tax for which the Lessee is obligated to indemnify any
Indemnitee hereunder unless (i) such Indemnitee shall have received an
opinion of independent tax counsel, at the Lessee's expense, selected by
the Lessee and reasonably satisfactory to such Indemnitee ("Tax Counsel")
to the effect that there exists Substantial Authority for contesting such
claim, (ii) such Indemnitee (and, if such Indemnitee is not the Owner
Participant, the Owner Participant and such Indemnitee) shall have
determined that such contest will not result in any material risk of loss,
sale or forfeiture of, or the creation of a Lien (other than Lessor's
Liens) on, the Aircraft or any part thereof or interest thereon or in a
risk of criminal liability, or adversely affect the Trust Indenture Estate,
(iii) if an Event of Default shall have occurred and be continuing, the
Lessee shall have provided security for its obligations hereunder
reasonably satisfactory to the Indemnitee, (iv) if such contest shall be
conducted in a manner requiring payment of the claim in advance, the Lessee
shall have advanced sufficient funds, on an interest free basis, to make
the payment required, and agreed to indemnify the Indemnitee against any
additional net adverse tax consequences on an After-Tax Basis to such
Indemnitee of such advance and (v) the issue shall not be the same as an
issue previously contested hereunder and decided adversely, unless the
Indemnitee shall have received, at the Lessee's sole expense, a written
opinion, in form and substance reasonably satisfactory to such Indemnitee,
of Tax Counsel, to the effect that the applicable circumstances or law has
changed and, in light thereof, there is Substantial Authority for
contesting such claim and (viii) the amount of the indemnity payments the
Lessee would be required to make with respect to such adjustment, when
aggregated with similar adjustments that could be raised in other taxable
years of such Indemnitee is at least $50,000; provided, that in the event
that such Indemnitee is not required under this paragraph to contest any
Tax liability for which the Lessee is obligated to indemnify any
Indemnitee, the Lessee may contest such Tax liability in the name of the
Lessee, if permitted by law.
The Lessee may appeal or require the Indemnitee to appeal any
judicial decision (including to the U.S. Supreme Court), provided that the
Lessee may not require the Indemnitee to appeal any judicial decision
unless (i) it receives an opinion of Tax Counsel, at the Lessee's sole
expense, to the effect that it is more likely than not that such appeal
will be successful, and (ii) the Indemnitee shall have made a good faith
determination that it shall not be adversely affected by such appeal.
Nothing contained in this Section 8.04 shall require any
Indemnitee to contest or continue to contest, or permit Lessee to contest,
a claim which such Indemnitee would otherwise be required to contest
pursuant to this Section 8.04, if such Indemnitee shall waive payment by
Lessee of any amount that might otherwise be payable by Lessee under this
Article 8 in connection with such claim.
Section 8.05. Refunds. Upon receipt by an Indemnitee of a refund
of all or any part of any Taxes which the Lessee shall have paid for such
Indemnitee or for which the Lessee shall have reimbursed or indemnified
such Indemnitee, and provided there shall not have occurred and be
continuing any Event of Default by the Lessee hereunder or under the Lease
(in which case payment shall not be made to the Lessee until such Event of
Default shall have been cured), such Indemnitee shall pay to the Lessee an
amount equal to the amount of such refund less (x) reasonable expenses not
previously reimbursed, (y) all payments then due to such Indemnitee under
this Article 8 and (z) Taxes imposed with respect to the accrual or
receipt thereof, including interest received attributable thereto, plus any
permanent tax benefit actually realized by such Indemnitee as a result of
any payment by such Indemnitee made pursuant to this sentence; provided,
however, that such amount shall not be payable (a) before such time as the
Lessee shall have made all payments or indemnities then due and payable to
such Indemnitee under this Article 8 and (b) to the extent that the amount
of such payment would exceed (i) the amount of all prior payments by the
Lessee to such Indemnitee pursuant to this Article 8 less (ii) the amount
of all prior payments by such Indemnitee to the Lessee pursuant to this
Article 8.
Any subsequent loss of such refund or tax benefit shall be treated
as a Tax subject to indemnification under the provisions of this Article 8
(in the case of any such tax benefit, without regard to Section 8.01(b)
hereof).
Section 8.06. Lessee's Reports. In case any report or return is
required to be made with respect to any obligation of the Lessee under this
Article 8, the Lessee shall make such report or return, except for any such
report or return that the Indemnitee has notified the Lessee that it
intends to file, in such manner as will show the ownership of the Aircraft
in the Owner Trustee and shall send a copy of the applicable portions of
such report or return to the Indemnitee and the Owner Trustee or will
notify the Indemnitee of such requirement and make such report or return in
such manner as shall be satisfactory to such Indemnitee and the Owner
Trustee. The Lessee will provide such information reasonably available to
the Lessee as the Indemnitee may reasonably require from the Lessee to
enable the Indemnitee to fulfill its tax filing requirements with respect
to the transactions contemplated by the Operative Agreements (without
duplication of the requirements of Section 3 of Tax Indemnity Agreement)
and any audit information request arising from any such filing. The
Indemnitee will provide such information reasonably available to it as the
Lessee may reasonably require from such Indemnitee to enable the Lessee to
fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements and any audit information request
arising from such filing; provided that in no event shall any Indemnitee be
required to provide copies of any of its tax returns. The Lessee shall
hold the Indemnitee harmless from and against any liabilities, including
penalties, additions to tax, fines and interest, imposed upon or incurred
by such Indemnitee to the extent directly attributable to any insufficiency
or inaccuracy in any return, statement, or report prepared by the Lessee or
information supplied by the Lessee, or directly attributable to the
Lessee's failure to supply reasonably available information to such
Indemnitee as required by this Section 8.06.
Section 8.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 8 and the Lessee's obligations under any and all of them shall
survive the expiration or other termination of the Operative Agreements.
Section 8.08. Payment of Taxes. With respect to any Tax
otherwise indemnifiable hereunder by the Lessee and applicable to the
Aircraft, Airframe, any Engine or Parts, to the extent permitted by the
applicable federal, state, local or foreign law, the Lessee shall pay such
tax directly to the relevant Taxing authority and file any returns or
reports required with respect thereto; provided, however, that the Lessee
shall not make any statements or take any action which would indicate that
the Lessee or any Person other than the Owner Trustee or Owner Participant
is the owner of the Aircraft, the Airframe, any Engine or any Part or which
would otherwise be inconsistent with the terms of the Lease or the Tax
Indemnity Agreement and the position thereunder of the Owner Trustee and
the Owner Participant. Copies of such returns or reports, together with
evidence of payment of any tax due, shall be sent by the Lessee to the
Owner Participant within thirty (30) days after the date of each payment by
the Lessee of any Tax.
Section 8.09. Reimbursements by Indemnitees Generally. If, for
any reason, Lessee is required to make any payment with respect to any
Taxes imposed on any Indemnitee in respect of the transactions contemplated
by the Operative Agreements or on the Aircraft, the Airframe, the Engines,
the Parts of any part thereof, which Taxes are not the responsibility of
Lessee with respect to such Indemnitee, then such Indemnitee shall pay to
Lessee within 30 days of Lessee's demand therefor an amount which equals
the amount actually paid by Lessee with respect to such Taxes.
ARTICLE 9
GENERAL INDEMNITY
Section 9.01. Generally. (a) The Lessee agrees to indemnify
each Indemnitee against and agrees to protect, defend, save and keep
harmless each Indemnitee from any and all liabilities, obligations, losses,
damages, penalties, claims, actions, suits, costs, disbursements and
expenses (including legal fees and expenses and all costs and expenses
relating to amendments, supplements, adjustments, consents, refinancings
and waivers under the Operative Agreements except as otherwise provided in
Section 10.01(d)(i) or Section 15 hereof) of every kind and nature (whether
or not any of the transactions contemplated by this Agreement are
consummated) (individually, an "Expense," collectively, "Expenses"), which
may be imposed on, incurred or suffered by or asserted against any
Indemnitee, in any way relating to, based on or arising out of:
(i) this Agreement, the Lease, the Indenture, the Trust Agreement,
the Pass Through Trust Agreement, AVSA's FAA Xxxx of Sale, AVSA's
Warranty Xxxx of Sale or any other Operative Agreement or any other
document entered into in connection herewith or any sublease or transfer
or any transactions contemplated hereby or thereby;
(ii) the operation, possession, use, non-use, maintenance, storage,
overhaul, delivery, non-delivery, control, repair or testing of the
Aircraft, Airframe, or any Engine or any engine used in connection with
the Airframe, or any part thereof by the Lessee, any sublessee or any
other Person whatsoever, whether or not such operation, possession, use,
non-use, maintenance, storage, overhaul, delivery, non-delivery,
control, repair or testing is in compliance with the terms of the Lease,
including without limitation, claims for death, personal injury or
property damage or other loss or harm to any Person whatsoever,
including, without limitation, any passengers, shippers or other Persons
wherever located, and claims relating to any laws, rules or regulations,
including, without limitation, environmental control, noise and
pollution laws, rules or regulation;
(iii) the manufacture, design, sale, return, purchase, acceptance,
rejection, delivery, non-delivery, condition, repair, modification,
servicing, rebuilding, airworthiness, registration, reregistration,
import, export, performance, non-performance, lease, sublease, transfer,
merchantability, fitness for use, alteration, substitution or
replacement of any Airframe, Engine, or Part under the Lease, the
Purchase Agreement, the Purchase Agreement Assignment, the GTA or the
Engine Warranty Assignment or other transfer of use or possession, or
other disposition of the Aircraft, the Airframe, any Engine or any Part
including, without limitation, latent and other defects, whether or not
discoverable, strict tort liability, and any claims for patent,
trademark or copyright infringement;
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be
performed, or other obligations of the Lessee under any of the Operative
Agreements, or the falsity or inaccuracy of any representation or
warranty of the Lessee in any of the Operative Agreements (other than
representations and warranties in the Tax Indemnity Agreement);
(v) the enforcement of the terms of the Operative Agreements and
the administration of the Trust Indenture Estate; and
(vi) the offer, issuance, sale or delivery of any Certificate or
any Pass Through Certificate or any refunding or refinancing thereof, or
interest in the Lessor's Estate or the Trust Agreement or any similar
interest or in any way relating to or arising out of the Trust Agreement
and the Lessor's Estate, the Indenture or the Trust Indenture Estate
(including, without limitation, any claim arising out of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, or any other federal or state statute, law or regulation, or at
common law or otherwise relating to securities), or the action or
inaction of the Owner Trustee or Indenture Trustee as trustees, in the
manner contemplated by this Agreement, the Indenture, the Indenture and
Security Agreement Supplement or the Trust Agreement and in the case of
the Owner Participant, its obligations arising under Section 6.01 of the
Trust Agreement.
The foregoing indemnity by the Lessee is intended to include and cover, but
is not limited to, any Expense to which the Indemnitees may be subject as a
result of their respective ownership or leasing of any interest in the
Aircraft, Airframe, any Engine or Part during the Term, whether or not in
the Lessee's possession or control, insofar as such Expense relates to any
activity or event whatsoever involving such item while it is under lease to
the Lessee (or after termination of the Lease in connection with the
exercise of remedies thereunder to the extent that such Expense is
attributable to the transactions contemplated hereby and by the other
Operative Agreements), and such Expense does not fall within any of the
exceptions listed in Section 9.01(b) hereof.
(b) Exceptions. The indemnity provided for in Section 9.01(a)
shall not extend to any Expense of any Indemnitee to the extent it:
(i) would not have occurred but for the willful misconduct or
gross negligence of such Indemnitee;
(ii) in respect of the Aircraft, is attributable to acts or events
which occur after the Aircraft is no longer part of the Lessor's Estate
or leased under the Lease or, if the Aircraft remains a part of the
Lessor's Estate, after the expiration of the Term (other than pursuant
to Article 17 of the Lease, in which case the indemnity provided in
Section 9.01(a) hereof shall survive for so long as Lessor shall be
entitled to exercise remedies under such Article 17), or to acts or
events which occur after return of possession of the Aircraft by the
Lessee in accordance with the provisions of the Lease but in any such
case only to the extent not fairly attributable to circumstances or
events occurring prior to expiration of the Term, including without
limitation the Lessee's failure to fully discharge all of its
obligations under the Lease or the other Operative Agreements;
(iii) is a Tax, whether or not the Lessee is required to indemnify
therefor pursuant to Article 8 hereof or pursuant to the Tax Indemnity
Agreement;
(iv) is a cost or expense required to be paid by the Owner
Participant or its permitted transferees (and not by the Lessee)
pursuant to this Agreement or any other Operative Agreement (other than
the Owner Participant's obligations under Section 6.01 of the Trust
Agreement) and for which the Lessee is not otherwise obligated to
reimburse the Owner Participant, directly or indirectly;
(v) would not have been incurred by such Indemnitee if such
Indemnitee had not been in breach of its representations or warranties,
or had not defaulted in the observance and performance of the terms and
provisions required to be observed and performed by it, in this
Agreement, the Purchase Agreement Assignment, the Lease, the Indenture,
the Trust Agreement or any other Operative Agreement to which it is a
party unless such breach or default shall be a result of the breach or
default of any of the foregoing by the Lessee or another Indemnitee;
(vi) is a payment required to be made by the Owner Participant
pursuant to Section 3.02(b) hereof, but nothing contained in this
Section 9.01(b)(vi) shall be deemed or construed to limit the
obligations of the Lessee to the Indenture Trustee and Holders of the
Certificates pursuant to Section 3.05 of the Lease;
(vii) is, in the case of the Owner Participant, Lessor's Liens to
the extent attributable to the Owner Participant; in the case of the
Owner Trustee, Lessor's Liens to the extent attributable to the Owner
Trustee; and in the case of the Indenture Trustee, Indenture Trustee's
Liens;
(viii) is, in the case of the Owner Participant or the Owner
Trustee, attributable to the offer or sale by such Indemnitee after the
Certificate Closing Date of any interest in the Aircraft, the Lessor's
Estate or the Trust Agreement or any similar interest (including an
offer or sale resulting from bankruptcy or other proceedings for the
relief of debtors in which such Indemnitee is the debtor), unless in
each case such offer or sale shall occur (x) in connection with a
Refinancing or (y) as a result of exercise of remedies under Section 17
of the Lease; and
(ix) is incurred under or in connection with any prohibited
transaction, within the meaning of Section 406 of ERISA or Section
4975(c)(1) of the Code ("Prohibited Transaction"); provided, however,
that in the event Prohibited Transaction Exemption 89-88, appearing at
54 Fed. Reg. 42581 (1989), or any other comparable prohibited
transaction exemption, (individually or collectively, a "PTE") is not
valid or is not applicable in any respect to the purchase and holding of
the Pass Through Certificates, then the indemnity provided for in
Section 9.01(a) hereof shall extend to any Expense incurred by the Owner
Participant as the result of any Prohibited Transaction occurring with
respect to the purchase or holding of any Pass Through Certificate by an
employee benefit plan subject to Title I of ERISA or by a plan subject
to Section 4975 of the Code (individually or collectively, an "ERISA
Plan") with respect to which the Owner Participant is a party in
interest, within the meaning of Section 3(14) of ERISA, or a
disqualified person, within the meaning of Section 4975 of the Code,
except, however, that such indemnity shall not extend to any Expense
incurred by the Owner Participant as the result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Pass Through Certificate (A) over which purchase or holding the Owner
Participant (or any Affiliate thereof) has discretion or control (other
than in the capacity of a custodian, directed trustee or other similar
nondiscretionary capacity), or (B) by an ERISA Plan with respect to
which the Owner Participant (or any Affiliate thereof) is a "plan
sponsor" within the meaning of Section 3(16)(B) of ERISA; and provided
further, however, that in the event the PTE is not valid or applicable
in any respect to the purchase and holding of the Pass Through
Certificates and the Lessee had failed to obtain from the manager or
co-manager of the underwriting syndicate of the Pass Through
Certificates a representation that such manager or co-manager has a PTE,
then the indemnity provided for in Section 9.01(a) hereof shall extend
to any Expense incurred by the Owner Participant as the result of any
Prohibited Transaction occurring with respect to the purchase or holding
of any Pass Through Certificate by an ERISA Plan with respect to which
the Owner Participant is a party in interest or a disqualified person,
except, however, that such indemnity shall not extend to any Expense
incurred by the Owner Participant as a result of any Prohibited
Transaction occurring with respect to the purchase or holding of any
Pass Through Certificates by an ERISA Plan with respect to which the
Owner Participant (or any Affiliate thereof) is a "plan sponsor", within
the meaning of Section 3(16)(B) of ERISA.
Section 9.02. After-Tax Basis. The amount which the Lessee shall
be required to pay with respect to any Expense indemnified against under
Section 9.01 shall be an amount sufficient to restore the Indemnitee, on an
After-Tax Basis, to the same position such party would have been in had
such Expense not been incurred. If any Indemnitee actually realizes a
permanent Tax benefit by reason of the payment of such Expense paid or
indemnified against by the Lessee which was not considered in the
computation thereof, such Indemnitee shall promptly pay to the Lessee, but
not before the Lessee shall have made all payments theretofore due such
Indemnitee under this Agreement, the Tax Indemnity Agreement and any other
Operative Agreement, an amount equal to the lesser of (x) the sum of such
Tax benefit plus any other permanent Tax benefit actually realized by such
Indemnitee as the result of any payment made by such Indemnitee pursuant to
this sentence and (y) the amount of such payment pursuant to this Section
9.02 by the Lessee to such Indemnitee plus the amount of any other payments
by the Lessee to such Indemnitee theretofore made pursuant to this Section
9.02 less the amount of any payments by such Indemnitee to the Lessee
theretofore made pursuant to this Section 9.02 (and the excess, if any, of
the amount described in clause (x) above over the amount described in
clause (y) above shall be carried forward and applied to reduce pro tanto
any subsequent obligations of the Lessee to make payments to such
Indemnitee pursuant to this Section 9.02), it being intended that no
Indemnitee should realize a net Tax benefit pursuant to this Section 9.02
unless the Lessee shall first have been made whole for any payments by it
to such Indemnitee pursuant to this Section 9.02; provided, however, that
notwithstanding the foregoing portions of this sentence, such Indemnitee
shall not be obligated to make any payment to the Lessee pursuant to this
sentence so long as an Event of Default shall have occurred and be
continuing. Any Taxes that are imposed on any Indemnitee as a result of
the disallowance or reduction of such Tax benefit referred to in the next
preceding sentence (including the expiration of any tax credit carryovers
or carrybacks of such Indemnitee that would not otherwise have expired)
shall be indemnifiable pursuant to the provisions of Section 8.01 hereof
without regard to Section 8.01(b) hereof.
Section 9.03. Subrogation. Upon the payment in full of any
indemnity pursuant to this Article 9 by the Lessee (but not earlier), the
Lessee shall be subrogated to any right of the Indemnitee, other than with
respect to any of such Indemnitee's insurance policies or in connection
with any indemnity claim the Person indemnified may have against any other
Indemnitee in respect of the matter against which such indemnity has been
made.
Section 9.04. Notice and Payment. Each Indemnitee and the Lessee
shall give prompt written notice one to the other of any liability of which
such party has knowledge for which the Lessee is, or may be, liable under
this Article 9; provided, however, that failure to give such notice shall
not terminate any of the rights of Indemnitees under this Article 9, except
(with respect to such Indemnitee) to the extent that the Lessee has been
materially prejudiced by the failure to provide such notice. Unless
otherwise provided in the Operative Agreements, any amount payable to an
Indemnitee pursuant to this Article 9 shall be paid within 30 days after
receipt of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the basis for such
indemnity and the computation of the amount so payable.
Section 9.05. Refunds. If any Indemnitee shall obtain a recovery
of all or any part of any amount which the Lessee shall have paid to such
Indemnitee or for which the Lessee shall have reimbursed such Indemnitee
under this Article 9, and provided there shall not have occurred a Payment
Default or an Event of Default (in which case payment shall not be made to
the Lessee until such Payment Default or Event of Default shall have been
cured) such Indemnitee shall pay to the Lessee the amount of any such
recovery, including interest received with respect to the recovery, net of
any Taxes paid or payable as a result of the receipt of the recovery and
interest, plus any net additional permanent income tax benefits actually
realized by Indemnitee as the result of any payment made pursuant to this
sentence less any reasonable costs and expense of any Indemnitee not
reimbursed by the Lessee; provided, however, that such amount shall not be
payable (a) before such time as the Lessee shall have made all payments or
indemnities then due and payable to such Indemnitee under this Article 9 or
(b) to the extent that the amount of such payment would exceed the amount
of all prior payments by the Lessee to such Indemnitee pursuant to this
Article 9, less the amount of all prior payments by such Indemnitee to the
Lessee pursuant to this Article 9. Any subsequent loss of such recovery or
tax benefit shall be subject to indemnification under Article 8 or this
Article 9, as the case may be, but without regard to Section 8.01(b)
hereof, other than Section 8.01(b)(v) hereof.
Section 9.06. Defense of Claims. The Lessee or its insurers
shall have the right (in each such case at the Lessee's sole expense) to
investigate or, provided that (i) the Lessee or its insurers shall not
reserve the right to dispute liability with respect to any insurance
policies pursuant to which coverage is sought, (ii) in the case of the
Lessee, no Event of Default shall have occurred and be continuing and (iii)
the Lessee shall have first acknowledged in writing to such Indemnitee the
Lessee's obligation to indemnify such Indemnitee hereunder in respect of
such claim, defend any such claim covered by insurance for which
indemnification is sought pursuant to this Article 9 and each Indemnitee
shall cooperate with the Lessee or its insurers with respect thereto, and
provided, further, the Lessee shall not be entitled to assume and control
the defense of any such claim if and to the extent such Indemnitee
reasonably objects to such control on the ground that an actual or
potential material conflict of interest exists where it is advisable for
such Indemnitee to be represented by separate counsel. Subject to the
immediately foregoing sentence, where the Lessee or the insurers under a
policy of insurance maintained by the Lessee undertake the defense of an
Indemnitee with respect to such a claim, no additional legal fees or
expenses of such Indemnitee in connection with the defense of such claim
shall be indemnified hereunder unless the fees or expenses were incurred at
the written request of the Lessee or such insurers. Subject to the
requirement of any policy of insurance applicable to a claim, an Indemnitee
may participate at its own expense at any judicial proceeding controlled by
the Lessee or its insurers pursuant to the preceding provisions, to the
extent that such party's participation does not, in the opinion of the
independent counsel appointed by the Lessee or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 9.06.
No Indemnitee shall enter into any settlement or other compromise with
respect to any claim described in this Section 9.06 without the prior
written consent of the Lessee, which consent shall not unreasonably be
withheld or delayed, unless such Indemnitee waives its right to be
indemnified under this Article 9 with respect to such claim. The Lessee
shall not enter into any settlement or compromise which the Lessee has not
agreed to discharge or with respect to which the Lessee has not agreed to
indemnify such Indemnitee to such Indemnitee's satisfaction.
Section 9.07. Survival of Obligations. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 9 and the Lessee's obligations under any and all of them shall
survive the expiration or other termination of this Agreement, the Tax
Indemnity Agreement, the Trust Agreement, the Indenture, the Purchase
Agreement Assignment, the Engine Warranty Assignment, the Lease and the
other Operative Agreements but, as to such indemnities, only with respect
to losses, liabilities, obligations, damages, penalties, claims, actions,
suits, costs, Expenses and disbursements caused by events occurring or
existing (or fairly attributable to the Lessee's acts or omissions) prior
to or incurred in the process of (i) the return or disposition of the
Aircraft under Article 12 or Article 17 of the Lease, or (ii) the
termination of the Lease or the Indenture or, if later, the return of the
Aircraft.
Section 9.08. Effect of Other Indemnities. The Lessee's
obligations under the indemnities provided for in this Agreement shall be
those of a primary obligor whether or not the Person indemnified shall also
be indemnified with respect to the same matter under the terms of this
Agreement, the Lease, the Indenture, the Trust Agreement, or any other
document or instrument, and the Person seeking indemnification from the
Lessee pursuant to any provision of this Agreement may proceed directly
against the Lessee without first seeking to enforce any other right of
indemnification.
Section 9.09. Interest. The Lessee will pay to each Indemnitee
on demand, to the extent permitted by applicable law, interest on any
amount of indemnity not paid when due pursuant to this Article 9 until the
same shall be paid, at the Past Due Rate.
ARTICLE 10
TRANSACTION COSTS
Section 10.01. Transaction Costs and Other Costs. (a)
Transaction Costs. The Owner Participant shall pay (or reimburse the
Lessee if the Lessee shall have previously made such payment) all fees and
expenses of the following persons relating to the public offering of the
Pass Through Certificates contemplated by the Underwriting Agreement and
related to the transactions contemplated hereby on the Certificate Closing
Date and the Delivery Date: (i) the fees and expenses of counsel for the
Owner Participant; (ii) the fees and expenses of the transaction
documentation counsel and counsel for the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Underwriters (other than those
fees, expenses and disbursements payable by the Underwriters pursuant to
the Underwriting Agreement); (iii) the fees and expenses of Xxxxxxxxx,
Xxxxxx & Xxxxxxxx; (iv) any initial fees and expenses of the Pass Through
Trustee and the fees and expenses of the Owner Trustee and the Indenture
Trustee; (v) any compensation, commissions and discounts payable to the
Underwriters pursuant to the Underwriting Agreement; (vi) the fees, if
any, incurred in printing the Pass Through Certificates; (vii) the fees
and expenses incurred in connection with printing any amendment to the
Registration Statement on Form S-3 bearing Registration No. 33-56569,
printing any Preliminary Prospectus or Prospectus (as such terms are
defined in the Underwriting Agreement) for the offering of the Pass Through
Certificates; (viii) the fees and expenses of Xxxxxx Xxxxxxxx & Co.; (ix)
the fees and expenses of Xxxxx'x and S&P; and (x) the fees and expenses of
First Chicago Leasing Corporation. The fees and expenses described in
clauses (ii) through (x) of this paragraph shall be allocable to the Owner
Participant under this Agreement (1) to the extent incurred specifically
with respect to the Owner Participant, and (2) to the extent such fees and
expenses are incurred but are not specifically attributable to the Owner
Participant, in the proportion that the principal amount of the
Certificates bears to the total amount of the Pass Through Certificates.
The Owner Participant, the Owner Trustee and the Lessee
acknowledge that the percentages for Interim Rent, Basic Rent, Stipulated
Loss Value and Termination Value set forth in the Lease have been prepared
assuming the aggregate amount payable by the Owner Participant pursuant to
the preceding paragraph is 1.31% of the Purchase Price (the "Estimated
Expense Amount").
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses) of the
entity acting as Owner Trustee, as lessor under the Lease and as Owner
Trustee under the Trust Agreement with respect to the administration of the
Lease and the Lessor's Estate and the continuing fees, expenses and
disbursements (including reasonable counsel fees and expenses and initial
fees relating to the establishment of any replacement trustee) of the
Indenture Trustee, as trustee under the Indenture with respect to the
administration of the Trust Indenture Estate and the continuing fees,
expenses and disbursements (including reasonable counsel fees and initial
fees relating to the establishment of a replacement trustee) of the Pass
Through Trustee shall be paid as Supplemental Rent by the Lessee, including
without limitation any amounts payable to the Indenture Trustee or on
account of requests by the Indenture Trustee for indemnification under
Article XI of the Indenture.
(c) Amendments, Supplements and Appraisal. Without limitation of
the foregoing, the Lessee agrees:
(i) to pay as Supplemental Rent to the Owner Trustee, the Owner
Participant, the Indenture Trustee and the Pass Through Trustee all
costs and expenses (including reasonable legal fees and expenses)
incurred by any of them in connection with (a) any Default or Event of
Default and any enforcement or collection proceedings resulting
therefrom, or (b) the enforcement of the obligations of the Lessee
hereunder or under the other Operative Agreements, including, without
limitation, the entering into or giving or withholding of any amendments
or supplements or waivers or consents, including without limitation, any
amendment, supplement, waiver or consent resulting from any work-out,
restructuring or similar proceeding relating to the performance or
nonperformance by the Lessee of its obligations under the Operative
Agreements or (c) any amendment, supplement, waiver or consent (whether
or not entered into) under this Agreement, the Lease, the Indenture, the
Certificates, the Tax Indemnity Agreement, the Purchase Agreement
Assignment or any other Operative Agreement or document or instrument
delivered pursuant to any of them, which amendment, supplement, waiver
or consent is required by any provision of any Operative Agreement or is
requested by the Lessee or necessitated by the action or inaction of the
Lessee; provided, however, that the Lessee shall not be responsible for
fees and expenses incurred in connection with the offer, sale or other
transfer (whether pursuant to Section 7.03(d) hereof or otherwise) by
the Owner Participant or the Owner Trustee after the Certificate Closing
Date of any interest in the Aircraft, the Lessor's Estate or the Trust
Agreement or any similar interest (and the Owner Participant shall be
responsible for all such fees and expenses), unless such offer, sale or
transfer shall occur (A) during a period when an Event of Default has
occurred and is continuing under the Lease, (B) during a period
following an Event of Loss or (C) in connection with the termination of
the Lease or action or direction of the Lessee pursuant to Section 4.02
or Article 10 of the Lease; and
(ii) to pay the fees, costs and expenses of all appraisers involved
in an independent appraisal of the Aircraft to the extent required under
Section 4.03 of the Lease.
ARTICLE 11
SUCCESSOR OWNER TRUSTEE
Section 11.01. Appointment of Successor Owner Trustee. (a)
Resignation and Removal. The Owner Trustee or any successor Owner Trustee
may resign or may be removed by the Owner Participant, and a successor
Owner Trustee may be appointed and a Person may become Owner Trustee under
the Trust Agreement only in accordance with the provisions of Section 3.11
of the Trust Agreement and the provisions of paragraphs (b) and (c) of this
Section 11.01.
(b) Conditions to Appointment. The appointment in any manner of
a successor Owner Trustee pursuant to Section 3.11 of the Trust Agreement
shall be subject to the following conditions:
(i) Such successor Owner Trustee shall be a Citizen of the United
States;
(ii) Such successor Owner Trustee shall be a bank or a trust
company having combined capital, surplus and undivided profits of at
least $100,000,000 or a bank or trust company fully guaranteed by a
direct or indirect parent thereof having a combined capital, surplus and
undivided profits of at least $100,000,000;
(iii) Such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which
the Aircraft may then be registered or create a relationship which would
be in violation of the Transportation Code or any applicable rule or
regulation of the applicable regulatory agency or body of any other
jurisdiction in which the Aircraft may then be registered;
(iv) Such successor Owner Trustee shall enter into an agreement or
agreements, in form and substance reasonably satisfactory to the Lessee,
the Owner Participant, the Pass Through Trustee and the Indenture
Trustee whereby such successor Owner Trustee confirms that it shall be
deemed a party to this Agreement, the Trust Agreement, the Lease, the
Lease Supplement, the Purchase Agreement Assignment, the Engine Warranty
Assignment, the Indenture, the Indenture Supplement and any other
Operative Agreement to which the Owner Trustee is a party and agrees to
be bound by all the terms of such documents applicable to the Owner
Trustee and makes the representations and warranties contained in
Section 7.04 hereof (except that it may be duly incorporated, validly
existing and in good standing under the laws of the United States of
America or any State thereof); and
(v) All filings of Uniform Commercial Code financing and
continuation statements, filings in accordance with the Transportation
Code and amendments thereto shall be made and all further actions taken
in connection with such appointment as may be necessary in connection
with maintaining the validity, perfection and priority of the Lien of
the Indenture and the valid and continued registration of the Aircraft
in accordance with the Transportation Code.
(c) Appointment. For so long as the Aircraft remains registered
under the Transportation Code, the Owner Participant agrees to appoint
promptly a successor Owner Trustee meeting the requirements of Section
11.01(b) hereof in the event the Owner Participant has knowledge that the
Owner Trustee at any time shall not be a Citizen of the United States.
ARTICLE 12
LIABILITIES AND INTERESTS OF THE OWNER PARTICIPANT AND HOLDERS
Section 12.01. Liabilities of the Owner Participant. The Owner
Participant shall have no obligation or duty to the Lessee or to any Holder
with respect to the transactions contemplated by this Agreement, except
those obligations or duties expressly set forth in this Agreement, the
Trust Agreement, the Tax Indemnity Agreement or any other Operative
Agreement to which the Owner Participant is a party, and the Owner
Participant shall not be liable for the performance by any party hereto of
such other party's obligations or duties hereunder. Under no circumstances
shall the Owner Participant as such be liable to the Lessee, nor shall the
Owner Participant be liable to any Holder, for any action or inaction on
the part of the Owner Trustee or the Indenture Trustee in connection with
this Agreement, the Indenture, the Lease, the Trust Agreement, the Purchase
Agreement Assignment, the Engine Warranty Assignment, any other Operative
Agreement, the ownership of the Aircraft, the administration of the
Lessor's Estate or the Trust Indenture Estate or otherwise, whether or not
such action or inaction is caused by the willful misconduct or gross
negligence of the Owner Trustee or the Indenture Trustee.
Section 12.02. Interest of Holders of Certificates. A Holder of
a Certificate shall have no further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal and
interest on all Certificates held by such Holder and all other sums payable
to such Holder under this Agreement, under the Indenture and under such
Certificates shall have been paid in full.
ARTICLE 13
OTHER DOCUMENTS
Section 13.01. Consent of Lessee to Other Documents. The Lessee
hereby consents in all respects to the execution and delivery of the Trust
Agreement and the Indenture and to all of the terms of said documents, and
the Lessee acknowledges receipt of an executed counterpart of each of the
Trust Agreement and the Indenture; it being agreed that such consent shall
not be construed to require the Lessee's consent to any future supplement
to, or amendment, waiver or modification of, the terms of the Trust
Agreement, the Indenture or the Certificates, except that prior to the
occurrence and continuance of an Event of Default, no section of the
Indenture or the Trust Agreement shall be amended or modified in any manner
which materially adversely affects the Lessee without its consent.
Section 13.02. Further Assurances. The Lessee hereby confirms to
the Owner Participant its covenants set forth in and obligations under the
Lease. The Lessee agrees that, except as otherwise provided in the
Indenture, the Owner Trustee may not enter into any amendment, modification
or supplement of, or give any waiver or consent with respect to, or approve
any matter or document as being satisfactory under the Lease without the
prior consent of the Indenture Trustee and the Owner Participant and that,
except as otherwise provided in the Indenture, upon an Indenture Event of
Default, the Indenture Trustee may act as the Lessor under the Lease to the
exclusion of the Owner Trustee. The Lessee further agrees to deliver to
the Indenture Trustee and the Owner Participant a copy of each notice,
statement, request, report or other communication given or required to be
given to the Owner Trustee under the Lease.
ARTICLE 14
NOTICES
Section 14.01. Notices. All notices, demands, declarations and
other communications required by this Agreement shall be in writing and
shall be deemed received (a) if given by telecopier, when transmitted and
the appropriate telephonic confirmation received if transmitted on a
Business Day and during normal business hours of the recipient, and
otherwise on the next Business Day following transmission, (b) if given by
certified mail, return receipt requested, postage prepaid five Business
Days after being deposited in the United States mail and (c) if given by
FedEx service (or, if a Default or Event of Default shall have occurred and
be continuing, by other comparable courier service), when received or
personally delivered, addressed:
(a) If to the Lessee, to its office at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxx 00000, Attention: Vice President and Treasurer with
a copy to Senior Vice President and General Counsel at 0000 Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxx 00000, telephone (000) 000-0000, facsimile
(000) 000-0000; or to such other address as the Lessee shall from time
to time designate in writing to the Lessor, the Indenture Trustee and
the Owner Participant;
(b) If to the Lessor or the Owner Trustee, to its office at 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration Department, telephone (000) 000-0000, facsimile (313)
225-3420; or to such other address as Lessor shall from time to time
designate in writing to the Lessee and the Indenture Trustee, with a
copy to Owner Participant;
(c) If to the Owner Participant, to its office at 000 Xxxx Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Vice President - Leasing,
telephone (000) 000-0000, facsimile (000) 000-0000; or to such other
address as the Owner Participant may from time to time designate in
writing to the Lessee and the Indenture Trustee; and
(d) If to the Indenture Trustee or the Pass Through Trustee, to
its office at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Administration, telephone (000) 000-0000,
facsimile (000) 000-0000; or to such other address as the Indenture
Trustee or the Pass Through Trustee, as the case may be, shall from time
to time designate in writing to the Lessor, the Lessee, the Indenture
Trustee and the Pass Through Trustee.
ARTICLE 15
REFINANCING/REOPTIMIZATION
Section 15.01. Refinancing. (a) Subject to the terms and
conditions of this Section 15.01, the Lessee may request the Owner
Participant to participate in up to two refinancings, in whole but not in
part, of the Certificates prior to the end of the Basic Term (a
"Refinancing"), provided, that, such Refinancing may not occur prior to the
fifth anniversary of the Certificate Closing Date. Such Refinancings may
be placed in either the private or public markets and shall be denominated
in United States dollars (or in any other foreign currency so long as there
is no foreign currency risk to the Owner Participant), and shall be on
terms that do not materially adversely affect the Owner Participant. The
Owner Participant agrees to negotiate promptly in good faith to conclude an
agreement with the Lessee as to the terms of any such Refinancing
transaction (including the terms of any debt to be issued in connection
with such refinancing and the documentation to be executed in connection
therewith). Without the prior written consent of the Owner Participant,
the prospectus and other offering materials relating to any Refinancing in
the form of a public offering shall not identify the Owner Participant and
shall not include any financial statements of the Owner Participant or any
Affiliate thereof. In connection with any such Refinancing in the form of
a public offering, the Lessee shall indemnify the Owner Participant for any
liabilities under federal, state or foreign securities laws resulting from
such offering. The aggregate principal amount of the new Certificates
issued in connection with each Refinancing shall be the same as the
aggregate principal amount outstanding on the Certificates being
refinanced.
(b) Notwithstanding anything herein to the contrary, no
Refinancing will be permitted unless the Owner Participant shall have
received at least 10 Business Days' prior written notice of the closing
date of such Refinancing, the Owner Participant shall have been provided
such longer period required for a reasonable opportunity to review the
relevant documentation and the Owner Participant shall have determined in
good faith that neither it nor the Owner Trustee shall suffer any loss or
expense or material adverse effect upon the rights or obligations or bear
any increased risk as a result of such Refinancing (including, without
limitation, any risk with respect to taxes or other adverse consequences to
the Owner Participant including the application of Revenue Procedures 75-21
and 75-28 and Section 467 of the Code) for which it has not been or will
not have been indemnified by the Lessee in a manner reasonably satisfactory
to the Owner Participant.
Prior to the consummation of any Refinancing pursuant to this
Section 15.01, the Owner Participant and the Lessee shall agree upon a
schedule setting forth each installment of Interim Rent, Basic Rent,
Stipulated Loss Values, Termination Values and EBO Price payable pursuant
to the Lease as a result of the Refinancing in accordance with Section 3.04
of the Lease, and thereafter the amounts set forth in such schedule shall
become the amounts payable under the Lease. Upon the consummation of the
Refinancing, the evidence of indebtedness issued pursuant to the
Refinancing shall be considered "Certificates" for purposes of this
Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall
have no obligation to proceed with any Refinancing transaction as
contemplated by this Section 15.01 unless the Lessee indemnifies the Owner
Trustee and the Owner Participant by agreement in form and substance
satisfactory to each of them, for any liability, obligation (other than the
obligation to pay principal and interest in respect of the refinanced
indebtedness), cost or expense (including, without limitation, reasonable
attorneys' fees and Make-Whole Premium and any other premiums or amounts
due under the Indenture), including any adverse tax consequences or impact,
related to or arising out of any such Refinancing transaction, except to
the extent of amounts included in Transaction Costs and payable by the
Owner Participant as provided in Article 10 hereof.
(d) Each party agrees to take or cause to be taken all requested
action, including, without limitation, the execution and delivery of any
documents and instruments, including, without limitation, amendments or
supplements to the Lease, which may be reasonably necessary or desirable to
effect such Refinancing, including, in the case of the Owner Participant,
direction to the Owner Trustee by the Owner Participant to prepay the
Certificates then outstanding; provided, however, that such Refinancing
shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium
and breakage costs, if any, and all other sums due and owing on the
Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by
the Lessee under this Agreement, the Indenture, the Lease, the Trust
Agreement, and the Certificates then outstanding shall have been made by
the Lessee;
(iii) Such party shall have received such opinions of counsel
(including, without limitation, an opinion received by the Owner
Participant from independent tax counsel reasonably satisfactory to the
Lessee that such Refinancing shall not result in any adverse tax
consequences to such Owner Participant, unless the Lessee shall have
agreed to provide an indemnity in respect thereof reasonably
satisfactory in form and substance to the Owner Participant),
certificates and other documents as it may reasonably request, each in
form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the
reasonable judgment of the Owner Participant are necessary for such
Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the
Owner Participant, as Supplemental Rent under the Lease, sufficient
funds to pay any breakage costs, Make-Whole Premium and any other
amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this
Agreement of the conditions set forth in this Section 15.01 to such
party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing
or would occur immediately after giving effect to such Refinancing;
(viii) The Indenture Trustee shall have received no later than the
Business Day next preceding the day 15 days prior to the effective date
of such Refinancing irrevocable notice of such Refinancing; and
(ix) In the event the Lessee shall not prohibit the purchase of
the Refinancing loan certificates by, or with the assets of, an employee
benefit plan, as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA or a plan, which is subject to Section 4975(c) of the
Code, (individually or collectively, an "ERISA Plan"), the Lessee will
permit the placement of the Refinancing loan certificates with an ERISA
Plan only if either (A) if such placement is in the form of pass through
certificates, the sole underwriter or the manager or co-manager of the
underwriting syndicate or the selling or placement agent of the
Refinancing loan certificates represents to the Lessee that it has a
prohibited transaction exemption from the U.S. Department of Labor with
respect to pass through certificates (such as Prohibited Transaction
Exemption 90-24 or any other comparable exemption) or (B) purchasers of
the Refinancing loan certificates provide a representation regarding
their source of funds used in acquiring the Refinancing loan
certificates and, if such purchasers represent that they are using funds
of an ERISA Plan in acquiring the Refinancing loan certificates, such
purchasers further represent that either a prohibited transaction
exemption from the U.S. Department of Labor is available with respect
to their purchase and holding of the Refinancing loan certificates or
that their purchase and holding of the Refinancing loan certificates
will not constitute a prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code. The reliance on any such exemption will
not be conditional on the Owner Participant's representation concerning
its party in interest or other status with respect to ERISA Plans. If
neither exemption referred to in clause (A) or (B) of this paragraph
(viii) is valid or applicable in any respect to the purchase and holding
of the Refinancing loan certificates, or if the representation in clause
(B) of this paragraph (viii) that such purchase and holding will not
constitute a prohibited transaction is not correct, whichever is
applicable then the Lessee shall indemnify the Owner Participant
pursuant to, and to the extent provided for, under Sections 8 and 9
hereof for Taxes and Expenses resulting from any "prohibited
transaction", within the meaning of Section 406 of ERISA or Section
4975(c)(1) of the Code, occurring with respect to the placement of the
Refinancing loan certificates with, or the holding of the Refinancing
loan certificates by, any ERISA Plan with respect to which the Owner
Participant is a party in interest, within the meaning of Section 3(14)
of ERISA, or a disqualified person, within the meaning of Section 4975
of the Code.
Section 15.02. Reoptimization. (a) If a Change in Tax Rate
occurs prior to the end of the Basic Term, then, subject to the terms and
conditions of this Section 15.02 and Section 3.04 of the Lease, the Owner
Participant may, upon 30 days' prior notice to the Lessee, the Indenture
Trustee, the Owner Trustee and the Holders, elect to modify the schedule of
payments of principal of the certificates issued ("Refinancing
Certificates") in connection with any Refinancing using private debt (not
including debt issued pursuant to an exemption from registration under the
Securities Act relying on Rule 144A promulgated thereunder but otherwise
marketed in a manner substantially similar to securities registered under
the Securities Act, and not including debt issued in connection with any
offering of securities registered under the Securities Act) due on each
remaining Rent Payment Date on or commencing on the Rent Payment Date next
succeeding the date mutually agreed to by the Owner Participant, the Lessee
and the Indenture Trustee on which the Owner Participant shall make such
modification (the "Reoptimization Date"). Promptly after making such
modification, the Owner Participant shall furnish each party hereto written
notice of the amounts so recalculated.
(b) Adjustments to Refinancing Certificates. On the
Reoptimization Date, subject to the satisfaction on or before the
Reoptimization Date of the conditions set forth in Section 15.02(c), the
Owner Trustee will issue and deliver and the Indenture Trustee will
authenticate, and each holder of a Refinancing Certificate will accept
delivery of, a new Refinancing Certificate or Refinancing Certificates (in
replacement of each Refinancing Certificate then held by such holder, which
Refinancing Certificates shall be surrendered to the Indenture Trustee for
cancellation) containing such changed principal installments (expressed as
a percentage of the original principal amount of such Refinancing
Certificate) as shall have been recalculated by the Owner Participant, but
in the same principal amount as, and containing terms identical to, except
as otherwise contemplated by Section 15.02(d) hereof, the Refinancing
Certificates originally issued in connection with the Operative Agreements.
(c) Conditions to the Obligations of the Holders of the
Refinancing Certificates on the Reoptimization Date. The obligation of
each holder of a Refinancing Certificate to accept delivery of a new
Refinancing Certificate on the Reoptimization Date, and to surrender on
such Reoptimization Date any Refinancing Certificate then held by it, is
subject to the following conditions precedent having been satisfied on or
before the Reoptimization Date:
(i) the requirements of Section 15.02(d) hereof shall have been
satisfied;
(ii) the following documents, in form and substance satisfactory to
such Holder, shall have been duly authorized, executed and delivered by
the party or parties thereto and shall be in full force and effect: (A)
if the payments of Interim Rent, Basic Rent, Stipulated Loss Values and
Termination Values with respect to the Term have been changed, an
amendment to the Lease, dated the Reoptimization Date and duly filed (or
in the process of being so duly filed) for recordation with the
Aeronautics Authority, (B) an amendment to the Indenture setting forth
any changed repayment schedule to the Refinancing Certificates, dated
the Reoptimization Date and duly filed (or in the process of being so
duly filed) for recordation with the Aeronautics Authority, and (C)
replacement Refinancing Certificates; and
(iii) in connection with any Reoptimization the Owner Participant
shall pay or agree to pay all reasonable costs and expenses incurred by
the Lessee, the Owner Trustee, the Indenture Trustee and each Holder of
a Refinancing Certificate (including, without limitation, reasonable
legal fees and expenses) in connection with any such reoptimization.
(d) Payment Schedules. Except as otherwise provided in this
Section 15.02 as long as the Refinancing Certificates remain outstanding,
the payment schedules for the Refinancing Certificates shall not be
modified.
ARTICLE 16
[INTENTIONALLY LEFT BLANK]
ARTICLE 17
MISCELLANEOUS
Section 17.01. Owner for Federal Tax Purposes. It is hereby
agreed between the Owner Participant and the Lessee (but the Lessee makes
no representation to such effect) that it is the intent of the parties for
Federal, state, local and foreign income tax purposes that the Owner
Participant will be treated as the owner of the Aircraft and the Lessee
will be treated as the lessee of the Aircraft.
Section 17.02. Collateral Account. (a) The Indenture Trustee
shall notify the Owner Trustee and the Lessee of any losses incurred on the
Specified Investments in the Collateral Account promptly upon the
realization thereof, as well as any fees, commissions and other costs,
Taxes (other than income taxes) and expenses, if any, incurred by the
Indenture Trustee in connection with its administration of the Collateral
Account (collectively, "Losses"). Promptly upon receipt of such
notification but, in any event, no later than the earlier of the Delivery
Date and the Cut-Off Date, the Lessee shall pay to the Indenture Trustee,
on behalf of the Owner Trustee, for deposit into the Collateral Account, an
amount equal to such Losses (net of any investment earnings).
(b) The Lessee shall pay to the Indenture Trustee, on behalf of
the Owner Trustee, on the Owner Participant Payment Date an amount equal to
the aggregate amount of interest accrued on the Certificates from (and
including) the Certificate Closing Date to (but excluding) the Delivery
Date.
(c) If the Aircraft has neither (i) been purchased by the Owner
Trustee on the Delivery Date nor (ii) been acquired by the Lessee in the
manner contemplated by Section 3.05(a)(ii) hereof, the Lessee agrees to pay
to the Indenture Trustee, on behalf of the Owner Trustee, on the Cut-Off
Date the excess, if any, of the amounts payable under Section 6.02(b)(1) of
the Indenture over the amounts released from the Collateral Account under
Section 2.16 of the Indenture.
(d) All amounts payable by the Lessee pursuant to this Section
17.02 shall be paid to the Indenture Trustee at its principal office at 4
Chase Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Office, or as the Indenture Trustee may otherwise direct
within the United States, by wire transfer of immediately available funds
in U.S. Dollars no later than 10:30 a.m., New York City time, on the due
date of such payment.
Section 17.03. Counterparts. This Agreement may be executed by
the parties in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 17.04. No Oral Modifications. Neither this Agreement nor
any of its terms may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement,
waiver or modification is sought. No such written termination, amendment,
supplement, waiver or modification shall be effective unless a signed copy
shall have been delivered to and executed by the Owner Trustee and the
Indenture Trustee. A copy of each such termination, amendment, supplement,
waiver or modification shall also be delivered to each other party to this
Agreement.
The consent of the Pass Through Trustee, in its capacity as a
party to this Agreement and not as a Holder, shall not be required to
modify, amend or supplement this Agreement or to give any consent, waiver,
authorization or approval with respect to this Agreement under the
circumstances in which the consent of the Indenture Trustee would not be
required for such modification, amendment, supplement, consent, waiver or
approval in accordance with Section 8.01(b) of the Indenture, provided that
the Pass Through Trustee shall be entitled to receive an Opinion of Counsel
(as defined in the Pass Through Agreement) necessary, in its sole
discretion, to establish that the Indenture Trustee's consent would not be
required under such circumstances.
Section 17.05. Captions. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions of this Agreement.
Section 17.06. Successors and Assigns. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the
Lessee and its successors and permitted assigns, the Owner Participant and
its successors and permitted assigns, the Owner Trustee and its successors
as Owner Trustee (and any additional owner trustee appointed) under the
Trust Agreement, the Indenture Trustee and its successors as Indenture
Trustee (and any additional indenture trustee appointed) under the
Indenture and the Pass Through Trustee and its successors as Pass Through
Trustee (and any additional pass through trustee appointed).
Section 17.07. Concerning the Owner Trustee, the Pass Through
Trustee and the Indenture Trustee. Each of NBD and Chase is entering into
this Agreement solely in their respective capacities (except to the extent
otherwise expressly indicated), in the case of NBD, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, in the case
of Chase), not in its individual capacity but solely as Indenture Trustee
under the Indenture and as Pass Through Trustee under the Pass Through
Agreement, and except as otherwise expressly provided in this Agreement or
in the Lease, the Indenture, the Pass Through Agreement or the Trust
Agreement, neither NBD, nor Chase, shall be personally liable for or on
account of its statements, representations, warranties, covenants or
obligations under this Agreement; provided, however, that each of NBD and
Chase accepts the benefits running to it under this Agreement, and each
agrees that (except as otherwise expressly provided in this Agreement or
any other Operative Agreement to which it is a party) it shall be liable in
its individual capacity for (a) its own gross negligence or willful
misconduct (whether in its capacity as trustee or in its individual
capacity), (b) any breach of representations and warranties or any breach
of covenants made in its individual capacity pursuant to or in connection
with this Agreement or the other Operative Agreements to which it is a
party, (c) any breach, in the case of the Owner Trustee, of its covenants
made in its individual capacity in Sections 3.05 and 3.08 of the Indenture,
(d) the failure to use ordinary care in receiving, handling and disbursing
funds, (e) in the case of the Owner Trustee, Lessor's Liens attributable to
it in its individual capacity, (f) in the case of the Indenture Trustee,
Indenture Trustee's Liens and (g) taxes, fees or other charges on, or based
on, or measured by, any fees, commissions or compensation received by it in
connection with the transactions contemplated by the Operative Agreements.
Section 17.08. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions, and any
such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section 17.09. Public Release of Information. Subject to
applicable legal requirements (including, without limitation, securities
laws requirements, other regulatory requirements and other legally
compelled disclosures), so long as there shall not have occurred an Event
of Default or Indenture Event of Default, each party to this Agreement
shall in each instance obtain the prior written approval of each other
party to this Agreement concerning the exact text and timing of news
releases, articles and other information releases to the public media
concerning any Operative Agreements.
Section 17.10. Certain Limitations on Reorganization. The
Indenture Trustee agrees that, if (i) the Lessor's Estate or the trust
created by the Trust Agreement becomes a debtor subject to the
reorganization provisions of the Bankruptcy Code or any other applicable
bankruptcy or insolvency statutes, (ii) pursuant to such reorganization
provision, the Owner Participant is held to have recourse liability to the
debtor or the trustee of the debtor directly or indirectly on account of
any amount payable as principal, interest or premium on the Certificates,
and (iii) the Indenture Trustee actually receives any Recourse Amount which
reflects any payment by the Owner Participant on account of (ii) above,
then the Indenture Trustee, as the case may be, shall promptly refund to
the Owner Participant such Recourse Amount. For purposes of this Section
17.10, "Recourse Amount" means the amount by which the portion of such
payment by the Owner Participant on account of clause (ii) above received
by the Indenture Trustee exceeds the amount which would have been received
by the Indenture Trustee if the Owner Participant had not become subject to
the recourse liability referred to in (ii) above. Nothing contained in
this Section shall prevent the Indenture Trustee from enforcing any
individual obligation (and retaining the proceeds thereof) of the Owner
Participant under this Agreement or any other Operative Agreement to the
extent herein or therein provided, for which the Owner Participant has
expressly agreed by the terms of this Agreement to accept individual
responsibility.
Section 17.11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS AND
IS BEING DELIVERED IN NEW YORK.
Section 17.12. Section 1110 Compliance. The Owner Participant,
the Indenture Trustee and the Lessee agree that the transactions
contemplated by the Operative Agreements that are to occur from and after
the Delivery Date are expressly intended to be, shall be and should be
construed so as to be entitled to the benefits and protection of Section
1110 of the Bankruptcy Code.
ARTICLE 18
CONFIDENTIALITY
Section 18.01. Confidentiality. Each party hereto agrees (on
behalf of itself and each of its Affiliates, agents, directors, officers,
employees and representatives) to use reasonable precautions to keep
confidential, in accordance with its customary procedures for handling
confidential information of this nature, any non-public information
supplied to it pursuant to this Agreement which is identified by the Person
supplying the same as being confidential at the time the same is delivered
to such party, provided that nothing herein shall limit the disclosure of
any such information (i) to the extent required by statute, rule,
regulation or judicial process, (ii) to counsel for any of the parties
hereto, (iii) to bank examiners, auditors, insurance regulators,
accountants or similar regulatory authorities, (iv) in connection with any
litigation to which any one or more of the parties hereto is a party
relating to the transactions contemplated hereby or by any of the Operative
Agreements, (v) to a subsidiary or Affiliate of the parties hereto, (vi) to
any assignee or participant (or prospective assignee or participant) so
long as such assignee or participant (or prospective assignee or
participant) first executes and delivers to the respective party making
such assignment or participation an agreement in writing to be bound by the
provisions of this Section 18.01 or (vii) in the case of the Owner
Participant or the Owner Trustee (in its individual or trust capacity) to
the Owner Trustee (in its individual or trust capacity) or to the Owner
Participant, as the case may be.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers and
this Participation Agreement shall be effective this ___ day of October,
1995.
LESSEE:
FEDERAL EXPRESS CORPORATION
By:__________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Treasurer and
Managing Director - Structured
Finance
OWNER PARTICIPANT:
CHRYSLER CAPITAL CORPORATION
By:__________________________________________
Name:
Title:
OWNER TRUSTEE:
NBD BANK, not in its individual capacity
except as otherwise expressly provided
herein, but solely as Owner Trustee
By:__________________________________________
Name:
Title:
INDENTURE TRUSTEE:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), not in its individual
capacity except as otherwise expressly
provided herein, but solely as Indenture
Trustee
By:__________________________________________
Name:
Title:
PASS THROUGH TRUSTEE:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), not in its individual
capacity except as otherwise expressly
provided herein, but solely as Pass
Through Trustee
By:__________________________________________
Name:
Title:
SCHEDULE I CERTIFICATE INFORMATION
1. Federal Express Corporation Pass Through Trust, 1995-B1
Federal Express Corporation Trust No. N663FE
Interest Rate: 6.05%
Maturity: March 19, 1996
Principal Amount: $4,488,000
2. Federal Express Corporation Pass Through Trust, 1995-B2
Federal Express Corporation Trust No. N663FE
Interest Rate: 7.11%
Maturity: January 2, 2014
Principal Amount: $46,305,000
3. Federal Express Corporation Pass Through Trust, 1995-B3
Federal Express Corporation Trust No. N663FE
Interest Rate: 7.58%
Maturity: July 2, 2019
Principal Amount: $15,207,000
SCHEDULE II
DEFINITIONS
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement
and the Series Supplements) referred to below, unless otherwise defined in
an Operative Agreement or the context thereof shall otherwise require. In
the case of any conflict between the provisions of this Schedule and the
provisions of any Operative Agreement, the provisions of such Operative
Agreement shall control the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to
agreements shall be deemed to mean and include such agreements as amended
and supplemented from time to time, and (ii) references to parties to
agreements shall be deemed to include the successors and permitted assigns
of such parties.
DEFINED TERMS:
Additional Insureds. As defined in Article 13 of the Lease.
Aeronautics Authority or FAA. As appropriate, the Federal
Aviation Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affiliate. With respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control
with such Person. For the purposes of this definition, "control"
(including "controlled by" and "under common control with") shall mean the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether through the ownership of
voting securities or by contract or otherwise. In no event shall the Owner
Trustee or the Lessor be deemed an Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment received or
deemed to have been received by a Person (the "Original Payment") shall be
supplemented by a further payment to such Person so that the sum of the two
payments shall be equal to the Original Payment, after taking into account
(x) all Taxes that would result from the receipt or accrual of such
payments and (y) any reduction in Taxes that would result from such
increased Taxes. In the case of amounts payable to the Lessor, the Owner
Participant, or any corporate Affiliate of the Owner Participant, it shall
be presumed that such Person is at all times subject to Federal income tax
at the maximum marginal rate generally applicable to corporations from time
to time and actual state, local and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air
carrier" (as defined in the Transportation Code) as to which there is in
force a permit granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date
executed by the Manufacturer and guaranteeing AVSA's Warranty Xxxx of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee
pursuant to the Participation Agreement and to be leased under the Lease
(or any permitted substitute airframe) together with the two Engines (or
any Replacement Engine or Engines) whether or not any of such initial or
Replacement Engines may from time to time be installed on such Airframe or
may be installed on any other airframe or on any other aircraft, including
any aircraft substituted pursuant to Section 11.03 of the Lease. Prior to
delivery of the initial Lease Supplement, references in Section 3.05 of the
Participation Agreement to Aircraft shall mean the Airbus A300F4-605R
airframe bearing FAA Registration Number N663FE and Manufacturer's serial
number 766, together with the two General Electric CF6-80C2-A5F engines
bearing Manufacturer's serial numbers 705-233 and 705-234.
Airframe. The Airbus A300F4-605R aircraft (excluding the
Engines or engines from time to time installed thereon) to be leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number and manufacturer's
serial number specified in the initial Lease Supplement, including (i) all
Parts in respect thereof and (ii) any replacement airframe which may be
substituted pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to
which the Lessor is a party or to which the Lessor has consented in writing
entered into on the Delivery Date or any date thereafter in connection with
the transactions contemplated by the Operative Agreements, as such
agreement may be amended and supplemented from time to time with the
consent of the Lessor and delivered to the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Owner Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal
Express Corporation Trust No. N663FE), to be dated the Certificate
Closing Date among the Lessee, the Owner Trustee, not in its individual
capacity, but solely as Owner Trustee, the Owner Participant and the
Indenture Trustee not in its individual capacity, but solely as Indenture
Trustee, as originally executed or as amended, modified or supplemented
with the consent of all the parties thereto.
Appraisal. The report prepared by BK Associates, Inc. and to
be delivered to the Owner Participant (with a copy of such report to the
Lessee) on the Delivery Date pursuant to Section 4.02(h) of the
Participation Agreement.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee,
organized and existing under the laws of France, and its successors and
assigns.
AVSA Consent and Agreement. The Consent and Agreement dated as
of October 26, 1995, executed by AVSA, as the same may be amended, modified
or supplemented from time to time.
AVSA's FAA Xxxx of Sale. The xxxx of sale for the Airframe on
AC Form 8050-2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated
the Delivery Date.
AVSA's Warranty Xxxx of Sale. The full warranty xxxx of sale
covering the Aircraft (and specifically referring to each Engine) executed
by AVSA as owner of the Aircraft in favor of the Owner Trustee and to be
dated the Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as
amended, and any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e),
(f) or (g) of the Lease which either does or with the giving of notice or
lapse of time or both would constitute an Event of Default.
Basic Rent. The periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day
on the Commencement Date and ending at the end of the day on July 2, 2020,
or such earlier date on which the Lease shall be terminated as provided
therein.
Beneficial Interest. The interest of the Owner Participant
under the Trust Agreement.
Business Day. Any day on which commercial banks are not
authorized or required to close in New York, New York and Memphis,
Tennessee, and after the Lien of the Indenture is discharged, Detroit,
Michigan.
Certificate Closing Date. The date of the closing with respect
to the purchase of Certificates by the Pass Through Trustee contemplated by
Section 2.01(b) of the Participation Agreement.
Certificates. The Equipment Trust Certificates (Federal
Express Corporation Trust No. N663FE), issued by the Owner Trustee
pursuant to the Indenture and any certificate issued in exchange therefor
or replacement thereof pursuant to the Indenture.
Change in Tax Rate. Any amendment, modification, deletion,
addition, or change to the Code which is enacted into law after the
Delivery Date which changes the highest marginal statutory rate of Federal
income tax applicable to the Owner Participant (other than a change which
is in the nature of a minimum tax).
Chase. The Chase Manhattan Bank (National Association) and its
successors and permitted assigns.
Citizen of the United States. A citizen of the United States
as defined in Section 40102(a)(15) of the Transportation Code, or any
analogous part of any successor or substituted legislation or regulation at
the time in effect.
Closings. The closing with respect to the acquisition of the
Pass Through Certificates by the Underwriters and the closing with respect
to the acquisition of Certificates by the Pass Through Trustee.
Code. Except as otherwise provided, references to the Code
shall mean the Internal Revenue Code of 1986, as amended from time to time.
Collateral Account. The deposit account established and
maintained pursuant to Section 2.13 of the Indenture.
Commencement Date. July 2, 1996.
Commitment. The amount of the Owner Participant's
participation in the Purchase Price required to be made available or paid
as provided in Section 3.02 of the Participation Agreement.
Consent and Agreement. The Consent and Agreement dated as of
October 26, 1995, executed by the Manufacturer, as the same may be amended,
modified or supplemented from time to time.
Consent and Guaranty. The Consent and Guaranty of the
Manufacturer attached to the Purchase Agreement.
Corporate Trust Administration. The principal office of the
Indenture Trustee located at 4 Chase Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx,
Xxx Xxxx 00000, or such other office at which the Indenture Trustee's
corporate trust business shall be administered which the Indenture Trustee
shall have specified by notice in writing to the Lessee, the Owner
Participant and the Owner Trustee.
Corporate Trust Department. The principal office of the Owner
Trustee located at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such
other office at which the Owner Trustee's corporate trust business shall be
administered which the Owner Trustee shall have specified by notice in
writing to the Lessee, the Owner Participant and the Indenture Trustee.
Cut-Off Date. December 29, 1995.
Debt Portion. The amount specified as such on Schedule IV to
the Participation Agreement.
Debt Rate. The weighted average (based on Outstanding
principal amount) rate of interest on the Certificates issued pursuant to
the Indenture.
Default. Any event or condition which with the lapse of time
or the giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and
sold by AVSA to the Lessor and leased by the Lessor to the Lessee under the
Lease, which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given
by the Lessee as provided in Section 3.01 of the Participation Agreement
and including any notice with respect to a postponed Delivery Date given by
the Lessee pursuant to Section 3.05(c) of the Participation Agreement.
EBO Price. Has the meaning set forth in Section 4.02(a)(F) of
the Lease.
Eligible Deposit Account. Either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution with corporate trust
powers organized under the laws of the United States or any state thereof,
or the District of Columbia, and whose deposits are insured by the Federal
Deposit Insurance Corporation, provided that such institution also must
have a combined capital and surplus of at least $100,000,000 and a rating
of A or better from the Thomson Bank Watch.
Eligible Institution. A depository institution organized under
the laws of the United States or any one of the states thereof, or the
District of Columbia, or any domestic branch of a foreign bank, which in
any such case at all times (a) has either (x) a long-term unsecured debt
rating of at least Aa2 by Xxxxx'x or (y) a short-term certificate of
deposit rating of P-1 by Xxxxx'x, (b) has either (x) a long-term unsecured
debt rating of a least AA by S&P or (y) a short-term certificate of deposit
rating of A-1+ by S&P and (c) is a member of the Federal Deposit Insurance
Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines
listed by its manufacturer's serial number in the initial Lease Supplement
and leased pursuant to the Lease, whether or not from time to time
installed on the Airframe or installed on any other airframe or on any
other aircraft, and any Replacement Engine which may from time to time be
substituted for an Engine pursuant to Section 7.02(a)(vii), 10.03, 11.03,
11.04 or 12.02 of the Lease, together with all Parts related thereto.
Except as otherwise provided, at such time as a Replacement Engine shall be
so substituted and the Engine for which the substitution is made shall be
released from the Lien of the Indenture, such replaced Engine shall cease
to be an "Engine" under the Lease. The term "Engines" means, as of any
date of determination, both Engines then leased to the Lessee pursuant to
the Lease.
Engine Consent. The Engine Consent dated as of October 26,
1995, executed by the Engine Manufacturer, as the same may be amended,
modified or supplemented from time to time.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment
(Federal Express Corporation Trust No. N663FE), dated as of October 26,
1995 between the Lessor and the Lessee, as the same may be amended,
modified or supplemented from time to time.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. Has the meaning set forth in Section 7.06 of the
Participation Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16
of the Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use
(A) for a period in excess of 90 days due to theft or disappearance or such
longer period, not to exceed 90 days from the end of such initial 90-day
period, if and so long as the location of such property is known to the
Lessee and the Lessee is diligently pursuing recovery of such property, or
to the end of the Term, if less (unless such theft or disappearance
constitutes an Event of Loss pursuant to (i)(B) or (ii) hereof) or (B) for
a period in excess of 60 days due to the destruction, damage beyond
economic repair or rendition of such property permanently unfit for normal
use by Lessee for any reason whatsoever; (ii) any damage to such property
which results in an insurance settlement with respect to such property on
the basis of a total loss, or constructive or compromised total loss;
(iii) (1) condemnation, confiscation or seizure of, or requisition of
title to such property by the Government, any foreign government or
purported government or any agency or instrumentality thereof, or (2)
condemnation, confiscation, or seizure of, or requisition or taking of, use
of such property (A) by a foreign government or instrumentality or agency
of any such foreign government, for a period in excess of 180 days (or such
shorter period ending on the earlier of the expiration of the Term or on
the date on which an insurance settlement with respect to such property on
the basis of a total loss or constructive or compromised total loss shall
occur) or (B) by the Government for a period extending beyond the Term,
provided that no Event of Loss shall be deemed to have occurred, and the
Term shall be extended automatically for a period of six months (or the
date of return of the Aircraft, if shorter, so long as the Lessor receives
at least six months notice of such date of return) beyond the end of the
Term in the event that the Aircraft, the Airframe or any Engine as of the
end of the Lease Term is requisitioned by the Government pursuant to an
activation as part of the Civil Reserve Air Fleet Program described in
Section 7.02(a)(iv) of the Lease; and (iv) as a result of any law, rule,
regulation, order or other action by the Aeronautics Authority or other
governmental body having jurisdiction, the use of the Aircraft or Airframe
in the normal course of air transportation of cargo shall have been
prohibited by virtue of a condition affecting all Airbus A300F-600 series
aircraft equipped with engines of the same make and model as the Engines
for a period not to exceed six (6) consecutive months, unless the Lessee,
prior to the expiration of such six (6) month period, shall be diligently
carrying forward in a similar manner as are then being carried forward with
respect to other aircraft of the Lessee so as to not discriminate against
the Aircraft by reason of its leased status, all steps which are necessary
or desirable to permit the normal use of the Aircraft or Airframe or, in
any event, if such use of the Aircraft or the Airframe shall have been
prohibited for a period of eighteen (18) consecutive months or until the
end of the Term, if earlier. The date of such Event of Loss shall be (s)
the 91st day or the 180th day, as the case may be, following loss of such
property or its use due to theft or disappearance (or the end of the Term
or the Lessee's abandonment of diligent efforts to recover such property,
if earlier); (t) the 61st day following the date of any destruction,
damage beyond economic repair or rendition of such property permanently
unfit for normal use; (u) the date of any insurance settlement on the
basis of a total loss or constructive or compromised total loss; (v) the
date of any condemnation, confiscation, seizure or requisition of title of
such property; (w) the 181st day following condemnation, confiscation,
seizure or requisition for use of such property by a foreign government
referred to in clause (iii)(2)(A) above (or the end of the Term or the date
of any insurance settlement described therein, if earlier than such 181st
day); (x) the last day of the Term in the case of requisition for use of
such property by the Government; (y) the last day of the six (6) month or
eighteen (18) month period, referred to in clause (iv) above (or if
earlier, the end of the Term or abandonment of the Lessee's efforts to
restore the normal use of the Aircraft). An Event of Loss with respect to
the Aircraft shall be deemed to have occurred if any Event of Loss occurs
with respect to the Airframe. If an Event of Loss described in any of
clauses (i) (A), (iii) or (iv) above shall occur, Lessor may elect, within
30 days following the date upon which such Event of Loss is deemed to have
occurred, to waive such Event of Loss and the consequences thereof.
Excepted Payments. Collectively, (i) indemnity or other
payments (and interest thereon to the extent provided in the Operative
Agreements) paid or payable by the Lessee in respect of the Owner
Participant, the Owner Trustee in its individual capacity or any of their
respective successors, permitted assigns, directors, officers, employees,
servants and agents or Affiliates, pursuant to the Participation Agreement
or any indemnity hereafter granted to the Owner Participant or the Owner
Trustee in its individual capacity pursuant to the Lease or the
Participation Agreement, (ii) proceeds of public liability insurance (or
government indemnities in lieu thereof) in respect of the Aircraft payable
as a result of insurance claims paid for the benefit of, or losses suffered
by, the Owner Trustee or the Indenture Trustee in their respective
individual capacities or by the Owner Participant, or their respective
successors, permitted assigns or Affiliates, (iii) proceeds of insurance
maintained with respect to the Aircraft by the Owner Participant (whether
directly or through the Owner Trustee) maintained in accordance with
Section 13.05 of the Lease but not required under Section 13 of the Lease,
(iv) payments of Supplemental Rent by the Lessee in respect of any amounts
payable under the Tax Indemnity Agreement, (v) payments constituting
increases in Interim Rent or Basic Rent attributable to payments arising
pursuant to Section 5 of the Tax Indemnity Agreement and (vi) any right to
demand, collect or otherwise receive and enforce the payment of any amount
described in clauses (i) through (v) above.
Expense; Expenses. Have the meaning specified in Section
9.01(a) of the Participation Agreement.
Fair Market Renewal Term. A term with respect to which the
Lessee has exercised its option to renew the Lease pursuant to the second
paragraph of Section 4.01(a) thereof and with respect to which the
conditions set forth in the second paragraph of Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and
equal in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and
willing lessor unaffiliated with such lessee, neither being under any
compulsion to lease the Aircraft. In such determination, it shall be
assumed that the Aircraft is in the condition required under the Lease in
the case of return of the Aircraft pursuant to Article 12 of the Lease.
Fair Market Rental shall be determined in accordance with the provisions of
Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and
equal in amount to, the value which would be obtained in an arm's-length
transaction between an informed and willing purchaser under no compulsion
to buy and an informed and willing seller unaffiliated with such purchaser
and under no compulsion to sell, assuming that the Aircraft (or other
property) is unencumbered by the Lease. In such determination it shall be
assumed that the Aircraft is in the condition required under the Lease in
the case of return of the Aircraft pursuant to Article 12 of the Lease;
provided that in connection with any determination pursuant to or for the
purposes of Article 17 of the Lease, the Aircraft shall be appraised on an
"as is, where is" basis. Fair Market Value shall be determined in
accordance with the provisions of Section 4.03 of the Lease.
Federal Aviation Administration; FAA. The United States
Federal Aviation Administration and any successor agency or agencies
thereto.
Fixed Renewal Rent. Semi-annual payments during the Fixed
Renewal Term equal to 50% of the average actual semi-annual Basic Rent
payable during the Basic Term.
Fixed Renewal Term. The term with respect to which the Lessee
has exercised its option to renew the Lease pursuant to the first paragraph
of Section 4.01(a) thereof and with respect to which the conditions set
forth in such Section 4.01(a) are met.
French Pledge Agreement. The French Pledge Agreement dated as
of October 26, 1995 between the Owner Trustee and the Indenture Trustee.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991
between the Engine Manufacturer and the Lessee related to the purchase by
the Lessee of the Engines as originally executed or as modified, amended or
supplemented in accordance with the terms thereof, but only insofar as the
General Terms Agreement relates to the Engines, to the extent assigned to
the Owner Trustee pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of
any particular time, the Person in whose name a Certificate shall be
registered (but not including the holder of any Pass Through Certificate).
Indemnitee. Each of NBD, in its individual capacity and as
Owner Trustee and Lessor, the Owner Participant, the Indenture Trustee, in
its individual capacity and as trustee, any Owner Participant Guarantor,
and any successor (including any trustee which may succeed to the Lessor's
interest under the Lease), Affiliate, assign, officer, director, employee,
agent and servant of any of the foregoing, the Lessor's Estate and the
Trust Indenture Estate.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N663FE) dated as of October 26, 1995,
between the Lessor and the Indenture Trustee, as supplemented by the
Indenture and Security Agreement Supplement, and as said Indenture may from
time to time be further supplemented or amended, including any amendment or
supplement thereto entered into from time to time pursuant to the
applicable provisions of the Indenture.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N663FE) to be dated the Delivery Date, as such Indenture and Security
Agreement Supplement shall be amended or supplemented from time to time and
any other supplement to the Indenture, substantially in the form of Exhibit
A to the Indenture.
Indenture Default. Any event or condition which with the lapse
of time or the giving of notice, or both, would constitute an Indenture
Event of Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in
Section 7.01 of the Indenture.
Indenture Trustee. The Chase Manhattan Bank (National
Association), a national banking association, not in its individual
capacity but solely as Indenture Trustee under the Indenture and each other
Person which may from time to time be acting as successor trustee under the
Indenture.
Indenture Trustee's Liens. Any Lien on the Trust Indenture
Estate resulting from (i) claims against the Indenture Trustee not related
to the administration of the Trust Indenture Estate or any transactions
pursuant to the Indenture or any document included in the Trust Indenture
Estate or (ii) any act or omission of the Indenture Trustee which is not
related to the transactions contemplated by the Operative Agreements or is
in violation of any of the terms of the Operative Agreements.
Independent Investment Banker. An independent investment
banking institution of national standing appointed by the Lessee that is
independent in fact, does not have any direct financial interests, or any
material indirect financial interest, in the Lessee or any Affiliate of the
Lessee, and is not connected with the Lessee or any Affiliate of the
Lessee, as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, that if the
Indenture Trustee shall not have received written notice of such an
appointment at least 10 days prior to the Prepayment Date, "Independent
Investment Banker" shall mean such an institution appointed by the
Indenture Trustee.
Interim Rent. The periodic rent payable for the Aircraft
throughout the Interim Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Interim Term. The period commencing on the Owner Participant
Payment Date and ending at the end of the day immediately preceding the
Commencement Date.
Invoice. The invoice for the Aircraft given by AVSA to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust
No. N663FE) dated as of October 26, 1995, entered into by the Lessor and
the Lessee concurrently with the execution and delivery of the Indenture,
as said Lease may from time to time be supplemented or amended, or its
terms waived or modified, to the extent permitted by, and in accordance
with, the terms of the Indenture, including, without limitation,
supplementation by one or more Lease Supplements entered into pursuant to
the applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N663FE) to be dated the Delivery Date, as such Lease
Supplement shall be amended or supplemented from time to time and any other
supplement to the Lease, substantially in the form of Exhibit A to the
Lease.
Lease Term. The period commencing on the Delivery Date and
ending at the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation,
and its successors and permitted assigns.
Lessee Documents. Has the meaning set forth in Section 6.01(b)
of the Participation Agreement.
Lessor. NBD Bank, a Michigan banking corporation, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement,
and its successors and permitted assigns.
Lessor's Estate. All estate, right, title and interest of the
Owner Trustee in and to the Collateral Account, the Liquid Collateral, the
Aircraft, the Lease, any Lease Supplement, the Participation Agreement,
AVSA's FAA Xxxx of Sale, AVSA's Warranty Xxxx of Sale, the Airbus Guaranty,
the Purchase Agreement, the Purchase Agreement Assignment, the Consent and
Agreement, the AVSA Consent and Agreement, the Consent and Guaranty (to the
extent assigned by the Purchase Agreement Assignment), the GTA, the Engine
Warranty Assignment, the Engine Consent, any warranty with respect to the
Airframe and the Engines, all amounts of Interim Rent, Basic Rent and
Supplemental Rent, including without limitation, insurance proceeds (other
than insurance proceeds payable to or for the benefit of the Owner Trustee
in its individual capacity, the Owner Participant or the Indenture Trustee)
and requisition, indemnity or other payments of any kind for or with
respect to the Aircraft (except amounts owing to the Owner Participant, to
the Indenture Trustee, to the Owner Trustee in its individual capacity, or
to any of their respective directors, officers, employees and agents
pursuant to Articles 8 and 9 of the Participation Agreement).
Notwithstanding the foregoing, "Lessor's Estate" shall (i) not include any
Excepted Payment and (ii) include all property intended to be subjected to
the Indenture by the Granting Clause thereof.
Lessor's Liens. Liens on the Lessor's Estate or the Trust
Indenture Estate arising as a result of (i) claims against the Lessor, in
its individual capacity or as Owner Trustee, or the Owner Participant, in
each case not related to the transactions contemplated by the Operative
Agreements, (ii) acts or omissions of the Lessor in its individual capacity
or as Owner Trustee, and, in the case of the Lessor in its individual
capacity, arising from its gross negligence or willful misconduct or
expressly prohibited under the Operative Agreements and any act or omission
of the Owner Participant which is in violation of any of the terms of the
Operative Agreements, (iii) Taxes or Expenses imposed against the Lessor,
in its individual capacity or as Owner Trustee, Owner Participant, Lessor's
Estate or the trust created by the Trust Agreement which are not required
to be indemnified against by the Lessee pursuant to the Participation
Agreement by reason of Section 8.01(b) or 9.01(b) thereof and which are not
required to be indemnified against by the Lessee pursuant to the Tax
Indemnity Agreement, or (iv) claims against the Lessor or the Owner
Participant arising from the voluntary transfer by the Lessor or the Owner
Participant of its interests in the Aircraft other than a transfer of the
Aircraft pursuant to Section 4.02(a) or Article 10 or 11 of the Lease and
other than a transfer pursuant to the exercise of the remedies set forth in
Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease
or security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from
time to time in the Collateral Account and all the products, investments,
earnings and proceeds of the foregoing, including, but not limited to, all
proceeds of the investment or conversion thereof, voluntary or involuntary,
into cash, Specified Investments or other property, all rights to payment
of any and every kind, and other forms of obligations, and instruments and
other property which at any time constitute all or part or are included in
the proceeds of any of the foregoing.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Majority in Interest of Certificate Holders. As of a
particular date of determination, the Holders of more than 50% of the
aggregate unpaid principal amount of all Certificates outstanding as of
such date excluding for purposes of this definition any Certificates held
by (i) the Owner Trustee or the Owner Participant or any interests of the
Owner Participant unless all Certificates then outstanding shall be held by
the Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Make-Whole Premium. An amount determined as of the day before
the applicable Prepayment Date (or date of purchase, as the case may be)
which an Independent Investment Banker determines to be equal to the
excess, if any, of (i) the present values of all remaining scheduled
payments of such principal amount or portion thereof and interest thereon
(excluding interest accrued from the immediately preceding Payment Date to
such Prepayment Date or date of purchase, as the case may be) to the
Maturity of such Certificate in accordance with generally accepted
financial practices assuming a 360-day year consisting of twelve 30-day
months at a discount rate equal to the Treasury Yield, all as determined by
the Independent Investment Banker over (ii) the unpaid principal amount of
such Certificate.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France, and its successors and assigns.
Maturity. With respect to any Certificate, the date on which
the final principal amount of such Certificate is scheduled to be due and
payable.
Moody's. Xxxxx'x Investors Service, Inc.
NBD. NBD Bank, a Michigan banking corporation.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Interim Rent and Basic Rent set forth in Schedule II of
the Lease, discounted at a rate per semi-annual period equal to the Debt
Rate.
Non-U.S. Person. Any Person other than (i) a citizen or
resident of the United States, as defined in Section 7701(a)(30) of the
Code, (ii) a corporation, partnership or other entity created or organized
in or under the laws of the United States or any political subdivision
thereof or therein, or (iii) any estate or trust that is subject to United
States federal income taxation regardless of the source of its income.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and the Lessee in good faith determines to be obsolete or no
longer suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the
Indenture, a certificate signed by a Responsible Officer of the Lessee or
the Owner Trustee, as the case may be, and delivered to the Indenture
Trustee. Each such certificate shall include the statements provided for
in Section 15.07 of the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Xxxx of Sale, AVSA's Warranty Xxxx of Sale, the
Airbus Guaranty, the Purchase Agreement, the Purchase Agreement Assignment,
the GTA, the Engine Warranty Assignment, the French Pledge Agreement, the
Lease, the Lease Supplement, the Owner Participant Guaranty, if any, the
Owner Trustee Guaranty, if any, any Ancillary Agreement entered into by or
with the written consent of the Indenture Trustee, which by its terms is an
Operative Agreement, the Certificates outstanding at the time of reference,
the Indenture, the Indenture and Security Agreement Supplement, the Consent
and Agreement, the AVSA Consent and Agreement, the Consent and Guaranty (to
the extent assigned by the Purchase Agreement Assignment), the Engine
Consent and the Tax Indemnity Agreement, each as amended from time to time.
Opinion of Counsel. When delivered pursuant to the Indenture,
a written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Xxxxx Xxxx & Xxxxxxxx or
a successor firm or (iii) other counsel designated by the Lessee and
reasonably satisfactory to the Indenture Trustee and (b) for the Owner
Trustee or the Indenture Trustee, an attorney selected by such Person and,
in the case of the Owner Trustee, reasonably satisfactory to the Indenture
Trustee.
Outstanding. When used with respect to Certificates, as of the
date of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation pursuant
to Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary
amount has been theretofore deposited with the Indenture
Trustee in trust for the Holders of such Certificates pursuant
to Section 14.01 of the Indenture; provided, that if such
Certificates are to be prepaid, notice of such prepayment has
been duly given pursuant to the Indenture or provision therefor
satisfactory to the Indenture Trustee has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to
Article II of the Indenture.
Owner Participant. The trustor originally named in the Trust
Agreement and any successor thereto, and any Person to which Owner
Participant transfers, in accordance with the Trust Agreement, its right,
title and interest in and to the Operative Agreements and the Lessor's
Estate.
Owner Participant Amount. The amount described in Section 3.07
of the Participation Agreement.
Owner Participant Guarantor. The provider of an Owner
Participant Guaranty.
Owner Participant Guaranty. Any guaranty delivered in
compliance with Section 7.03(d) of the Participation Agreement.
Owner Participant Payment Date. March 19, 1996.
Owner Trustee. NBD, not in its individual capacity, but solely
as Owner Trustee under the Trust Agreement, and its successors and
permitted assigns.
Owner Trustee Guarantor. The provider of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance
with Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated
net after-tax book yield and aggregate after-tax cash during the Interim
Term and the Basic Term utilizing the multiple investment sinking fund
method of analysis, computed on the basis of the same methodology and
assumptions as were utilized by the Owner Participant in determining
Interim Rent, Basic Rent, Stipulated Loss Value and Termination Value
percentages or the EBO Price, as the case may be, as such assumptions may
be adjusted for events which have been the basis of adjustments to Rent
pursuant to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal
Express Corporation Trust No. N663FE), dated as of October 26, 1995, among
the Lessee, the Owner Trustee not in its individual capacity except as
otherwise expressly provided therein, but solely as owner trustee, the
Owner Participant, the Indenture Trustee not in its individual capacity
except as otherwise expressly provided therein, but solely as indenture
trustee and the Pass Through Trustee not in its individual capacity except
as otherwise expressly provided therein, but solely as pass through
trustee, as amended, modified or supplemented, or the terms thereof waived.
Parts. All appliances, parts, components, instruments,
appurtenances, accessories, furnishings and other equipment of whatever
nature (other than complete Engines or engines) which may from time to time
be incorporated or installed in or attached to the Airframe or any Engine
or, prior to replacement thereof in accordance with the Lease, which may be
removed therefrom.
Pass Through Agreement. The Pass Through Trust Agreement dated
as of February 1, 1993, as amended and restated as of October 1, 1995
between the Lessee and the Pass Through Trustee, as such Pass Through
Agreement may be modified, supplemented or amended from time to time in
accordance with the provisions thereof.
Pass Through Certificates. Any of the 1995 Pass Through
Certificates, Series B1, 1995 Pass Through Certificates, Series B2 or 1995
Pass Through Certificates, Series B3, in each case as issued by the related
Pass Through Trust; and "Pass Through Certificates" means all of the Pass
Through Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. The Business Day on which the sale
of the Pass Through Certificates to the Underwriters pursuant to the
Underwriting Agreement takes place.
Pass Through Trust. The Federal Express Pass Through Trust,
1995-B1, Federal Express Pass Through Trust, 1995-B2 or Federal Express
Pass Through Trust, 1995-B3, in each case formed pursuant to the related
Series Supplement in accordance with the Pass Through Agreement; and "Pass
Through Trusts" means all of such Pass Through Trusts.
Pass Through Trustee. The Chase Manhattan Bank (National
Association), a national banking association, in its capacity as Pass
Through Trustee under the Pass Through Agreement and each Pass Through
Trust, and its successors and permitted assigns as Pass Through Trustee
thereunder.
Past Due Rate. In respect of (A) any amount payable to the
Owner Participant or the Owner Trustee a rate per annum during the period
from and including the due date to but excluding the date on which such
amount is paid in full equal to 2% plus the Debt Rate and (B) any principal
of or interest on any Certificate or any other amount payable under the
Indenture, any Certificate or any other Operative Agreement that is not
paid when due (whether at Maturity, by acceleration, by optional or
mandatory prepayment or otherwise) to any Holder, the Indenture Trustee or
the Pass Through Trustee, a rate per annum during the period from and
including the due date to but excluding the date on which such amount is
paid in full equal to (i) in the case of any such amount payable to the
Holder of any Certificate, 2% plus the interest rate applicable to such
Certificate and (ii) in the case of any other such amount, 2% plus the Debt
Rate.
Payment Date. The Owner Participant Payment Date, and each
January 2 and July 2 commencing July 2, 1996.
Payment Default. Any event specified in Section 16.01(a) or
16.01(b) of the Lease which with the giving of notice or lapse of time or
both would constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership,
joint venture, joint stock company, trust, unincorporated organization,
association, corporation, institution, entity or government (federal,
state, local, foreign or any agency, instrumentality, division or body
thereof).
Preliminary Term. The period commencing on the Delivery Date
and ending at the end of the day on the day immediately preceding the Owner
Participant Payment Date.
Premium Termination Date. With respect to the Certificates
having a Maturity in 2014, November 7, 2007 and with respect to the
Certificates having a Maturity in 2019, October 7, 2017.
Prepayment Date. Has the meaning specified in Section 6.02(b)
of the Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b)
of the Indenture.
Proposed Termination Date. Has the meaning specified in
Section 10.01(a) of the Lease.
Purchase Agreement. The Airbus A300-600R Freighter Purchase
Agreement, dated as of July 3, 1991 between AVSA and the Lessee, including
all exhibits, appendices and letter agreements attached thereto as
originally executed or as modified, amended or supplemented in accordance
with the terms thereof, but only to the extent that the foregoing relates
to the Aircraft and to the extent assigned pursuant to the Purchase
Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement
Assignment (Federal Express Corporation Trust No. N663FE), dated as of
October 26, 1995 between the Lessor and the Lessee, as the same may be
amended, modified or supplemented from time to time.
Purchase Price. Has the meaning specified in Schedule IV to
the Participation Agreement.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), March 4, 1996 for the
Owner Participant Payment Date, December 18 for January 2 Payment Dates and
June 17 for July 2 Payment Dates, whether or not such date is a Business
Day.
Recourse Amount. Has the meaning specified in Section 17.10 of
the Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged
pursuant to Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the
Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Remaining Weighted Average Life. For any Certificate, as of
any determination date, the number of years obtained by dividing (a) the
sum of the products obtained by multiplying (i) the amount of each then
remaining mandatory sinking fund redemption payment of principal, including
the payment due on the Maturity of such Certificate, by (ii) the number of
years (calculated to the nearest one-twelfth) which will elapse between
such determination date, and the date on which such payment is scheduled to
be made, by (b) the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in
accordance with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the
Lessee has exercised its option to renew the Lease pursuant to Section
4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as
Interim Rent, Basic Rent, Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. Each January 2 and July 2 commencing July
2, 1996.
Reoptimization Date. Has the meaning specified in Section
15.02(a) of the Participation Agreement.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or
an engine of the same or another manufacturer) manufactured after October
22, 1994 of the same or of equal or greater value, remaining useful life
and utility as the Engine being replaced, together with all Parts relating
to such engine; provided, however, that if such replacement engine is not a
General Electric CF6-80C2-A5F engine, such replacement engine must then be
commonly used in the commercial aviation industry on Airbus A300-600
airframes.
Responsible Officer. With respect to the Owner Trustee or the
Indenture Trustee, any officer in its Corporate Trust Department or
Corporate Trust Administration, as the case may be, designated by such
Person to perform obligations under the Operative Agreements, with respect
to the Owner Participant, the president or any vice president with direct
responsibility for the transactions contemplated by the Operative
Agreements, and with respect to any other party, any corporate officer or
(except in the case of the Owner Participant) other employee of a party
who, in the normal performance of his or her operational responsibilities,
with respect to the subject matter of any covenant, agreement or obligation
of such party pursuant to any Operative Agreement, would have
responsibility for and knowledge of such matter and the requirements of any
Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the
Delivery Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United
States and any successor agencies or authorities.
Securities Act. The Securities Act of 1933, as amended.
Series Supplement. The Series Supplement 1995-B1 to be
executed and delivered by the Lessee and the Pass Through Trustee, the
Series Supplement 1995-B2 to be executed and delivered by the Lessee and
the Pass Through Trustee or the Series Supplement 1995-B3 to be executed
and delivered by the Lessee and the Pass Through Trustee, in each case as
such Series Supplement may be modified, supplemented or amended from time
to time in accordance with the provisions thereof and "Series Supplements"
means all of such Series Supplements.
Sinking Fund Redemption Date. Has the meaning specified in
Section 6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in
Section 6.06 of the Indenture.
Special Aviation Counsel. Xxxxxxxxx, Xxxxxx & Xxxxxxxx.
Specified Investments. Direct obligations of the United States
of America and obligations fully guaranteed by the United States of America
maturing within 30 days of the date of purchase.
Stipulated Loss Value. As of any Stipulated Loss Value
Determination Date during the Term, the amount determined by multiplying
the Purchase Price by the percentage set forth in Schedule III of the Lease
under the heading "Stipulated Loss Value Factor" opposite such date (as
such Schedule III may be adjusted from time to time as provided in Section
3.04 of the Lease), and during any Renewal Term, the amount determined
pursuant to Section 4.01(b) of the Lease. Notwithstanding any other
provisions of the Lease or the Participation Agreement or the Indenture,
each Stipulated Loss Value shall be, under any circumstances and in any
event, an amount, together with so much of the arrears portion of Interim
Rent and Basic Rent due and owing through the date of payment of Stipulated
Loss Value as does not constitute an Excepted Payment, at least sufficient
to pay in full as of such date of payment the aggregate unpaid principal
amount of and accrued interest on the Certificates outstanding on such date
of payment. Subject to the immediately preceding sentence, it is
understood and agreed that the amounts set forth on Schedule III of the
Lease, for dates other than Rent Payment Dates on which arrears Interim
Rent and Basic Rent is due, fully reflect appropriate Interim Rent and
Basic Rent accruals and credits of unearned Interim Rent and Basic Rent
and, accordingly, no further accrual or credit shall be required whenever
Stipulated Loss Value is to be calculated with reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth
on Schedule III of the Lease under the heading "Stipulated Loss Value
Date."
Substantial Authority. For Federal income tax purposes, shall
have the meaning applicable for purposes of Section 6662 of the Code and
relevant Treasury regulations.
Supplemental Rent. All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or
under the Participation Agreement or Tax Indemnity Agreement or any
Ancillary Agreement or any other Operative Agreement to the Lessor, the
Owner Participant or others, including, without limitation, payments of
Stipulated Loss Value, EBO Price and amounts calculated by reference to
Termination Value and all amounts required to be paid by Lessee under the
agreements, covenants and indemnities contained in the Lease or in the
Participation Agreement or the Tax Indemnity Agreement or any other
Operative Agreement, but excluding Interim Rent and Basic Rent.
Tax. Shall have the meaning set forth in Section 8.01(a) of
the Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N663FE), dated as of October 26, 1995,
between the Lessee and the Owner Participant, as from time to time
modified, amended or supplemented pursuant to its applicable provisions.
Term. The Preliminary Term, the Interim Term and the Basic
Term of the lease for the Aircraft under the Lease and, if renewed pursuant
to Section 4.01 of the Lease, each Renewal Term for the Aircraft for which
the Lease is renewed, or such earlier date on which the Lease is terminated
pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term
that is on or after July 2, 2001 in the case of Article 10 of the Lease,
and in the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment
Date falling on July 2, 2009 or July 2, 2012, (ii) Section 4.02(a)(D) or
(E) of the Lease, a Rent Payment Date that is on or after the fifth
anniversary of the Commencement Date and (iii) Section 4.02(a)(F) of the
Lease, January 2, 2015.
Termination Value. As of any Termination Date, the amount
determined by multiplying the Purchase Price by the percentage set forth in
Schedule IV of the Lease under the heading "Termination Value Factor"
opposite such Termination Date (as such Schedule IV may be adjusted from
time to time as provided in Section 3.04 of the Lease). Notwithstanding
any other provisions of the Lease, the Participation Agreement or the
Indenture, each Termination Value shall be, under any circumstances and in
any event, an amount, together with so much of the arrears portion of Basic
Rent due and owing through the date of payment of any amount calculated by
reference to Termination Value as does not constitute an Excepted Payment,
at least sufficient to pay in full as of such date of payment the aggregate
unpaid principal amount of and accrued interest on the Certificates
outstanding on such date of payment. Subject to the immediately preceding
sentence, it is understood and agreed that the amounts set forth on
Schedule IV of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals
and credits of unearned Basic Rent and, accordingly, no further accrual or
credit shall be required whenever Termination Value is to be calculated
with reference to any such date.
Transaction Costs. Those costs and expenses set forth in
Section 10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code
(which, among other things, recodified the Federal Aviation Act of 1958, as
amended to the time of such recodification), as amended and in effect on
the date of the Lease or as subsequently amended, or any successor or
substituted legislation at the time in effect and applicable, and the
regulations promulgated pursuant thereto.
Treasury Yield. (i) In the case of a Certificate having a
Maturity within one year after the Prepayment Date the average yield to
maturity on a government bond equivalent basis of the applicable United
States Treasury Xxxx due the week of Maturity of such Certificate and (ii)
in the case of a Certificate having a Maturity one year or more after the
Prepayment Date, the average yield of the most actively traded United
States Treasury Note (as reported by Cantor Xxxxxxxxxx Securities Corp. on
page 5 of Telerate Systems, Inc., a financial news service, or if such
report is not available, a source deemed comparable by the Independent
Investment Banker selected to determine the Make-Whole Premium and
reasonably acceptable to the Lessee) corresponding in maturity to the
Remaining Weighted Average Life of such Certificate (or, if there is no
corresponding maturity, an interpolation of maturities by the Independent
Investment Banker), in each case determined by the Independent Investment
Banker selected to determine the Make-Whole Premium based on the average of
the yields to stated maturity determined from the bid prices as of 10:00
a.m. and 2:00 p.m. New York time, on the second Business Day preceding the
Prepayment Date.
Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N663FE), dated as of October 26, 1995, between the
Owner Participant and the Owner Trustee in its individual capacity, as from
time to time modified, amended or supplemented pursuant to its applicable
provisions and in accordance with the Operative Agreements.
Trust Indenture Act. The Trust Indenture Act of 1939, as
amended.
Trust Indenture Estate. All estate, right, title and interest
of the Indenture Trustee in and to any of the property, rights, interests
and privileges granted to the Indenture Trustee pursuant to the Granting
Clause of the Indenture, other than Excepted Payments and any and all other
rights of the Owner Trustee or the Owner Participant expressly reserved to
the Owner Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. The several Underwriters named in the
Underwriting Agreement.
Underwriting Agreement. The Underwriting Agreement dated
October 26, 1995 among the Lessee, Xxxxxxx Sachs & Co., X.X. Xxxxxx
Securities Inc. and Xxxxxx Xxxxxxx & Co. Incorporated.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which
there is in force a certificate issued pursuant to Section 41102(a) or
Section 41103 of the Transportation Code, and as to which there is in force
an air carrier operating certificate issued pursuant to Chapter 447 of the
Transportation Code and Part 121 of the regulations under such
Transportation Code, for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, or which may operate as an
air carrier by certification or otherwise under any successor or substitute
provision thereof or in absence thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the
Code.
SCHEDULE III
PERMITTED COUNTRY LIST
Australia Japan
Austria Luxembourg
Belgium Malaysia
Canada Netherlands
Denmark New Zealand
Finland Norway
France Philippines
Germany Portugal
Greece Singapore
Hong Kong South Korea
Iceland Sweden
Ireland Switzerland
Italy United Kingdom
SCHEDULE IV
PURCHASE PRICE, OWNER PARTICIPANT'S COMMITMENT AND DEBT PORTION
Purchase Price $82,500,000
Owner Participant's Commitment $16,500,000
Debt Portion $66,000,000
EXHIBIT A(1)(a)(i)
[Letterhead of Federal Express]
[Certificate Closing Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express Corporation, a
Delaware corporation ("Federal"), and am familiar with the transactions
contemplated by the Participation Agreement (Federal Express Corporation
Trust No. N663FE), dated as of October 26, 1995 (the "Participation
Agreement"), among Federal, as Lessee, Chrysler Capital Corporation, as
Owner Participant, NBD Bank, a Michigan banking corporation, not in its
individual capacity, except as otherwise stated, but solely as Owner
Trustee under the Trust Agreement, The Chase Manhattan Bank (National
Association), a national banking association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee under
the Indenture and The Chase Manhattan Bank (National Association), as Pass
Through Trustee, relating to the Aircraft. This opinion is being delivered
pursuant to Section 4.01(k)(i) of the Participation Agreement. Capitalized
terms not otherwise defined herein have the meaning assigned thereto in the
Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. Three Series of Pass Through Certificates will be
issued by three Pass Through Trusts formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that will be issued under the Trust Indenture and
Security Agreement (Federal Express Corporation Trust No. N663FE) dated as
of October 26, 1995, as supplemented by the related Indenture and Security
Agreement Supplement ("Indenture"), between the Owner Trustee and the
Indenture Trustee.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision (i)
executed counterparts of the Pass Through Agreement, the Series Supplements
and the Operative Agreements to be delivered on the Certificate Closing
Date (the "Certificate Closing Date Documents") and (ii) the forms of the
Operative Agreements to be delivered on the Delivery Date. We have relied
upon originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, documents and other instruments as
in our judgment are relevant to rendering the opinions expressed below. As
to any facts material to the opinions expressed below (other than any
thereof relating to Federal), we have relied upon the representations and
warranties made in the Certificate Closing Date Documents, the accuracy of
which we have not independently investigated or verified. In such
examination, we have assumed the genuineness of all signatures (other than
the signatures of Federal) and the authenticity of all documents submitted
to us as originals and the conformity with the originals of all documents
submitted to us as copies. We have also assumed that each of the parties
to each of the Certificate Closing Date Documents, other than Federal, has
full power, authority and legal right to enter into such Certificate
Closing Date Documents and that each such Certificate Closing Date Document
has been duly authorized, executed and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Certificate Closing Date Documents to which it is a party. Federal is duly
qualified to do business and is in good standing in the State of Tennessee
and each other state of the United States in which its operations or the
nature of its business requires Federal so to qualify, except where the
failure so to qualify would not have a material adverse impact on Federal
or its business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material
to the operation of the routes flown by it and the conduct of its business
and operations as currently conducted, and each such certificate,
franchise, license, permit, right and concession and consent is in full
force and effect.
3. Each of the Certificate Closing Date Documents to which
Federal is a party has been duly authorized, executed and delivered by
Federal and together constitute the legal, valid and binding obligation of
Federal enforceable against Federal in accordance with its and their terms.
Each of the Operative Agreements to which Federal is to be a party and
which are to be executed on the Delivery Date has been duly authorized by
Federal.
4. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which Federal is a party, nor the
consummation of any of the transactions by Federal contemplated thereby,
nor the performance of the obligations thereunder by Federal, (a) requires
any stockholder approval or violates the certificate of incorporation or
by-laws of Federal or (b) conflicts with or contravenes the provisions of,
or constitutes a default under, or results in the creation of any Lien
(other than Liens permitted under Section 6.01(a) of the Lease) upon the
property of Federal under any law, governmental rule or regulation, or the
charter or bylaws of Federal or any order, writ, injunction or decree of
any court or governmental authority against Federal or by which any of its
properties may be bound or any indenture, mortgage, contract or other
agreement known to me to which Federal is a party or by which it may be
bound or, require the approval or consent of any trustee or the holders of
any indebtedness or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Certificate Closing Date Documents to which it is a party, nor the
consummation of any of the transactions by Federal contemplated thereby,
nor the performance of the obligations thereunder by Federal, (a) require
the consent or approval of, the giving of notice to, or (except as
described or contemplated in the Participation Agreement and the Lease, all
of which are required to be performed on or prior to the Certificate
Closing Date and which shall have been accomplished on or prior to the
Certificate Closing Date) the registration with, or the taking of any other
action in respect of, the FAA, the Securities and Exchange Commission or
any other authority or agency of the federal government or of the State of
Tennessee other than (x) the registration of the issuance and sale of the
Pass Through Certificates under the Securities Act and (y) compliance with
the securities laws of each applicable state, or (b) contravene any
judgment or order applicable to or binding on Federal or any law or
governmental rule or regulation of the United States or of the State of
Tennessee.
6. There are no pending, or to my knowledge, threatened
actions or proceedings before or by any court or administrative agency
which individually (or in the aggregate in the case of any group of related
lawsuits) is expected to have a material adverse effect on (A) except for
the matters described under "Legal Proceedings" in Federal's Annual Report
on Form 10-K for the fiscal year ended May 31, 1995 (as updated by Note 7
to the financial statement included in the Lessee's Quarterly Report on
Form 10-Q for the fiscal quarter ended August 31, 1995), as to which I can
express no opinion at this time concerning Federal's liability (if any) or
the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of Federal, the financial condition
of Federal or (B) the ability of Federal to perform its obligations under
the Certificate Closing Date Documents.
7. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
8. Federal's principal place of business and chief executive
office (as such term is defined in the Uniform Commercial Code in effect in
the State of Tennessee) are located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxxxxxx.
9. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Certificate Closing Date Documents to which Federal
is a party are based upon the assumption for purposes of such opinions and
without independent analysis that, notwithstanding the respective choice of
laws clauses in the Certificate Closing Date Documents, the governing law
with respect to each of the Certificate Closing Date Documents is identical
in all relevant respects to the law of the State of Tennessee. Insofar as
the foregoing opinion relates to the enforceability of any instrument, such
enforceability is subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally
(whether such enforceability is considered in a proceeding in equity or at
law).
I do not express any opinion as to matters governed by any law
other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
This opinion is delivered to you solely for your use in
connection with the transactions described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
Very truly yours,
Xxxxxx X. Xxxxx
SCHEDULE A
Owner Trustee
------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
-------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(1)(a)(ii)
[Letterhead of Federal Express]
[Delivery Date]
To the Addressees Listed on Schedule A Attached
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
I am the Vice President - Law of Federal Express Corporation, a
Delaware corporation ("Federal"), and am familiar with the transactions
contemplated by the Participation Agreement (Federal Express Corporation
Trust No. N663FE), dated as of October 26, 1995 (the "Participation
Agreement"), among Federal, as Lessee, Chrysler Capital Corporation, as
Owner Participant, NBD Bank, a Michigan banking corporation, not in its
individual capacity, except as otherwise stated, but solely as Owner
Trustee under the Trust Agreement, The Chase Manhattan Bank (National
Association), a national banking association, not in its individual
capacity, except as otherwise stated, but solely as Indenture Trustee under
the Indenture and The Chase Manhattan Bank (National Association), as Pass
Through Trustee, relating to the Aircraft. This opinion is being delivered
pursuant to Section 4.02(d)(i) of the Participation Agreement. Capitalized
terms not otherwise defined herein have the meaning assigned thereto in the
Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R aircraft (the
"Aircraft"), using the proceeds from the public offering of the Pass
Through Certificates. On the Certificate Closing Date, three Series of
Pass Through Certificates were issued by three Pass Through Trusts formed
to acquire, among other securities, the Certificates bearing a particular
interest rate and having a particular Maturity that were issued under the
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N663FE) dated as of October 26, 1995, as supplemented by the related
Indenture and Security Agreement Supplement ("Indenture"), between the
Owner Trustee and the Indenture Trustee.
In connection with the opinions expressed below, I have
examined or caused to be examined by attorneys under my supervision
executed counterparts of the Transaction Agreements, the Pass Through
Agreement and each Series Supplement (the "Transaction Agreements"). We
have relied upon originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, documents and other
instruments as in our judgment are relevant to rendering the opinions
expressed below. As to any facts material to the opinions expressed below
(other than any thereof relating to Federal), we have relied upon the
representations and warranties made in the Transaction Agreements, the
accuracy of which we have not independently investigated or verified. In
such examination, we have assumed the genuineness of all signatures (other
than the signatures of Federal) and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies. We have also assumed that each of the
parties to each of the Transaction Agreements, other than Federal, has full
power, authority and legal right to enter into such Transaction Agreements
and that each such Transaction Agreement has been duly authorized, executed
and delivered by each of such parties.
Based on the foregoing, it is my opinion that:
1. Federal is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under the
Transaction Agreements to which it is a party. Federal is duly qualified
to do business and is in good standing in the State of Tennessee and each
other state of the United States in which its operations or the nature of
its business requires Federal so to qualify, except where the failure so to
qualify would not have a material adverse impact on Federal or its
business.
2. Federal possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material
to the operation of the routes flown by it and the conduct of its business
and operations as currently conducted, and each such certificate,
franchise, license, permit, right and concession and consent is in full
force and effect.
3. Each of the Transaction Agreements to which Federal is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by Federal and together constitute the legal, valid
and binding obligation of Federal enforceable against Federal in accordance
with its and their terms.
4. Neither the execution and delivery by Federal of the
Transaction Agreements to which Federal is a party, nor the consummation of
any of the transactions by Federal contemplated thereby, nor the
performance of the obligations thereunder by Federal, did at the time of
execution and delivery, or does presently (a) require any stockholder
approval or violate the certificate of incorporation or by-laws of Federal
or (b) conflict with or contravene the provisions of, or constitutes a
default under, or result in the creation of any Lien (other than Liens
permitted under Section 6.01(a) of the Lease) upon the property of Federal
under any law, governmental rule or regulation, or the charter or bylaws of
Federal or any order, writ, injunction or decree of any court or
governmental authority against Federal or by which any of its properties
may be bound or any indenture, mortgage, contract or other agreement known
to me to which Federal is a party or by which it may be bound or, require
the approval or consent of any trustee or the holders of any indebtedness
or obligations of Federal.
5. Neither the execution and delivery by Federal of the
Transaction Agreements to which it is a party, nor the consummation of any
of the transactions by Federal contemplated thereby, nor the performance of
the obligations thereunder by Federal, did or does, as the case may be, (a)
require the consent or approval of, the giving of notice to, or (except as
described or contemplated in the Participation Agreement and the Lease, all
of which were or are required to be performed on or prior to the Delivery
Date and which were or shall have been accomplished on or prior to the
Delivery Date) the registration with, or the taking of any other action in
respect of, the FAA, the Securities and Exchange Commission or any other
authority or agency of the federal government or of the State of Tennessee,
or (b) contravene any judgment or order applicable to or binding on Federal
or any law or governmental rule or regulation of the United States or of
the State of Tennessee.
6. There are no pending, or to my knowledge, threatened
actions or proceedings before or by any court or administrative agency
which individually (or in the aggregate in the case of any group of related
lawsuits) (i) is expected to have a material adverse effect on (A) except
for the matters described under "Legal Proceedings" in Federal's Annual
Report on Form 10-K for the fiscal year ended May 31, 1995 (as updated by
Note 7 to the financial statement included in the Lessee's Quarterly Report
on Form 10-Q for the fiscal quarter ended August 31, 1995), as to which I
can express no opinion at this time concerning Federal's liability (if any)
or the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of Federal, the financial condition
of Federal or (B) the ability of Federal to perform its obligations under
the Transaction Agreements, or (ii) involves the Aircraft.
7. Except for (A) the registration in the Owner Trustee's name
of the Aircraft pursuant to the Transportation Code, (B) the filing and,
where appropriate, recordation pursuant to the Transportation Code of the
Indenture, the Trust Agreement, the Indenture and Security Agreement
Supplement covering the Aircraft, the Lease, the Lease Supplement covering
the Aircraft and AVSA's FAA Xxxx of Sale, (C) the filing of the financing
statement referred to in Section 4.02(f) of the Participation Agreement and
(D) the taking of possession by the Indenture Trustee of the original
counterpart of the Lease and the Lease Supplement covering the Aircraft, no
further action, including any filing or recording of any document, is
necessary or advisable in order (i) to establish the Owner Trustee's title
to and interest in the Aircraft and the Lessor's Estate as against the
Lessee and any third parties, or (ii) to perfect the first security
interests in and mortgage Lien on the Trust Indenture Estate in favor of
the Indenture Trustee.
8. Federal is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
9. On the date hereof the Owner Trustee received valid title
to the Aircraft free and clear of all Liens on file with the FAA, except
for Liens permitted under Section 6.01(a) of the Lease.
10. Federal's principal place of business and chief executive
office (as such term is defined in the Uniform Commercial Code in effect in
the State of Tennessee) are located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxxxxxx.
11. Federal is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
The opinions expressed in paragraph 3 above as to the
enforceability of the Transaction Agreements to which Federal is a party
are based upon the assumption for purposes of such opinions and without
independent analysis that, notwithstanding the respective choice of laws
clauses in the Transaction Agreements, the governing law with respect to
each of the Transaction Agreements is identical in all relevant respects to
the law of the State of Tennessee. Insofar as the foregoing opinion
relates to the enforceability of any instrument, such enforceability is
subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally (whether such
enforceability is considered in a proceeding in equity or at law). The
enforceability of the remedies provided under the Lease may also be limited
by applicable laws which may affect the remedies provided therein but which
do not in my opinion affect the validity of the Lease or make such remedies
inadequate for the practical realization of the benefits intended to be
provided thereby.
I do not express any opinion as to matters governed by any law
other than the Federal laws of the United States of America, the
corporation law of the State of Delaware and the laws of the State of
Tennessee.
As to the matters referred to in paragraphs 5, 7 and 9 above, I
have relied on the opinion of Xxxxxxxxx, Xxxxxx & Xxxxxxxx of even date
herewith, to the extent such matters are addressed in such counsel's
opinion and subject to the assumptions and qualifications expressed
therein.
This opinion is delivered to you solely for your use in
connection with the transactions described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
Very truly yours,
Xxxxxx X. Xxxxx
SCHEDULE A
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(1)(b)(i)
[Letterhead of Xxxxx Xxxx & Xxxxxxxx]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal
Express Corporation Trust No. N663FE), dated as of October 26, 1995 (the
"Participation Agreement"), among Federal Express, as Lessee, Chrysler
Capital Corporation, as Owner Participant, NBD Bank, a Michigan banking
corporation, not in its individual capacity but solely as Owner Trustee
under the Trust Agreement, The Chase Manhattan Bank (National Association),
a national banking association, not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee under the Indenture, and
The Chase Manhattan Bank (National Association), as Pass Through Trustee,
relating to the Aircraft. This opinion is being delivered pursuant to
Section 4.01(k)(v) of the Participation Agreement. Capitalized terms not
otherwise defined herein have the meanings assigned thereto in the
Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of a portion of the Owner Trustee's
payment of the Purchase Price of one Airbus A300F4-605R Aircraft using the
proceeds from the public offering of the Pass Through Certificates. On the
Certificate Closing Date, three Series of Pass Through Certificates will be
issued by separate Pass Through Trusts, each formed to acquire, among other
securities, the Certificates bearing a particular interest rate and having
a particular Maturity that will be issued under the Indenture.
In connection with the opinions expressed below, we have
examined executed counterparts of the Pass Through Agreement, the Series
Supplements and the Operative Agreements to be delivered on the Certificate
Closing Date (the "Certificate Closing Date Documents"), the Pass Through
Certificates, the Pass Through Agreement, each Series Supplement and the
forms of the Operative Agreements to be delivered on the Delivery Date. We
have also examined originals, or copies certified to our satisfaction, of
such other agreements, documents, certificates and statements of
governmental officials and corporate officers as we have deemed necessary
or advisable as a basis for such opinions. In such examination, we have
assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity with the
originals of all documents submitted to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made
in or pursuant to the Participation Agreement and the other documents
referred to therein, the accuracy of which we have not independently
verified. In addition, we have, when relevant facts were not independently
established by us, relied, to the extent we deemed such reliance proper,
upon certificates of public officials and certificates, telegrams and other
written or telephoned statements of officers of the parties referred to
herein.
Based on the foregoing, it is our opinion that:
1. The execution, delivery and performance by the Owner
Trustee, in its individual or trust capacity, as the case may be, of the
Certificate Closing Date Documents (other than the Certificates) to which
it is a party, and the issuance, execution, delivery and performance of the
Certificates by the Owner Trustee in its trust capacity do not violate, and
fully comply with, any laws and governmental rules and regulations of the
State of New York that may be applicable to the Owner Trustee in its
individual or trust capacity, as the case may be. The opinion set forth in
this paragraph 1 is rendered without regard to the effect, if any, on such
issuance (in the case of the Certificates), execution, delivery or
performance or the taking of any other action, the conduct of any other
business or the exercise of any other powers by NBD Bank in its individual
or in a trust capacity in the State of New York not related to the
transactions contemplated by the Certificate Closing Date Documents. We
have assumed that NBD Bank has made the filings necessary to comply with
Section 131.3 of the Banking Law of the State of New York, however we
express no opinion as to whether NBD Bank is required to comply with said
Section 131.3.
2. (a) Each of the Certificate Closing Date Documents to
which Federal Express is a party has been duly authorized, executed and
delivered by Federal Express. Each of the Operative Agreements to which
Federal Express is to be a party and which are to be delivered on the
Delivery Date has been authorized by Federal Express.
(b) The execution, delivery and performance by Federal Express
of each of the Certificate Closing Date Documents to which Federal Express
is a party do not violate, and fully comply with, any laws and governmental
rules and regulations of the State of New York that may be applicable to
Federal Express. The opinion set forth in this paragraph 2(b) is rendered
without regard to the taking of any action or the conduct of any other
business by Federal Express in the State of New York other than the
transactions contemplated by the Certificate Closing Date Documents.
3. Assuming (i) the due authorization, execution and delivery
of the Certificate Closing Date Documents, the Pass Through Agreement and
each Series Supplement by each of the parties to each such document (other
than Federal Express), (ii) that the execution, delivery and performance by
each of such Certificate Closing Date Document by each of the parties
thereto will not violate the respective parties' constituent documents,
(iii) the due authorization, execution, issue and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates to be issued under the Indenture in accordance with the terms
of the Indenture, (iv) the due authorization, execution, issuance, delivery
and authentication by the Pass Through Trustee of the Pass Through
Certificates to be issued under the Pass Through Agreement and the Series
Supplement relating to such Pass Through Certificates, in each case in
accordance with the terms of the Pass Through Agreement and such Series
Supplement, and (v) that the form of each Certificate Closing Date Document
is in compliance with all applicable laws and governmental rules and
regulations (other than Federal laws and the laws of the State of New
York), then: (A) each Certificate Closing Date Document in form
constitutes a legal, valid and binding agreement of each party thereto
enforceable against each such party in accordance with its terms; (B) the
Indenture creates, for the benefit of the Holders, the security interest in
the Trust Indenture Estate that it purports to create, except that no
opinion is given with respect to perfection of such security interest on
the date hereof; (C) the Certificates, when issued to and acquired by the
Pass Through Trustee, will be legal, valid and binding obligations of the
Owner Trustee enforceable against the Owner Trustee in accordance with
their terms and the terms of the Indenture and will be entitled to the
benefits of the Indenture, including the benefit of the security interest
created thereby, except that no opinion is given with respect to perfection
of such security interest on the date hereof; (D) the Pass Through
Certificates, when issued to and acquired by the Underwriters in accordance
with the Underwriting Agreement, will be legal, valid and binding
obligations of the Pass Through Trustee enforceable against the Pass
Through Trustee in accordance with their terms and will be entitled to the
benefits of the Pass Through Agreement and the Series Supplement relating
thereto; and (E) the beneficial interest of the Owner Participant under the
Trust Agreement in and to the properties which are part of the Trust
Indenture Estate is subject, to the extent provided in the Indenture, to
the Lien of the Indenture in favor of the Holders.
4. Federal Express's participation in the transactions
contemplated by the Certificate Closing Date Documents does not and will
not constitute a violation of Section 7 of the Securities Exchange Act of
1934.
5. It is not necessary, in connection with the creation of the
beneficial interests of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
The foregoing opinions are subject to the following
qualifications:
(a) For purposes of the matters stated in paragraph 2(a) above and
as to all matters of Tennessee law, we have relied, with your consent, on
the opinion dated the date hereof of Xxxxxx X. Xxxxx, Vice President - Law
of the Lessee.
(b) We are qualified to practice law in the State of New York, and
we do not purport to be experts on, or to express any opinion herein
concerning, any laws other than the laws of the State of New York, the laws
of the United States and the General Corporation Law of the State of
Delaware.
(c) The opinion contained in paragraph 3 above as to enforceability
is subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity which may affect the
remedies provided in the agreements referred to in said opinions, which
laws and principles, however, do not in our opinion make the remedies
provided in said agreements inadequate for the practical realization of the
benefits of the security intended to be provided thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other Person
without our prior written consent.
Very truly yours,
Xxxxx Xxxx & Xxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(1)(b)(ii)
[Letterhead of Xxxxx Xxxx & Xxxxxxxx]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
We have acted as special counsel for Federal Express
Corporation, a Delaware corporation ("Federal Express"), in connection with
the transactions contemplated by the Participation Agreement (Federal
Express Corporation Trust No. N663FE), dated as of October 26, 1995 (the
"Participation Agreement"), among Federal Express, as Lessee, Chrysler
Capital Corporation, as Owner Participant, NBD Bank, a Michigan banking
corporation, not in its individual capacity but solely as Owner Trustee
under the Trust Agreement, The Chase Manhattan Bank (National Association),
a national banking association, not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee under the Indenture, and
The Chase Manhattan Bank (National Association), as Pass Through Trustee,
relating to the Aircraft. This opinion is being delivered pursuant to
Section 4.02(d)(ii) of the Participation Agreement. Capitalized terms not
otherwise defined herein have the meanings assigned thereto in the
Participation Agreement.
The Participation Agreement provides, among other things, for
the financing on the Delivery Date of the Owner Trustee's payment of a
portion of the Purchase Price of one Airbus A300F4-605R Aircraft (the
"Aircraft") using the proceeds from the public offering of the Pass Through
Certificates. On the Certificate Closing Date, three Series of Pass
Through Certificates were issued by separate Pass Through Trusts, each
formed to acquire, among other securities, the Certificates bearing a
particular interest rate and having a particular Maturity issued under the
Indenture. The Aircraft is to be leased to Federal Express by the Owner
Trustee pursuant to the Lease and subjected to the Lien of the Indenture,
and is to be delivered by the Owner Trustee to the Lessee on this date, and
in connection with the delivery of the Aircraft, the Owner Trustee and
Federal Express will execute and deliver the Lease Supplement, and the
Owner Trustee will execute and deliver the Indenture and Security Agreement
Supplement.
In connection with the opinions expressed below, we have
examined executed counterparts of the Transaction Agreements, the Pass
Through Certificates, the Pass Through Agreement and each Series Supplement
(the "Transaction Agreements"). We have also examined originals, or copies
certified to our satisfaction, of such other agreements, documents,
certificates and statements of governmental officials and corporate
officers as we have deemed necessary or advisable as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as
originals and the conformity with the originals of all documents submitted
to us as copies.
As to any facts material to our opinions expressed below, we
have, with your consent, relied on the representations and warranties made
in or pursuant to the Participation Agreement and the other documents
referred to therein, the accuracy of which we have not independently
verified. In addition, we have, when relevant facts were not independently
established by us, relied, to the extent we deemed such reliance proper,
upon certificates of public officials and certificates, telegrams and other
written or telephoned statements of officers of the parties referred to
herein.
Based on the foregoing, it is our opinion that:
1. With respect to that portion, if any, of the Aircraft and
the other property included in the Lessor's Estate as may not be covered by
the recording system established by the FAA pursuant to Section 44107 of
the Transportation Code, no filing or recording of any document or other
action was or is necessary in order to establish the Owner Trustee's title
thereto and interest therein as against Federal Express and any third
parties.
2. Subject to execution and delivery of the Lease Supplement
and the Indenture and Security Agreement Supplement for the Aircraft and to
the registration of the Aircraft with the FAA in the name of the Owner
Trustee, the Lease, as supplemented, will create a valid leasehold interest
in the Aircraft, the entitlement thereof to the benefits of recordation
under the Transportation Code being subject to the due and timely filing
and, where appropriate, recording of (A) AVSA's FAA Xxxx of Sale, (B) the
Trust Agreement, (C) the Lease (with the Lease Supplement covering the
Aircraft, the Indenture and the Indenture and Security Agreement Supplement
covering the Aircraft attached as exhibits) and (D) the Indenture (with the
Indenture and Security Agreement Supplement covering the Aircraft attached
as an exhibit), pursuant to the Transportation Code, and assuming that at
the time of such filing no other documents relating to the Aircraft have
been filed pursuant to the Transportation Code.
3. The execution, delivery and performance by the Owner
Trustee, in its individual or trust capacity, as the case may be, of the
Transaction Agreements (other than the Certificates) to which it is a
party, and the issuance, execution, delivery and performance of the
Certificates by the Owner Trustee in its trust capacity do not or did not
as of the date of execution thereof, violate, and fully comply or did fully
comply as of the date of execution thereof, with, any laws and governmental
rules and regulations of the State of New York that may be applicable to
the Owner Trustee in its individual or trust capacity, as the case may be.
The opinion set forth in this paragraph 3 is rendered without regard to the
effect, if any, on such issuance (in the case of the Certificates),
execution, delivery or performance or the taking of any other action, the
conduct of any other business or the exercise of any other powers by NBD
Bank in its individual or in a trust capacity in the State of New York not
related to the transactions contemplated by the Transaction Agreements. We
have assumed that NBD Bank has made the filings necessary to comply with
Section 131.3 of the Banking Law of the State of New York, however we
express no opinion as to whether NBD Bank is required to comply with said
Section 131.3.
4. (a) Each of the Transaction Agreements to which Federal
Express is a party has or had, on the date of execution thereof been duly
authorized, executed and delivered by Federal Express.
(b) The execution, delivery and performance by Federal Express
of each of the Transaction Agreements to which Federal Express is a party
do not, or did not on the date of execution thereof, violate, and fully
comply, or did fully comply on the date of execution thereof, with, any
laws and governmental rules and regulations of the State of New York that
may be applicable to Federal Express. The opinion set forth in this
paragraph 4(b) is rendered without regard to the taking of any action or
the conduct of any other business by Federal Express in the State of New
York other than the transactions contemplated by the Transaction
Agreements.
5. Assuming (i) the due authorization, execution and delivery
of the Transaction Agreements by each of the parties to each such document
(other than Federal Express), (ii) that the execution, delivery and
performance by each of the Transaction Agreements by each of the parties
thereto will not violate the respective parties' constituent documents,
(iii) the due authorization, execution, issue and delivery by the Owner
Trustee, and the due authentication by the Indenture Trustee, of the
Certificates issued under the Indenture in accordance with the terms of the
Indenture, (iv) the due authorization, execution, issuance, delivery and
authentication by the Pass Through Trustee of the Pass Through Certificates
issued under the Pass Through Agreement and the Series Supplement relating
to such Pass Through Certificates, in each case in accordance with the
terms of the Pass Through Agreement and such Series Supplement, and (v)
that the form of each Transaction Agreement is in compliance with all
applicable laws and governmental rules and regulations (other than Federal
laws and the laws of the State of New York), then: (A) each Transaction
Agreement in form constitutes a legal, valid and binding agreement of each
party thereto enforceable against each such party in accordance with its
terms; (B) the Indenture, as supplemented by the Indenture and Security
Agreement Supplement, creates, for the benefit of the Holders, the security
interest in the Trust Indenture Estate that it purports to create; (C) the
Certificates are legal, valid and binding obligations of the Owner Trustee
enforceable against the Owner Trustee in accordance with their terms and
the terms of the Indenture and are entitled to the benefits of the
Indenture, including the benefit of the security interest created thereby;
(D) the beneficial interest of the Owner Participant under the Trust
Agreement in and to the properties which are part of the Trust Indenture
Estate is subject, to the extent provided in the Indenture, as supplemented
by the Indenture and Security Agreement Supplement, to the Lien of the
Indenture in favor of the Holders. The opinions set forth in this
paragraph 5 are subject to the due filing and recording, where appropriate,
with the FAA of the documents referred to in paragraph 2 above.
6. All the properties which are part of the Trust Indenture
Estate (including all right, title and interest of the Owner Trustee
pledged and mortgaged by it pursuant to the Indenture in and to the
Aircraft and the Lease) have been pledged and mortgaged with the Indenture
Trustee as part of the Trust Indenture Estate (subject to the due filing
and, where appropriate, recording of those documents referred to in
paragraph 2 above and the financing statement referred to in Section
4.02(f) of the Participation Agreement), and the beneficial interests of
the Owner Participant under the Trust Agreement in and to such properties
are subject, to the extent provided in the Indenture, to the Lien of the
Indenture in favor of the Holders of the Certificates issued and to be
issued under the Indenture.
7. The Indenture and Security Agreement Supplement, pursuant
to the Granting Clause of the Indenture, creates, as security for the
Certificates duly issued and to be issued under the Indenture, the first
priority security interest in the Aircraft it purports to create, the
perfection and rank thereof being subject to the registration with the FAA
of the Aircraft in the name of the Owner Trustee and the due and timely
filing and, where appropriate, recording in accordance with the
Transportation Code of the documents referred to in paragraph 2 above. We
express no opinion with respect to the status of any security interest in
any portion of the Aircraft which does not constitute an "aircraft" or
"aircraft engine", as defined in paragraphs (6) and (7) of Section 40102(a)
of the Transportation Code.
8. Federal Express's participation in the transactions
contemplated by the Transaction Agreements does not and will not constitute
a violation of Section 7 of the Securities Exchange Act of 1934.
9. It is not necessary, in connection with the creation of the
beneficial interests of the Owner Participant in the Trust Indenture Estate
under the circumstances contemplated by the Participation Agreement to
register such beneficial interest under the Securities Act of 1933, as
amended, or to qualify the Trust Agreement under the Trust Indenture Act of
1939, as amended.
10. The provisions of Section 1110 of the United States
Bankruptcy Code will apply to the Aircraft for the benefit of the Indenture
Trustee.
The foregoing opinions are subject to the following
qualifications:
(a) To the extent that this opinion relates to matters involving
Federal aviation law, we have relied, with your consent, without
independent investigation and verification and subject to the assumptions
and qualifications contained therein, upon the opinion of Xxxxxxxxx, Xxxxxx
& Xxxxxxxx to be delivered to you and dated the date hereof. We have also
relied, with your consent, on the opinion dated the date hereof of Xxxxxx
X. Xxxxx, Vice President - Law of the Lessee, for purposes of the matters
stated in paragraphs 4(a) and as to all matters of Tennessee law.
(b) We are qualified to practice law in the State of New York, and
we do not purport to be experts on, or to express any opinion herein
concerning, any laws other than the laws of the State of New York, the laws
of the United States and the General Corporation Law of the State of
Delaware.
(c) The opinion contained in paragraph 5 above as to enforceability
is subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity which may affect the
remedies provided in the agreements referred to in said opinions, which
laws and principles, however, do not in our opinion make the remedies
provided in said agreements inadequate for the practical realization of the
benefits of the security intended to be provided thereby.
(d) This opinion is rendered solely to you at Federal Express's
request in connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by any other Person
without our prior written consent.
Very truly yours,
Xxxxx Xxxx & Xxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(2)(a)
[Letterhead of Xxxxxx, Xxxxx & Bockius]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
We have acted as special counsel for Chrysler Capital
Corporation, a Delaware corporation (the "Owner Participant"), in
connection with the transactions contemplated by (i) the Participation
Agreement, dated as of October 26, 1995 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee (the "Lessee"), the Owner
Participant, NBD Bank, a Michigan banking corporation, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement
(the "Owner Trustee"), The Chase Manhattan Bank (National Association), a
national banking association, not in its individual capacity, except as
otherwise stated, but solely as Indenture Trustee under the Indenture (the
"Indenture Trustee"), and The Chase Manhattan Bank (National Association),
as Pass Through Trustee, (ii) the Trust Agreement, dated as of October 26,
1995 (the "Trust Agreement"), by and between the Owner Participant and the
Owner Trustee and (iii) the Tax Indemnity Agreement, dated as of October
26, 1995 (the "Tax Indemnity Agreement"), by and between the Owner
Participant and the Lessee. This opinion is delivered pursuant to Section
4.01(k)(ii) of the Participation Agreement. Unless otherwise defined
herein, all capitalized terms used herein shall have the respective defined
meanings set forth in the Participation Agreement.
In connection with our opinions herein, we have examined
executed counterparts of the Participation Agreement, the Trust Agreement,
the Tax Indemnity Agreement and the Ancillary Agreement I (collectively,
the "Owner Participant Documents"). We have further examined and relied
upon the accuracy of original, certified, conformed, photographic or
telecopied copies of such records, agreements, certificates, instruments
and other documents as we have deemed necessary or appropriate to enable us
to render the opinions expressed herein. In all such examinations, we have
assumed the genuineness of signatures on original documents, the
authenticity of all documents submitted to us as originals and the
conformity to such original documents of all copies submitted to us as
certified, conformed, photographic or telecopied copies and the
authenticity of such latter documents, and as to certificates and
telegraphic and telephonic confirmations given by public officials, we have
assumed the same to have been properly given and to be accurate. As to
various questions of fact material to our opinions, we have relied solely
upon the accuracy of the statements, representations and warranties made in
the Owner Participant Documents, and we have made no independent
investigation or inquiry with respect to such factual matters.
With your consent, and for purposes of this opinion, we have
assumed the accuracy of the following matters, but we have not made any
independent investigation or inquiry with respect thereto and we render no
opinion on such matters:
(a) That the execution and delivery and performance of each of the
Owner Participant Documents by each of the parties thereto will not violate
the respective parties' constituent documents.
(b) That each of the parties to the Owner Participant Documents has
full power, authority and legal right to enter into and perform its
respective obligations under the Owner Participant Documents to which it is
a party.
(c) The Owner Participant Documents, at the time of execution and
delivery by the Owner Participant, will have been duly authorized and
validly executed and delivered by all parties thereto (other than the Owner
Participant) and will constitute the legal, valid and binding obligations
of such parties, enforceable against such parties in accordance with their
terms.
(d) The parties to the Owner Participant Documents (other than the
Owner Participant, as to which we have not assumed the acquisition of all
consents, permits and approvals under New York law) at the time of
execution and delivery by the Owner Participant have obtained and there are
in full force and effect at such time, any and all required consents,
permits and approvals required by or from any and all federal, state, local
or foreign governmental agencies and authorities in connection with the
transactions contemplated thereby, to the extent necessary for the
legality, validity, binding effect or enforceability of the Owner
Participant Documents.
We have been retained as special counsel to the Owner
Participant in connection with the transactions contemplated by the
Participation Agreement, and have not generally represented the Owner
Participant in its business activities and are not familiar with the nature
and extent of such other activities. Accordingly, we also have assumed
without investigation that such other activities are not of such a nature
as to cause the transactions contemplated by the Participation Agreement to
be governed by laws or regulations of the State of New York or the United
States of America applicable only because of such other activities (such as
laws relating specifically to the banking, securities, insurance or utility
industries) and not applicable to business corporations generally.
Based upon the foregoing, we are of the opinion that:
(1) The Owner Participant Documents constitute legal, valid and binding
obligations of the Owner Participant, enforceable against the Owner
Participant in accordance with their respective terms, except as the
enforceability thereof may be limited by (a) applicable bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors', mortgagees' and lessors'
rights generally, (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity) and
(c) with respect to the indemnification provisions set forth in the Owner
Participant Documents, considerations of public policy. (2) Neither the
execution and delivery of the Owner Participant Documents by the Owner
Participant nor the consummation by the Owner Participant of any of the
transactions therein contemplated, or the fulfillment of, or compliance
with, the terms and provisions of any thereof, (A) requires for its
validity that the Owner Participant obtain the consent or approval of, give
notice to, register with, or take any other action with respect to, any
governmental authority or agency of the State of New York or the Federal
government of the United States, or (B) contravenes any law, governmental
rule or regulation of the State of New York or the Federal government of
the United States or any governmental authority or agency thereof.
In rendering the foregoing opinions, we have relied, with your
consent, on the opinion of even date herewith of Xxx X. Xxxxxxx, Esq.,
Senior Vice President and General Counsel of the Owner Participant, as to
the matters set forth therein (i) that are governed by the laws of the
State of New York, and (ii) relating to the due authorization, execution
and delivery of the Owner Participant Documents by the Owner Participant
under the laws of the United States of America, and our opinions are
subject to the same limitations and exceptions as set forth therein.
The foregoing opinions are subject, however, to the
qualification that we express no opinion as to matters relating to the
title to or sufficiency of description of any property or collateral
described in the Owner Participant Documents or the perfection or relative
priority of any lien or security interest created with respect to such
property or collateral thereunder. In addition, we express no opinion as
to matters governed by (i) any tax laws, (ii) the Transportation Code, or
by any other laws, statutes, rules or regulations of the United States
particularly relating to the acquisition, ownership, registration, leasing,
use or sale of the Aircraft, the Airframe or the Engines other than such
laws relating to personal property generally, (iii) any securities laws and
(iv) laws pertaining to the Owner Participant solely because of the
business activities of the Owner Participant and not applicable to business
corporations generally.
We are licensed to practice law in the State of New York and we
express no opinions herein as to the laws of any state or jurisdiction
other than the laws of the State of New York and the laws of the United
States of America.
This opinion is furnished by us at your request and at the
Owner Participant's request for your sole benefit, and we agree that you
and your successors and permitted assigns may rely on the opinions
expressed herein. No other Person or entity shall be entitled to rely on
the opinions expressed herein without our express written consent. This
opinion shall not be published or reproduced in any manner or distributed
or circulated to any person or entity without our express written consent;
provided that no such consent shall be necessary for the reproduction,
circulation or distribution of this opinion to (i) the special counsel,
auditors or public accountants of the persons named on Schedule A hereto or
(ii) bank examiners or similar regulatory authorities. Our opinion is
limited to the matters stated herein, and no opinion is implied or may be
inferred beyond the matters expressly stated herein.
Very truly yours,
Xxxxxx, Xxxxx & Xxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(2)(b)
[Letterhead of Chrysler Capital Corporation]
[Certificate Closing Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
I have acted as counsel to Chrysler Capital Corporation, a
Delaware corporation (the "Owner Participant"), in connection with the
transactions contemplated by that certain (i) the Participation Agreement,
dated as of October 26, 1995 (the "Participation Agreement"), among Federal
Express Corporation, as Lessee (the "Lessee"), the Owner Participant, NBD
Bank, a Michigan banking corporation, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement (the "Owner Trustee"),
The Chase Manhattan Bank (National Association), a national banking
association, not in its individual capacity, except as otherwise stated,
but solely as Indenture Trustee under the Indenture (the "Indenture
Trustee"), and The Chase Manhattan Bank (National Association), as Pass
Through Trustee (the "Pass Through Trustee), (ii) the Trust Agreement,
dated as of October 26, 1995 (the "Trust Agreement"), by and between the
Owner Participant and the Owner Trustee and (iii) the Tax Indemnity
Agreement, dated as of October 26, 1995 (the "Tax Indemnity Agreement"), by
and between the Owner Participant and the Lessee. This opinion is
delivered pursuant to Section 4.01(k)(ii) of the Participation Agreement.
Unless otherwise defined herein, all capitalized terms used herein shall
have the respective defined meanings set forth in the Participation
Agreement.
For purposes of the opinions expressed below, I, or members of
my staff, have examined executed counterparts or copies certified to my
satisfaction of the Participation Agreement, the Trust Agreement, the Tax
Indemnity Agreement and the Ancillary Agreement I (collectively, the "Owner
Participant Documents") and have examined originals or photostatic,
certified or telecopied copies of such records of the Owner Participant,
certificates of officers of the Owner Participant and public officials, and
such other documents as I have deemed relevant and necessary as a basis for
the opinions set forth below. In such examination I have assumed the
genuineness of all signatures (other than those of the Owner Participant),
the authenticity of all documents submitted to me as originals, the
conformity to the original documents of documents submitted to me as
certified, photostatic or telecopied copies, and the authenticity of the
originals of such copies. As to questions of fact material to my opinions,
I have relied upon the representations and warranties contained in the
Owner Participant Documents and upon certificates of officers of the Owner
Participant, those of other persons having knowledge thereof delivered
pursuant thereto and those of public officials. I have assumed, except
with regard to the Owner Participant, that each of the Owner Participant
Documents have been duly authorized, executed and delivered by the
respective parties thereto and that they constitute the legal, valid and
binding obligations of each party thereto enforceable against each such
party in accordance with their respective terms.
Based on the foregoing examination and subject to the
assumptions and qualifications set forth herein, I am of the opinion that
as of the date hereof:
1. The Owner Participant is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. The
Owner Participant has all requisite corporate power, authority and legal
right to carry on its present business and operations, to own or lease its
Properties and enter into and to carry out the transactions contemplated by
each of the Owner Participant Documents.
2. The performance by the Owner Participant of its obligations under
each of the Owner Participant Documents does not (a) require any approval
or consent of any shareholder, to the best of my knowledge, require any
consent or approval of any trustee, or holder of any indebtedness or other
obligation of the Owner Participant, (b) violate the organizational
documents or by-laws of the Owner Participant, (c) violate any law,
governmental rule or regulation of the State of New York or of the federal
government of the United States or any governmental authority or agency
thereof or (d) to the best of my knowledge, conflict with any judgment or
order applicable to or binding upon the Owner Participant or its
properties, or violate or (except as contemplated by the Owner Participant
Documents) subject the Trust Estate to any lien under any indenture,
mortgage, bank credit agreement, note or bond purchase agreement, long-term
lease, license or contract or any other agreement or instrument to which
the Owner Participant is a party or by which the Owner Participant is
bound.
3. The execution and delivery by the Owner Participant of the Owner
Participant Documents and the performance by the Owner Participant of its
obligations thereunder have been duly authorized by all necessary corporate
action on the part of the Owner Participant. Each of the Owner Participant
Documents has been duly executed and delivered by the Owner Participant.
4. Neither the execution and delivery by the Owner Participant of
the Owner Participant Documents, nor the consummation by the Owner
Participant of any of the transactions contemplated thereby, requires the
consent or approval of, the giving of notice to, the registration with, the
recording or filing of any document with, or the taking or any other action
in respect of, any governmental authority or agency of the State of New
York or of the federal government of the United States, except those
contemplated by the Operative Agreements.
5. There are no actions, suits, investigations or proceedings
pending or, to the best of my knowledge, threatened against or affecting
the Owner Participant or any of its properties in any court or before any
administrative agency or arbitrator, which, if adversely determined, would
materially adversely affect the ability of the Owner Participant to perform
its obligations under any of the Owner Participant Documents, and there are
no pending or, to the best of my knowledge, threatened actions or
proceedings before any court, administrative agency or tribunal involving
the Owner Participant in connection with the transactions contemplated by
any of the Owner Participant Documents.
I am a member of the Bar of the State of New York and I do not
purport to have any knowledge of, or to express any opinion herein
concerning, any laws other than the laws of the State of New York, the
General Corporation Law of the State of Delaware and the laws of the United
States of America, except that no opinion is given as to securities,
banking or tax laws. Further, I have made no investigation and express no
opinion, as to any aviation law or other laws, statutes, rules or
regulations applicable due to the particular nature of the equipment
subject to the Lease.
This opinion is furnished by me as counsel to the Owner
Participant for your sole benefit and for the benefit of your successors
and assigns and no other person or entity shall rely on this opinion
without my express written consent. This opinion shall not be published or
reproduced in any manner or distributed or circulated to any person or
entity without my express written consent; provided that no such consent
shall be necessary for the reproduction, circulation or distribution of
this opinion to (i) the special counsel, auditors or public accountants of
the persons named on Schedule A hereto or (ii) bank examiners or similar
regulatory authorities. My opinion is limited to the matters stated
herein, and no opinion is implied or may be inferred beyond the matters
expressly stated herein.
Very truly yours,
Xxx X. Xxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Underwriters
-------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(3)(a)
[Letterhead of Xxxxx Xxxxxxxxxx]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
We have acted as special counsel to The Chase Manhattan Bank
(National Association), a national banking association (the "Indenture
Trustee"), in connection with the transactions contemplated by (i) the
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N663FE) dated as of October 26, 1995 (the "Indenture") between NBD
Bank (the "Owner Trustee") and the Indenture Trustee and (ii) the
Participation Agreement (Federal Express Corporation Trust No. N663FE)
dated as of October 26, 1995 (the "Participation Agreement") among Federal
Express Corporation ("Federal Express"), Chrysler Capital Corporation, as
Owner Participant (the "Owner Participant"), the Indenture Trustee, the
Owner Trustee and The Chase Manhattan Bank (National Association), as Pass
Through Trustee (the "Pass Through Trustee"). Further, we have advised the
Indenture Trustee with respect to the authentication of one or more
equipment trust certificates (the "Certificates") referred to in the
Indenture issued on the date hereof.
This opinion is being delivered pursuant to Section
4.01(k)(iii) of the Participation Agreement. Capitalized terms used herein
and not otherwise defined herein shall have the respective meanings set
forth or referred to in the Participation Agreement.
In connection with the opinions expressed herein, we have
reviewed executed counterparts of the Operative Agreements to be delivered
on the Certificate Closing Date (the "Certificate Closing Date Documents")
and the forms of Operative Agreements to be delivered on the Delivery Date.
We have also examined and relied upon the accuracy of the originals or
certified, conformed, photocopied or telecopied copies of such corporate
records, certificates, instruments and other documents as we have deemed
necessary or appropriate to enable us to render the opinions expressed
herein. In all such examinations, we have assumed the genuineness of
signatures on original documents and the conformity to such original
documents of all copies submitted to us as certified, conformed,
photocopied or telecopied copies, and as to certificates and telegraphic
and telephonic confirmations given by public officials, we have assumed the
same to have been properly given and to be accurate. As to all matters of
fact material to our opinions, we have, when relevant facts were not
independently established, relied upon representations and warranties
contained in the Certificate Closing Date Documents and upon the statements
and certificates furnished to us.
Based upon and subject to the foregoing and the qualifications
hereinafter set forth, we are of the opinion that:
1. The Indenture Trustee is a national banking association duly
organized and validly existing in good standing under the laws of the
United States of America holding a valid certificate to do business as a
national banking association, with banking and trust powers, and has the
corporate power and authority to execute, deliver and perform its
obligations under the Indenture, the Participation Agreement and the other
Certificate Closing Date Documents to which it is a party, and to
authenticate the Certificates to be delivered on the date hereof.
2. The Indenture Trustee, in its individual and trust capacities,
has duly authorized, executed and delivered the Indenture, the
Participation Agreement and each of the other Certificate Closing Date
Documents to which it is a party. Each of the Operative Agreements to be
executed by the Indenture Trustee on the Delivery Date has been authorized
by the Indenture Trustee in its individual and trust capacities.
3. Each of the Indenture, the Participation Agreement and the other
Certificate Closing Date Documents to which it is a party constitutes a
legal, valid and binding obligation of the Indenture Trustee in its trust
capacity (and, to the extent provided in each such document, in its
individual capacity) enforceable against the Indenture Trustee in its trust
capacity (and, to the extent provided in each such document, in its
individual capacity) in accordance with its terms thereof, except as the
enforceability thereof may be limited by (a) general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), (b) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and
(c) public policy considerations (in the case of the indemnity provisions
contained therein).
4. The Certificates delivered on the date hereof have been duly
authenticated and delivered by the Indenture Trustee in accordance with the
terms of the Indenture.
5. The execution, delivery, and performance by the Indenture Trustee
of the Indenture, the Participation Agreement and each of the other
Certificate Closing Date Documents to which it is a party are not in
violation of the Articles of Association or By-laws of the Indenture
Trustee or any law, governmental rule or regulation of the United States of
America or the State of New York governing the banking or trust powers of
the Indenture Trustee.
6. Neither the execution and delivery by the Indenture Trustee, in
its individual or trust capacity, as the case may be, of the Indenture, the
Participation Agreement or any of the other Certificate Closing Date
Documents to which it is a party, nor the consummation by the Indenture
Trustee, in its individual or trust capacity, as the case may be, of any of
the transactions contemplated in the Indenture or the Participation
Agreement requires consent or approval of, giving of notice to, or
registration with, or taking of any other action with respect to, any
federal or state governmental authority or agency having jurisdiction over
the Indenture Trustee.
7. There are no fees, taxes or other governmental charges payable by
the Certificate Holders, the Owner Trustee or the Indenture Trustee (except
taxes imposed on fees payable to the Indenture Trustee) to the State of New
York or any political subdivision thereof in connection with the execution,
delivery or performance of any of the Certificate Closing Date Documents or
in connection with the issuance and acquisition of the Certificates issued
to the Certificate Holders or the beneficial interests of the Certificate
Holders in the Trust Indenture Estate. Neither the Indenture Trustee nor
the trust created under the Indenture will be subject to any fee, tax or
other governmental charge under the laws of the State of New York or any
political subdivision thereof in existence on the date hereof, on, based on
or measured by, directly or indirectly, the gross receipts, net income or
value of the Trust Indenture Estate. There is no fee, tax or other
governmental charge under the laws of the State of New York or any
political subdivision thereof in existence on the date hereof, on, based on
or measured by any payments under the Certificates issued to the
Certificate Holders by reason of the creation of the trust under the
Indenture pursuant to the laws of the State of New York or the Indenture
Trustee's performance of its duties under the Indenture within the State of
New York. We express no opinion, however, as to whether or not any fees,
taxes or other charges are now or hereafter may be payable by the Owner
Participant to the State of New York or any political subdivision thereof
in connection with (x) the execution, delivery or performance by any of the
Indenture, the Participation Agreement or any of the other Certificate
Closing Date Documents or (y) the making by the Owner Participant of its
investment in the Aircraft.
We express no opinion as to the laws of any jurisdiction other
than the laws of the State of New York and the federal laws of the United
States of America. In addition, we express no opinion herein as to (i) any
federal or state securities laws, (ii) any tax laws, (iii) any aviation
laws including, without limitation, the Transportation Code, (iv) any laws,
statutes, rules or regulations applicable to the particular nature of the
equipment acquired or to be acquired by the Owner Trustee, or (v) ERISA or
any other pension and employee benefit laws, rules or regulations. In
addition, we express no opinion as to the right, title or interest in or to
the Trust Estate on the part of any Person. We also express no opinion as
to the perfection or priority of any security interest created by any of
the Certificate Closing Date Documents.
In rendering the opinions expressed herein, we have assumed
that (a) each of the Indenture, the Participation Agreement and the other
Certificate Closing Date Documents has been duly authorized, executed and
delivered by the respective parties thereto (other than the Indenture
Trustee) and constitutes a legal, valid and binding obligation of each of
such parties (other than the Indenture Trustee), enforceable against each
of such parties in accordance with the terms thereof, (b) each of such
parties (other than the Indenture Trustee) has the requisite power,
authority and legal right to enter into and perform its respective
obligations under the Indenture, the Participation Agreement and each of
the other Certificate Closing Date Documents to which it is a party and (c)
the transactions provided for in the Certificate Closing Date Documents are
not within the prohibitions of Section 406 of ERISA or Section 4975 of the
Internal Revenue Code of 1986, as amended.
This opinion is furnished by us for the sole benefit of the
addressees hereof, each of whom we understand and agree may rely upon the
opinions set forth herein. No other person or entity is entitled to rely
on this opinion without our express written consent. This opinion is
limited to the matters stated herein and no opinion is implied or may be
inferred beyond the matters expressly stated herein.
Very truly yours,
Xxxxx Xxxxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
--------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
-------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(3)(b)
[Letterhead of The Chase Manhattan Bank, N.A.]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
As Vice President and Senior Associate Counsel to The Chase
Manhattan Bank (National Association), a national banking association (the
"Indenture Trustee"), I advise you as follows with respect to the
authorization, execution and delivery by the Indenture Trustee of (i) the
Trust Indenture and Security Agreement (Federal Express Corporation Trust
No. N663FE) dated as of October 26, 1995 (the "Indenture") between NBD
Bank (the "Owner Trustee") and the Indenture Trustee and (ii) the
Participation Agreement (Federal Express Corporation Trust No. N663FE)
dated as of October 26, 1995 (the "Participation Agreement") among Federal
Express Corporation ("Federal Express"), Chrysler Capital Corporation, as
Owner Participant (the "Owner Participant"), the Owner Trustee, the
Indenture Trustee, and The Chase Manhattan Bank (National Association), as
Pass Through Trustee. Further, we have advised the Indenture Trustee with
respect to the authentication of one or more equipment trust certificates
(the "Certificates") referred to in the Indenture issued on the date
hereof.
Unless otherwise defined herein, capitalized terms used herein
shall have the respective meanings attributed thereto in the Participation
Agreement.
I have reviewed executed counterparts of the Operative
Agreements to be delivered on the Certificate Closing Date (the
"Certificate Closing Date Documents") and the forms of Operative Agreements
to be delivered on the Delivery Date. I have also examined the originals,
or certified, conformed, photocopied or telecopied copies of such corporate
records, certificates, instruments and other documents as I have deemed
necessary to appropriate to enable me to render the opinions expressed
herein, including, without limitation, certified copies of the By-laws of
the Indenture Trustee, a certificate of the secretary of the Indenture
Trustee as to certain matters, including the incumbency of the officer of
the Indenture Trustee who executed the Indenture and the Participation
Agreement and who authenticated the Certificates and a certificate of the
Comptroller of the Currency, Washington, D.C., dated September 23, 1965, as
to the Indenture Trustee's existence and authority to do business as a
national banking association and to act in a fiduciary capacity.
In all such examinations, I have assumed the genuineness of
signatures on original documents (other than those of the Indenture
Trustee) and the conformity to such original documents of all copies
submitted to me as certified, conformed, photocopied or telecopied copies,
and as to certificates and telegraphic and telephonic confirmations given
by public officials, I have assumed the same to have been properly given
and to be accurate. As to all matters of fact material to my opinions, I
have, when relevant facts were not independently established, relied upon
statements, representations and warranties contained in the Certificate
Closing Date Documents and upon the statements and certificates furnished
to me.
A. Based upon the foregoing and subject to the limitations
expressed in paragraph B below, I am of the opinion that: the execution,
delivery and performance by the Indenture Trustee of the Indenture, the
Participation Agreement and each of the other Certificate Closing Date
Documents to which it is a party are not, to my knowledge, in violation of
any judgment, order, indenture, mortgage, bank credit agreement, note or
bond purchase agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it or its properties may be
bound.
B. I am qualified to practice law in the State of New York and
I express no opinion as to any laws other than the laws of the State of New
York and the federal laws of the United States of America. Further,
without limiting the generality of the foregoing, I express no opinion with
respect to (i) the citizenship of the Indenture Trustee, the Transportation
Code and the regulations promulgated thereunder, the impact of the
Transportation Code upon matters set forth in this opinion or any other
aviation or other laws, rules or regulations applicable to the particular
nature of the equipment to be acquired by the Owner Trustee; (ii) federal
securities laws, including, without limitation, the Securities Act of 1933,
as amended, and the Trust Indenture Act of 1939, as amended, or state
securities or blue sky laws; (iii) title to any property, real or personal
or the priority or perfection of any liens or security interests; (iv) the
authority or power of the Indenture Trustee under the laws of any
jurisdiction other than New York or federal laws of the United States of
America to exercise any rights or remedies set forth in the Certificate
Closing Date Documents or to perform any duties or obligations on its part
to be performed other than those that can be performed in the State of New
York; or (v) ERISA.
This opinion is being furnished only to the parties to whom
this opinion is addressed and is solely for their benefit, and no other
person or entity shall be entitled to rely on this opinion without my
express prior written consent. This opinion may not be used, circulated,
quoted, published or otherwise referred to for any purpose without my
express prior written consent. This opinion is limited to the matters
stated herein, and no opinion is implied or may be inferred beyond the
opinions expressly stated herein.
Very truly yours,
Xxxxxxx Xx Xxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(4)(a)
[Letterhead of Dickinson, Wright, Moon, Van Dusen & Xxxxxxx]
[Certificate Closing Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
We have acted as special counsel to NBD Bank, a Michigan
banking corporation ("NBD"), in connection with the Trust Agreement
(Federal Express Corporation Trust No. N663FE), dated as of October 26,
1995 (the "Trust Agreement"), between NBD and Chrysler Capital Corporation,
a Delaware corporation (the "Trustor" or "Owner Participant"). Pursuant to
the Participation Agreement (Federal Express Corporation Trust No.
N663FE), dated as of October 26, 1995 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee, the Owner Participant, NBD,
not in its individual capacity except as specifically set forth therein but
solely as Owner Trustee (the "Owner Trustee") under the Trust Agreement,
The Chase Manhattan Bank (National Association), as Indenture Trustee and
The Chase Manhattan Bank (National Association), as Pass Through Trustee,
one Airbus A300F4-605R aircraft bearing U.S. Registration No. N663FE (the
"Aircraft") is being financed. This opinion is being furnished pursuant to
Section 4.01(k)(iv) of the Participation Agreement. Capitalized terms used
herein and not otherwise defined are used as defined in the Participation
Agreement, except that references herein to any instrument shall mean such
instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Trust Agreement;
(c) The Indenture;
(d) The Lease;
(e) The Purchase Agreement Assignment;
(f) The Engine Warranty Assignment;
(g) Ancillary Agreement I to be dated the Delivery Date;
(h) The French Pledge Agreement (each of the documents
identified in paragraphs (a) through (j) above being collectively referred
to as the "Certificate Closing Date Documents"); and
(i) The Certificates being issued today (the "Certificates").
We have also examined the forms of the Lease Supplement
relating to the Aircraft to be dated the Delivery Date and the Indenture
and Security Agreement Supplement relating to the Aircraft to be dated the
Delivery Date.
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
public officials and of corporate officers and other representatives of NBD
and such other instruments as we have deemed necessary and relevant as the
basis for our opinion. Moreover, as to certain facts material to the
opinions expressed herein, we have relied upon representations and
warranties contained in the Certificate Closing Date Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary and relevant, and subject
to the assumptions, exceptions and qualifications set forth below, we
advise you that, in our opinion:
1. NBD is a Michigan banking corporation duly organized and validly
existing under the laws of the State of the Michigan, with banking and
trust powers, is a "citizen of the United States" within the meaning of
Section 40102(a)(15) of the Transportation Code, and each of NBD and the
Owner Trustee, as the case may be, has full power, authority and legal
right to execute, deliver and perform each of the Certificate Closing Date
Documents to which it is a party and to issue, execute, deliver and perform
the Certificates.
2. Each of NBD and the Owner Trustee, as the case may be, has duly
authorized, executed and delivered each Certificate Closing Date Document;
each Certificate Closing Date Document constitutes a legal, valid and
binding obligation of the Owner Trustee (and, to the extent set forth in
the respective Certificate Closing Date Document, of NBD) enforceable
against the Owner Trustee (and, to the extent set forth in the respective
Certificate Closing Date Document, against NBD) in accordance with its
terms; and the Trust Agreement constitutes a legal, valid and binding
obligation of the Owner Participant enforceable against the Owner
Participant in accordance with its terms.
3. The Certificates have been duly issued, executed and delivered by
the Owner Trustee, pursuant to authorization contained in the Trust
Agreement, and constitute the legal, valid and binding obligations of the
Owner Trustee enforceable against the Owner Trustee in accordance with
their terms and the terms of the Indenture; and the Certificates are
entitled to the benefits and security afforded by the Indenture in
accordance with their terms and the terms of the Indenture.
4. To our knowledge, there exist no Liens affecting the title of the
Owner Trustee to the Lessor's Estate resulting from claims against NBD not
related to the ownership of the Lessor's Estate or the administration of
the Lessor's Estate or any other transaction pursuant to the Indenture or
any document included in the Trust Indenture Estate.
5. All of the properties which are part of the Trust Indenture
Estate have been pledged and mortgaged with the Indenture Trustee as part
of the Trust Indenture Estate, and the beneficial interest of the Owner
Participant under the Trust Agreement in and to such properties is subject,
to the extent provided in the Indenture, to the Lien of the Indenture in
favor of the Holders of the Certificates.
6. To the extent that the Uniform Commercial Code of the State of
Michigan (the "UCC") is applicable, except for the Indenture Trustee's
taking possession of all monies and securities (including instruments)
constituting part of the Trust Indenture Estate, no action, including the
filing or recording of any document, is necessary (i) to create under the
UCC the security interest in the Trust Indenture Estate (including the
grant and assignment unto the Indenture Trustee of the security interest in
all estate, right, title and interest of the Owner Trustee in, to and under
the Lease) which the Indenture by its terms purports to create in favor of
the Indenture Trustee, and (ii) to perfect in the State of Michigan such
security interest, except for the filing of a UCC financing statement in
the office of the Secretary of State of the State of Michigan, which filing
has been duly effected, and the filing of continuation statements with
respect thereto required to be filed at periodic intervals under the UCC.
7. The Trust Agreement duly creates a legal and valid trust under
Michigan law, the trust created by the Trust Agreement has been duly
created and exists for the benefit of the Owner Participant, and the Trust
Agreement and the Indenture Supplement create for the benefit of the Owner
Participant the interest in the properties referred to in Section 1.02 of
the Trust Agreement which the Trust Agreement by its terms purports to
create, which interest is subject and subordinate to the security interests
created by the Indenture to the extent provided in the Indenture.
8. Neither the authorization, execution and delivery by the Owner
Trustee or NBD, as the case may be, of the Certificate Closing Date
Documents, nor the issuance, execution and delivery by the Owner Trustee of
the Certificates nor the fulfillment or compliance by the Owner Trustee or
NBD with the respective terms and provisions thereof nor the consummation
of any of the transactions by the Owner Trustee or NBD, as the case may be,
contemplated thereby, requires the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in
respect of, any governmental authority or agency of the State of Michigan
or the United States of America governing the banking or trust powers of
NBD.
9. The execution, delivery and performance by the Owner Trustee or
NBD, as the case may be, of each of the Certificate Closing Date Documents
and the issuance, execution, delivery and performance of the Certificates
by the Owner Trustee are not in violation of the articles of incorporation
or by-laws of NBD or of any law, governmental rule, or regulation of the
State of Michigan or the United States of America governing the banking or
trust powers of NBD or, to our knowledge, of any indenture, mortgage, bank
credit agreement, note or bond purchase agreement, long-term lease, license
or other agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, of any judgment or order of the State of
Michigan or the United States of America relating to the banking or trust
powers of NBD.
10. There is no fee, tax or other governmental charge under the laws
of the State of Michigan or any political subdivision thereof in existence
on the date hereof on, based on or measured by any payments under the
Certificates or the beneficial interests in the Lessor's Estate, by reason
of the creation of the trust under the Trust Agreement, pursuant to the
laws of the State of Michigan or the Owner Trustee's performance of its
duties under the Trust Agreement, within the State of Michigan, which would
not have been imposed if NBD did not have its principal place of business
and did not perform its obligations under the Certificate Closing Date
Documents in the State of Michigan.
11. Neither a Michigan court nor a federal court applying federal
law or Michigan law, if all relevant issues are properly presented to and
considered by such court, would permit the Owner Participant to terminate
the Trust Agreement, except as otherwise provided in the Trust Agreement or
with the consent of the Indenture Trustee, until the Lien of the Indenture
on the Trust Estate has been released and until payment in full of the
principal of, Make-Whole Premium, if any, and interest on, the
Certificates.
12. Under the laws of the State of Michigan, as long as the Trust
Agreement has not been terminated in accordance with its terms or with the
consent of the Indenture Trustee, creditors of any person that is an Owner
Participant, holders of a lien against the assets of any such person and
representatives of creditors of any such person, such as trustees,
receivers or liquidators (whether or not any insolvency proceeding has been
commenced) (collectively, the "Creditors") may acquire legal, valid and
enforceable claims and liens, as to the Trust Estate, only against the
rights of such Owner Participant under the Trust Agreement or in the Trust
Estate, and may not through the enforcement of such Creditor's rights,
acquire any greater rights than the rights of the Owner Participant with
respect to the Trust Agreement or the Trust Estate.
13. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting NBD or the
Owner Trustee, as the case may be, or any of its properties in any court or
before any administrative agency or arbitrator, which, if adversely
determined, would materially adversely affect the ability of NBD or the
Owner Trustee, as the case may be, to perform its obligations under any of
the Certificate Closing Date Documents, and there are no pending or, to our
knowledge, threatened actions or proceedings before any court,
administrative agency or tribunal involving NBD or the Owner Trustee, as
the case may be, in connection with the transactions contemplated by any of
the Certificate Closing Date Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. The foregoing opinions are limited to the laws of the State
of Michigan and applicable federal laws. We express no opinion with
respect to (i) federal securities laws, including the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the
Trust Indenture Act of 1939, as amended, and the Investment Company Act of
1940, as amended, (ii) Part A of Subtitle VII of Title 49 of the United
States Code, as amended (except with respect to the opinion set forth in
paragraph 1 above concerning the citizenship of NBD), (iii) state
securities or blue sky laws, or (iv) laws, rules and regulations applicable
to the particular nature of the Aircraft to be acquired by the Owner
Trustee on the Delivery Date. Insofar as any Certificate Closing Date
Documents and the Certificates expressed to be governed by the laws of a
jurisdiction other than the State of Michigan, we have assumed that all
such documents are legal, valid, binding and enforceable in accordance with
their terms under such laws (as to which we express no opinion).
B. The foregoing opinions regarding enforceability, except for
the opinions set forth in paragraphs 11 and 12 above, are subject to (i)
applicable bankruptcy, insolvency, moratorium, reorganization, receivership
and other laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law) and (iii) the
effect of applicable public policy on the enforceability or provisions
relating to indemnification.
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than NBD and the Owner
Trustee, of the Certificate Closing Date Documents to which each is a party
and that each of such parties has the full power, authority and legal right
to execute and deliver, and perform under the terms of, each such document.
D. The opinion set forth in paragraph 1 above concerning the
citizenship of NBD is based upon the Affidavit of Citizenship, and we have
not independently verified the facts supporting such opinion.
E. We have assumed the due authentication of the Certificates
by the Indenture Trustee.
F. We have assumed that all signatures (other than those of
the Owner Trustee or NBD) on documents and instruments examined by us are
genuine, that all documents and instruments submitted to us as originals
are authentic, and that all documents and instruments submitted to us as
copies conform with the originals, which facts we have not independently
verified.
G. We do not purport to be experts in respect of, or express
any opinion concerning, aviation law or other laws, rules or regulations
applicable to the particular nature of the equipment to be acquired by the
Owner Trustee on the Delivery Date.
H. Except as otherwise provided in paragraph 7, no opinion is
expressed as to the creation, attachment, perfection or priority of any
mortgage or security interest, of any instrument or document creating a
lien or security interest, or of the Indenture or as to the nature or
validity of title to any part of the Trust Estate.
I. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of
Section 406 of the Employee Retirement Income Security Act of 1974.
J. Whenever our opinion, with respect to the existence or
absence of facts, is qualified by the phrase "to our knowledge" or a phrase
of similar import, it is intended to indicate that during the course of our
representation in connection with the Certificate Closing Date Documents,
the lawyers in our firm who have been principally involved in representing
NBD and the Owner Trustee in connection with the Certificate Closing Date
Documents have not obtained actual knowledge of the existence or absence of
such facts, as the case may be, without the implication that we have made
any investigation or inquiry to determine the existence or absence of such
facts.
K. The foregoing opinions are given as of the date hereof
only, and do not contemplate, and no opinion is given or intended, with
respect to subsequent changes in law or fact.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent, except that the law firm of Xxxxx Xxxx & Xxxxxxxx may rely
on this opinion in connection with the rendering of its opinion dated the
date hereof in connection with the financing described herein.
Very truly yours,
Dickinson, Wright, Moon, Van Dusen & Xxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(4)(b)
[Letterhead of Dickinson, Wright, Moon, Van Dusen & Xxxxxxx]
[Delivery Date]
To Each of the Parties Listed on Schedule A Hereto
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
We have acted as special counsel to NBD Bank, a Michigan
banking corporation ("NBD"), in connection with the Trust Agreement
(Federal Express Corporation Trust No. N663FE), dated as of October 26,
1995 (the "Trust Agreement"), between NBD and Chrysler Capital Corporation,
a Delaware corporation (the "Trustor" or "Owner Participant"). Pursuant to
the Participation Agreement (Federal Express Corporation Trust No.
N663FE), dated as of October 26, 1995 (the "Participation Agreement"),
among Federal Express Corporation, as Lessee, the Owner Participant, NBD,
not in its individual capacity except as specifically set forth therein but
solely as Owner Trustee (the "Owner Trustee") under the Trust Agreement,
The Chase Manhattan Bank (National Association), as Indenture Trustee and
The Chase Manhattan Bank (National Association), as Pass Through Trustee,
one Airbus A300F4-605R aircraft bearing U.S. Registration No. N663FE (the
"Aircraft") is being financed. This opinion is being furnished pursuant to
Section 4.02(d)(vi) of the Participation Agreement. Capitalized terms used
herein and not otherwise defined are used as defined in the Participation
Agreement, except that references herein to any instrument shall mean such
instrument as in effect on the date hereof.
We have examined executed counterparts or copies otherwise
identified to our satisfaction of the following documents:
(a) The Participation Agreement;
(b) The Trust Agreement;
(c) The Indenture;
(d) The Indenture and Security Agreement Supplement relating
to the Aircraft and dated the date hereof (the "Indenture Supplement");
(e) The Lease;
(f) The Lease Supplement relating to the Aircraft and dated
the date hereof (the "Lease Supplement");
(g) The Purchase Agreement Assignment;
(h) The Engine Warranty Assignment;
(i) Ancillary Agreement dated the date hereof;
(j) The French Pledge Agreement (each of the documents
identified in paragraphs (a) through (j) above being collectively referred
to as the "Owner Trustee Documents"); and
(k) The Certificates issued on the Certificate Closing Date.
We have also examined originals or copies of such other
documents, such corporate records, certificates and other statements of
public officials and of corporate officers and other representatives of NBD
and such other instruments as we have deemed necessary and relevant as the
basis for our opinion. Moreover, as to certain facts material to the
opinions expressed herein, we have relied upon representations and
warranties contained in the Owner Trustee Documents.
Based upon the foregoing and upon an examination of such
questions of law as we have considered necessary and relevant, and subject
to the assumptions, exceptions and qualifications set forth below, we
advise you that, in our opinion:
1. NBD is a Michigan banking corporation duly organized and validly
existing under the laws of the State of the Michigan, with banking and
trust powers, is a "citizen of the United States" within the meaning of
Section 40102(a)(15) of the Transportation Code, and each of NBD and the
Owner Trustee, as the case may be, has or had, on the date of execution
thereof, full power, authority and legal right to execute, deliver and
perform each of the Owner Trustee Documents to which it is or is to be a
party and to issue, execute, deliver and perform the Certificates.
2. Each of NBD and the Owner Trustee, as the case may be, has duly
authorized, executed and delivered each Owner Trustee Document; each Owner
Trustee Document constitutes a legal, valid and binding obligation of the
Owner Trustee (and, to the extent set forth in the respective Owner Trustee
Document, of NBD) enforceable against the Owner Trustee (and, to the extent
set forth in the respective Owner Trustee Document, against NBD) in
accordance with its terms; and the Trust Agreement constitutes a legal,
valid and binding obligation of the Owner Participant enforceable against
the Owner Participant in accordance with its terms.
3. On the Certificate Closing Date, the Certificates were duly
issued, executed and delivered by the Owner Trustee, pursuant to
authorization contained in the Trust Agreement, and constituted the legal,
valid and binding obligations of the Owner Trustee enforceable against the
Owner Trustee in accordance with their terms and the terms of the
Indenture; and the Certificates are entitled to the benefits and security
afforded by the Indenture in accordance with their terms and the terms of
the Indenture.
4. The Owner Trustee received from AVSA such title to the Aircraft
as AVSA conveyed to the Owner Trustee, subject to the rights of the Owner
Trustee and the Lessee under the Lease and the security interest created
pursuant to the Indenture and the Indenture Supplement; and to our
knowledge, there exist no Liens affecting the title of the Owner Trustee to
the Lessor's Estate resulting from claims against NBD not related to the
ownership of the Lessor's Estate or the administration of the Lessor's
Estate or any other transaction pursuant to the Indenture or any document
included in the Trust Indenture Estate.
5. All of the properties which are part of the Trust Indenture
Estate have been pledged and mortgaged with the Indenture Trustee as part
of the Trust Indenture Estate, and the beneficial interest of the Owner
Participant under the Trust Agreement in and to such properties is subject,
to the extent provided in the Indenture, to the Lien of the Indenture in
favor of the Holders of the Certificates.
6. To the extent that the Uniform Commercial Code of the State of
Michigan (the "UCC") is applicable, except for the Indenture Trustee's
taking possession of all monies and securities (including instruments)
constituting part of the Trust Indenture Estate, no action, including the
filing or recording of any document, is necessary (i) to create under the
UCC the security interest in the Trust Indenture Estate (including the
grant and assignment unto the Indenture Trustee of the security interest in
all estate, right, title and interest of the Owner Trustee in, to and under
the Lease) which the Indenture by its terms purports to create in favor of
the Indenture Trustee, and (ii) to perfect in the State of Michigan such
security interest, except for the filing of a UCC financing statement in
the office of the Secretary of State of the State of Michigan, which filing
has been duly effected, and the filing of continuation statements with
respect thereto required to be filed at periodic intervals under the UCC.
7. On the Certificate Closing Date, the Trust Agreement duly created
a legal and valid trust under Michigan law, the trust created by the Trust
Agreement has been duly created and exists for the benefit of the Owner
Participant, and the Trust Agreement and the Indenture Supplement create
for the benefit of the Owner Participant the interest in the properties
referred to in Section 1.02 of the Trust Agreement which the Trust
Agreement by its terms purports to create, which interest is subject and
subordinate to the security interests created by the Indenture to the
extent provided in the Indenture.
8. Neither the authorization, execution and delivery by the Owner
Trustee or NBD, as the case may be, of the Owner Trustee Documents, nor the
issuance, execution and delivery by the Owner Trustee of the Certificates
nor the fulfillment or compliance by the Owner Trustee or NBD with the
respective terms and provisions thereof nor the consummation of any of the
transactions by the Owner Trustee or NBD, as the case may be, contemplated
thereby, requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Michigan or the United
States of America governing the banking or trust powers of NBD.
9. The execution, delivery and performance by the Owner Trustee or
NBD, as the case may be, of each of the Owner Trustee Documents and the
issuance, execution, delivery and performance of the Certificates by the
Owner Trustee are not or were not, on the date of execution thereof, in
violation of the articles of incorporation or by-laws of NBD or of any law,
governmental rule, or regulation of the State of Michigan or the United
States of America governing the banking or trust powers of NBD or, to our
knowledge, of any indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it is bound or, to our
knowledge, of any judgment or order of the State of Michigan or the United
States of America relating to the banking or trust powers of NBD.
10. Assuming that (i) the Aircraft is not used in Michigan and is
not physically located in Michigan at the commencement or termination of
the Term or during such Term, (ii) in connection with any sale of the
Aircraft, such Aircraft will not be physically delivered in Michigan to a
buyer nor be shipped from a point within Michigan to a buyer, and (iii) the
trust created by the Trust Agreement is treated as a grantor trust for
federal income tax purposes within the contemplation of Sections 671
through 678 of the Internal Revenue Code of 1986, there are no fees, taxes,
or other charges (except taxes imposed on fees payable to the Owner
Trustee) payable to the State of Michigan or any political subdivision
thereof in connection with the execution, delivery or performance by the
Owner Trustee, the Indenture Trustee, the Lessee or the Owner Participant,
as the case may be, of the Owner Trustee Documents or in connection with
the making by the Owner Participant of its investment in the Aircraft or
its acquisition of the beneficial interest in the Lessor's Estate or in
connection with the issuance and acquisition of the Certificates, and
neither the Owner Trustee, the Lessor's Estate nor the trust created by the
Trust Agreement will be subject to any fee, tax or other governmental
charge (except taxes on fees payable to the Owner Trustee) under the laws
of the State of Michigan or any political subdivision thereof on, based on
or measured by, directly or indirectly, the gross receipts, net income or
value of the Lessor's Estate solely by reason of the creation or continued
existence of the trust under the terms of the Trust Agreement pursuant to
the laws of the State of Michigan or the Owner Trustee's performance of its
duties under the Trust Agreement.
11. There is no fee, tax or other governmental charge under the laws
of the State of Michigan or any political subdivision thereof in existence
on the date hereof on, based on or measured by any payments under the
Certificates or the beneficial interests in the Lessor's Estate, by reason
of the creation of the trust under the Trust Agreement, pursuant to the
laws of the State of Michigan or the Owner Trustee's performance of its
duties under the Trust Agreement, within the State of Michigan, which would
not have been imposed if NBD did not have its principal place of business
and did not perform its obligations under the Owner Trustee Documents in
the State of Michigan.
12. Neither a Michigan court nor a federal court applying federal
law or Michigan law, if all relevant issues are properly presented to and
considered by such court, would permit the Owner Participant to terminate
the Trust Agreement, except as otherwise provided in the Trust Agreement or
with the consent of the Indenture Trustee, until the Lien of the Indenture
on the Trust Estate has been released and until payment in full of the
principal of, Make-Whole Premium, if any, and interest on, the
Certificates.
13. Under the laws of the State of Michigan, as long as the Trust
Agreement has not been terminated in accordance with its terms or with the
consent of the Indenture Trustee, creditors of any person that is an Owner
Participant, holders of a lien against the assets of any such person and
representatives of creditors of any such person, such as trustees,
receivers or liquidators (whether or not any insolvency proceeding has been
commenced) (collectively, the "Creditors") may acquire legal, valid and
enforceable claims and liens, as to the Trust Estate, only against the
rights of such Owner Participant under the Trust Agreement or in the Trust
Estate, and may not through the enforcement of such Creditor's rights,
acquire any greater rights than the rights of the Owner Participant with
respect to the Trust Agreement or the Trust Estate.
14. There are no actions, suits, investigations or proceedings
pending or, to our knowledge, threatened against or affecting NBD or the
Owner Trustee, as the case may be, or any of its properties in any court or
before any administrative agency or arbitrator, which, if adversely
determined, would materially adversely affect the ability of NBD or the
Owner Trustee, as the case may be, to perform its obligations under any of
the Owner Trustee Documents, and there are no pending or, to our knowledge,
threatened actions or proceedings before any court, administrative agency
or tribunal involving NBD or the Owner Trustee, as the case may be, in
connection with the transactions contemplated by any of the Owner Trustee
Documents.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. The foregoing opinions are limited to the laws of the State
of Michigan and applicable federal laws. We express no opinion with
respect to (i) federal securities laws, including the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the
Trust Indenture Act of 1939, as amended, and the Investment Company Act of
1940, as amended, (ii) Part A of Subtitle VII of Title 49 of the United
States Code, as amended (except with respect to the opinion set forth in
paragraph 1 above concerning the citizenship of NBD), (iii) state
securities or blue sky laws, or (iv) laws, rules and regulations applicable
to the particular nature of the Aircraft acquired by the Owner Trustee on
the date hereof. Insofar as any Owner Trustee Documents and the
Certificates expressed to be governed by the laws of a jurisdiction other
than the State of Michigan, we have assumed that all such documents are
legal, valid, binding and enforceable in accordance with their terms under
such laws (as to which we express no opinion).
B. The foregoing opinions regarding enforceability, except for
the opinions set forth in paragraphs 12 and 13 above, are subject to (i)
applicable bankruptcy, insolvency, moratorium, reorganization, receivership
and other laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law) and (iii) the
effect of applicable public policy on the enforceability or provisions
relating to indemnification.
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than NBD and the Owner
Trustee, of the Owner Trustee Documents to which each is a party and that
each of such parties has the full power, authority and legal right to
execute and deliver, and perform under the terms of, each such document.
D. The opinion set forth in paragraph 1 above concerning the
citizenship of NBD is based upon the Affidavit of Citizenship, and we have
not independently verified the facts supporting such opinion.
E. We have assumed the due authentication of the Certificates
by the Indenture Trustee.
F. We have assumed that all signatures (other than those of
the Owner Trustee or NBD) on documents and instruments examined by us are
genuine, that all documents and instruments submitted to us as originals
are authentic, and that all documents and instruments submitted to us as
copies conform with the originals, which facts we have not independently
verified.
G. We do not purport to be experts in respect of, or express
any opinion concerning, aviation law or other laws, rules or regulations
applicable to the particular nature of the equipment to be acquired by the
Owner Trustee on the date hereof.
H. Except as otherwise provided in paragraph 7, no opinion is
expressed as to the creation, attachment, perfection or priority of any
mortgage or security interest, of any instrument or document creating a
lien or security interest, or of the Indenture or as to the nature or
validity of title to any part of the Trust Estate.
I. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of
Section 406 of the Employee Retirement Income Security Act of 1974.
J. Whenever our opinion, with respect to the existence or
absence of facts, is qualified by the phrase "to our knowledge" or a phrase
of similar import, it is intended to indicate that during the course of our
representation in connection with the Owner Trustee Documents, the lawyers
in our firm who have been principally involved in representing NBD and the
Owner Trustee in connection with the Owner Trustee Documents have not
obtained actual knowledge of the existence or absence of such facts, as the
case may be, without the implication that we have made any investigation or
inquiry to determine the existence or absence of such facts.
K. The foregoing opinions are given as of the date hereof
only, and do not contemplate, and no opinion is given or intended, with
respect to subsequent changes in law or fact.
This opinion is rendered solely for your benefit and may not be
relied upon by any other person or entity for any purpose without our prior
written consent, except that the law firm of Xxxxx Xxxx & Xxxxxxxx may rely
on this opinion in connection with the rendering of its opinion dated the
date hereof in connection with the financing described herein.
Very truly yours,
Dickinson, Wright, Moon, Van Dusen & Xxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(5)(a)
[Letterhead of Xxxxx Xxxxxxxxxx]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
We have acted as special counsel to The Chase Manhattan Bank
(National Association), a national banking association, acting as Pass
Through Trustee (the "Pass Through Trustee") with respect to the Pass
Through Trust Agreement dated as of February 1, 1993, as amended and
restated as of October 1, 1995 (the "Pass Through Trust Agreement"), as
supplemented by the Series Supplements dated the date hereof, designated as
Series Supplement 1995-B1, 1995-B2 and 1995-B3, respectively (the "Series
Supplements"). We have advised the Pass Through Trustee with respect to
the Pass Through Agreement, the Series Supplements and the Participation
Agreement relating to the Pass Through Trust Agreement and each designated
Series Supplement (the "Participation Agreement") among the parties listed
therein. Additionally, we have advised the Pass Through Trustee with
respect to the Pass Through Certificates (the "Certificates") issued on the
date hereof.
This opinion is being delivered pursuant to Section 4.01(l)(ix)
of the Participation Agreement. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings set forth or
referred to in the Participation Agreement, the Pass Through Trust
Agreement or the Series Supplements, as applicable.
In connection with the opinions expressed herein, we have
reviewed executed counterparts of the Operative Agreements, the Pass
Through Trust Agreement and the Series Supplements. We have also examined
and relied upon the accuracy of the originals or certified, conformed,
photocopied or telecopied copies of such corporate records, certificates,
instruments and other documents as we have deemed necessary or appropriate
to enable us to render the opinions expressed herein. In all such
examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies
submitted to us as certified, conformed, photocopied or telecopied copies,
and as to certificates and telegraphic and telephonic confirmations given
by public officials, we have assumed the same to have been properly given
and to be accurate. As to all matters of fact material to our opinions, we
have, when relevant facts were not independently established, relied upon
representations and warranties contained in the Operative Agreements, the
Pass Through Trust Agreement and the Series Supplements and upon the
statements and certificates furnished to us.
Based upon and subject to the foregoing and the qualifications
hereinafter set forth, we are of the opinion that:
1. The Pass Through Trustee is a national banking association duly
organized and validly existing in good standing under the laws of the
United States of America holding a valid certificate to do business as a
national banking association, with banking and trust powers, and has the
corporate power and authority to execute, deliver and perform its
obligations under the Participation Agreement, the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the other Operative
Agreements to which it is a party. Upon execution of the Series
Supplements, the Pass Through Trustee will be deemed to have duly executed
the Pass Through Trust Agreement and thereupon become the Pass Through
Trustee under the Pass Through Trust Agreement and the Series Supplements
for all purposes thereof.
2. The Pass Through Trustee, in its individual and trust capacities,
has duly authorized, executed and delivered the Participation Agreement,
the Pass Through Trust Agreement and the Series Supplements and each of the
other Operative Agreements to which it is a party.
3. Each of the Participation Agreement, the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the other Operative
Agreements to which it is a party constitutes the legal, valid and binding
obligation of the Pass Through Trustee in its trust capacity (and, to the
extent provided in each such document, in its individual capacity)
enforceable against the Pass Through Trustee in its trust capacity (and, to
the extent provided in each such document, in its individual capacity) in
accordance with its terms thereof, except as the enforceability thereof may
be limited by (a) general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law), (b)
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and (c) public policy
considerations (in the case of the indemnity provisions contained therein).
4. The Certificates have been duly authorized and validly executed,
issued, delivered and authenticated by the Pass Through Trustee pursuant to
the Pass Through Trust Agreement and the Series Supplements; and the
Certificates acquired by the Underwriters under the Underwriting Agreement
are enforceable against the Pass Through Trustee and are entitled to the
benefits of the related Pass Through Trust Agreement and the related Series
Supplements, except as the enforceability thereof may be limited by (a)
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), (b) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights
of creditors generally and (c) public policy considerations (in the case of
the indemnity provisions contained therein).
5. The execution, delivery, and performance by the Pass Through
Trustee in its trust capacity (and, to the extent provided in each such
document, in its individual capacity), of the Participation Agreement, the
Pass Through Trust Agreement and the Series Supplements and each of the
other Operative Agreements to which it is a party and the consummation of
the transactions therein contemplated and compliance with the terms
thereof, and the issuance of the Certificates thereunder are not in
violation of the Articles of Association or By-laws of the Pass Through
Trustee or any law, governmental rule or regulation of the United States of
America or the State of New York governing the banking or trust powers of
the Pass Through Trustee or constitute a default under, or result in the
creation or the imposition of any Lien upon any property or assets of the
Pass Through Trustee, under any indenture, mortgage or other agreement or
instrument known to us to which the Pass Through Trustee is a party or by
which it or any of its property is bound, or any New York or Federal law,
rule or regulation governing the Pass Through Trustee's banking or trust
powers, or of any judgment, order or decree known to us to be applicable to
the Pass Through Trustee, in its individual or trust capacity, of any
court, regulatory body, administrative agency, government or governmental
body having jurisdiction over the Pass Through Trustee, in its individual
or trust capacity, or its properties.
6. Neither the execution and delivery by the Pass Through Trustee,
in its individual or trust capacity, as the case may be, of the
Participation Agreement, the Pass Through Trust Agreement, the Series
Supplements, the Certificates or any of the other Operative Agreements to
which it is a party, nor the consummation by the Pass Through Trustee, in
its individual or trust capacity, as the case may be, of any of the
transactions contemplated in the Participation Agreement, the Pass Through
Trust Agreement, the Series Supplements, the Certificates or any of the
other Operative Agreements to which it is a party requires consent or
approval of, giving of notice to, or registration with, or taking of any
other action with respect to, any Federal or state governmental authority
or agency having jurisdiction over the Pass Through Trustee.
7. There are no taxes, fees or other governmental charges payable
under the laws of the State of New York or any political subdivision
thereof in connection with the execution, delivery and performance by the
Pass Through Trustee, in its individual or trust capacity, as the case may
be, of the Participation Agreement, the Pass Through Trust Agreement, the
Series Supplements and the other Operative Agreements to which it is a
party or in connection with the execution, issuance and delivery of the
Certificates by the Pass Through Trustee, pursuant to the Series
Supplements.
8. Neither the trusts created by the Pass Through Trust Agreement
and the Series Supplements nor the Pass Through Trustee, in its individual
or trust capacity, as the case may be, nor their respective Affiliates,
successors or assigns, will be subject to any tax (including, without
limitation, net or gross income, tangible or intangible property, net
worth, capital, franchise or doing business tax), fee or other governmental
charge under the laws of the State of New York or any political subdivision
thereof (other than taxes imposed on the fees received by The Chase
Manhattan Bank (National Association) for acting as Pass Through Trustee
under the Series Supplements). Certificate holders who are not residents
of or otherwise subject to tax in New York will not be subject to any tax
(including, without limitation, net or gross income, tangible or intangible
property, net worth, capital, franchise or doing business tax), fee or
other governmental charge under the laws of the State of New York or any
political subdivision thereof as a result of purchasing, owning (including
receiving payments with respect to) or selling a Certificate. There are no
applicable taxes under the laws of the State of New York or any political
subdivision thereof upon or with respect to (a) the construction,
mortgaging, financing, refinancing, purchase, acquisition, acceptance,
rejection, delivery, nondelivery, transport, location, ownership,
insurance, control, assembly, possession, repossession, operation, use,
condition, maintenance, repair, sale, return, abandonment, replacement,
preparation, installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of title,
transfer of registration, exportation or other application or disposition
of the Aircraft or any interest in any thereof, (b) payments of Rent or
other receipts, income or earnings arising therefrom or received with
respect to the Aircraft or any interest in any thereof or payable pursuant
to the Lease, (c) any amount paid or payable pursuant to any Operative
Agreements, (d) the Aircraft or any interest therein or the applicability
of the Lease to the Aircraft or any interest in any thereof, (e) any or all
of the Operative Agreements, any or all of the Certificates or any interest
in any or all thereof or the offering, registration, reregistration,
issuance, acquisition, modification, assumption, reissuance, refinancing or
refunding of any or all thereof, and any other documents contemplated
thereby and amendments or supplements hereto and thereto, (f) the payment
of the principal of, or interest or premium on, or other amounts payable
with respect to, any or all of the Certificates, whether as originally
issued or pursuant to any refinancing, refunding, assumption, modification
or reissuance, or any other obligation evidencing any loan in replacement
of the loan evidenced by any or all of the Certificates, or (g) otherwise
with respect to or in connection with the transactions contemplated by the
Pass Through Trust Agreement, the Series Supplements, the Certificates and
the Operative Agreements, which would not have been imposed if the Pass
Through Trustee had not had its principal place of business in, had not
performed (either in its individual capacity or as Pass Through Trustee)
any or all of its administrative duties under the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the Operative
Agreements in, and had not engaged in any activities unrelated to the
transactions contemplated by the Pass Through Trust Agreement, the Series
Supplements, the Certificates and the Operative Agreements in, the State of
New York.
With respect to the opinions set forth in paragraphs 7 and 8
above, with your permission we have relied upon, and this opinion is
limited by, the assumptions set forth in the discussion entitled "Certain
New York Taxes" in the Prospectus Supplement to the Prospectus forming part
of Registration Number No. 33-56569 (the "Registration Statement") for the
registration of the Certificates with the Securities and Exchange
Commission. In addition, we have assumed that each Pass Through Trust (as
defined in the Registration Statement) will constitute a grantor trust
under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended (the "Code"), and will not be classified as a corporation
or as a Partnership (as defined in Section 7701 of the Code), and each Pass
Through Trust does not otherwise engage in business in New York. We
express no opinion as to the correctness of the foregoing assumptions and
we have conducted no independent investigation in this regard.
We express no opinion as to the laws of any jurisdiction other
than the laws of the State of New York and the Federal laws of the United
States of America. In addition, we express no opinion herein as to (i) any
Federal or state securities laws or blue sky laws and assume that the
Certificates have been registered, issued and sold in compliance with all
applicable Federal and state securities and blue sky laws and that the Pass
Through Trust Agreement and the Series Supplements have been duly qualified
under the provisions of the Trust Indenture Act of 1939, as amended, (ii)
any tax laws, (iii) any aviation laws including, without limitation, the
Transportation Code, (iv) any laws, statutes, rules or regulations
applicable to the particular nature of the equipment acquired or to be
acquired by the Owner Trustee, or (v) ERISA or any other pension and
employee benefit laws, rules or regulations. In addition, we express no
opinion as to the right, title or interest in or to the Trust Estate on the
part of any Person. We also express no opinion as to the perfection or
priority of any security interest created by any of the Operative
Agreements.
In rendering the opinions expressed herein, we have assumed
that (a) each of the Participation Agreement, the Pass Through Trust
Agreement, the Series Supplements, the Certificates and the other Operative
Agreements has been duly authorized, executed and delivered by the
respective parties thereto (other than the Pass Through Trustee) and
constitutes a legal, valid and binding obligation of each of such parties
(other than the Pass Through Trustee), enforceable against each of such
parties in accordance with the terms thereof, (b) each of such parties
(other than the Pass Through Trustee) has the requisite power, authority
and legal right to enter into and perform its respective obligations under
the Participation Agreement, the Pass Through Trust Agreement, the Series
Supplements, the Certificates and each of the other Operative Agreements to
which it is a party and (c) the transactions provided for in the Operative
Agreements are not within the prohibitions of Section 406 of ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended.
This opinion is furnished by us for the sole benefit of the
addressees hereof, each of whom we understand and agree may rely upon the
opinions set forth herein. No other person or entity is entitled to rely
on this opinion without our express written consent. This opinion is
limited to the matters stated herein and no opinion is implied or may be
inferred beyond the matters expressly stated herein.
Very truly yours,
Xxxxx Xxxxxxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
-------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(5)(b)
[Letterhead of The Chase Manhattan Bank, N.A.]
[Certificate Closing Date]
To the Persons Listed in Schedule A Attached Hereto
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
As Vice President and Senior Associate Counsel to The Chase Manhattan
Bank (National Association), a national banking association, acting as Pass
Through Trustee (the "Pass Through Trustee") with respect to the Pass
Through Trust Agreement dated as of February 1, 1993, as amended and
restated as of October 1, 1995 (the "Pass Through Trust Agreement"), as
supplemented by the Series Supplements dated the date hereof, designated as
Series Supplement 1995-B1, 1995-B2 and 1995-B3, respectively (the "Series
Supplements"), I advise you as follows with respect to the authorization,
execution and delivery by the Pass Through Trustee of (i) the Series
Supplements and (ii) the Participation Agreement (Federal Express
Corporation Trust No. N663FE) dated as of October 26, 1995 (as amended and
restated, the "Participation Agreement") among the parties listed therein.
Additionally, I have advised the Pass Through Trustee with respect to the
Pass Through Certificates (the "Certificates") issued on the date hereof.
Unless otherwise defined herein, capitalized terms used herein
shall have the respective meanings attributed thereto in the Participation
Agreement, the Pass Through Trust Agreement or the Series Supplements, as
applicable.
I have reviewed executed counterparts of the Pass Through Trust
Agreement, the Series Supplements, the Certificates, the Participation
Agreement and the other Operative Agreements to which the Pass Through
Trustee is a party. I have also examined the originals, or certified,
conformed, photocopied or telecopied copies of such corporate records,
certificates, instruments and other documents as I have deemed necessary to
appropriate to enable me to render the opinions expressed herein,
including, without limitation, certified copies of the By-laws of the Pass
Through Trustee, a certificate of the secretary of the Pass Through Trustee
as to certain matters, including the incumbency of the officer of the Pass
Through Trustee who executed the Pass Through Trust Agreement, the Series
Supplements, the Participation Agreement and the other certificates
executed and delivered in connection with the transactions contemplated by
any of the foregoing and who authenticated the Certificates and a
certificate of the Comptroller of the Currency, Washington, D.C., dated
September 23, 1965, as to the Pass Through Trustee's existence and
authority to do business as a national banking association and to act in a
fiduciary capacity.
In all such examinations, I have assumed the genuineness of
signatures on original documents (other than those of the Pass Through
Trustee) and the conformity to such original documents of all copies
submitted to me as certified, conformed, photocopied or telecopied copies,
and as to certificates and telegraphic and telephonic confirmations given
by public officials, I have assumed the same to have been properly given
and to be accurate. As to all matters of fact material to my opinions, I
have, when relevant facts were not independently established, relied upon
statements, representations and warranties contained in the Operative
Agreements, the Pass Through Trust Agreement, the Series Supplements and
the Certificates and upon the statements and certificates furnished to me.
A. Based upon the foregoing and subject to the limitations
expressed in paragraph B below, I am of the opinion that: the execution,
delivery and performance by the Pass Through Trustee of the Series
Supplements, the Certificates, the Participation Agreement and each of the
other Operative Agreements to which it is a party are not, to my knowledge,
in violation of any judgment, order, indenture, mortgage, bank credit
agreement, note or bond purchase agreement, long-term lease, license or
other agreement or instrument to which it is a party or by which it or its
properties may be bound. Upon execution of the Series Supplements, the
Pass Through Trustee will be deemed to have duly executed the Pass Through
Trust Agreement and thereupon become the Pass Through Trustee under the
Pass Through Trust Agreement and the Series Supplements for all purposes
thereof.
B. I am qualified to practice law in the State of New York and
I express no opinion as to any laws other than the laws of the State of New
York and the federal laws of the United States of America. Further,
without limiting the generality of the foregoing, I express no opinion with
respect to (i) the citizenship of the Pass Through Trustee, the
Transportation Code and the regulations promulgated thereunder, the impact
of the Transportation Code upon matters set forth in this opinion or any
other aviation or other laws, rules or regulations applicable to the
particular nature of the equipment acquired by the Owner Trustee; (ii)
federal securities laws, including, without limitation, the Securities Act
of 1933, as amended, and the Trust Indenture Act of 1939, as amended, or
state securities or blue sky laws; (iii) title to any property, real or
personal or the priority or perfection of any liens or security interests;
(iv) the authority or power of the Pass Through Trustee under the laws of
any jurisdiction other than New York or federal laws of the United States
of America to exercise any rights or remedies set forth in the Pass Through
Trust Agreement, the Series Supplements or the Operative Agreements or to
perform any duties or obligations on its part to be performed other than
those that can be performed in the State of New York; or (v) ERISA.
This opinion is being furnished only to the parties to whom
this opinion is addressed and is solely for their benefit, and no other
person or entity shall be entitled to rely on this opinion without my
express prior written consent. This opinion may not be used, circulated,
quoted, published or otherwise referred to for any purpose without my
express prior written consent. This opinion is limited to the matters
stated herein, and no opinion is implied or may be inferred beyond the
opinions expressly stated herein.
Very truly yours,
Xxxxxxx Xx Xxxxxx
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
-----------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(6)
[Letter of General Electric Company]
[Delivery Date]
To Each of the Parties named on Schedule A Hereto
Re: Federal Express Corporation Trust No. N663FE
Reference is made to (i) that certain Participation Agreement
(Federal Express Corporation Trust No. N663FE), dated as of October 26,
1995 (the "Participation Agreement") by and among Federal Express
Corporation, as Lessee ("Fed Ex"), Chrysler Capital Corporation, as Owner
Participant, NBD Bank ("NBD") (not in its individual capacity, except as
otherwise expressly set forth therein, but solely as Owner Trustee), The
Chase Manhattan Bank (National Association), as Indenture Trustee ("Chase")
and The Chase Manhattan Bank (National Association), as Pass Through
Trustee; (ii) that certain Purchase Agreement Assignment (Federal Express
Corporation Trust No. N663FE), dated as of October 26, 1995 (the "Purchase
Agreement Assignment") between Fed Ex, as Lessee and NBD, as Lessor; (iii)
that certain Lease Agreement (Federal Express Corporation Trust No.
N663FE), dated as of October 26, 1995 (the "Lease") between NBD (not in its
individual capacity, but solely as Owner Trustee), as Lessor and Fed Ex, as
Lessee; and (iv) that certain Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N663FE), dated as of October 26,
1995 (the "Trust Indenture") between NBD (not in its individual capacity),
as Owner Trustee and Chase, as Indenture Trustee.
I am an attorney employed by General Electric Company, a New
York corporation (the "Engine Manufacturer") and as such have acted as
counsel for the Engine Manufacturer in connection with the execution and
delivery by the Engine Manufacturer of the Consent (the "Consent"), and the
Engine Warranty Assignment (Federal Express Corporation Trust No. N663FE)
(the "Engine Warranty Assignment"), each attached to the Participation
Agreement as Exhibit F and dated as of October 26, 1995. The Consent and
the Engine Warranty Assignment covers two GE CF6-80C2-A5F series engines
bearing Engine Manufacturer's serial numbers 705-233 and 705-234,
respectively. In this connection, I have, or an attorney under my
supervision has, reviewed such documents as I have deemed necessary for the
purpose of this opinion, including, but without limiting the generality of
the foregoing, the General Terms Agreement No. 6-9034, dated as of July 3,
1991 between the Engine Manufacturer and Fed Ex (the "General Terms
Agreement"), the Engine Product Support Plan forming a part thereof (the
"Engine Product Support Plan"), the Participation Agreement, the Purchase
Agreement Assignment, the Lease and the Trust Indenture.
In making such examinations, I have relied upon the accuracy of
original, certified, conformed, photocopied or telecopied copies of such
records, agreements, certificates and other documents as I have deemed
necessary or appropriate to enable me to render the opinions expressed
herein. In all such examinations, I have assumed the genuineness of
signatures on original documents and the conformity to such original
documents of all copies submitted to me as certified, conformed,
photocopied or telecopied copies, and as to certificates and telegraphic
and telephonic confirmations given by public officials, I have assumed the
same to have been properly given and to be accurate. As to various
questions of fact material to such opinions, I have relied, when such
relevant facts were not independently established by me, solely upon the
accuracy of the statements, representations and warranties made in the
Participation Agreement, the Purchase Agreement Assignment, the Lease and
the Trust Indenture.
With your consent, and for the purposes of this opinion, I have
assumed (other than with respect to the Engine Manufacturer), the accuracy
of the following matters, but I have not made any independent investigation
or inquiry with respect thereto and I render no opinion on such matters:
(a) each of the Participation Agreement, the Purchase Agreement
Assignment, the Lease and the Trust Indenture have been duly and validly
authorized, executed and delivered by all parties thereto and constitutes
the legal, valid and binding obligations of each of such parties in
accordance with the respective terms thereof; and
(b) the respective parties to the Participation Agreement, the
Purchase Agreement Assignment, the Lease and the Trust Indenture have
obtained, and there are in full force and effect, any and all federal,
state, local or foreign governmental agencies and authorities in connection
with the transactions contemplated thereby, to the extent necessary for the
legality, validity and binding effect or enforceability of the Consent and
the Engine Warranty Assignment.
Based upon the foregoing, and subject to the specific assumptions,
qualifications and reliances herein set forth, and on the basis of my
consideration of such facts and law as I have deemed necessary for purposes
of this letter, it is my opinion that:
(1) The Engine Manufacturer has the full corporate power, authority
and the legal right to enter into and perform its obligations under the
General Terms Agreement, the Consent and the Engine Warranty Assignment.
The execution, delivery and performance by the Engine Manufacturer of each
of the General Terms Agreement, the Consent and the Engine Warranty
Assignment was duly authorized by all necessary corporate action on the
part of the Engine Manufacturer.
(2) Each of the General Terms Agreement, the Consent and Engine
Warranty Assignment has been duly authorized, executed and delivered by and
constitutes a legal, valid and binding obligation of the Engine
Manufacturer, enforceable against the Engine Manufacturer in accordance
with the respective terms thereof, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally and by general
equity principles.
(3) The Engine Product Support Plan insofar as it relates to the
Engine Warranties (as such term is defined in the Engine Warranty
Assignment), constitutes a legal, valid and binding obligation of the
Engine Manufacturer, enforceable against the Engine Manufacturer in
accordance with the terms thereof, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally and by general
equity principles.
The foregoing opinions are limited to the laws of the State of
New York and the federal laws of the United States of America, but no
opinion is expressed as to matters governed by the Transportation Code, or
by any other law, statute, rule or regulation of the United States relating
to the acquisition, ownership, registration, use, operation, maintenance,
repair, replacement or sale of aircraft. Further, no opinion is expressed
as to title to any engines or other property.
This opinion is furnished by me at your request for your sole
benefit and no other person or entity shall be entitled to rely on this
opinion without our express written consent. My opinion is limited to the
matters stated herein and no opinion is implied or may be inferred beyond
the matters expressly stated herein.
Very truly yours,
Xxxxx X. Xxxxx, Xx.
SCHEDULE A
Lessee
-------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
0 Xxxxx Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
---------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
------------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(7)
[Letterhead of Xxxxxxxx Chance]
[Delivery Date]
To The Opinion Addressees referred to in Schedule I hereof
Re: Federal Express Corporation Trust No. N663FE
Ladies and Gentlemen:
We are special French counsel for Airbus Industrie G.I.E.
("Airbus") and AVSA S.A.R.L. ("AVSA") and you have asked for our opinion
in connection with certain transactions contemplated in the Participation
Agreement (Federal Express Corporation Trust No. N663FE), dated as of
October 26, 1995 (the "Participation Agreement") among Federal Express
Corporation, as Lessee ("Federal Express"), Chrysler Capital Corporation,
as Owner Participant ("Owner Participant"), NBD Bank, a Michigan banking
corporation, not in its individual capacity but solely as Owner Trustee
under the Trust Agreement ("Owner Trustee"), The Chase Manhattan Bank
(National Association), a national banking association, not in its
individual capacity, except as otherwise stated, but solely as Indenture
Trustee under the Indenture ("Indenture Trustee") and The Chase Manhattan
Bank (National Association), a national banking association, not in its
individual capacity, except as otherwise stated, but solely as Pass Through
Trustee, and relating to the Aircraft to be operated by Federal Express.
This opinion is being delivered pursuant to Section 4.02(m)(x)
of the Participation Agreement.
Capitalized terms used in this opinion and not otherwise
defined shall have the meaning assigned thereto in the Participation
Agreement.
We have examined:
(i) a copy of an Airbus A300-600R Freighter Purchase Agreement dated as
of July 3, 1991 and made between AVSA and Federal Express with an executed
Consent and Guaranty of Airbus of same date attached thereto, sent to us by
facsimile by AINA Holdings Inc. ("AINA") on April 27, 1994;
(ii) a copy sent to us by facsimile by Xxxxx Xxxx & Xxxxxxxx on
_________________ of an executed Purchase Agreement Assignment dated as of
October 26, 1995 (the "Purchase Agreement Assignment") made between Federal
Express and the Owner Trustee;
(iii) a copy sent to us by facsimile by AINA on _________________ of
an executed Airbus Industrie Consent and Agreement to the Purchase
Agreement Assignment dated as of October 26, 1995;
(iv) a copy sent to us by facsimile by AINA on _________________ of
an executed but undated AVSA Consent and Agreement to the Purchase
Agreement Assignment dated as of October 26, 1995;
(v) a copy sent to us by AVSA on _________________ of an executed
but undated Warranty Xxxx of Sale, relating to the Aircraft and
transferring title therein from AVSA to the Owner Trustee (the "AVSA
Warranty Xxxx of Sale");
(vi) a copy sent to us by AVSA on _________________ of an executed
but undated Airbus Industrie G.I.E. Warranty, in favour of the
Participants (the "Airbus Warranty") warranting AVSA's Warranty Xxxx of
Sale;
(vii) a copy sent to us by facsimile by AVSA on _________________ of
a copy of an undated FAA Xxxx of Sale executed by AVSA in favour of the
Owner Trustee;
(viii) a copy sent to us by facsimile by AVSA on May 3, 1995 of an
executed power of attorney dated September 1, 1994 appointing Messrs. Xxxx
Xxxxx and Xxxxxx Xxxxxxxxxx, acting singly, as attorneys-in-fact of Xx.
Xxxx Xxxxxxx, Managing Director ("Adminstrateur Gerant") of Airbus;
(ix) a copy sent to us by facsimile by AVSA on May 3, 1995 of an executed
power of attorney dated August 16, 1995 appointing Mr. X. De Rouville as
attorney in fact of Xx. Xxxx Xxxxxxx, Managing Director ("Adminstrateur
Gerant") of Airbus; and
(x) a copy sent to us by facsimile by AVSA on September 15, 1995 of an
executed power of attorney dated 16 August, 1995 appointing X.X. Xxxxxxx
as attorney-in-fact of Xx. Xxxx Xxxxxxx, Managing Director
("Administrateur Gerant") of Airbus;
(xi) a copy sent to us by courier by AVSA on September 15, 1995 of an
executed power of attorney dated August 1, 1995 appointing Ms. Xxxxxxx
Lascaux and Xx. Xxxxxxx O. de Coninck, acting singly, as attorneys-in-fact
of Xx. Xxxxxxxxxx Xxxxxx, Chief Executive Office ("Gerant") of AVSA; and
(xii) a copy sent to us by courier by AVSA on September 15, 1995 of
an executed power of attorney dated August 1, 1995 appointing Ms.
Xxxxx-Xxxxxx Xxxxx-Xxxxx and Xxxxxxx Lascaux, Messrs. Xxxxxxx Xxxxxxxxxx,
Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxx xxx Xxxxxxx and Xxxxx Xxxxxx,
acting singly, as attorneys-in-fact of Xx. Xxxxxxxxxx Xxxxxx, Chief
Executive Office ("Gerant") of AVSA.
(the documents referred to in paragraphs (i) to (x) being referred to
herein as the "Documents").
Based on the foregoing, and such other documents, records and
other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, and assuming the Documents to have been duly
executed by the parties thereto (other than Airbus and AVSA), the
genuineness of all signatures and the completeness and conformity to the
originals of all documents supplied to us as copies or as facsimiles, we
are of the opinion that, subject to the qualifications set out below:
1. Airbus is a groupement d'interet economique duly organized and
existing under the laws of the French Republic, and has the power and
authority to carry on its business as now conducted. The present members
of Airbus are (i) Aerospatiale, Societe Nationale Industrielle, (ii)
Daimler-Benz Aerospace Airbus GmbH, (iii) British Aerospace (Operations)
Ltd. and (iv) Construcciones Aeronauticas S.A., and each of such
corporations is, without the need to proceed against any collateral
security for the indebtedness of Airbus or to take any other legal action
or process (except for service on Airbus by huissier of notice to perform
and subsequent failure by Airbus to do so), jointly and severally liable
with the other members for the debts of Airbus arising out of obligations
contracted by Airbus while such corporation is a member of Airbus.
2. AVSA is a societe a responsabilite limitee duly established and
existing under the laws of the French Republic and has the power and
authority to carry on its business as now conducted.
3. Each of Airbus and AVSA has full power and authority to enter
into and to execute, deliver and perform its obligations under those of the
Documents to which it is a party; such obligations are legal, valid and
binding upon them respectively, are enforceable in accordance with their
respective terms and rank pari passu with the other unsecured obligations
of Airbus or AVSA, as the case may be.
4. All actions, authorizations, approvals, consents, conditions and
things required at law to be taken, fulfilled and done to authorize the
execution, delivery and performance by Airbus and AVSA of those of the
Documents to which they respectively are party have been taken, obtained,
fulfilled and done; and no consents under any exchange control or
regulations of the French Republic are necessary in connection therewith.
5. Neither the execution and delivery and performance of the
Documents to which Airbus and AVSA respectively are a party, nor the
consummation of the transactions contemplated thereby, contravenes or
violates any law, governmental rule or regulation applicable to or binding
on Airbus or AVSA.
6. The choice of the laws of the State of New York to govern the
Documents (which are expressed to be so governed) is valid under the laws
of the French Republic, and a French court would uphold such choice of law
in any suit on the Documents brought in a French court.
7. Under the laws of the French Republic, Airbus and AVSA are
subject to private commercial law and to suit, and neither Airbus nor AVSA,
nor their respective properties have any immunity from the jurisdiction of
any court or any legal process (whether through service of notice,
attachment prior to notice, attachment prior to judgment, attachment in aid
of execution, execution or otherwise), except that:
(a) to the extent that Airbus or AVSA occupies or possesses any property
by virtue of any license or grant from the French State, such property and
the title of Airbus or AVSA thereto may be immune from suit or execution on
the grounds of sovereignty, and
(b) suit and execution against Airbus and AVSA or their respective
property may be affected by action taken by the French public authorities
in the interests of national defence or on the occurrence of exceptional
circumstances of paramount importance to the national interest of France,
as such concept is understood under the Constitution, laws and regulations
of France.
8. No French value added tax is due upon the transfer of title of the
Aircraft from AVSA to NBD Bank as Owner Trustee.
9. In connection with the obligations of Airbus and AVSA under the
Documents, this opinion must be read subject to the following
qualifications and observations as to French law:
(a) the remedy of specific performance may not be available in a French
court;
(b) the enforcement against Airbus of any of the Documents to which
it is a party may be limited by applicable bankruptcy, insolvency,
arrangement, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights generally, as such laws are applied to
Airbus. The enforcement against AVSA of any of the Documents to which it
is a party may be limited by such laws, as such laws are applied to AVSA.
The enforcement against any member of Airbus of any obligation of Airbus
contained in the Documents may be limited by such laws, as such laws are
applied to such member;
(c) in respect of payment obligations, a French court has power under
Article 1244-1 of the French Civil Code to grant time to a debtor (not in
excess of two years), taking into account the position of the debtor and
the needs of the creditor;
(d) in order to ensure the validity as against third parties of the
assignment made in the Purchase Agreement Assignment, it is necessary that
notice of such assignment be served on Airbus and AVSA by "huissier" in
accordance with the provisions of Article 1690 of the French Civil Code;
(e) in the event of any proceedings being brought in a French court in
respect of a monetary obligation expressed to be payable in a currency
other than French Francs, a French court would probably give judgment
expressed as an order to pay, not such currency, but its French Franc
equivalent at the time of payment or enforcement of judgment. With respect
to a bankruptcy, insolvency, liquidation, moratorium, reorganization,
reconstruction or similar proceedings, French law may require that all
claims or debts be converted into French Francs at an exchange rate
determined by the court at a date related thereto, such as the date of
commencement of a winding-up;
(f) a determination or certificate as to any matter provided for in the
Documents might be held by a French court not to be final, conclusive or
binding, if such determination or certificate could be shown to have an
unreasonable, incorrect or arbitrary basis or not to have been given or
made in good faith;
(g) claims may become barred by effluxion of time or may be or become
subject to defence of set-off or counterclaim;
(h) provisions in any Document providing that it or any other Documents
may be amended or varied or any provision thereof waived only by an
instrument in writing may not be effective;
(i) a French court may stay proceedings if concurrent proceedings are
being brought elsewhere;
(j) we express no opinion as to whether any provision in the Documents
conferring a right of set-off or similar right would be effective against a
liquidator or a creditor; and
(k) our opinion as to the enforceability of the Documents relates only to
their enforceability in France in circumstances where the competent French
court has and accepts jurisdiction. The term "enforceability" refers to
the legal character of the obligations assumed by the parties under the
documents, i.e., that they are of a character which French law enforces or
recognizes. It does not mean that the Documents will be enforced in all
circumstances or in foreign jurisdictions or by or against third parties or
that any particular remedy will be available.
(l) Article 899 of the French Tax Code provides that agreements
evidencing an undertaking to pay a sum of money are subject to stamp tax
("droit de timbre") of a nominal amount if made in the French Republic, if
made in a foreign country, such agreements are subject to a stamp tax of a
nominal amount before certain use thereof can be made in the French
Republic (Article 897 of the French Tax Code). However non-payment of such
stamp tax does not affect the legality, validity or enforceability of the
agreements.
In rendering the foregoing opinions, we have assumed that the
Documents (expressed to be governed by New York law) constitute the legal,
valid and binding obligations of the parties under New York law.
We are qualified as French Avocats.
No opinion is expressed herein as to laws other than the laws
of the French Republic as of the date hereof. This opinion is for your use
and that of no one else, and is limited to (i) the matters specifically
mentioned herein, and (ii) the purpose set out above.
Very truly yours,
Xxxxxxxx Chance
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
-------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
-----------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
--------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
------------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A(8)
[Letterhead of Xxxxxxxxx, Xxxxxx & Xxxxxxxx]
[Delivery Date]
To the Parties Named on Schedule A attached hereto
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.02(d)(iii) of the Participation Agreement (Federal Express Corporation
Trust No. N663FE), dated as of October 26, 1995 (the "Participation
Agreement") among Federal Express Corporation, as Lessee (the "Lessee"),
Chrysler Capital Corporation, as Owner Participant (the "Owner
Participant"), NBD Bank, not in its individual capacity but solely as Owner
Trustee (the "Owner Trustee"), The Chase Manhattan Bank (National
Association), as Indenture Trustee and The Chase Manhattan Bank (National
Association), as Pass Through Trustee, with respect to that portion of
Subtitle VII of Title 49 of the United States Code relative to the
recordation of instruments and the registration of aircraft thereunder.
The capitalized terms herein shall, unless otherwise defined,
have the same meanings given them in the Participation Agreement or in
Annex I attached hereto.
We have examined and filed on this date with the Federal
Aviation Administration (the "FAA") the following described instruments at
the respective times listed below:
(a) AC Form 8050-2 Aircraft Xxxx of Sale dated November __, 1995 (the
"FAA Xxxx of Sale") from AVSA, S.A.R.L., as seller, conveying title to the
Airframe to the Owner Trustee, which FAA Xxxx of Sale was filed at ____
_.m., C.S.T.;
(b) AC Form 8050-1 Aircraft Registration Application dated November __,
1995 (the "Aircraft Registration Application") by the Owner Trustee, as
applicant, covering the Airframe, which Aircraft Registration Application
was filed at ____ _.m., C.S.T.;
(c) Affidavit of the Owner Trustee dated November __, 1995 (the "Owner
Trustee Affidavit") pursuant to Section 47.7(c)(2)(ii) of Part 47 of the
Federal Aviation Regulations together with Affidavit of the Owner
Participant dated November __, 1995 (the "Owner Participant Affidavit")
attached thereto, which Owner Trustee Affidavit with the Owner Participant
Affidavit attached was filed at ____ _.m., C.S.T.;
(d) executed counterpart of Trust Agreement (Federal Express Corporation
Trust No. N663FE) dated as of October 26, 1995 (the "Trust Agreement")
between the Owner Participant and the Owner Trustee, which Trust Agreement
was filed at ____ _.m., C.S.T.;
(e) executed counterpart of Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N663FE) dated as of October 26,
1995 (the "Trust Indenture") between the Owner Trustee and the Indenture
Trustee, with executed counterpart of Indenture and Security Agreement
Supplement No. 1 (Federal Express Corporation Trust No. N663FE) dated
November __, 1995 (the "Trust Indenture Supplement") between the Owner
Trustee and the Indenture Trustee, covering the Aircraft, attached thereto,
which Trust Indenture with the Trust Indenture Supplement attached was
filed at ____ _.m., C.S.T.; and,
(f) executed counterpart of Lease Agreement (Federal Express Corporation
Trust No. N663FE) dated as of October 26, 1995 (the "Lease") between the
Owner Trustee, as lessor, and the Lessee, with executed counterparts of the
following attached thereto: (i) Lease Supplement Xx. 0 (Xxxxxxx Xxxxxxx
Xxxxxxxxxxx Xxxxx Xx. X000XX) dated November __, 1995 (the "Lease
Supplement") between the Owner Trustee, as lessor, and the Lessee, covering
the Aircraft; (ii) the Trust Indenture; and (iii) the Trust Indenture
Supplement, which Lease with the foregoing attachments (collectively, the
"Lease Attachments") attached was filed at ____ _.m., C.S.T.
The Confidential Omissions were intentionally omitted from the
FAA filing counterparts of the Lease and the Trust Indenture as containing
confidential financial information.
Based upon our examination of the above described instruments
and of such records of the FAA as we deemed necessary to render this
opinion, it is our opinion that:
1. the FAA Xxxx of Sale, the Trust Indenture with the Trust Indenture
Supplement attached and the Lease with the Lease Attachments attached are
all in due form for recordation by and have been duly filed for recordation
with the FAA pursuant to and in accordance with the provisions of 49 U.S.C.
Section 44107;
2. the Aircraft Registration Application, the Owner Trustee Affidavit
with the Owner Participant Affidavit attached and the Trust Agreement are
in due form for filing and have been duly filed with the FAA pursuant to
and in accordance with the provisions of 49 U.S.C. Section 44103(a) and
Section 47.7(c) of the Federal Aviation Regulations;
3. the Airframe is eligible for registration under 49 U.S.C. Section
44102 in the name of the Owner Trustee and the filing with the FAA of the
FAA Xxxx of Sale, the Aircraft Registration Application, the Owner Trustee
Affidavit with the Owner Participant Affidavit attached and the Trust
Agreement will cause the FAA to register the Airframe, in due course, in
the name of the Owner Trustee and to issue to the Owner Trustee an AC Form
8050-3 Certificate of Aircraft Registration for the Airframe pursuant to
and in accordance with the provisions of 49 U.S.C. Section 44103(a);
4. the Owner Trustee has valid legal title to the Airframe and the
Aircraft is free and clear of all Liens, except (i) the security interest
created by the Trust Indenture, as supplemented by the Trust Indenture
Supplement, and (ii) the rights of the parties under the Lease, as
supplemented by the Lease Supplement;
5. the rights of the Owner Trustee and the Lessee under the Lease, as
supplemented by the Lease Supplement, with respect to the Aircraft, are
perfected;
6. the Trust Indenture, as supplemented by the Trust Indenture
Supplement, constitutes a duly perfected first priority security interest
in the Aircraft and a duly perfected first assignment of all the right,
title and interest of the Owner Trustee in, to and under the Lease and the
Lease Supplement (insofar as such assignment affects an interest covered by
the recording system established by the FAA pursuant to 49 U.S.C. Section
44107), and no other registration of the Airframe or filings other than
filings with the FAA (which have been duly effected) are necessary in order
to perfect in any applicable jurisdiction in the United States (A) the
Owner Trustee's title to the Airframe or (B) such security interest and
assignment (insofar as such assignment affects an interest covered by the
recording system established by the FAA pursuant to 49 U.S.C. Section
44107), it being understood that no opinion is herein expressed as to the
validity, priority or enforceability of such security interest and
assignment under local law or as to the recognition of the perfection of
such security interest and assignment as against third parties in any legal
proceeding outside the United States;
7. no authorization, approval, consent, license or order of, or
registration with, or the giving of notice to, the FAA is required for the
valid authorization, delivery and performance of the Lease, as supplemented
by the Lease Supplement, the Trust Indenture, as supplemented by the Trust
Indenture Supplement, or the Trust Agreement except for such filings as are
referred to above; and,
8. neither the execution and delivery by the Loan Participants of the
Participation Agreement or by the Owner Participant of the Participation
Agreement or the Trust Agreement, nor other consummation of the
transactions contemplated thereby by the Loan Participants or the Owner
Participant, requires the consent or approval of, or the giving of notice
to, or the registration of, or the taking of any other action in respect of
the FAA, except (x) the registration of the Airframe, including the
submission of the Aircraft Registration Application, the Owner Trustee
Affidavit, the Owner Participant Affidavit and the Trust Agreement to the
FAA and (y) the filings for recordation specified elsewhere in this
opinion.
No opinion is expressed as to the Airframe during any period or
periods of time during which it has not been subject to United States
registration.
No opinion is expressed as to laws other than Federal laws of
the United States. In rendering this opinion, we were subject to the
accuracy of the FAA, its employees and agents, in the filing, indexing and
recording of instruments filed with the FAA and in the search for
encumbrance cross-reference index cards for the Engines. Further, in
rendering this opinion we are assuming the validity and enforceability of
the above described instruments under local law. Since our examination was
limited to records maintained by the FAA, our opinion does not cover liens
which are perfected without the filing of notice thereof with the FAA, such
as federal tax liens, liens arising under Section 1368(a) of Title 29 of
the United States Code, possessory artisan's liens, or matters of which the
parties had actual notice. In rendering this opinion we are assuming that
there are no documents with respect to the Aircraft which have been filed
for recording under the recording system of the FAA but have not yet been
listed in the available records of such system as having been so filed.
In rendering this opinion we have relied upon the opinion of
the Assistant Chief Counsel of the Aeronautical Center dated __________,
1995, a copy of which is attached hereto.
Very truly yours,
Xxxxxx X. Xxxxxxxx
For the Firm
Annex I
Certain Definitions
Airframe, Engines and Aircraft
One (1) Airbus Industrie A300F4-605R aircraft bearing
manufacturer's serial number 766 and U.S. Registration No. N663FE (the
"Airframe") and two (2) General Electric CF6-80C2-A5F aircraft engines
bearing manufacturer's serial numbers 705-233 and 705-234 (the "Engines")
(the Airframe and the Engines are referred to collectively as the
"Aircraft").
Confidential Omissions
The Lease was filed with the FAA, with (i) the Owner
Participant Amount, Interim Rent and Basic Rent (Schedule II), (ii) the
Stipulated Loss Values (Schedule III), (iii) the Termination Values
(Schedule IV), (iv) the Purchase Option Schedule (Schedule V) omitted from
the FAA filing counterpart thereof as containing confidential financial
information; and (v) the purchase price under Section 4.02(a)(F) set forth
in Schedule IV to the Participation Agreement, which was not attached to
the FAA filing counterpart of the Lease or otherwise filed with the FAA for
recordation.
SCHEDULE A
Lessee
------
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Owner Trustee
--------------
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Indenture Trustee
------------------
The Chase Manhattan Bank (National Association)
0 Xxxxx Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Pass Through Trustee
---------------------
The Chase Manhattan Bank (National Association)
4 Chase Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Owner Participant
------------------
Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Underwriters
-------------
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Letterhead of Federal Aviation Administration]
__________, 1995
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxxxx
000 Xxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Dear Xx. Xxxxxxxx:
Civil Aircraft N663FE
(Your File No. _________)
Pursuant to your letter of _____, 1995, this office has reviewed drafts of
the following described instruments:
(a) Trust Agreement (Federal Express Corporation Trust No. N663FE) dated
as of October 26, 1995 (the "Trust Agreement") between Chrysler Capital
Corporation, as trustor (the "Trustor") and NBD Bank, as owner trustee (the
"Owner Trustee");
(b) form of Affidavit by the Owner Trustee (the "Owner Trustee Affidavit")
pursuant to section 47.7(c)(2)(ii) of the Federal Aviation Regulations;
(c) form of Affidavit of the Trustor (the "Trustor Affidavit");
(d) Schedule II Definitions;
(e) Lease Agreement (Federal Express Corporation Trust No. N663FE) dated
as of October 26, 1995 (the "Lease") between the Owner Trustee, as lessor,
and Federal Express Corporation, as lessee (the "Lessee"); and,
(f) Trust Indenture and Security Agreement (Federal Express Corporation
Trust No. N663FE) dated as of October 26, 1995 (the "Trust Indenture")
between the Owner Trustee and The Chase Manhattan Bank (National
Association), as indenture trustee.
As you suggest in your letter, the Lease contains various opinions to
purchase in favor of the Lessee. Particularly, at Section 4.02 of the
Lease, there appear to be "fair market value" options. You indicate that
the options contained in Section 4.02(D) and 4.02(E) will be referenced in
Schedule V, however, they will be an amount not less than the greater of
the amount specified in Schedule V and fair market value. You represent
that the parties desire to have the event triggering these purchase options
to remain confidential. You further state that the option contained in
Section 4.02(F) will be contained in Ancillary Agreement I which will not
be attached to the Lease or recorded as separate instrument, however, it
[the option] will be an amount not less than the fair market value at the
time of the exercise of the purchase option.
In your letter, you request our opinion as to the following matters:
1. The eligibility of the captioned aircraft for registration under 49
U.S.C.Section 44102 in the name of the Owner Trustee upon the filing with
the FAA of the above described instruments together with appropriate title
documentation and an AC Form 8050-1 Aircraft Registration Application by
the Owner Trustee, covering the captioned aircraft;
2. The form of the Trust Agreement satisfies the requirements of section
47.7(c)(2)(i) of the Federal Aviation Regulations;
3. The form of the Owner Trustee Affidavit, as supported by the form of
the Trustor Affidavit, satisfies the requirements of Section 47.7(c)(2)(ii)
of the Federal Aviation Regulations;
4. The Lease is a "true lease" requiring registration under 49
U.S.C.Section 44102 in the name of the Owner Trustee;
5. The Lease, with (i) the Owner Participant Amount, Interim Rent and
Basic Rent (Schedule II), (ii) the Stipulated Loss Values (Schedule III),
(iii) the Termination Values (Schedule IV), (iv) the Purchase Option
Schedule (Schedule V) (this will be the purchase option contained in
Sections 4.02(D) and 4.02(E) intentionally omitted from the FAA filing
counterpart thereof, and (v) the EBO Price under Section 4.02(F) contained
in Ancillary Agreement I, which Ancillary Agreement I will be neither
attached to the Lease nor otherwise filed with the FAA Registry, all as
containing confidential financial information, is eligible for recordation
under 49 U.S.C. Section 44107(a)(1) and (2); and,
(6) The Trust Indenture is eligible for recordation under 49 U.S.C.
Section 44107(a)(1) and (2).
Based upon our review of the above referenced instruments, our opinion is
as follows:
(1) The captioned aircraft is eligible for registration under 49 U.S.C.
Section 44102 in the name of the Owner Trustee upon the filing with the FAA
of the above described instruments together with appropriate title
documentation and an AC Form 8050-1 Aircraft Registration Application by
the Owner Trustee, covering the captioned aircraft;
(2) The form of the Trust Agreement satisfies the requirements of Section
47.7(c)(2)(i) of the Federal Aviation Regulations;
(3) The form of the Owner Trustee Affidavit, as supported by the form of
the Trustor Affidavit, satisfies the requirements of Section 47.7(c)(2)(ii)
of the Federal Aviation Regulations.
(4) The Lease is a "true lease" requiring registration under 49 U.S.C.
Section 44102 in the name of the Owner Trustee;
(5) The Lease, with (i) the Owner Participant Amount, Interim Rent and
Basic Rent (Schedule II), (ii) the Stipulated Loss Values (Schedule III),
(iii) the Termination Values (Schedule IV), (iv) the Purchase Option
Schedule (Schedule V) (this will be the purchase option contained in
Section 4.02(D) and 4.02(E)) intentionally omitted from the FAA filing
counterpart thereof, and (v) the EBO Price under Section 4.02(F) contained
in Ancillary Agreement I, which Ancillary Agreement I will be neither
attached to the Lease nor otherwise filed with the FAA Registry, all as
containing confidential financial information, is eligible for recordation
under 49 U.S.C. Section 44107(a)(1) and (2); and,
(6) The Trust Indenture is eligible for recordation under 49 U.S.C.
Section 44107(1) and (2).
Sincerely,
Xxxxxx X. Standell
Assistant Chief Counsel
Aeronautical Center
By:
----------------------
General Attorney
EXHIBIT B
[FORM OF LEASE AGREEMENT]
[See Exhibit 4.g]
EXHIBIT C
[FORM OF INDENTURE]
[See Exhibit 4.c.1]
EXHIBIT D
[FORM OF TRUST AGREEMENT]
[See Exhibit 4.f]
EXHIBIT E
[FORM OF PURCHASE AGREEMENT ASSIGNMENT, CONSENT AND AGREEMENT,
AVSA CONSENT AND AGREEMENT]
[See Exhibit 4.g]
EXHIBIT F
[FORM OF ENGINE WARRANTY ASSIGNMENT AND ENGINE CONSENT]
[See Exhibit 4.g]
