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PURCHASE, ASSIGNMENT AND ASSUMPTION AGREEMENT 615
dated
as of December 1, 1996
between
GAUCHO-1 INC.,
as Assignor
and
GENERAL BANK,
as Assignee
One Boeing Model 737-524 Aircraft
Bearing U.S. Registration No. N37615 and
Manufacturer's Serial No. 27328
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CONTENTS
SECTION 1. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. Sale and Assignment . . . . . . . . . . . . . . . . . . 2
SECTION 3. Purchase and Assumption . . . . . . . . . . . . . . . . 2
SECTION 4. Purchase Price . . . . . . . . . . . . . . . . . . . . . 3
SECTION 5. Representations and Warranties of Assignor . . . . . . . 3
(a) Organization, Etc. . . . . . . . . . . . . 3
(b) Corporate Authorization . . . . . . . . . 4
(c) No Violation . . . . . . . . . . . . . . . 4
(d) Approvals . . . . . . . . . . . . . . . . 4
(e) Valid and Binding Agreements . . . . . . . 5
(f) Citizenship . . . . . . . . . . . . . . . 5
(g) No Liens . . . . . . . . . . . . . . . . . 5
(h) Litigation . . . . . . . . . . . . . . . . 5
(i) Event of Default . . . . . . . . . . . . . 5
(j) Event of Loss . . . . . . . . . . . . . . 5
(k) Ownership and Encumbrances . . . . . . . . 6
(1) Brokers' Fees . . . . . . . . . . . . . . 6
(m) Operative Agreements . . . . . . . . . . . 6
(n) Compliance . . . . . . . . . . . . . . . . 6
SECTION 6. Representations and Warranties of Assignee . . . . . . . 6
(a) Organization, Etc. . . . . . . . . . . . . 7
(b) Corporate Authorization . . . . . . . . . 7
(c) No Violation . . . . . . . . . . . . . . . 7
(d) Approvals . . . . . . . . . . . . . . . . 8
(e) Valid and Binding Agreements . . . . . . . 8
(f) Citizenship . . . . . . . . . . . . . . . 8
(g) No Liens . . . . . . . . . . . . . . . . . 8
(h) Investment by Assignee . . . . . . . . . . 8
(i) ERISA . . . . . . . . . . . . . . . . . . 9
(j) Litigation . . . . . . . . . . . . . . . . 9
(k) Securities Laws . . . . . . . . . . . . . 9
(1) Broker's Fees . . . . . . . . . . . . . . 9
(m) Compliance; Permitted Institution . . . . 9
PAGE i
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SECTION 7. Conditions Precedent to the Obligations of Assignor 9
(a) Purchase Price . . . . . . . . . . . . . . . . 10
(b) Due Authorization, Execution and Delivery . . 10
(c) Affidavit of Citizenship . . . . . . . . . . . 10
(d) Representations and Warranties . . . . . . . . 10
(e) Corporate Matters . . . . . . . . . . . . . . 10
(f) Additional Information . . . . . . . . . . . . 10
(g) Illegality . . . . . . . . . . . . . . . . . . 11
(h) No Proceedings . . . . . . . . . . . . . . . . 11
(i) Compliance with Operative Agreements . 11
(j) No Event of Loss . . . . . . . . . . . . . . . 11
(k) Opinions . . . . . . . . . . . . . . . . . . . 11
SECTION 8. Conditions Precedent to the Obligations of Assignee .
(a) Operative Agreements . . . . . . . . . . 12
(b) Due Authorization, Execution and Delivery . . 12
(c) Parent Guaranty . . . . . . . . . . . . . . . 12
(d) Letter Agreement; Closing Letter; Amendment 12
(e) Representations and Warranties . . . . . . . . 12
(f) Corporate Matters . . . . . . . . . . . . . . 13
(g) Additional Information . . . . . . . . . . . . 13
(h) Illegality . . . . . . . . . . . . . . . . . . 13
(i) No Proceedings . . . . . . . . . . . . . . . . 13
(j) Compliance with Operative Agreements . . . . . 13
(k) No Event of Loss . . . . . . . . . . . . . . . 13
(1) No Defaults . . . . . . . . . . . . . . . . . 14
(m) Opinions . . . . . . . . . . . . . . 14
SECTION 9. Payments . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 10. Certain Notices . . . . . . . . . . . . . . . . . . . 14
SECTION 11. Further Assurances . . . . . . . . . . . . . . . . . 15
SECTION 12. Taxes and Indemnities . . . . . . . . . . . . . . . . 15
(a) Transfer Taxes . . . . . . . . . . . . . . . . 15
(b) Assignee's Tax Indemnity . . . . . . . . . . 15
(c) Assignor's Tax Indemnity . . . . . . . . . . 15
(d) Assignor's Indemnity . . . . . . . . . . . . 16
(e) Assignee's Indemnity . . . . . . . . . . . . 16
(f) Notice of Claims . . . . . . . . . . . . . . 17
PAGE ii
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SECTION 13. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 17
(a) Notices . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Confidentiality . . . . . . . . . . . . . . . . . . . 18
(c) Headings . . . . . . . . . . . . . . . . . . . . . . . 19
(d) References . . . . . . . . . . . . . . . . . . . . . . 19
(e) GOVERNING LAW . . . . . . . . . . . . . . . . . . . . 19
(f) Severability . . . . . . . . . . . . . . . . . . . . . 19
(g) Amendments in Writing . . . . . . . . . . . . . . . . 19
(h) Survival . . . . . . . . . . . . . . . . . . . . . . . 20
(i) Expenses . . . . . . . . . . . . . . . . . . . . . . . 20
(j) Execution in Counterparts . . . . . . . . . . . . . . 20
(k) Entire Agreement . . . . . . . . . . . . . . . . . . . 20
(1) Exhibits . . . . . . . . . . . . . . . . . . . . . . . 20
(m) Successors and Assigns . . . . . . . . . . . . . . . . 21
(n) Recovery of Costs and Fees . . . . . . . . . . . . . . 21
(o) No Third Party Benefit . . . . . . . . . . . . . . . . 21
ATTACHMENTS:
Exhibit A Assignment and Assumption Agreement (FAA)
Exhibit B Affidavit of Citizenship
Exhibit C Parent Guaranty
Exhibit D Letter Agreement (Participation Agreement/Lease)
Exhibit E Tax Indemnity Agreement Amendment
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PURCHASE, ASSIGNMENT AND ASSUMPTION AGREEMENT 615
PURCHASE, ASSIGNMENT AND ASSUMPTION AGREEMENT 615 dated as of December
1, 1996 (this "AGREEMENT") between GAUCHO-1 INC., a Delaware corporation
("ASSIGNOR"), and GENERAL BANK, a California corporation ("Assignee").
Capitalized terms used herein without definition shall have the meanings given
them in Section 1.
WITNESSETH:
WHEREAS, Assignor desires to sell and assign to Assignee and Assignee
desires to purchase and assume from Assignor pursuant to the terms of that
certain Participation Agreement 615 dated as of August 1, 1994 (as amended to
the date hereof, the "PARTICIPATION AGREEMENT") among Continental Airlines, Inc.
("LESSEE"), Assignor, The Northwestern Mutual Life Insurance Company, General
Electric Company ("GUARANTOR"), First Security Bank, National Association
(formerly First Security Bank of Utah, National Association), not in its
individual capacity except as expressly provided therein, but solely as Owner
Trustee ("OWNER TRUSTEE"), and Wilmington Trust Company, not in its individual
capacity, except as expressly provided therein, but solely as Mortgagee
("MORTGAGEE"), except for Reserved Rights (as defined in Section 2), (a) all of
Assignor's right title and interest in, to and under (i) the Trust Estate and
(ii) the Participation Agreement, the Tax Indemnity Agreement and the Trust
Agreement, and (b) excluding the Letter Agreements (as defined in Section 5(m))
and the Owner Participant Guaranty, all of Assignor's right, title and interest,
if any, in, to and under each other Operative Agreement. The Participation
Agreement, the Tax Indemnity Agreement and the Trust Agreement are sometimes
collectively referred to herein as the "LESSOR DOCUMENTS"; and
WHEREAS, the Participation Agreement permits such sale, purchase,
assignment and assumption upon satisfaction of certain conditions heretofore or
concurrently being complied with.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements of the parties contained herein and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Assignor and Assignee agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms used but not defined herein shall have the meanings
specified in the Participation Agreement.
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SECTION 2. SALE AND ASSIGNMENT
Subject to the terms and conditions of this Agreement Assignor does
hereby sell, assign and transfer to Assignee at the Effective Time on the
Closing Date (in each case, as defined below) (a) all of Assignor's right,
title and interest in, to and under the Trust Estate and the Lessor Documents,
and (b) excluding the Letter Agreements and the Owner Participant Guaranty, all
of Assignor's right, title and interest, if any, in, to and under each other
Operative Agreement (collectively, but excluding the Letter Agreements, the
Owner Participant Guaranty and Reserved Rights (as defined below), the
"TRANSFERRED INTERESTS"); provided, that Assignor hereby reserves, and nothing
herein shall be construed as a sale, assignment or transfer, of the following
(collectively, "RESERVED RIGHTS"): any of the rights, titles and interests of
Assignor in and to each and every indemnity or other payment, and each and
every obligation to provide insurance (other than casualty insurance relating
to loss of or damage to the Aircraft), on behalf or in favor of Assignor, under
the Lessor Documents or any other Operative Agreement to the extent that such
indemnities, payments, and obligations relate to losses accruing prior to 11:38
p.m., Las Vegas time (the "EFFECTIVE TIME"), on December 27, 1996 (the "CLOSING
DATE") (it being agreed that Assignor retains all obligations related to
Reserved Rights); provided further, that such sale, assignment and transfer
shall be effective only upon the satisfaction or waiver, on or prior to the
Effective Time on the Closing Date, of the conditions set forth in Section 7,
such satisfaction to be evidenced by Assignor's acceptance from Assignee of the
Purchase Price (as defined in Section 4) and by the filing, or the release for
filing, for recordation with the FAA pursuant to the Act of the Assignment and
Assumption Agreement (FAA) (as defined in Section 5(a)).
The closing of the transactions contemplated hereby and by the
Assignment and Assumption Agreement (FAA) shall take place at the Effective
Time on the Closing Date at McCarran International Airport, Las Vegas, Nevada,
with additional activities taking place at the offices of Xxxxxxx Coie, 000
Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
SECTION 3. PURCHASE AND ASSUMPTION
Subject to the terms and conditions of this Agreement, Assignee does
hereby (i) purchase and accept the Transferred Interests, (ii) assume all the
duties, liabilities and obligations of Assignor in respect of the Transferred
Interests (except as described below) and (iii) confirms that it shall be deemed
a party to each Lessor Document and agrees to be bound by all the terms and
conditions of each thereof and to undertake all of the obligations of Assignor
contained in the Lessor Documents and the other Operative Agreements as though
originally named therein in place of Assignor, to the extent of the right title
or interest being conveyed hereby or by the
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Assignment and Assumption Agreement (FAA); provided, that Assignor shall remain
liable for the duties, liabilities and obligations of Assignor relating to
Reserved Rights; provided further, that such purchase, acceptance and
assumption shall be effective only upon the satisfaction or waiver, on or prior
to the Effective Time on the Closing Date, of the conditions set forth in
Section 8, such satisfaction to be evidenced by Assignee's payment to Assignor
of the Purchase Price and by the filing, or the release for filing, for
recordation with the FAA pursuant to the Act of the Assignment and Assumption
Agreement (FAA). Except as otherwise expressly provided in this Agreement
(including, without limitation, Section 12(d)), the assumption contemplated
hereby shall release Assignor from duties, liabilities and obligations under
the Operative Agreements in respect of the Transferred Interests.
SECTION 4. PURCHASE PRICE
The purchase price for the Transferred Interests shall be
$5,184,768.33 (the "PURCHASE PRICE"); at or prior to the Effective Time on the
Closing Date, Assignee shall pay the Purchase Price by wire transfer of
immediately available funds to:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Account No.: 00000000
ABA No.: 000000000
Attention: Xx. Xxxxx Xxxxxx,
tel. (000) 000-0000
in the name of Gaucho-1 Inc., identified as "Sale of Equity Interest 615" or
by such other means or to such other account at another institution as the
parties may agree.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
Assignor makes the following representations and warranties to
Assignee, Lessee, Guarantor, Owner Trustee and Mortgagee:
(A) ORGANIZATION, ETC.
Assignor is a corporation duly incorporated, validly existing and in
good standing under the Laws of the State of Delaware and has the corporate
power and authority to conduct the business in which it is currently engaged and
to own or hold under lease its properties and to enter into and perform its
obligations under this Agreement, the Assignment and Assumption Agreement 615
substantially in the form of Exhibit A hereto (the "ASSIGNMENT AND ASSUMPTION
AGREEMENT (FAA)") and Amendment No. 1 to Tax Indemnity Agreement 615
substantially in the form of
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Exhibit E hereto (the "TAX INDEMNITY AGREEMENT AMENDMENT"; together with this
Agreement and the Assignment and Assumption Agreement (FAA), the "ASSIGNOR
AGREEMENTS").
(B) CORPORATE AUTHORIZATION
Assignor has taken, or caused to be taken, all necessary corporate
action (including, without limitation, the obtaining of any consent or
approval of stockholders required by its Certificate of Incorporation or
By-Laws) to authorize the execution and delivery of each of the Assignor
Agreements, and the performance of its obligations thereunder.
(C) NO VIOLATION
The execution and delivery by Assignor of the Assignor Agreements, the
performance by Assignor of its obligations thereunder and the consummation by
Assignor on the Closing Date of the transactions contemplated thereby, do not
and will not (a) violate or contravene any provision of the Certificate of
Incorporation or By-Laws of Assignor, (b) violate or contravene any Law
applicable to or binding on Assignor (it being understood that insofar as this
representation relates to any Law relating to any Plan, this representation is
made assuming the truth of the representations contained in Sections
7.1.13(b)(iii) and 7.4.3 of the Participation Agreement and in Section 6(i) of
this Agreement and the continued validity of the position stated by the
Department of Labor in paragraph (b) of Interpretive Bulletin 29 C.F.R.
Section 2509.75-2 (notwithstanding anything to the contrary contained in Xxxx
Xxxxxxx Mutual Life Ins. Co. x. Xxxxxx Trust & Savings Bank, 000 X. Xx. 000
(1993))) or (c) violate, contravene or constitute any default under, or result
in the creation of any Lien (other than as provided for or otherwise permitted
in the Operative Agreements) upon the Trust Estate under, any indenture,
mortgage, chattel mortgage, deed of trust conditional sales contract, lease,
loan or other material agreement, instrument or document to which Assignor is a
party or by which Assignor or any of its properties is or may be bound or
affected.
(D) APPROVALS
The execution and delivery by Assignor of the Assignor Agreements, the
performance by Assignor of its obligations thereunder and the consummation by
Assignor on the Closing Date of the transactions contemplated thereby do not
and will not require the consent approval or authorization of, or the giving of
notice to, or the registration with, or the recording or filing of any
documents with, or the taking of any other action in respect of, (a) any
trustee or other holder of any Debt of Assignor and (b) any Government Entity,
other than the filing of the Assignment and Assumption Agreement (FAA).
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(E) VALID AND BINDING AGREEMENTS
The Assignor Agreements have been duly authorized, executed and
delivered by Assignor and, assuming the due authorization, execution and
delivery by the other party or parties thereto, constitute the legal, valid and
binding obligations of Assignor and are enforceable against Assignor in
accordance with the respective terms thereof, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, receivership, moratorium
and other similar Laws affecting the rights of creditors generally and general
principles of equity, whether considered in a proceeding at law or in equity.
(F) CITIZENSHIP
On the Closing Date, Assignor is a Citizen of the United States
(without giving consideration to Section 47.9 of the FAA Regulations).
(G) NO LIENS
On the Closing Date, there are no Lessor Liens attributable to
Assignor or any Affiliate thereof in respect of all or any part of the Trust
Estate. To the knowledge of Assignor, there are no other Liens (other than
Permitted Liens) in respect of all or any part of the Trust Estate.
(H) LITIGATION
There are no pending or, to the Actual Knowledge of Assignor,
threatened actions or proceedings against Assignor before any court,
administrative agency or tribunal which, if determined adversely to Assignor,
would materially adversely affect the ability of Assignor to perform its
obligations under the Assignor Agreements.
(I) EVENT OF DEFAULT
There exists no Default or Event of Default caused by or attributable
to Assignor or any Affiliate thereof. To the knowledge of Assignor, there
exists no Lease Default, Lease Event of Default, and, as to acts or omissions
of Persons other than Assignor, no Default or Event of Default.
(J) EVENT OF LOSS
To the knowledge of Assignor, there exists no Event of Loss or event
which, with notice or passage of time, or both, would constitute an Event of
Loss.
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(K) OWNERSHIP AND ENCUMBRANCES
Assignor is the sole beneficial owner of the Transferred Interests.
Except as expressly contemplated by the Operative Agreements, Assignor has not
previously sold, assigned, encumbered, transferred or conveyed, and, except as
contemplated hereby, has no obligation to sell, assign, encumber, transfer or
convey, any of its right, title or interest in, to or under the Transferred
Interests. At the closing hereunder, Assignor will convey to Assignee all of
the right, title and interest of Assignor in, to and under the Transferred
Interests.
(L) BROKERS' FEES
Assignee is not liable for the fees of any broker or other Person
acting on Assignor's behalf in connection with the transactions contemplated
hereby.
(M) OPERATIVE AGREEMENTS
Except for (i) three certain letter agreements (the "LETTER
AGREEMENTS") that are Lessee Operative Agreements that are no longer in effect
with respect to the Owner Participant after the Effective Time on the Closing
Date and are not otherwise effective with respect to the Transferred Interests,
and (ii) the Owner Participant Guaranty, each of which Assignor is not
delivering to Assignee, Assignor has provided Assignee with true and complete
copies of the Lessor Documents and each other Operative Agreement delivered to
it. Except for this Agreement, the Assignment and Assumption Agreement (FAA)
and the Tax Indemnity Agreement Amendment, there are no other documents or
agreements relating to the Aircraft, the subject matter of the Operative
Agreements or the transactions contemplated hereby to which Assignee is not a
party that will affect or bind Assignee after the Effective Time on the Closing
Date.
(N) COMPLIANCE
Assignor has complied with all requirements of Assignor contained in
the Operative Agreements, including without limitation Section 12.1 of the
Participation Agreement to permit Assignor to transfer the Transferred Interests
to Assignee.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE
Assignee makes the following representations and warranties to
Assignor, Lessee, Guarantor, Owner Trustee and Mortgagee:
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(A) ORGANIZATION, ETC.
Assignee is a corporation duly incorporated, validly existing and in
good standing under the Laws of the State of Delaware and has the corporate
power and authority to conduct the business in which it is currently engaged
and to own or hold under lease its properties and to enter into and perform its
obligations under this Agreement, the Assignment and Assumption Agreement (FAA)
and the Lessor Documents.
(B) CORPORATE AUTHORIZATION
Assignee has taken, or caused to be taken, all necessary corporate
action (including, without limitation, the obtaining of any consent or approval
of stockholders required by its Certificate of Incorporation or By-Laws) to
authorize the execution and delivery of each of this Agreement and the
Assignment and Assumption Agreement (FAA), and the performance of its
obligations hereunder, thereunder and under the Lessor Documents.
(C) NO VIOLATION
The execution and delivery by Assignee of this Agreement and the
Assignment and Assumption Agreement (FAA), the performance by Assignee of its
obligations hereunder, thereunder and under the Lessor Documents, and the
consummation by Assignee on the Closing Date of the transactions contemplated
hereby and thereby, do not and will not (a) violate or contravene any provision
of the Certificate of Incorporation or By-Laws of Assignee, (b) violate or
contravene any Law applicable to or binding on Assignee (it being understood
that insofar as this representation relates to any Law relating to any Plan,
this representation is made assuming the truth of the representations contained
in Sections 7.1.13(b)(iii) and 7.4.3 of the Participation Agreement and the
continued validity of the position stated by the Department of Labor in
paragraph (b) of Interpretive Bulletin 29 C.F.R. Section 2509.75-2
(notwithstanding anything to the contrary contained in Xxxx Xxxxxxx Mutual Life
Ins. Co. x. Xxxxxx Trust & Savings Bank, 000 X. Xx. 000 (1993))) or (c)
violate, contravene or constitute any default under, or result in the creation
of any Lien (other than as provided for or otherwise permitted in the Operative
Agreements) upon the Trust Estate under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract lease, loan or other
material agreement instrument or document to which Assignee is a party or by
which Assignee or any of its properties is or may be bound or affected.
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(D) APPROVALS
The execution and delivery by Assignee of this Agreement and the
Assignment and Assumption Agreement (FAA), the performance by Assignee of its
obligations hereunder, thereunder and under the Lessor Documents and the
consummation by Assignee on the Closing Date of the transactions contemplated
hereby and thereby do not and will not require the consent, approval or
authorization of, or the giving of notice to, or the registration with, or the
recording or filing of any documents with, or the taking of any other action in
respect of, (a) any trustee or other holder of any Debt of Assignee and (b) any
Government Entity, other than the filing of the Assignment and Assumption
Agreement (FAA).
(E) VALID AND BINDING AGREEMENTS
This Agreement and the Assignment and Assumption Agreement (FAA) have
been duly authorized, executed and delivered by Assignee and, assuming the due
authorization, execution and delivery by the other party or parties thereto,
this Agreement, the Assignment and Assumption Agreement (FAA) and the Lessor
Documents constitute the legal, valid and binding obligations of Assignee and
are enforceable against Assignee in accordance with the respective terms
thereof, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar Laws
affecting the rights of creditors generally and general principles of equity,
whether considered in a proceeding at law or in equity.
(F) CITIZENSHIP
On the Closing Date, Assignee is a Citizen of the United States
(without giving consideration to Section 47.9 of the FAA Regulations).
(G) NO LIENS
On the Closing Date, there are no Lessor Liens attributable to
Assignee or any Affiliate thereof in respect of all or any part of the Trust
Estate.
(H) INVESTMENT BY ASSIGNEE
Assignee is acquiring the Transferred Interests for its own account
for investment and not with a view to any resale or distribution thereof,
except that, subject to the restrictions on transfer set forth in Section 12 of
the Participation Agreement, the disposition by Assignee of the Transferred
Interests shall at all times be within its control.
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(I) ERISA
No part of the funds to be used by Assignee to acquire or hold its
interests in the Trust Estate to be acquired by it under this Agreement and the
Assignment and Assumption Agreement (FAA) directly or indirectly constitutes
assets of a Plan.
(J) LITIGATION
There are no pending or, to the Actual Knowledge of Assignee,
threatened actions or proceedings against Assignee before any court,
administrative agency or tribunal which, if determined adversely to Assignee,
would materially adversely affect the ability of Assignee to perform its
obligations under this Agreement, the Assignment and Assumption Agreement (FAA)
or the Lessor Documents.
(K) SECURITIES LAWS
Neither Assignee nor any Person whom Assignee has authorized to act on
its behalf has directly or indirectly offered any beneficial interest in or
Security relating to the ownership of the Aircraft or any interest in the Trust
Estate, or any of the Loan Certificates or any other interest in or Security
under the Trust Indenture for sale to, or solicited any offer to acquire any of
the same from, any Person in violation of the Securities Act or applicable
state securities Laws.
(L) BROKER'S FEES
No Persons acting on behalf of Assignee other than D'Accord Financial
Services, Inc. and TransCapital Corporation (the "BROKERS") are or will be
entitled to any broker's fee, commission or finder's fee in connection with the
transactions contemplated hereby, and any such fees payable to the Brokers
shall be paid by Assignee.
(M) COMPLIANCE; PERMITTED INSTITUTION
Assignee has complied with all requirements of Assignee contained in
the Operative Agreements, including without limitation Section 12.1 of the
Participation Agreement, to permit Assignor to transfer the Transferred
Interests to Assignee. Assignee is a Permitted Institution.
SECTION 7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF ASSIGNOR
The obligation of Assignor to sell and assign the Transferred
Interests to Assignee on the Closing Date is subject to the satisfaction or
waiver of the following conditions:
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(A) PURCHASE PRICE
Assignee shall have paid the Purchase Price in the manner specified in
Section 4.
(B) DUE AUTHORIZATION, EXECUTION AND DELIVERY
This Agreement and the Assignment and Assumption Agreement (FAA) shall
have been duly authorized, executed and delivered by Assignee, and, assuming
due execution and delivery by Assignor, the Assignment and Assumption Agreement
(FAA) shall have been duly filed, or released for filing, for recordation with
the FAA pursuant to the Act.
(C) AFFIDAVIT OF CITIZENSHIP
An affidavit of United States citizenship substantially in the form of
Exhibit B hereto (the "AFFIDAVIT OF CITIZENSHIP") shall have been duly
authorized, executed, notarized and delivered by an authorized official of
Assignee, and shall have been duly filed, or released for filing, with the FAA
pursuant to the Act.
(D) REPRESENTATIONS AND WARRANTIES
The representations and warranties of Assignee contained herein shall
be true and correct as of the Closing Date with the same force and effect as
though such representations and warranties had been made as of the Closing
Date.
(E) CORPORATE MATTERS
Assignor shall have received copies of (i)(A) the certificate of
incorporation and by-laws of Assignee, and (B) resolutions of the Board of
Directors of Assignee duly authorizing the execution, delivery and performance
by Assignee of this Agreement and the Assignment and Assumption Agreement (FAA)
and the performance of its obligations under the Lessor Documents, in each case
certified by the Secretary or an Assistant Secretary of Assignee as of the
Closing Date, together with (ii) an incumbency certificate as to the person or
persons authorized to execute and deliver this Agreement and the Assignment and
Assumption Agreement (FAA) on behalf of Assignee, duly executed by the
Secretary or an Assistant Secretary of Assignee as of the Closing Date.
(F) ADDITIONAL INFORMATION
Assignor shall have received such other documents and evidence with
respect to Assignee as Assignor may reasonably request in order to establish
the authority of Assignee to consummate the transactions contemplated by this
Agreement the
PAGE 10
15
consummation of the transactions contemplated by this Agreement, the taking of
all appropriate corporate action in connection therewith and compliance with
the conditions set forth in this Agreement.
(G) ILLEGALITY
On the Closing Date, the performance of the transactions contemplated
hereby, upon the terms and conditions set forth herein, shall not, in the
reasonable judgment of Assignor, violate, and shall not subject Assignor to any
penalty or liability under, any law, rule or regulation binding upon Assignor.
(H) NO PROCEEDINGS
On the Closing Date, no legal or governmental action, suit or
proceeding shall have been instituted or threatened before any court,
administrative agency or tribunal, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court, administrative agency or
tribunal to set aside, restrain, enjoin or prevent the consummation of this
Agreement or the transactions contemplated hereby.
(I) COMPLIANCE WITH OPERATIVE AGREEMENTS
Assignee shall have complied with all requirements of Assignee under
the Operative Agreements for transfer of the Transferred Interests, such that
Assignor shall be released from all duties, liabilities and obligations under
the Participation Agreement, the Trust Agreement, the Tax Indemnity Agreement
and all other Operative Agreements in respect of the Transferred Interests from
and after the Effective Time on the Closing Date.
(J) NO EVENT OF LOSS
On the Closing Date, there shall not exist an Event of Loss.
(K) OPINIONS
Assignor shall have received opinions reasonably satisfactory to
Assignor, dated the Closing Date, from (i) Frandzel & Share, special counsel
for Assignee, (ii) Frandzel & Share, General Counsel to Assignee and (iii)
Xxxxx Xxxxx & Xxxxxx, special FAA counsel in Oklahoma City ("SPECIAL FAA
COUNSEL"), in each case with respect to such matters and to such effect as
Assignor shall reasonably request, which shall include, in the case of the
opinion referred to in clauses (i) and/or (ii) above, the opinions required by
Section 12.1.l(a)(ii) of the Participation Agreement.
PAGE 11
16
Promptly upon the recordation of the Assignment and Assumption
Agreement (FAA) pursuant to the Act, Special FAA Counsel shall deliver to
Assignor an opinion as to the due recording of such document.
SECTION 8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF ASSIGNEE
The obligation of Assignee to purchase the Transferred Interests from
Assignor and assume the obligations related thereto are subject to the
satisfaction or waiver of the following conditions:
(A) OPERATIVE AGREEMENTS
The Operative Agreements other than the Letter Agreements and the
Owner Participant Guaranty shall be in full force and effect.
(B) DUE AUTHORIZATION, EXECUTION AND DELIVERY
This Agreement and the Assignment and Assumption Agreement (FAA) shall
have been duly authorized, executed and delivered by Assignor, and, assuming
due execution and delivery by Assignee, the Assignment and Assumption Agreement
(FAA) shall have been duly filed, or released for filing, for recordation with
the FAA pursuant to the Act.
(C) PARENT GUARANTY
A guaranty of certain obligations of Assignor hereunder substantially
in the form of Exhibit C hereto (the "PARENT GUARANTY"), shall have been duly
authorized, executed and delivered by The Boeing Company.
(D) LETTER AGREEMENT; CLOSING LETTER; AMENDMENT
Lessee shall have (i) entered into a letter agreement with Assignee
substantially in the form of Exhibit D hereto ("LETTER AGREEMENT (PARTICIPATION
AGREEMENT/LEASE"), and (ii) provided a closing letter to Assignee, in each
case, with respect to such matters as Assignee shall reasonably request. The
Tax Indemnity Agreement Amendment shall have been duly authorized, executed and
delivered by the parties thereto.
(E) REPRESENTATIONS AND WARRANTIES
The representations and warranties of Assignor contained herein shall
be true and correct as of the Closing Date with the same force and effect as
though such representations and warranties had been made as of the Closing
Date.
PAGE 12
17
(F) CORPORATE MATTERS
Assignee shall have received copies of (i)(A) the certificate of
incorporation and by-laws of Assignor, and (B) general authorizing resolutions
of the Board of Directors of Assignor and related delegations of authority
contemplated thereby duly authorizing the execution, delivery and performance
by Assignor of the Assignor Agreements, in each case certified by the Secretary
or an Assistant Secretary of Assignor as of the Closing Date, together with
(ii) an incumbency certificate as to the person or persons authorized to
execute and deliver the Assignor Agreements on behalf of Assignor, duly
executed by the Secretary or an Assistant Secretary of Assignor as of the
Closing Date.
(G) ADDITIONAL INFORMATION
Assignee shall have received such other documents and evidence with
respect to Assignor as Assignee may reasonably request in order to establish
the authority of Assignor to consummate the transactions contemplated by this
Agreement, the consummation of the transactions contemplated by this Agreement,
the taking of all appropriate corporate action in connection therewith and
compliance with the conditions set forth in this Agreement.
(H) ILLEGALITY
On the Closing Date, the performance of the transactions contemplated
hereby, upon the terms and conditions set forth herein, shall not, in the
reasonable judgment of Assignee, violate, and shall not subject Assignee to any
penalty or liability under, any law, rule or regulation binding upon Assignee.
(I) NO PROCEEDINGS
On the Closing Date, no legal or governmental action, suit or
proceeding shall have been instituted or threatened before any court,
administrative agency or tribunal, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court, administrative agency or
tribunal to set aside, restrain, enjoin or prevent the consummation of this
Agreement or the transactions contemplated hereby.
(J) COMPLIANCE WITH OPERATIVE AGREEMENTS
Assignor shall have complied with all requirements of Assignor under
the Operative Agreements for transfer of the Transferred Interests.
(K) NO EVENT OF LOSS
On the Closing Date, there shall not exist an Event of Loss.
PAGE 13
18
(L) NO DEFAULTS
On the Closing Date, after giving effect to the consummation of the
transactions contemplated hereby, there shall not exist any Lease Default, Lease
Event of Default, Default or Event of Default.
(M) OPINIONS
Assignee shall have received opinions reasonably satisfactory to
Assignee, dated the Closing Date, from (i) Xxxxxxx Coie, special counsel to
Assignor, (ii) Xxxxx X. Day, Esq., attorney, Office of the General Counsel of
Boeing, and (iii) Special FAA Counsel, in each case with respect to such
matters and to such effect as Assignee shall reasonably request.
Promptly upon the recordation of the Assignment and Assumption
Agreement (FAA) pursuant to the Act, Special FAA Counsel shall deliver to
Assignee an opinion as to the due recording of such document.
SECTION 9. PAYMENTS
Assignor hereby covenants and agrees to pay over to Assignee, if and
when received, any amounts paid to or for the benefit of Assignor that
constitute Transferred Interests, and until so paid over any such amounts
received by Assignor shall be received and held by Assignor in trust for
Assignee. Assignee hereby covenants and agrees to pay over to Assignor, if and
when received, any amounts paid to or for the benefit of Assignee that
constitute Reserved Rights, and until so paid over any such amounts received by
Assignee shall be received and held by Assignee in trust for Assignor.
SECTION 10. CERTAIN NOTICES
Assignor hereby covenants and agrees promptly to forward to Assignee
any notice Assignor receives from any party to any Operative Agreement (other
than Assignee) pursuant to and in accordance with this Agreement the Assignment
and Assumption Agreement (FAA), the Lessor Documents, or any other Operative
Agreement except to the extent solely related to Reserved Rights. Assignee
hereby covenants and agrees promptly to forward to Assignor any notice Assignee
receives from any party to any Operative Agreement (other than Assignor)
pursuant to and in accordance with this Agreement, the Assignment and Assumption
Agreement (FAA), the Lessor Documents, or any other Operative Agreement related
to the Reserved Rights.
PAGE 14
19
SECTION 11. FURTHER ASSURANCES
Each party agrees, upon the reasonable request of the other party, at
any time and from time to time, promptly to execute and deliver all such
further documents, and promptly to take and forbear from all such action, as
may be reasonably necessary or appropriate in order more effectively to confirm
or carry out the provisions of this Agreement.
SECTION 12. TAXES AND INDEMNITIES
(A) TRANSFER TAXES
Assignee hereby covenants and agrees that Assignee shall pay any and
all sales taxes, use taxes and similar transfer taxes (including, without
limitation, any charges, such as gross receipts taxes, in lieu thereof)
(collectively, "TRANSFER TAXES"), and any registration, document or filing
fees, that may be imposed in connection with the sale, assignment and transfer
of the Transferred Interests, including, without limitation, those relating to
the transfer of rights and other interests in and to, and the assumptions of
duties, liabilities and obligations in, to and under this Agreement, the
Assignment and Assumption Agreement (FAA), the Transferred Interests, the
Aircraft and the Operative Agreements.
(B) ASSIGNEE'S TAX INDEMNITY
Assignee hereby covenants and agrees to indemnify, protect, defend,
save and keep harmless Assignor, on an after tax basis, against all fees,
duties, taxes, levies, charges or withholdings of any kind or nature whatever,
and any penalties, fines or interest thereon in addition thereto ("TAXES") that
are imposed with regard to the Transferred Interests with respect to any
actions, omissions, events or occurrences arising during any period after the
Effective Time on the Closing Date.
(C) ASSIGNOR'S TAX INDEMNITY
Except as expressly provided elsewhere herein, Assignor hereby
covenants and agrees to indemnify, protect, defend, save and keep harmless,
Assignee, on an after tax basis, from and against any and all fees, duties,
taxes, levies, charges or withholdings of any kind or nature whatsoever, and
any penalties, fines, or interest thereon or other additions thereto, which at
any time or from time to time may be imposed on or with respect to, or asserted
against, the Transferred Interests, the Aircraft or any part thereof or any
interest therein, or Assignee, by any federal, state, local or foreign
government or taxing authority in connection with or relating to this
Agreement, the Assignment and Assumption Agreement (FAA), the Transferred
Interests, the Aircraft and the Operative Agreements, and which are
attributable to the
PAGE 15
20
period prior to the Effective Time on the Closing Date, or to acts, omissions,
events or occurrences arising prior to the Effective Time on the Closing Date;
provided, that Assignor shall not be required to pay or indemnify Assignee for
taxes on or measured by the net income of Assignee.
(D) ASSIGNOR'S INDEMNITY
Assignor hereby covenants and agrees upon demand of Assignee to pay
and assume liability for, and indemnify, protect, defend, save and keep
harmless Assignee, on an after-tax basis, from and against any and all
liabilities, taxes, fees, duties, charges, withholdings, obligations, losses,
damages, settlements, claims, actions, suits, penalties, costs and expenses
(including, without limitation, reasonable fees and expenses of counsel) of
whatsoever kind and nature which may at any time or from time to time be
imposed upon, incurred by or asserted against Assignee or any of its
Affiliates, successors, agents, servants, representatives, directors or
officers in any way relating to, resulting from or arising out of (i) any
inaccuracy or breach of any representation or warranty made by Assignor under
this Agreement or the Assignment and Assumption Agreement (FAA), (ii) any
inaccuracy or breach of any representation or warranty made by Assignor under
the Operative Agreements in respect of or to the extent attributable to the
period prior to the Effective Time on the Closing Date or (iii) any failure by
Assignor to have observed or performed any of its obligations under or in
connection with the Operative Agreements in respect of or to the extent
attributable to the period prior to the Effective Time on the Closing Date.
(E) ASSIGNEE'S INDEMNITY
(i) Assignee hereby covenants and agrees upon demand of Assignor
to pay and assume liability for, and indemnify, protect, defend, save and keep
harmless, Assignor, on an after-tax basis, from and against any and all
liabilities, taxes, fees, duties, charges, withholdings, obligations, losses,
damages, settlements, claims, actions, suits, penalties, costs and expenses
(including, without limitation, reasonable fees and expenses of counsel) of
whatsoever kind and nature which may at any time or from time to time be
imposed upon, incurred by or asserted against Assignor or any of its
Affiliates, agents, servants, representatives, directors or officers in any way
relating to, resulting from or arising out of any inaccuracy or breach of any
representation or warranty made by Assignee under this Agreement or the
Assignment and Assumption Agreement (FAA), or any failure by Assignee to have
observed or performed any of its obligations under or in connection with the
Operative Agreements in respect of or to the extent attributable to the period
from and after the Effective Time on the Closing Date.
PAGE 16
21
(ii) Assignee hereby acknowledges and agrees that in the event
Assignee shall cause any of the Operative Agreements to be modified or amended
as a result of any action of Assignee in a manner that has an adverse effect
upon the Reserved Rights as of the Effective Time on the Closing Date, Assignee
shall indemnify, protect, defend, save and keep harmless, Assignor to the same
extent as if such modification or amendment had not occurred.
(F) NOTICE OF CLAIMS
Each of Assignor and Assignee agrees to provide written notification to
the other party promptly after becoming aware of any liability, obligation or
claim, whether pending or threatened, that is the subject of indemnification
pursuant to this Section 12; provided, that the failure by either party to so
notify the other party will not in any manner affect either party's obligations
under this Section 12.
SECTION 13. MISCELLANEOUS
(A) NOTICES
All notices, demands, declarations and other communications required by
this Agreement shall be in writing and shall be effective (i) if given by
facsimile, when transmitted, (ii) if given by registered or certified mail,
three Business Days after being deposited with the U.S. Postal Service and
(iii) if given by a nationally recognized overnight courier, when received, or,
if personally delivered, when so delivered, addressed:
If to Assignor, to:
0000 Xxxx Xxxxxxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
M/S 68-34
Facsimile: (000) 000-0000
or to such other address as Assignor shall from time to time designate in
writing to Assignee; and
PAGE 17
22
If to Assignee, to:
General Bank
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxx
Executive Vice President
and Chief Financial Officer
Facsimile: (000) 000-0000
or to such other address as Assignee may from time to time designate
in writing to Assignor.
(B) CONFIDENTIALITY
Assignor and Assignee each agree to use its best efforts, acting
reasonably and diligently, to treat this Agreement and the terms hereof as
confidential and not to disclose, without the prior written consent of the
other, the terms hereof to any other Person except (i) to such party's
directors, officers, partners, employees, legal counsel, accountants, auditors,
financial advisors and/or other professionals and consultants who agree to hold
such information confidential, but only to the extent such party deems such
disclosure necessary or appropriate to accomplish the proper business purposes
of such party, (ii) to any accountants or auditors retained by such party who
agree to hold such information confidential, if and when such disclosure is
necessary in connection with the examination and reporting on the books and
records and/or the financial condition of such party, and then only to the
extent necessary, (iii) if and when such party is required to do so pursuant to
any order, subpoena, summons, or other legal process issued by any court,
governmental body, or governmental investigator, by which it is legally bound
to produce the same, and then only to the extent so required, (iv) if and when
such party is required to do so pursuant to any order, directive, or request by
any governmental agency having supervisory authority over its operations and
administration and then only to the extent so required, or (v) to such party's
successors and assigns who agree to hold such information confidential.
Notwithstanding any provision to the contrary contained in this
Section 13(b), Assignor and Assignee, and each of them, shall not be prohibited
from making any disclosure with respect to the terms hereof, which may be
disclosed in any public records of any kind or otherwise in the public domain
(except as a result of a disclosure by such party in violation of this Section
13(b)).
PAGE 18
23
(C) HEADINGS
Headings used herein are for convenience only and shall not in any way
affect the construction of, or be taken into consideration in interpreting,
this Agreement.
(D) REFERENCES
Any reference to a specific Section or Section number shall be
interpreted as a reference to that Section of this Agreement unless otherwise
expressly provided.
(E) 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 LAW.
(F) SEVERABILITY
If any provision hereof should be held invalid, illegal or
unenforceable in any respect in any jurisdiction, then, to the fullest extent
permitted by law, (i) all other provisions hereof shall remain in full force
and effect in such jurisdiction and shall be construed in order to carry out
the intentions of the parties hereto as nearly as may be possible, and (ii)
such invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of such provision in any other jurisdiction.
(G) AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any
provision of this Agreement or any consent to any departure by Assignor or
Assignee from any provision hereof, shall in any event be effective unless the
same shall be in writing and signed by Assignor and Assignee, and each such
amendment, modification, waiver, termination or discharge shall be effective
only in the specific instance and for the specific purpose for which given;
provided, that in no event shall Assignor and Assignee amend, modify or waive
Sections 3, 6, 13(e), 13(o) or this Section 13(g) without the prior written
consents of Lessee, Guarantor, Owner Trustee and Mortgagee, which consents
shall not be unreasonably withheld or delayed. No provision of this Agreement
shall be varied, contradicted or explained by any oral agreement, course of
dealing or performance or any other matter not set forth in an agreement in
writing and signed by Assignor and Assignee.
PAGE 19
24
(H) SURVIVAL
Notwithstanding anything contained herein to the contrary, all
agreements, indemnities, representations and warranties contained in this
Agreement shall survive the Effective Time on the Closing Date and the
expiration or other termination hereof
(I) EXPENSES
Each of Assignor and Assignee shall be responsible for its own costs
and expenses incurred in connection with the negotiation, preparation,
execution and delivery of this Agreement, the Assignment and Assumption
Agreement (FAA) and any other agreements, documents, certificates and
instruments relating hereto and thereto, and shall not have any right of
reimbursement or indemnity for such costs and expenses as against the other
party; provided, that, as between Assignor and Assignee, (i) Assignor shall be
responsible for all of the fees and expenses of Special FAA Counsel and (ii)
Assignee shall be responsible for any Aircraft appraisal prepared for Assignee.
(J) EXECUTION IN COUNTERPARTS
This Agreement and any amendments, waivers or consents hereto may be
executed by Assignor and Assignee in separate counterparts (or upon separate
signature pages bound together into one or more counterparts), each of which,
when so executed and delivered, shall be an original, but all such counterparts
shall together constitute one and the same instrument.
(K) ENTIRE AGREEMENT
This Agreement and the Assignment and Assumption Agreement (FAA), on
and as of the date hereof, constitute the entire agreement of Assignor and
Assignee with respect to the subject matter hereof or thereof, and all prior or
contemporaneous understandings or agreements, whether written or oral, between
Assignor and Assignee with respect to such subject matter are hereby superseded
in their entirety.
(L) EXHIBITS
The exhibits attached hereto are incorporated by reference herein and
shall have the same force and effect with respect to the provisions set forth
therein as though fully set forth in this Agreement.
(M) SUCCESSORS AND ASSIGNS
This agreement shall be binding upon, shall inure to the benefit of
and shall be enforceable by Assignor and Assignee, and their respective
successors and assigns.
PAGE 20
25
(N) RECOVERY OF COSTS AND FEES
If any suit or action arising out of or related to this Agreement is
brought by either party, the prevailing party shall be entitled to recover the
costs and fees (including without limitation reasonable attorneys' fees)
incurred by such party in such suit or action, including without limitation any
post-trial or appellate proceeding, or in the collection or enforcement or any
judgment or award entered or made in such suit or action.
(O) NO THIRD PARTY BENEFIT
Assignor and Assignee agree that the provisions of this Agreement,
including, without limitation, Section 3, are for the sole benefit of Assignor,
Assignee, Lessee, Guarantor, Owner Trustee, Mortgagee and their respective
successors and assigns, and are not for the benefit, directly or indirectly, of
any other Person.
PAGE 21
26
IN WITNESS WHEREOF, the undersigned have caused this PURCHASE,
ASSIGNMENT AND ASSUMPTION AGREEMENT 615 to be duly executed as of the day and
year first written above.
GAUCHO-1 INC.
By /s/ XXXXX X. XXXXXXXX
-------------------------------
Xxxxx X. Xxxxxxxx
Attorney-in-fact
GENERAL BANK
By
-------------------------------
Name:
Title:
27
IN WITNESS WHEREOF, the undersigned have caused this PURCHASE,
ASSIGNMENT AND ASSUMPTION AGREEMENT 615 to be duly executed as of the day and
year first written above.
GAUCHO-1 INC.
By
-------------------------------
Xxxxx X. Xxxxxxxx
Attorney-in-fact
GENERAL BANK
By /s/ XXXXX XXXX
-------------------------------
Name: Xxxxx Xxxx
Title: EVP & CFO
28
EXHIBIT A TO PURCHASE,
ASSIGNMENT AND ASSUMPTION
AGREEMENT 615
ASSIGNMENT AND ASSUMPTION AGREEMENT 615
ASSIGNMENT AND ASSUMPTION AGREEMENT 615, dated December 27, 1996 (this
"AGREEMENT"), between GAUCHO-1 INC., a Delaware corporation ("ASSIGNOR"), and
GENERAL BANK, a California corporation ("ASSIGNEE"). Capitalized terms used
herein without definition shall have the meanings given them in Section 7.
WHEREAS, pursuant to the transactions contemplated by the Trust
Agreement 615, dated as of August 1, 1994 (the "TRUST AGREEMENT"), between
Assignor and First Security Bank, National Association (formerly First Security
Bank of Utah, National Association) ("OWNER TRUSTEE"), Continental Airlines,
Inc. ("LESSEE") leased from Owner Trustee one Boeing 737-524 airframe bearing
manufacturer's serial number 27328 and U.S. Registration number N37615
together with two CFM International, Inc. Model CFM56-3-B1 engines bearing,
respectively, manufacturer's serial numbers 857942 and 857945 (each of which
engines has 750 or more rated takeoff horsepower or the equivalent of such
horsepower); and
WHEREAS, Assignor desires to transfer to Assignee all its right, title
and interest in, to and under the Trust Estate (excluding Reserved Rights (as
defined below), the "BENEFICIAL INTEREST"), except for certain rights or
indemnities described in that certain Purchase, Assignment and Assumption
Agreement 615 dated as of December 1, 1996 (the "PURCHASE AGREEMENT") between
Assignor and Assignee ("RESERVED RIGHTS") vested or relating to events prior to
11:38 p.m., Las Vegas time, on the date hereof (the "EFFECTIVE TIME");
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements of the parties contained herein, and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Assignor and Assignee agree as follows:
SECTION 1. TRANSFER AND ASSUMPTION.
Assignor does hereby sell, assign and transfer to Assignee the
Beneficial Interest, and Assignee hereby accepts the Beneficial Interest from
Assignor. Assignee agrees that, from and after the execution and delivery
hereof, it shall be bound by all the terms of, and shall have assumed and
undertaken to perform all the obligations
PAGE 1
29
(other than obligations relating to Reserved Rights) of the Owner Participant
with respect to the Beneficial Interest.
SECTION 2. EFFECT OF TRANSFER.
Upon the execution and delivery of this Agreement (which shall be
deemed to occur at the Effective Time), Assignee shall be deemed the Owner
Participant for all purposes of the Operative Agreements and shall be deemed to
have paid that portion of Lessor's Cost for the Aircraft previously made by
Assignor, and represented by the interest being conveyed, and each reference in
any Operative Agreement, including without limitation, the Trust Agreement, to
"Owner Participant" shall thereafter be deemed to be Assignee, except with
respect to Reserved Rights. Assignee expressly assumes hereunder all and any
liability and obligation of Assignor accruing or arising under any of the
Operative Agreements, including, without limitation, the Trust Agreement, on
and after the execution and delivery of this Agreement.
SECTION 3. NO THIRD PARTY BENEFIT.
Assignor and Assignee agree that the provisions of this Agreement are
for the sole benefit of Assignor, Assignee, Lessee, Guarantor, Owner Trustee
and Mortgagee, their respective successors and assigns, and are not for the
benefit, directly or indirectly, of any other Person.
SECTION 4. NOTICES.
Any notices to the Owner Participant provided for in the Operative
Agreements shall be delivered to Assignee at the following address or such
other place as Assignee may designate in accordance with the Operative
Agreements:
General Bank
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxx
Executive Vice President
and Chief Financial Officer
Facsimile: (000) 000-0000
SECTION 5. HEADINGS.
The headings of the Sections herein are for convenience of reference
only and shall not define or limit any of the terms or provisions hereof
PAGE 2
30
SECTION 6. 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.
SECTION 7. DEFINITIONS.
Capitalized terms used herein without definition shall have the
meanings given them in the Trust Agreement.
SECTION 8. EXECUTION IN COUNTERPARTS.
This Agreement and any amendments, waivers or consents hereto may be
executed by Assignor and Assignee in separate counterparts (or upon separate
signature pages bound together into one or more counterparts), each of which,
when so executed and delivered, shall be an original, but all such counterparts
shall together constitute one and the same instrument.
SECTION 9. NOTICE PURPOSES ONLY.
This Agreement is being filed with the FAA for notice purposes only.
The parties hereto are subject to the terms and conditions of the Purchase
Agreement.
PAGE 3
31
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
and Assumption Agreement 615 to be duly executed as of the day and year first
written above.
GAUCHO-1 INC.,
as Assignor
By
-------------------------------
Name:
Title:
GENERAL BANK.
as Assignee
By
-------------------------------
Name:
Title:
32
The foregoing Assignment and Assumption
Agreement 615 is hereby
acknowledged, agreed and consented
to as of the day and year first
above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Owner Trustee, Owner
Trustee
By
-------------------------------
Name:
Title:
33
EXHIBIT B TO PURCHASE,
ASSIGNMENT AND ASSUMPTION
AGREEMENT 000
XXXXXXX XXXX
XXXXXXXXX XX XXXXXXXXXXX
XXXXX OF
ss.:
COUNTY OF
The undersigned, being duly sworn., deposes and says on behalf of
General Bank, a __________ corporation (the "Owner Participant"), that:
1. He is a duly elected and qualified officer of General Bank.
2. The Owner Participant is a corporation duly organized under
the laws of the State of _________.
2. The Owner Participant is a "Citizen of the United States" as
defined in Section 40102(a)(15) of Title 49 of the United States Code.
By:
-------------------------------
Name:
Title:
SWORN TO AND SUBSCRIBED before
me this ____ day of December, 1996.
-------------------------------
Notary Public
My Commission Expires:
-------------------------------
34
EXHIBIT C TO PURCHASE,
ASSIGNMENT AND ASSUMPTION
AGREEMENT 615
GUARANTY BY
CORPORATE AFFILIATE OF TRANSFERRING OWNER
PARTICIPANT
615
FOR VALUE RECEIVED, The Boeing Company, a Delaware corporation
("GUARANTOR"), pursuant to that certain Purchase, Assignment and Assumption
Agreement 615 dated as of December 1, 1996 (the "ASSIGNMENT AND ASSUMPTION
AGREEMENT") between Gaucho-1 Inc., a Delaware corporation ("OWNER
PARTICIPANT") and General Bank, a California corporation (the "GUARANTEED
PARTY"), does hereby unconditionally and irrevocably guaranty to the Guaranteed
Party, (i) the due and punctual performance and observance by Owner Participant
of each covenant, agreement, undertaking, representation, warranty and any other
obligation or condition binding upon or to be performed or observed by it under
and in accordance with the terms of the Assignment and Assumption Agreement,
(ii) the due and punctual payment of each amount which Owner Participant is or
may become obligated to pay under and in accordance with the terms of the
Assignment and Assumption Agreement and (iii) in the event of any nonpayment or
nonperformance, agrees to pay or perform or cause such payment or performance
to be made upon notice from the Guaranteed Party of such nonpayment or
nonperformance (such payment and other obligations being herein referred to as
the "OBLIGATIONS"). Guarantor further agrees to pay all reasonable expenses
(including, without limitation, all fees and disbursements of counsel) that may
be paid or incurred by the Guaranteed Party in enforcing any rights with
respect to, or collecting, any or all of the Obligations and/or enforcing any
rights with respect to, or collecting against, Guarantor under this Guaranty.
The obligations of Guarantor to make any payments hereunder shall be subject to
the terms and conditions of the Assignment and Assumption Agreement applicable
to the obligations of Owner Participant.
Capitalized terms used herein which are defined in the Assignment and
Assumption Agreement are used in this Guaranty as they are so defined.
Guarantor hereby waives notice of acceptance of this Guaranty, and
agrees that in its capacity as a guarantor, it shall not be required to consent
to, or to receive any notice of, any supplement to or amendment of, or waiver
or modification of the terms of, the Assignment and Assumption Agreement.
35
Owner Participant is an "Affiliate" (as that term is referred to in
the Assignment and Assumption Agreement) of Guarantor, and this Guaranty is
being furnished to induce the Guaranteed Party to contract with Owner
Participant as set forth in the Assignment and Assumption Agreement.
Guarantor represents and warrants that (i) Guarantor is duly
incorporated and validly existing in good standing under the laws of the State
of Delaware; (ii) the execution, delivery and performance of this Guaranty are
within Guarantor's power and authority and do not contravene the charter or the
by-laws of Guarantor or any indenture, mortgage, credit agreement, note,
long-term lease or other material agreement to which Guarantor is a party or by
which Guarantor is bound or any law, governmental rule, regulation, judgment or
order binding on the Guarantor; and (iii) this Guaranty has been duly
authorized, executed and delivered on behalf of Guarantor and constitutes a
legal, valid, binding and enforceable obligation of Guarantor.
No failure or delay or lack of demand, notice or diligence in
exercising any right under this Guaranty shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right under this
Guaranty.
This Guaranty is an absolute, unconditional and continuing guaranty of
payment and not of collection and Guarantor waives any right to require that
any right to take action against Owner Participant be exhausted or that resort
be made to any security prior to action being taken against Guarantor.
In the event that this Guaranty, the Assignment and Assumption
Agreement or the Assignment and Assumption Agreement (FAA) shall be terminated,
rejected or disaffirmed as a result of bankruptcy, insolvency, reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
proceedings with respect to Owner Participant, Guarantor's obligations hereunder
shall continue to the same extent as if the same had not been so terminated,
rejected or disaffirmed. Guarantor shall and does hereby waive all rights and
benefits which might in whole or in part, relieve Guarantor from the performance
of its duties and obligations by reason of any proceeding as specified in the
preceding sentence, and Guarantor agrees that it shall be liable for all sums
guaranteed, in respect of and without regard to, any modification, limitation or
discharge of the liability of Owner Participant that may result from any such
proceedings and notwithstanding any stay, injunction or other prohibition issued
in any such proceedings. Furthermore, the obligation of Guarantor hereunder will
not be discharged by: (a) any extension or renewal with respect to any
obligation of Owner Participant under the Assignment and Assumption Agreement;
(b) any modification of, or amendment or supplement to, any such agreement; (c)
any
PAGE 2
36
furnishing or acceptance of additional security or any release of any security;
(d) any waiver, consent or other action or inaction or any exercise or
non-exercise of any right, remedy or power with respect to Owner Participant,
or any change in the structure of Owner Participant; (e) any change in
ownership of the shares of capital stock of Guarantor or Owner Participant or
any merger or consolidation of either thereof into or with any other person; or
(f) any other occurrence whatsoever, except payment in full of all amounts
payable by Owner Participant under the Assignment and Assumption Agreement and
performance in full of all Obligations of Owner Participant in accordance with
the terms and conditions of the Assignment and Assumption Agreement.
Guarantor understands and agrees that its obligations hereunder shall
be continuing, absolute and unconditional without regard to, and Guarantor
hereby waives any defense to, or right to seek a discharge of, its obligations
hereunder with respect to, (a) the validity, legality, regularity or
enforceability of the Assignment and Assumption Agreement any of the
Obligations or any collateral security therefor or guaranty or right of offset
with respect thereto at any time or from time to time held by the Guaranteed
Party, (b) any defense, setoff or counterclaim (other than a defense of payment
or performance (including payment or performance attributable to a right of
setoff provided for in the Assignment and Assumption Agreement)) that may at
any time be available to or be asserted by Owner Participant against the
Guaranteed Party, or (c) any other circumstances whatsoever (with or without
notice to or knowledge of Owner Participant or Guarantor) that constitutes, or
might be construed to constitute, an equitable or legal discharge of Owner
Participant or the Obligations, or of Guarantor under this Guaranty, in
bankruptcy or in any other instance.
Notwithstanding any payment or payments made by Guarantor hereunder or
any setoff or application of funds of Guarantor by the Guaranteed Party,
Guarantor shall not be entitled to be subrogated to any of the rights of the
Guaranteed Party against Owner Participant or any collateral, security or
guaranty or right of setoff held by the Guaranteed Party for the payment of the
Obligations, nor shall Guarantor seek or be entitled to seek any reimbursement
from Owner Participant in respect of payments made by Guarantor hereunder,
until all amounts and performance owing to the Guaranteed Party by Owner
Participant on account of the Obligations are paid and performed in full.
The obligations of Guarantor hereunder shall be automatically
reinstated if and to the extent that any payment by or on behalf of the Owner
Participant in respect of any of the Obligations is rescinded or must be
otherwise restored by the Guaranteed Party as a result of any proceedings in
bankruptcy or reorganization or similar proceedings and Guarantor agrees that
it will reimburse the Guaranteed Party on demand for all reasonable costs and
expenses (including, without limitation, fees of
PAGE 3
37
counsel) incurred by the Guaranteed Party in connection with such rescission or
restoration.
Any provision of this Guaranty that 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 hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
This Guaranty shall be binding upon the successors and assigns of
Guarantor; provided, however, that no transfer, assignment or delegation by
Guarantor without the consent of the Guaranteed Party shall release Guarantor
from its liabilities hereunder. This Guaranty shall terminate and be of no
further force and effect upon the performance and observance in full of the
Obligations.
All notices, requests and demands to or upon Guarantor or any
beneficiary shall be made in accordance with the terms of Section 13(a) of the
Assignment and Assumption Agreement and if delivered to Guarantor shall be
addressed to The Boeing Company, 0000 Xxxx Xxxxxxxx Xxx Xxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Treasurer, M/S 68-34, or to such other address as
Guarantor shall designate to the Guaranteed Party in writing.
PAGE 4
38
THIS GUARANTY 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.
DATED: December ___, 1996.
THE BOEING COMPANY
By
-------------------------------
Name:
Title:
39
EXHIBIT D TO PURCHASE,
ASSIGNMENT AND ASSUMPTION
AGREEMENT 615
CONFIDENTIAL
DISTRIBUTION LIMITED TO CONTINENTAL
AIRLINES, INC., GENERAL BANK.
THE BOEING COMPANY
AND THEIR RESPECTIVE COUNSEL AND AGENTS
CONTINENTAL AIRLINES, INC.
0000 XXXXX XXXXXXX
XXXXXXX, XXXXX 00000
December ___, 1996
General Bank
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
RE: LETTER AGREEMENT TO PARTICIPATION AGREEMENT 615 AND LEASE
AGREEMENT 615 RELATING TO ONE BOEING MODEL 737-524 AIRCRAFT
BEARING UNITED STATES REGISTRATION NO. N37615
Ladies and Gentlemen:
1. Reference is made to Participation Agreement 615, dated as of
August 1, 1994 (the "PARTICIPATION AGREEMENT") among Continental Airlines, Inc.
("LESSEE"), Gaucho-2 Inc. ("OWNER PARTICIPANT"), The Northwestern Mutual Life
Insurance Company, General Electric Company ("GUARANTOR"), First Security Bank,
National Association (formerly First Security Bank of Utah, National
Association), not in its individual capacity, except as expressly provided
therein, but solely as Owner Trustee, and Wilmington Trust Company, not in its
individual capacity, except as expressly provided therein, but solely as
Mortgagee.
2. This Letter Agreement, when accepted by you, will evidence our
agreement with respect to the matters set forth below. Capitalized terms used
but not defined herein shall have the respective meanings set forth or
incorporated by reference, and shall be construed and interpreted in the manner
described, in the Participation Agreement.
3. Lessee agrees with General Bank ("TRANSFEREE") that,
notwithstanding the text of the definition of "Net Economic Return" in Annex A
to the Participation Agreement and Annex A to the Lease, as of the Effective
Time (as defined in the
40
General Bank
Page 2
Assignment and Assumption Agreement 615, dated the date hereof, between Owner
Participant and Transferee, as in effect on the date hereof), for the purposes
of the obligations of each of Lessee, Lessor and Transferee (and any direct or
indirect transferees thereof) only, such definition shall read in its entirety
as follows:
"Net Economic Return" means Owner Participant's net after-tax yield and
aggregate after-tax cash flow computed on the basis of the same
methodology and assumptions as were utilized by General Bank ("GENERAL
BANK") in analyzing Basic Rent Stipulated Loss Value percentages and
Termination Value percentages as of the date on which General Bank
became Owner Participant, as such assumptions may be adjusted after
December ____, 1996 for events that have been the basis for adjustments
to Basic Rent pursuant to Section 3.2.l(b) of the Lease or events
giving rise to indemnity payments to General Bank pursuant to Section
5.1 of the Tax Indemnity Agreement; provided, that, if General Bank
shall have transferred its interest, Net Economic Return shall be
calculated as if General Bank had retained its interest; provided
further, that, notwithstanding the preceding proviso, solely for
purposes of Section 13 of the Participation Agreement and calculating
any adjustments to Basic Rent, Stipulated Loss Values and Termination
Values in connection with a refunding pursuant to such Section 13 at a
time when Owner Participant is a direct or indirect transferee of
General Bank, (other than an Affiliate of General Bank), the after-tax
yield (but not the after-tax cash flow) component of Net Economic
Return shall be calculated on the basis of the methodology and
assumptions utilized by the transferee Owner Participant as of the date
on which it acquired its interest.
4. Lessee agrees with Transferee that notwithstanding anything to
the contrary set forth in Section 7.2.7(k) of the Lease, as of the Effective
Time (as so defined), for the purposes of the obligations of each of Lessee and
Transferee owed to the other only, Section 7.2.7(k) of the Lease shall read in
its entirety as follows:
"(k) No such sublease shall be made to Permitted Air Carriers, other
than U.S. Air Carriers, prior to January 1, 2004, or if a Lessee Act
(as defined in the Tax Indemnity Agreement) as a result of which
indemnification has been required under the Tax Indemnity Agreement has
created a longer Tax Attribute Period (as defined in the Tax Indemnity
Agreement), prior to the close of the Tax Attribute Period, unless in
either case Lessee prepays any liability Owner Participant determines
would be due under the Tax Indemnity Agreement as a result of such
sublease based upon the assumption that such sublease were to continue
for the remainder of the term of such sublease."
41
General Bank
Page 3
5. This Letter Agreement is provided solely for the benefit of
the parties hereto and their respective successors and is not and is not
intended to be an amendment of the Participation Agreement the Lease or any
other Operative Agreement.
6. This Letter Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and all of which counterparts, taken together, shall constitute one and the
same instrument.
7. THIS LETTER AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY 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.
42
General Bank
Page 4
By signing and returning an original counterpart hereof, each of the
undersigned accepts and agrees to the foregoing terms and provisions of this
Letter Agreement.
Very truly yours,
CONTINENTAL AIRLINES, INC.
By
-------------------------------
Name:
Title:
ACCEPTED AND AGREED TO
this day of December, 1996.
GENERAL BANK
By
-------------------------------
Name:
Title:
43
EXHIBIT E TO PURCHASE
ASSIGNMENT AND ASSUMPTION
AGREEMENT 615
AMENDMENT NO. 1 TO TAX INDEMNITY AGREEMENT 615
AMENDMENT NO. 1 TO TAX INDEMNITY AGREEMENT 615, dated as of December
1, 1996 (this "Amendment"), between CONTINENTAL AIRLINES INC., a Delaware
corporation (the "Lessee"), and GAUCHO-1 INC., a Delaware corporation
("Gaucho-1" or the "Owner Participant"), and amending that certain Tax
Indemnity Agreement 615 dated as of August 1, 1994 (the "Tax Indemnity
Agreement") between Lessee and Owner Participant.
Except as otherwise defined in this Amendment, the terms used herein
in capitalized form shall have the meanings attributed thereto in the Tax
Indemnity Agreement.
WITNESSETH
WHEREAS, in contemplation of the transfer by Owner Participant to
General Bank, a California corporation ("General Bank") of all of its right,
title and interest (other than Reserved Rights (as such term is defined in the
Purchase, Assignment and Assumption Agreement 615 between Owner Participant and
General Bank, dated as of December 1, 1996) (the "Purchase, Assignment and
Assumption Agreement")) in and to the Trust and the Operative Agreements, among
other things, Owner Participant and the Lessee desire to amend the Tax
Indemnity Agreement as herein set forth.
WHEREAS, it is not intended that this Agreement affect any of the
rights, obligations, or liabilities of Owner Participant for any acts, events
or occurrences before the Effective Time (as defined in Section 3 hereof).
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS
The Tax Indemnity Agreement shall be amended as follows:
(a) Section 2.2 is hereby amended to read as follows:
"For U.S. federal income tax purposes, the Aircraft will be considered to
have been placed in service by Owner Participant on the Closing Date (as
defined in Section 3.4)."
44
2
(b) Section 2.3 is hereby amended by
(i) deleting the phrase "in which the Delivery Date
occurs" and replacing it with the words "ending December 31, 1996", and
(ii) deleting the phrase "Lessor's Cost for the Aircraft"
and replacing it with the words "an amount equal to $24,412,204.86 (which
amount, for purposes of this Agreement (but not for purposes of any other
Operative Agreement), shall be referred to as "Lessor's Cost")".
(c) Section 3.4 is hereby amended by
(i) replacing the phrase "the Delivery Date" the first
time it occurs with the phrase "the date on which the Effective Time, as
defined in the Purchase, Assignment and Assumption Agreement between Gaucho-1
Inc. and General Bank, a California corporation ("General Bank") occurs (the
"Closing Date")" and replacing the term "Delivery Date" in clause (a) of such
Section with the term "Closing Date", and
(ii) inserting after the phrase "original Owner
Participant" in the first place such phrase occurs the following parenthetical
phrase "(it being understood that, for purposes of this Agreement, General Bank
shall be treated as the original Owner Participant, other than with respect to
Section 3.3, for purposes of which Gaucho-1 Inc. shall be treated as the
original Owner Participant)".
(d) Section 3.9 is hereby amended by (i) deleting the phrase "Tax
Attribute Period" and replacing it with the phrase "Sourcing Period", and (ii)
adding a new sentence at the end of such Section to read as follows:
"For purposes of this Agreement, the term "Sourcing Period" shall mean
the period commencing on the Closing Date and ending two years prior
to the end of the Tax Attribute Period."
(e) Sections 6.1 and 6.2 are hereby amended by deleting the phrase
"Tax Attribute Period" each place such phrase occurs and replacing it with the
term "Sourcing Period".
SECTION 2. QUALIFIED ASSIGNMENT.
The parties hereto agree that
(i) the Purchase, Assignment and Assumption Agreement satisfies
the requirements of clause (a) of Section 19, and
45
3
(ii) clause (b) of Section 19 of the Tax Indemnity Agreement shall
not apply to the transfer and assignment to General Bank, provided that such
clause (b) shall apply to any transferee or assignee of General Bank or any
subsequent transferee or assignee as if General Bank were the original Owner
Participant.
SECTION 3. EFFECTIVENESS.
This Amendment shall take effect at the Effective Time (as defined in
the Purchase, Assignment and Assumption Agreement) and, for the avoidance of
doubt, shall not affect any rights or obligations of Lessee or Gaucho-1 to one
another under the Tax Indemnity Agreement with respect to periods prior to the
Effective Time during which Gaucho-1 is, or was, the owner participant under
the Operative Agreements. Except as amended hereby, the Tax Indemnity
Agreement continues and shall remain in full force and effect in all respects.
SECTION 4. MISCELLANEOUS.
This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute by one and the
same instrument. Neither this Amendment nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified, except by an instrument
in writing signed by the party against which the enforcement of the
termination, amendment, supplement, waiver or modification is sought; and no
such termination, amendment, supplement, waiver or modification shall be
effective unless a signed copy thereof shall have been delivered to the Lessee
and the Owner Participant. The terms of this Amendment shall be binding upon,
and inure to the benefit of and shall be enforceable by, Lessee and the Owner
Participant and their respective successors or assigns permitted under the
Operative Agreements. This Amendment shall in all respects be governed by, and
construed in accordance with, the laws of the State of New York.
[This space intentionally left blank.]
46
4
IN WITNESS WHEREOF, the Lessee and the Owner Participant have caused
this Amendment No. 1 to Tax Indemnity Agreement 615 to be duly executed as of
the date and year first written above.
CONTINENTAL AIRLINES, INC.
By
-------------------------------
Name:
Title:
GAUCHO-1 INC.
By
-------------------------------
Name:
Title:
47
ASSIGNMENT AND ASSUMPTION AGREEMENT 615
ASSIGNMENT AND ASSUMPTION AGREEMENT 615, dated December 27, 1996 (this
"AGREEMENT"), between GAUCHO-1 INC., a Delaware corporation ("ASSIGNOR"), and
GENERAL BANK, a California corporation ("ASSIGNEE"). Capitalized terms used
herein without definition shall have the meanings given them in Section 7.
WHEREAS, pursuant to the transactions contemplated by the Trust
Agreement 615, dated as of August 1, 1994 (the "TRUST AGREEMENT"), between
Assignor and First Security Bank, National Association (formerly First Security
Bank of Utah, National Association) ("OWNER TRUSTEE"), Continental Airlines,
Inc. ("LESSEE") leased from Owner Trustee one Boeing 737-524 airframe bearing
manufacturer's serial number 27328 and U.S. Registration number N37615
together with two CFM International, Inc. Model CFM56-3-B1 engines bearing,
respectively, manufacturer's serial numbers 857942 and 857945 (each of which
engines has 750 or more rated takeoff horsepower or the equivalent of such
horsepower); and
WHEREAS, Assignor desires to transfer to Assignee all its right, title
and interest in, to and under the Trust Estate (excluding Reserved Rights (as
defined below), the "BENEFICIAL INTEREST"), except for certain rights or
indemnities described in that certain Purchase, Assignment and Assumption
Agreement 615 dated as of December 1, 1996 (the "PURCHASE AGREEMENT") between
Assignor and Assignee ("RESERVED RIGHTS") vested or relating to events prior to
11:38 p.m., Las Vegas time, on the date hereof (the "EFFECTIVE TIME");
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements of the parties contained herein, and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Assignor and Assignee agree as follows:
SECTION 1. TRANSFER AND ASSUMPTION.
Assignor does hereby sell, assign and transfer to Assignee the
Beneficial Interest and Assignee hereby accepts the Beneficial Interest from
Assignor. Assignee agrees that from and after the execution and delivery
hereof, it shall be bound by all the terms of, and shall have assumed and
undertaken to perform all the obligations
PAGE 1
48
(other than obligations relating to Reserved Rights) of the Owner Participant
with respect to the Beneficial Interest.
SECTION 2. EFFECT OF TRANSFER.
Upon the execution and delivery of this Agreement (which shall be
deemed to occur at the Effective Time), Assignee shall be deemed the Owner
Participant for all purposes of the Operative Agreements and shall be deemed to
have paid that portion of Lessor's Cost for the Aircraft previously made by
Assignor, and represented by the interest being conveyed, and each reference in
any Operative Agreement, including without limitation, the Trust Agreement to
"Owner Participant" shall thereafter be deemed to be Assignee, except with
respect to Reserved Rights. Assignee expressly assumes hereunder all and any
liability and obligation of Assignor accruing or arising under any of the
Operative Agreements, including, without limitation, the Trust Agreement, on
and after the execution and delivery of this Agreement.
SECTION 3. NO THIRD PARTY BENEFIT.
Assignor and Assignee agree that the provisions of this Agreement are
for the sole benefit of Assignor, Assignee, Lessee, Guarantor, Owner Trustee
and Mortgagee, their respective successors and assigns, and are not for the
benefit directly or indirectly, of any other Person.
SECTION 4. NOTICES.
Any notices to the Owner Participant provided for in the Operative
Agreements shall be delivered to Assignee at the following address or such
other place as Assignee may designate in accordance with the Operative
Agreements:
General Bank
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxx
Executive Vice President
and Chief Financial Officer
Facsimile: (000) 000-0000
SECTION 5. HEADINGS.
The headings of the Sections herein are for convenience of reference
only and shall not define or limit any of the terms or provisions hereof.
PAGE 2
49
SECTION 6. 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.
SECTION 7. DEFINITIONS.
Capitalized terms used herein without definition shall have the
meanings given them in the Trust Agreement.
SECTION 8. EXECUTION IN COUNTERPARTS.
This Agreement and any amendments, waivers or consents hereto may be
executed by Assignor and Assignee in separate counterparts (or upon separate
signature pages bound together into one or more counterparts), each of which,
when so executed and delivered, shall be an original, but all such counterparts
shall together constitute one and the same instrument.
SECTION 9. NOTICE PURPOSES ONLY.
This Agreement is being filed with the FAA for notice purposes only.
The parties hereto are subject to the terms and conditions of the Purchase
Agreement.
PAGE 3
50
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
and Assumption Agreement 615 to be duly executed as of the day and year first
written above.
GAUCHO-1 INC,
as Assignor
By /s/ XXXXX X. XXXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Attorney-in-fact
GENERAL BANK,
as Assignee
By
-------------------------------
Name:
Title:
51
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
and Assumption Agreement 615 to be duly executed as of the day and year first
written above.
GAUCHO-1 INC.
as Assignor
By
-------------------------------
Name:
Title:
GENERAL BANK
By /s/ XXXXX XXXX
-------------------------------
Name: Xxxxx Xxxx
Title: EVP & CFO
52
The foregoing Assignment and Assumption
Agreement 615 is hereby
acknowledged, agreed and consented
to as of the day and year first
above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Owner Trustee, Owner Trustee
By /s/ XXXX X. XXXXXX
-------------------------------
Name: XXXX X. XXXXXX
Title: VICE PRESIDENT
