1
EXHIBIT 1
$850,000,000
AIRPLANES PASS THROUGH TRUST
PASS THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
March --, 1998
2
UNDERWRITING AGREEMENT
March --, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Airplanes Limited, a limited liability company incorporated under the laws
of Jersey, Channel Islands ("Airplanes Limited"), and Airplanes U.S. Trust, a
statutory business trust organized under the laws of Delaware ("Airplanes
Trust" and, together with Airplanes Limited, the "Issuers") pursuant to the
Amended and Restated Trust Agreement, dated as of March 11, 1996 (the
"Airplanes Trust Agreement"), among GPA, Inc., a Delaware corporation, as
settlor (the "Settlor"), Wilmington Trust Company, a Delaware banking
corporation, as trustee (the "Delaware Trustee"), and each other trustee party
thereto (each a "Controlling Trustee"), jointly propose to cause Bankers Trust
Company, a New York banking corporation, acting not in its individual capacity,
except as otherwise noted, but solely as trustee (the "1998 Refinancing
Trustee") for each of the Subclass A-6 Pass Through Trust and the Subclass A-7
Pass Through Trust (each, a "1998 Refinancing Trust" and, collectively, the
"1998 Refinancing Trusts"), organized pursuant to Supplements Nos. 9 and 10,
respectively, to the pass through trust agreement dated as of March 28, 1996
(as so supplemented and as it may be amended, supplemented or otherwise
modified, the "Trust Agreement"), each to be dated as of the Closing Date,
among each of the Issuers and the 1998 Refinancing Trustee, to issue and sell
to the several underwriters named in Schedule I hereto (the "Underwriters")
refinancing pass through certificates (the "1998 Refinancing Certificates")
issued under the Trust Agreement in the subclass designations and in the
respective aggregate principal amounts set forth in Schedule II hereto. Xxxxxx
Xxxxxxx & Co. Incorporated shall act as representative (the "Representative")
of the several Underwriters. As hereinafter described, the Issuers have filed
with the U.S. Securities and Exchange Commission (the "Commission") a
registration statement on Form S-1, including a prospectus, relating to the
1998 Refinancing Certificates. Capitalized terms used and not defined herein
shall have the meanings ascribed to them in the Trust Agreement.
In connection with the issuance of 1998 Refinancing Certificates, each of
the Issuers will separately issue and deposit in the 1998 Refinancing Trusts
two corresponding subclasses of Class A Notes, the "Subclass A-6 Notes" and the
"Subclass A-7 Notes", respectively (collectively, the "1998 Refinancing
Notes"). Each subclass of 1998 Refinancing Notes will have the same
designation as the corresponding subclass of 1998 Refinancing Certificates, and
the sum of the aggregate principal amounts of the 1998 Refinancing Notes of
each subclass issued by the Issuers will equal the aggregate principal amount
of the corresponding subclass of 1998 Refinancing Certificates. Each subclass
of 1998 Refinancing Certificates will represent a fractional undivided
beneficial interest in the pair of 1998 Refinancing Notes of the corresponding
subclass and will entitle the holder thereof to receive a portion of the
payments of principal, interest and premium, if any, on such pair of 1998
Refinancing Notes. The 1998 Refinancing Notes issued by Airplanes Limited
pursuant to Supplement No. 1 to the trust indenture dated as of March 28,1996,
to be dated as of the Closing Date, among Airplanes Limited, Airplanes Trust
and Bankers Trust
3
2
Company, as trustee (as so supplemented and as it may be amended, supplemented
or otherwise modified, the "Airplanes Limited Indenture") are referred to
herein as the "Airplanes Limited 1998 Refinancing Notes," and the 1998
Refinancing Notes issued by Airplanes Trust pursuant to Supplement No. 1 to the
trust indenture dated as of March 28, 1996, to be dated as of the Closing Date,
among Airplanes Trust, Airplanes Limited and Bankers Trust Company, as trustee
(as so supplemented and as if may be amended, supplemented or otherwise
modified, the "Airplanes Trust Indenture" and, together with the Airplanes
Limited Indenture, the "Indentures") are referred to herein as the "Airplanes
Trust 1998 Refinancing Notes." Pursuant to the terms of the Indentures,
Airplanes Limited and Airplanes Trust have each unconditionally guaranteed the
other's performance of its obligations under the 1998 Refinancing Notes issued
by it (respectively, the "Airplanes Limited 1998 Refinancing Guarantee" and the
"Airplanes Trust 1998 Refinancing Guarantee" and, together, the "1998
Refinancing Guarantees"). Simultaneous with the closing of the public offering
of the 1998 Refinancing Certificates, the Subclass A-1 Certificates of the
Subclass A-1 Pass Through Trust will be refinanced with the proceeds of the
issue and sale of the 1998 Refinancing Certificates, and the corresponding
Subclass A-1 Notes of Airplanes Limited and Airplanes Trust will be refinanced
with the proceeds of the issuance of the 1998 Refinancing Notes.
This Agreement, the Trust Agreement, the 1998 Refinancing Certificates,
each Indenture (including its respective 1998 Refinancing Guarantee), the 1998
Refinancing Notes, the Cash Management Agreement, the Administrative Agency
Agreement, the Servicing Agreement, the Servicing Agreement Guarantees, the
Security Trust Agreement, the Secretarial Services Agreement, the Reference
Agency Agreement, the Tax Sharing Agreement and the Voting Trust Agreement
(Aero USA), each as amended, supplemented or otherwise modified, are
collectively referred to herein as the "Relevant Documents." As used in this
Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading; "Preliminary Prospectus" means each
prospectus filed as part of such registration statement as originally filed, or
as part of any amendment thereto, before such registration statement became
effective under the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and any prospectus filed by the Issuers with the Commission with the
consent of the Representative pursuant to Rule 424(a) or Rule 462 of the rules
and regulations of the Commission under the Securities Act (the "Rules and
Regulations"); "Registration Statement" means such registration statement, as
amended at the Effective Time, including the information (if any) deemed to be
part of the registration statement at the Effective Time pursuant to Rule 430A
of the Rules and Regulations; and "Prospectus" means the prospectus in the form
first used to confirm sales of 1998 Refinancing Certificates. If the Issuers
file a registration statement to register a portion of the 1998 Refinancing
Certificates and rely on Rule 462(b) of the Rules and Regulations for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to the "Registration
Statement" shall be deemed to refer to both the registration statement referred
to above (Commission File No. 333-43453) and the Rule 462 Registration
Statement, in each case as amended from time to time.
4
3
1. Representations, Warranties and Agreements of Airplanes Limited.
Airplanes Limited represents and warrants to each of the Underwriters and
agrees with the Underwriters that:
(a) A Registration Statement, including a prospectus, on Form S-1
(Commission File No. 333-43453), and amendments thereto, with respect to the
1998 Refinancing Certificates, the 1998 Refinancing Notes and the 1998
Refinancing Guarantees have (i) been prepared by the Issuers in conformity
with the requirements of the Securities Act and the Rules and Regulations,
(ii) been filed with the Commission in accordance with the Securities Act
and (iii) become effective under the Securities Act. Copies of such
registration statement and each amendment thereto have been delivered by the
Issuers to you as the Representative. The Commission has not issued any
order preventing or suspending the use of any Preliminary Prospectus. No
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened
by the Commission.
(b) (i) The Registration Statement at the Effective Time, and each
Preliminary Prospectus when originally filed or as part of any amendment
thereto, conformed, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus, when they
become effective or are filed with the Commission, as the case may be, will
conform, in all material respects with the Securities Act and the applicable
Rules and Regulations; (ii) each Preliminary Prospectus did not when
originally filed, and the Prospectus did not at the Effective Time, and, as
amended or supplemented, if applicable, will not contain as of the
applicable filing date, any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and (iii)
at the Effective Time each part of the Registration Statement did not, and
each such part, as amended or supplemented, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided that no representation or warranty in this Section
1(b) is made as to (A) statements or omissions in the Registration Statement
or Prospectus based upon information relating to any Underwriter furnished
to the Issuers in writing by such Underwriter through the Representative
expressly for inclusion therein (the "Underwriter Information") or (B) that
part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification on Form T-1 (the "Form T-1") under the United
States Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the 1998 Refinancing Trustee (the "T-1 Information").
(c) The requirements for the use of Form S-1 under the Securities Act
have been met. Airplanes Limited is an "issuer" within the meaning of the
Securities Act and the Rules and Regulations, and an appropriate registrant
with respect to the offering and sale of the 1998 Refinancing Certificates.
(d) Airplanes Limited has been duly incorporated as a public limited
liability company, is validly existing as a public limited liability company
under the laws of Jersey, has the corporate power and authority to own or
hold its property and to
5
4
conduct its business as described in the Prospectus, and is duly qualified
to transact business in each jurisdiction in which the conduct of its
business or its ownership or leasing of its property requires such
qualification, except to the extent that the failure to be so qualified
would not have a material adverse effect on the financial condition, results
of operations or business of Airplanes Limited.
(e) Airplanes Limited has not taken any action nor, to the best of its
knowledge, have any other steps been taken or legal proceedings been started
or threatened against Airplanes Limited as a result of which it could become
a bankrupt or for its winding-up, dissolution or reorganization, or for the
appointment of a liquidator, receiver, administrator, administrative
receiver, examiner or similar officer of Airplanes Limited or of any or all
of its assets or revenues, or as a result of which Airplanes Limited could
become bankrupt.
(f) Airplanes Limited has the authorized capitalization set forth in
the Prospectus. All of the issued shares of capital stock of Airplanes
Limited have been duly and validly authorized and issued, are fully paid and
non-assessable. All of Airplanes Limited's issued capital stock is held by
Juris Limited and Lively Limited, each, a Jersey limited liability company,
as nominees (together, the "Nominees"), for the benefit of the trustees of
certain charitable trusts organized under the laws of Jersey (the
"Charitable Trusts").
(g) Airplanes Limited has all necessary corporate power and authority
to execute and deliver this Agreement and to perform its obligations
hereunder, and this Agreement has been duly authorized, executed and
delivered by Airplanes Limited.
(h) Airplanes Limited has all necessary corporate power and authority
to execute and deliver Supplements Nos. 9 and 10 to the Trust Agreement and
to perform its obligations thereunder. The Trust Agreement has been duly
qualified under the Trust Indenture Act, and Supplements Nos. 9 and 10
thereto have been duly and validly authorized on the date hereof and, on the
Closing Date, will be duly executed and delivered by Airplanes Limited, and
thereupon, together with the Trust Agreement, will be a valid and binding
agreement of Airplanes Limited, enforceable against Airplanes Limited in
accordance with its terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
affecting creditors' rights generally from time to time in effect, and
subject, as to rights of acceleration and the availability of equitable
remedies, to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law). The
Trust Agreement complies as to form in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations of the
Commission thereunder.
(i) Assuming due authorization and execution by each of the 1998
Refinancing Trusts and due authentication by the 1998 Refinancing Trustee in
accordance with the provisions of the Trust Agreement, the 1998 Refinancing
Certificates will be duly issued by each of the 1998 Refinancing Trusts and,
when delivered to and paid for by the Underwriters, will be entitled to the
benefits of the Trust Agreement.
6
5
(j) Airplanes Limited has all necessary corporate power and authority
to execute and deliver Supplement No. 1 to the Airplanes Limited Indenture,
including the Airplanes Limited 1998 Refinancing Guarantee, and to perform
its obligations thereunder. Supplement No. 1 to the Airplanes Limited
Indenture has been duly and validly authorized and upon due execution and
delivery by Airplanes Limited will be, together with the Airplanes Limited
Indenture, a valid and binding agreement of Airplanes Limited, enforceable
against Airplanes Limited in accordance with its terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights generally from
time to time in effect, and subject, as to rights of acceleration and the
availability of equitable remedies, to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law). The Airplanes Limited Indenture is not required to be
qualified under the Trust Indenture Act.
(k) Airplanes Limited has all necessary corporate power and authority
to execute and deliver the Airplanes Limited 1998 Refinancing Notes and to
perform its obligations thereunder. The Airplanes Limited 1998 Refinancing
Notes have been duly and validly authorized for issuance and, when executed
and authenticated in accordance with the provisions of the Airplanes Limited
Indenture and delivered to and paid for by the 1998 Refinancing Trustee,
will be entitled to the benefits of the Airplanes Limited Indenture, and
will be valid and binding obligations of Airplanes Limited, enforceable
against Airplanes Limited in accordance with their terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights generally from
time to time in effect, and subject, as to rights of acceleration and the
availability of equitable remedies, to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law). The deposit of the Airplanes Limited 1998 Refinancing
Notes into the 1998 Refinancing Trusts is not required to be registered
under the Securities Act.
(l) Airplanes Limited has all necessary corporate power and authority
to execute and deliver each Relevant Document to which it is or will become
a party and to perform its obligations thereunder. Each Relevant Document
to which it is a party has been duly and validly authorized by, and has been
or will be executed and delivered by Airplanes Limited on or prior to the
Closing Date, and constitutes or will constitute a valid and binding
agreement of Airplanes Limited, enforceable against Airplanes Limited in
accordance with its terms (in each case, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws affecting creditors' rights generally from time to time in
effect, and subject, as to rights of acceleration and the availability of
equitable remedies, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(m) Airplanes Limited has not engaged in any other activities since the
date of its incorporation other than the business, financing and refinancing
activities described in the Prospectus and the transactions contemplated by
the Relevant Documents to which it is a party.
(n) There has not been any material adverse change, or any development
7
6
that could reasonably be expected to involve a material adverse change, in
the condition, financial or other, or in the earnings, business or
operations of Airplanes Limited from that set forth in the Prospectus.
(o) The authorization, execution, delivery and performance of this
Agreement and the performance of the other Relevant Documents, the
authentication, issuance, sale and delivery of the 1998 Refinancing Notes
and the 1998 Refinancing Certificates and compliance with the terms thereof,
and the consummation by Airplanes Limited of the transactions contemplated
hereby and thereby will not conflict with, or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of Airplanes Limited pursuant to
the terms of any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which Airplanes Limited is a party or by which
Airplanes Limited is bound or to which any of the properties or assets of
Airplanes Limited is subject (other than liens, charges and encumbrances
created pursuant to the Security Trust Agreement), nor will such actions
result in any violation of, or conflict with, the provisions of the
memorandum or articles of association of Airplanes Limited or any statute,
order, decree, rule or regulation of any court or governmental agency or
body having proper jurisdiction over Airplanes Limited or any of its
properties or assets.
(p) Except for (i) such consents, approvals, authorizations,
registrations or qualifications as may be required under the applicable
state securities, Blue Sky or similar laws in connection with the offer,
purchase and distribution of the 1998 Refinancing Certificates by the
Underwriters, (ii) the consent required pursuant to the Control of Borrowing
(Jersey) Order 1958 (as amended) in respect of the issue by Airplanes
Limited of the Airplanes Limited 1998 Refinancing Notes which shall be
obtained prior to the Effective Time; (iii) the filing of the completed
Prospectus after the date hereof with the Registrar of Companies in Jersey
pursuant to the Companies (General Provisions) (Jersey) Order 1992 and the
issue pursuant thereto of such Registrar's consent to the circulation of the
final and completed Prospectus, (iv) such consents as have been obtained and
are in full force and effect and (v) such consents the failure of which to
obtain would not have a material adverse effect on the financial condition,
results of operations or business of Airplanes Limited, no consent,
approval, authorization or order of, or filing or registration with, any
court or governmental agency or body having jurisdiction over Airplanes
Limited or any of its property or assets is required for the execution,
delivery and performance of this Agreement and for the performance of each
other Relevant Document by Airplanes Limited and the consummation of the
transactions contemplated hereby and thereby, including the authentication,
execution, issuance and delivery of the Airplanes Limited 1998 Refinancing
Notes and the 1998 Refinancing Certificates and compliance with the terms
thereof.
(q) No stamp duty, stock exchange tax, value added tax or any other tax
or duty is payable with respect to the authorization, issuance, sale and
delivery of the Airplanes Limited 1998 Refinancing Notes by Airplanes
Limited to each of the 1998 Refinancing Trusts, or of the 1998 Refinancing
Certificates by each of the 1998 Refinancing Trusts to the Underwriters, in
each case in the manner contemplated by this
8
7
Agreement, or the execution and delivery of this Agreement.
(r) Airplanes Limited has not sustained, since the date of the audited
balance sheets included in the Prospectus, any material loss or interference
with its business from any court or governmental action, order or decree,
other than as set forth in or contemplated by the Prospectus; and, since
such date, there has not been any change in the capital stock or debt of
Airplanes Limited or any material adverse change in or affecting the
financial condition, results of operations or business of Airplanes Limited,
whether or not arising from transactions in the ordinary course of business,
other than as set forth in or contemplated by the Prospectus.
(s) The financial statements of Airplanes Group and the notes thereto
included in the Registration Statement and Prospectus were prepared in
conformity with generally accepted accounting principles of the United
States ("U.S. GAAP") and in accordance with the requirements of the
Securities Act.
(t) KPMG-Dublin, who have audited the financial statements of Airplanes
Group and whose report appears in the Prospectus, are independent public
accountants as required by the Securities Act and the Rules and Regulations.
(u) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which Airplanes Limited is a party, or
to which any property of Airplanes Limited is subject (i) asserting the
invalidity of this Agreement, the 1998 Refinancing Certificates, the
Airplanes Limited 1998 Refinancing Notes or any Relevant Document, (ii)
seeking to prevent the issuance by Airplanes Limited of the Airplanes
Limited 1998 Refinancing Notes, or by the 1998 Refinancing Trustee of the
1998 Refinancing Certificates or the consummation of any of the transactions
contemplated by this Agreement or any Relevant Document, (iii) seeking any
determination or ruling that would materially and adversely affect the
performance by Airplanes Limited of its obligations under this Agreement,
the Airplanes Limited 1998 Refinancing Notes or any Relevant Document, (iv)
seeking any determination or ruling that would adversely affect the validity
or enforceability of this Agreement or any Relevant Document, (v) seeking to
affect adversely the Jersey, Irish, United States Federal or State of New
York tax attributes of Airplanes Limited, each of the 1998 Refinancing
Trusts, the 1998 Refinancing Certificates or the Airplanes Limited 1998
Refinancing Notes, or of any payments to be made by any party under this
Agreement or any Relevant Document, or (vi) which would reasonably be
expected to have a material adverse effect on the financial condition,
results of operations or business of Airplanes Limited; and, to the best of
Airplanes Limited's knowledge, no such proceedings are threatened or
contemplated.
(v) Except as disclosed in the Prospectus, Airplanes Limited is not now
in, and the execution and delivery by Airplanes Limited of, and the
performance by Airplanes Limited of its obligations under, this Agreement
and each Relevant Document to which it is a party will not result in (i)
violation of its memorandum or articles of association, (ii) default in any
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or
9
8
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
properties or assets is subject (except where such violation or failure
would not reasonably be expected to have a material adverse effect) or (iii)
violation of any law, ordinance, governmental rule, regulation or court
decree to which it or its properties or assets may be subject, nor has it
failed to obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the conduct of its
business (except where such violation or failure would not reasonably be
expected to have a material adverse effect).
(w) Airplanes Limited is not an "investment company" or an entity
"controlled" by an "investment company" registered or required to be
registered under the United States Investment Company Act of 1940, as
amended (the "Investment Company Act"), as such terms are defined in the
Investment Company Act. Neither of the 1998 Refinancing Trusts is required
to be registered under the Investment Company Act.
(x) There are no statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are
not so described or filed as required.
(y) Airplanes Limited has complied with all provisions of section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(z) Airplanes Limited will use the net proceeds received by it from the
sale of the 1998 Refinancing Notes pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds."
2. Representations, Warranties and Agreements of Airplanes Trust.
Airplanes Trust represents and warrants to each of the Underwriters and agrees
with the Underwriters that:
(a) A Registration Statement, including a prospectus, on Form S-1
(Commission File No. 333-43453), and amendments thereto, with respect to the
1998 Refinancing Certificates, the 1998 Refinancing Notes and the 1998
Refinancing Guarantees have (i) been prepared by the Issuers in conformity
with the requirements of the Securities Act and the Rules and Regulations,
(ii) been filed with the Commission in accordance with the Securities Act
and (iii) become effective under the Securities Act. Copies of such
registration statement and each amendment thereto have been delivered by the
Issuers to you as the Representative. The Commission has not issued any
order preventing or suspending the use of any Preliminary Prospectus. No
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened
by the Commission.
(b) (i) The Registration Statement at the Effective Time, and each
Preliminary Prospectus when originally filed or as part of any amendment
thereto, conformed, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus, when they
become effective or are filed with the
10
9
Commission, as the case may be, will conform, in all material respects with
the Securities Act and the applicable Rules and Regulations; (ii) each
Preliminary Prospectus did not when originally filed, and the Prospectus did
not at the Effective Time, and, as amended or supplemented, if applicable,
will not contain as of the applicable filing date, any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and (iii) at the Effective Time each part of the
Registration Statement did not, and each such part, as amended or
supplemented, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided that no
representation or warranty in this Section 2(b) is made as to (A) statements
or omissions in the Registration Statement or Prospectus based upon the
Underwriter Information or (B) the T-1 Information.
(c) The requirements for the use of Form S-1 under the Securities Act
have been met. Airplanes Trust is an "issuer" within the meaning of the
Securities Act and the Rules and Regulations, and an appropriate registrant
with respect to the offering and sale of the 1998 Refinancing Certificates.
(d) Wilmington Trust Company is duly organized and validly existing in
good standing as a banking corporation under the laws of the State of
Delaware, and has full power, authority and legal right to perform the
Airplanes Trust Agreement, to own or hold its property and to conduct its
business as described in the Prospectus and, as the Delaware Trustee, to
issue, execute, deliver and perform the Airplanes Trust 1998 Refinancing
Notes.
(e) The Airplanes Trust Agreement and the related trust documents have
been duly authorized, executed and delivered by Wilmington Trust Company and
the Settlor, and constitute valid and binding agreements of Wilmington Trust
Company, enforceable against Wilmington Trust Company in accordance with
their respective terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
affecting creditors' rights generally from time to time in effect, and
subject, as to rights of acceleration and the availability of equitable
remedies, to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(f) Airplanes Trust has been duly formed and is legally and validly
existing in good standing as a business trust under the laws of the State of
Delaware, has the power and authority under the Airplanes Trust Agreement
and the laws of the State of Delaware to conduct its activities as described
in the Prospectus.
(g) The Delaware Trustee and each Controlling Trustee has the power and
authority under the Airplanes Trust Agreement to execute, deliver and
perform on behalf of Airplanes Trust, this Agreement, the Airplanes Trust
1998 Refinancing Notes and to perform each other Relevant Document to which
Airplanes Trust is a party, and the execution, delivery and performance by
the Delaware Trustee on behalf of Airplanes Trust of this Agreement, the
Airplanes Trust 1998 Refinancing Notes and each other
11
10
Relevant Document to which Airplanes Trust is a party are not in violation
of the charter or by-laws of the Delaware Trustee or of any law,
governmental rule or regulation of the State of Delaware or the United
States governing the banking or trust powers of the Delaware Trustee and, to
our knowledge, will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Delaware Trustee is a party or by which the Delaware
Trustee is bound, or, to our knowledge, any judgment or order of any court,
governmental agency or body having proper jurisdiction over the banking or
trust powers of the Delaware Trustee.
(h) The Delaware Trustee has not taken any action nor, to the best of
its knowledge, have any other steps been taken or legal proceedings been
started or threatened against Airplanes Trust for the winding-up,
dissolution or reorganization, for the appointment of a liquidator,
receiver, administrator, administrative receiver, examiner or similar
officer of Airplanes Trust or of any or all of its assets or revenues or as
a result of which Airplanes Trust could become bankrupt.
(i) All of the residual interest in Airplanes Trust is held by the
Settlor pursuant to the Airplanes Trust Agreement.
(j) Airplanes Trust has all necessary power and authority under the
Airplanes Trust Agreement to execute and deliver this Agreement and to
perform its obligations hereunder, and this Agreement has been duly
authorized, executed and delivered by Airplanes Trust.
(k) Airplanes Trust has all necessary power and authority under the
Airplanes Trust Agreement to execute and deliver Supplements Nos. 9 and 10
to the Trust Agreement and to perform its obligations thereunder. The Trust
Agreement has been duly qualified under the Trust Indenture Act, and
Supplements Nos. 9 and 10 have been duly and validly authorized on the date
hereof and, on the Closing Date, will be duly executed and delivered by
Airplanes Trust, and thereupon together with the Trust Agreement, will be a
valid and binding agreement of Airplanes Trust, enforceable against
Airplanes Trust in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws affecting creditors' rights generally from time to time
in effect, and subject, as to rights of acceleration and the availability of
equitable remedies, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law). The
Trust Agreement complies as to form in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations of the
Commission thereunder.
(l) Assuming due authorization and execution by each of the 1998
Refinancing Trusts and due authentication by the 1998 Refinancing Trustee in
accordance with the provisions of the Trust Agreement, the 1998 Refinancing
Certificates will be duly issued by each of the 1998 Refinancing Trusts and,
when delivered to and paid for by the Underwriters, will be entitled to the
benefits of the Trust Agreement.
(m) Airplanes Trust has all necessary power and authority under the
12
11
Airplanes Trust Agreement to execute and deliver Supplement No. 1 to the
Airplanes Trust Indenture, including the Airplanes Trust 1998 Refinancing
Guarantee, and to perform its obligations thereunder. Supplement No. 1 to
the Airplanes Trust Indenture has been duly and validly authorized on the
date hereof, and, on the Closing Date, will be executed and delivered by
Airplanes Trust, and thereupon, together with the Airplanes Trust Indenture,
will be a valid and binding agreement of Airplanes Trust, enforceable
against Airplanes Trust in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws affecting creditors' rights generally from time to time
in effect, and subject, as to rights of acceleration and the availability of
equitable remedies, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law). The
Airplanes Trust Indenture is not required to be qualified under the Trust
Indenture Act.
(n) Airplanes Trust has all necessary power and authority under the
Airplanes Trust Agreement to execute and deliver the Airplanes Trust 1998
Refinancing Notes and perform its obligations thereunder. The Airplanes
Trust 1998 Refinancing Notes have been duly and validly authorized for
issuance and, when executed and authenticated in accordance with the
provisions of the Airplanes Trust Indenture and delivered to and paid for by
the 1998 Refinancing Trustee, will be entitled to the benefits of the
Airplanes Trust Indenture, and will be valid and binding obligations of
Airplanes Trust, enforceable against Airplanes Trust in accordance with
their terms (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and subject, as to
rights of acceleration and the availability of equitable remedies, to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law). The deposit of the
Airplanes Trust 1998 Refinancing Notes into the 1998 Refinancing Trusts is
not required to be registered under the Securities Act.
(o) There is no fee, tax or other governmental charge under the laws of
the State of Delaware or any political subdivision thereof in existence on
the date hereof on, based on or measured by any payments under the Airplanes
Trust 1998 Refinancing Notes or the beneficial interests in the estate
created by Supplement No. 1 to the Airplanes Trust Indenture by reason of
the Delaware Trustee's performance of its duties under the Airplanes Trust
Agreement within the State of Delaware, which would not have been imposed if
the Delaware Trustee did not have its principal place of business in such
State and did not perform its obligations under the Relevant Documents in
such State.
(p) Airplanes Trust has all necessary power and authority under the
Airplanes Trust Agreement to execute and deliver each Relevant Document to
which it is or will become a party and to perform its obligations
thereunder. Each Relevant Document to which it is a party has been duly and
validly authorized by, and has been or will be executed and delivered by
Airplanes Trust on or prior to the Closing Date, and constitutes or will
constitute a valid and binding agreement of Airplanes Trust, enforceable
against Airplanes Trust in accordance with its terms (in each case, subject
to applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and
13
12
other similar laws affecting creditors' rights generally from time to time
in effect, and subject, as to rights of acceleration and the availability of
equitable remedies, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(q) Airplanes Trust has not engaged in any other activities since the
date of its incorporation other than the business, financing and refinancing
activities described in the Prospectus and the transactions contemplated by
the Relevant Documents to which it is a party.
(r) There has not been any material adverse change, or any development
that could reasonably be expected to involve a material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of Airplanes Trust from that set forth in the Prospectus.
(s) The authorization, execution, delivery and performance of this
Agreement and the performance of the other Relevant Documents, the
authentication, issuance, sale and delivery of the 1998 Refinancing Notes
and the 1998 Refinancing Certificates and compliance with the terms thereof,
and the consummation by Airplanes Trust of the transactions contemplated
hereby and thereby will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon
any properties or assets of Airplanes Trust pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which Airplanes Trust is a party or by which Airplanes Trust
is bound or to which any of the properties or assets of Airplanes Trust is
subject (other than liens, charges and encumbrances created pursuant to the
Security Trust Agreement), nor will such actions result in any violation of,
or conflict with, the provisions of the Airplanes Trust Agreement or any
statute or any order, decree, rule or regulation of any court or
governmental agency or body having proper jurisdiction over Airplanes Trust
or any of its properties or assets.
(t) Except for (i) such consents, approvals, authorizations,
registrations or qualifications as may be required under the applicable
state securities, Blue Sky or similar laws in connection with the offer,
purchase and distribution of the 1998 Refinancing Certificates by the
Underwriters, (ii) such consents as have been obtained and are in full force
and effect and (iii) such consents the failure of which to obtain would not
have a material adverse effect on the financial condition, results of
operations or business of Airplanes Trust, no consent, approval,
authorization or order of, or filing or registration with, any court or
governmental agency or body having jurisdiction over the Delaware Trustee,
Airplanes Trust or any of its properties or assets is required for the
execution, delivery and performance of this Agreement and the performance of
each other Relevant Document by Airplanes Trust and the consummation of the
transactions contemplated hereby and thereby, including the issuance,
authentication, sale and delivery of the Airplanes Trust 1998 Refinancing
Notes and the 1998 Refinancing Certificates and compliance with the terms
thereof.
(u) No stamp duty, stock exchange tax, value added tax or any other tax
or
14
13
duty is payable with respect to the authorization, issuance, sale and
delivery of the Airplanes Trust 1998 Refinancing Notes by Airplanes Trust to
each of the 1998 Refinancing Trusts, or of the 1998 Refinancing Certificates
by each of the 1998 Refinancing Trusts to the Underwriters, in each case in
the manner contemplated by this Agreement, or the execution and delivery of
this Agreement or the other Relevant Documents.
(v) Airplanes Trust has not sustained since the date of the audited
balance sheets included in the Prospectus any material loss or interference
with its business from any court or governmental action, order or decree,
other than as set forth in or contemplated by the Prospectus; and, since
such date, there has not been any change in the residual interest or debt of
Airplanes Trust or any material adverse change in or affecting the financial
condition, results of operations or business of Airplanes Trust, whether or
not arising from transactions in the ordinary course of business, other than
as set forth in or contemplated by the Prospectus.
(w) The financial statements of Airplanes Group and the notes thereto
included in the Registration Statement and Prospectus were prepared in
conformity with generally accepted accounting principles of the United
States ("U.S. GAAP") and in accordance with the requirements of the
Securities Act.
(x) KPMG, who have audited the financial statements of Airplanes Group
and whose report appears in the Prospectus, are independent public
accountants as required by the Securities Act and the Rules and Regulations.
(y) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which Airplanes Trust is a party, or to
which any property of Airplanes Trust is subject (i) asserting the
invalidity of this Agreement, the 1998 Refinancing Certificates, the
Airplanes Trust 1998 Refinancing Notes or any Relevant Document, (ii)
seeking to prevent the issuance by Airplanes Trust of the Airplanes Trust
1998 Refinancing Notes, or by the 1998 Refinancing Trustee of the 1998
Refinancing Certificates or the consummation of any of the transactions
contemplated by this Agreement or any Relevant Document, (iii) seeking any
determination or ruling that would materially and adversely affect the
performance by Airplanes Trust of its obligations under this Agreement or
any Relevant Document, (iv) seeking any determination or ruling that would
adversely affect the validity or enforceability of this Agreement or any
Relevant Document, (v) seeking to affect adversely the Jersey, Irish, United
States Federal or State of Delaware or New York income tax attributes of
Airplanes Trust, each of the 1998 Refinancing Trusts, the 1998 Refinancing
Certificates or the Airplanes Trust 1998 Refinancing Notes, or of any
payments to be made by any party under this Agreement or any Relevant
Document, or (vi) which would reasonably be expected to have a material
adverse effect on the financial condition, results of operations or business
of Airplanes Trust; and, to the best of Airplanes Trust's knowledge, no such
proceedings are threatened or contemplated.
(z) Except as disclosed in the Prospectus, Airplanes Trust is not now
in, and the execution and delivery by Airplanes Trust of, and the
performance by Airplanes
15
14
Trust of its obligations under this Agreement and each other Relevant
Document to which it is a party will not result in (i) violation of the
Airplanes Trust Agreement, (ii) default in any respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject
(except where such violation or failure would not reasonably be expected to
have a material adverse effect) or (iii) violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its properties
or assets may be subject, nor has it failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the conduct of its business (except where such violation or
failure would not reasonably be expected to have a material adverse effect).
(aa) Airplanes Trust is not an "investment company" or an entity
"controlled" by an "investment company" registered or required to be
registered under the Investment Company Act, as such terms are defined in
the Investment Company Act. Neither of the 1998 Refinancing Trusts is
required to be registered as an investment company under the Investment
Company Act.
(ab) There are no statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are
not so described or filed as required.
(ac) Airplanes Trust has complied with all provisions of section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(ad) Airplanes Trust will use the net proceeds received by it from the
sale of the 1998 Refinancing Notes pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds".
3. Representations, Warranties and Agreements of GPA Group. GPA Group
represents and warrants to the Underwriters and agrees with the Underwriters
that:
(a) (i) Each Preliminary Prospectus did not when originally filed, and
the Prospectus did not at the Effective Time, and, as amended or
supplemented, if applicable, will not contain as of the applicable filing
date any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (ii) at the
Effective Time, each part of the Registration Statement did not contain, and
each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided that no representation or warranty in this Section
3(a) is made as to (A) statements or omissions in the Registration Statement
or Prospectus based upon the Underwriter Information or the T-1 Information
or information other than the information relating to GPA Group specified in
Schedule III hereto (the "GPA Information").
16
15
(b) Each of GPA Group, the Settlor and their respective subsidiaries
(collectively, the "Subsidiaries" and, together with GPA Group, the "GPA
Companies") is duly incorporated (in the case of GPA Group, as a public
limited company) and is validly existing as a corporation in good standing
(in each jurisdiction in which such concept applies) under the applicable
laws of its jurisdiction of incorporation, is duly qualified to transact
business and in good standing (in each jurisdiction in which such concept
applies) in each jurisdiction in which the ownership or leasing of its
properties and the conduct of its business requires such qualification,
except to the extent that the failure to be so qualified or to be in good
standing (in each jurisdiction in which such concept applies) would not have
a material adverse effect on the financial condition, results of operations
or business of GPA Group, and each GPA Company has the corporate power and
authority to own or hold its property and to conduct the business in which
it is engaged as described in the Prospectus.
(c) GPA Group has all necessary corporate power and authority to
execute and deliver this Agreement and perform its obligations hereunder and
this Agreement has been duly authorized, executed and delivered by GPA
Group.
(d) Each of the GPA Companies has all necessary corporate power and
authority to perform its obligations under each Relevant Document to which
it is a party. Each Relevant Document has been duly authorized, executed
and delivered by such of the GPA Companies as are party thereto and
constitutes a valid and binding agreement of such GPA Company, enforceable
against such GPA Company in accordance with its terms (subject in each case
to applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights generally from
time to time in effect, and subject, as to rights of acceleration and the
availability of equitable remedies, to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(e) The execution, delivery and performance of this Agreement by GPA
Group, and of the Relevant Documents by such of the GPA Companies as are
party thereto, and compliance with the terms of this Agreement by GPA Group,
and of the terms of the Relevant Documents by such of the GPA Companies as
are party thereto, and the consummation of the transactions contemplated by
this Agreement by GPA Group and of the transactions contemplated by the
Relevant Documents by such of the GPA Companies as are party thereto, will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any properties or assets
of any GPA Company pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which any such
GPA Company is a party or by which any such GPA Company is bound, or to
which any of the properties or assets of any such GPA Company is subject,
nor will such actions result in any violation of, or conflict with, the
provisions of the constitutional documents of any such GPA Company or any
statute, order, decree, rule or regulation of any court or governmental
agency or body having proper jurisdiction over any GPA Company or any of
their respective properties or assets (except for such statutes, orders,
decrees, rules or regulations the violation of which
17
16
would not have a material adverse effect on the consolidated financial
condition, results of operations or business of the GPA Companies, taken as
a whole).
(f) Except for (i) such consents, approvals, authorizations,
registrations or qualifications as may be required under the applicable
state securities, Blue Sky or similar laws in connection with the offer,
purchase and distribution of the 1998 Refinancing Certificates by the
Underwriters and (ii) such consents as have been obtained and are in full
force and effect, no consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body having
jurisdiction over any GPA Company or any of their respective properties or
assets is required for the execution, delivery and performance of this
Agreement and the performance of the other Relevant Documents by such of the
GPA Companies as are party thereto and the consummation of the transactions
contemplated hereby and thereby, other than such consents the failure of
which to obtain would not have a material adverse effect on the consolidated
financial condition, results of operations or business of the GPA Companies,
taken as a whole.
(g) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which any GPA Company is a party or of
which any property of any GPA Company is the subject (i) asserting the
invalidity of this Agreement or any Relevant Document to which such GPA
Company is a party, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any Relevant Document to
which such GPA Company is a party, (iii) seeking any determination or ruling
that would materially and adversely affect the performance by any of the GPA
Companies of its respective obligations under this Agreement or any Relevant
Document to which such GPA Company is a party, (iv) seeking any
determination or ruling that would adversely affect the validity or
enforceability of this Agreement or any Relevant Document to which such GPA
Company is a party, or (v) which would reasonably be expected to have a
material adverse effect on the consolidated financial condition, results of
operations or business of the GPA Companies, taken as a whole; and, to the
best of GPA Group's knowledge, no such proceedings are pending or
threatened.
(h) All of the information supplied by GPA Group to the Representative
and the Rating Agencies in connection with the actual or prospective
issuance of the 1998 Refinancing Notes and the 1998 Refinancing Certificates
(as supplemented or superseded from time to time prior to the date of this
Agreement) was, at the time it was supplied, and is true and correct in all
material respects and is not misleading, and did not fail to disclose any
information which was necessary to make the information so given not
misleading in the context in which it was given.
(i) The Settlor is an entity separate and distinct from the estate
created by the Airplanes Trust Indenture.
(j) The acquisition by the Settlor of its residual interest in
Airplanes Trust under the Airplanes Trust Agreement is an exempt transaction
under the Securities Act, and it is not necessary to qualify the Airplanes
Trust Agreement under the Trust Indenture Act in connection with such
acquisition.
18
17
4. Purchase and Offering of the 1998 Refinancing Certificates by the
Underwriters. Upon the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions hereinafter stated,
each Issuer agrees to cause each of the 1998 Refinancing Trusts to sell to the
several Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the 1998 Refinancing Trusts the respective
principal amounts of each subclass of 1998 Refinancing Certificates set forth
in Schedule I hereto opposite their names at the percentages of the principal
amounts of such subclasses of 1998 Refinancing Certificates set forth in
Schedule II hereto (the "public offering prices"). As compensation for the
Underwriters for their respective commitments and obligations hereunder in
respect of the 1998 Refinancing Certificates, including their respective
undertakings to offer the 1998 Refinancing Certificates for sale to the public,
the Issuers will pay to the Underwriters severally and not jointly underwriting
commissions in an amount equal to the respective percentages of the principal
amount of each subclass of 1998 Refinancing Certificates purchased by the
Underwriters as set forth in Schedule II hereto (the "Commissions"). Payment
of the Commissions shall be made simultaneously with the payment by the
Underwriters to the 1998 Refinancing Trustee of the public offering price of
the 1998 Refinancing Certificates, in each case in the manner specified in
Section 5 hereof.
Each of the Issuers is advised by the Representative that the Underwriters
propose to make a public offering of their respective portions of the 1998
Refinancing Certificates upon the terms and conditions set forth in the
Prospectus as soon after the Registration Statement and this Agreement have
become effective as is advisable in the judgment of the Representative. Each
of the Issuers is further advised by the Representative that each subclass of
1998 Refinancing Certificates is to be offered to the public initially at the
public offering price thereof and to certain dealers selected by the
Representative at a price that represents a concession not in excess of the
percentage of the principal amount thereof under the public offering price set
forth for such subclass in Schedule II hereto, and that any Underwriter may
allow, and such dealers may reallow, a concession, not in excess of the
percentage of the principal amount thereof set forth for such subclass in
Schedule II hereto, to any Underwriter or to certain other dealers.
Each Underwriter agrees, severally and not jointly, that the Issuers may
rely upon the restrictions set forth in paragraphs - through - under the
caption "Selling Restrictions for the 1998 Refinancing Certificates" in the
Invitation Telex, dated -, 1998, from the Representative to the Underwriters.
5. Delivery of and Payment for the 1998 Refinancing Certificates. Payment
for the 1998 Refinancing Certificates shall be made in U.S. dollars, against
delivery of the 1998 Refinancing Certificates as specified below, at 9:00 A.M.
(New York time) on March 16, 1998, or at such other time or on such other date
as shall be designated in writing by the Representative with the agreement of
the Issuers, by wire transfer payable in immediately available funds to the
order of the party or parties identified by the Issuers to the Representative
not later than two full business days prior to the Closing Date. The time and
date of such payment are herein referred to as the "Closing Date."
Each subclass of the 1998 Refinancing Certificates will be represented by
one
19
18
or more global certificates (the "Global Certificates") registered in the name
of Cede & Co. as nominee of The Depository Trust Company, Inc. ("DTC"), as
specified to the Issuers by the Representative. Such Global Certificates shall
be delivered to the Representative at the offices of Shearman & Sterling, 000
Xxxxxxxxxxx, Xxxxxx, XX0X 0XX, Xxxxxxx not later than 2:00 P.M. (London time)
two business days prior to the Closing Date, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection with the
transfer of the 1998 Refinancing Certificates to the Underwriters duly paid.
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder.
6. Further Agreements of the Issuers. Each of the Issuers further agrees
with the Underwriters that:
(a) The Issuers will prepare the Prospectus in a form approved by the
Representative, and file such Prospectus pursuant to Rule 424(b) or Rule 462
of the Rules and Regulations not later than the Commission's close of
business on the second business day following the execution and delivery of
this Agreement or, if applicable, such earlier time as may be required by
Rule 430A of the Rules and Regulations; make no further amendment or any
supplement to the Registration Statement or to the Prospectus prior to the
Closing Date except as permitted herein; advise the Representative, promptly
after it receives notice thereof at any time prior to the expiration of the
period during which the Underwriters are obligated under the Securities Act
and the Rules and Regulations to deliver a prospectus, of the time when any
amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended Prospectus has been filed
and furnish the Representative with copies thereof; advise the
Representative, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, of the suspension
of the qualification of the 1998 Refinancing Certificates for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or for any
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, promptly
use its best efforts to obtain its withdrawal at the earliest possible time.
(b) The Issuers will furnish promptly to the Representative or to
counsel to the Underwriters three signed copies of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits filed
therewith, without charge.
(c) The Issuers will deliver promptly to the Representative such number
of the following documents as the Representative shall reasonably request:
(i) a conformed copy of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case, without consents or
exhibits) for delivery to each Underwriter and (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus. In
the case of the Prospectus, each of Airplanes Limited and
20
19
Airplanes Trust further agrees to furnish copies of the Prospectus in New
York and London, prior to 5:00 P.M. (London time) on the business day
following the date of this Agreement, in such quantities as the
Representative reasonably requests. If the delivery of a prospectus is
required at any time prior to the expiration of nine months after the
Effective Time in connection with the offering or sale of the 1998
Refinancing Certificates and, if at such time any events shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus in order to comply
with the Securities Act, the Issuers shall amend or supplement the
Prospectus, as the Issuers deem appropriate to correct such statement or
omission or effect such compliance, notify the Representative of such
amendment or supplement and, upon the Representative's request, prepare and
furnish without charge to each Underwriter and to any dealer in securities
as many copies as the Representative may from time to time reasonably
request of such amended Prospectus or supplement to the Prospectus which
corrects such statement or omission or effects such compliance, and in case
any Underwriter is required to deliver a prospectus in connection with sales
of any of the 1998 Refinancing Certificates at any time nine months or more
after the Effective Time, upon the request of the Representative but at the
expense of such Underwriter, prepare and deliver to such Underwriter as many
copies as the Representative may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Securities
Act.
(d) The Issuers will file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to the
Prospectus that (i) may, in the reasonable judgment of the Issuers or in the
reasonable judgment of the Representative at any time prior to the
expiration of the period during which the Underwriters are obligated under
the Securities Act and the Rules and Regulations to deliver a prospectus, be
required by the Securities Act or the Rules and Regulations or (ii) is
requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 or Rule 462 of the Rules and Regulations,
the Issuers will, at any time prior to the expiration of the period during
which the Underwriters are obligated under the Securities Act and the Rules
and Regulations to deliver a prospectus, furnish a copy thereof to the
Representative and counsel for the Underwriters and not file any such
document to which the Representative shall reasonably object after having
been given reasonable notice of the proposed filing thereof.
(f) So long as any of the 1998 Refinancing Certificates are
outstanding, the Issuers will furnish to the Underwriters, by first-class
mail as soon as practicable (i) all documents distributed by the 1998
Refinancing Trustee, either Indenture Trustee, the Cash Manager or the
Issuers to holders of 1998 Refinancing Certificates, or filed with the
Commission pursuant to the Exchange Act, or any rule or regulation of the
Commission thereunder, (ii) any order of the Commission under the Securities
Act or the Exchange
21
20
Act applicable to either of the 1998 Refinancing Trusts or to the Issuers as
originators of the 1998 Refinancing Trusts, or pursuant to a "no action"
letter obtained from the staff of the Commission by the Issuers and
affecting either of the 1998 Refinancing Trusts or the Issuers as
originators of the 1998 Refinancing Trusts, and (iii) from time to time,
such other information concerning the Issuers or either of the 1998
Refinancing Trusts as the Underwriters may reasonably request.
(g) The Issuers will promptly from time to time take such action as the
Representative may reasonably request to qualify the 1998 Refinancing
Certificates for offering and sale under the securities or Blue Sky laws of
such jurisdictions as the Representative may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the 1998 Refinancing Certificates; provided that, in connection
therewith, the Issuers shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(h) During the period beginning on the date hereof and continuing to
and including the later of (i) the completion of the distribution of the
1998 Refinancing Certificates covered by this Agreement and (ii) the Closing
Date, the Issuers will not offer, sell, contract to sell or otherwise
dispose of, or cause to be offered, sold, contracted for sale or disposed,
any debt securities of the Issuers, other than the 1998 Refinancing Notes or
any certificates of fractional undivided interests in any debt of the
Issuers which are substantially similar to the 1998 Refinancing Notes, or
the 1998 Refinancing Certificates, other than as contemplated in the
Prospectus, without the prior written consent of the Representative.
(i) The Issuers will make generally available to the Issuers'
Certificateholders and to the Underwriters as soon as practicable an earning
statement covering the twelve-month period ending March 31, 1998 that
satisfies the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
(j) To the extent, if any, that the ratings provided with respect to
the 1998 Refinancing Certificates by any Rating Agency are conditional upon
the furnishing of documents or the taking of any other actions by the
Issuers, the Issuers will furnish such documents and take any such other
actions.
(k) The Issuers will use their reasonable best efforts to cause the
1998 Refinancing Certificates to be listed on the Luxembourg Stock Exchange
prior to the Closing Date and will furnish from time to time any and all
documents, instruments, information and undertakings that may reasonably be
necessary or advisable in order to comply with the listing rules of the
Luxembourg Stock Exchange unless and until the Issuers, after consultation
with the Representative, determine to terminate the listing of the 1998
Refinancing Certificates on such exchange.
7. Expenses. Each of the Issuers will pay (a) the costs incident to the
authorization, issuance, sale, authentication, transfer and delivery of the
1998 Refinancing
22
21
Notes to the purchaser thereof and the 1998 Refinancing Certificates to the
Underwriters and any taxes payable in connection therewith; (b) the costs
incident to the preparation, printing and filing under the Securities Act of
the Registration Statement, any amendments and exhibits thereto, any
Preliminary Prospectus, the Prospectus and any amendment or supplement thereto
and the Trust Agreement; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (d) the costs of distributing any agreement
relating to the organization of the underwriting syndicate and the selling
group to the members thereof by mail, telex or other means of communication;
(e) the reasonable fees and expenses of qualifying the 1998 Refinancing
Certificates under the securities laws of the several jurisdictions as provided
in Section 6(h) hereof and of preparing, printing and distributing a Blue Sky
Memorandum (including fees and expenses of counsel to the Underwriters); (f)
any fees charged by the Rating Agencies for rating the 1998 Refinancing
Certificates; (g) all costs and expenses incident to the listing of the 1998
Refinancing Certificates on the Luxembourg Stock Exchange; (h) the costs and
charges of DTC and its nominee in connection with the 1998 Refinancing
Certificates, including the book-entry ownership system for the 1998
Refinancing Certificates; (i) the costs and charges of any transfer agent,
registrar or paying agent; (j) the fees and expenses of the 1998 Refinancing
Trustee and any agent of the 1998 Refinancing Trustee and the fees and
disbursements of counsel for the 1998 Refinancing Trustee in connection with
the Trust Agreement and the 1998 Refinancing Certificates; (k) the reasonable
expenses of the Underwriters properly incurred, including the fees and
disbursements of legal advisors and other professional advisors; and (l) all
other reasonable fees and expenses incident to the performance of the
obligations of the Issuers hereunder.
8. Conditions of the Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the accuracy, when made on the
date hereof and on the Closing Date, of the representations and warranties of
each of the Issuers and GPA Group contained herein, to the performance by the
Issuers and GPA Group of their respective obligations hereunder, and to each of
the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a) hereof; and no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Relevant Documents,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all material respects to counsel for the Underwriters, and
each of the Issuers and GPA Group shall have furnished or caused to be
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date,
23
22
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Issuers' securities by any "nationally recognized statistical
rating organization" as such term is defined for purposes of Rule
436(g)(2) of the Rules and Regulations,
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Issuers or any of their respective subsidiaries, taken as a
whole, from that set forth in the Registration Statement, that, in
the judgment of the Representative, is material and adverse and
that makes it, in the judgment of the Representative, impracticable
to market the 1998 Refinancing Certificates on the terms and in the
manner contemplated in the Prospectus.
(d) Mourant du Feu & Jeune, Jersey, Channel Islands counsel to
Airplanes Limited, shall have furnished to the Representative their written
opinion to the effect specified in Exhibit A hereto, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Representative.
(e) Potter, Xxxxxxxx & Xxxxxxx, Delaware counsel to Airplanes Trust and
the Airplanes Trustee, shall have furnished to the Representative their
written opinion to the effect specified in Exhibit B hereto, addressed to
the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Representative.
(f) Xxxxx Xxxx & Xxxxxxxx, U.S. counsel to GPA Group, the Issuers and
the Settlor, shall have furnished to the Representative their written
opinion to the effect specified in Exhibit C hereto, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Representative.
(g) XxXxxx XxxxXxxxxx Solicitors, Irish counsel to GPA Group and the
Issuers, shall have furnished to the Representative their written opinion to
the effect specified in Exhibit D hereto, addressed to the Underwriters and
dated the Closing Date, in form and substance reasonably satisfactory to the
Representative.
(h) Xxxxxx & Xxxxxx, special counsel to the 1998 Refinancing Trustee,
shall have furnished to the Representative their written opinion to the
effect set forth in Exhibit E hereto, addressed to the Underwriters and
dated the Closing Date, in form and substance reasonably satisfactory to the
Representative.
(i) Any opinions delivered to any Rating Agency in respect of the 1998
Refinancing Certificates shall each have been furnished to the
Representative in form and substance satisfactory to the Representative,
together with a letter stating that each of the Underwriters may rely on
such opinions as if they were addressed to the Underwriters.
24
23
(j) Shearman & Sterling, special counsel to the Underwriters, shall
have furnished to the Representative their written opinion dated the Closing
Date, in form and substance satisfactory to the Representative, with respect
to the 1998 Refinancing Certificates, the 1998 Refinancing Notes, the
Registration Statement, the Prospectus, this Agreement and other related
matters as the Representative may reasonably require, and the Issuers and
GPA Group shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters. In rendering such opinion, such counsel may make assumptions
relating to issues covered by the other opinions delivered pursuant to this
Section, including all matters governed by the laws of Jersey, Ireland and
the United Kingdom, and their opinion may be subject to the qualifications,
assumptions and exceptions set forth in the other opinions delivered
pursuant to this Section.
(k) At the time this Agreement is executed and at the Closing Date,
KPMG shall have furnished to the Representative a letter or letters
addressed to the parties hereto, dated respectively as of the date of this
Agreement and the Closing Date, to the effect set forth in Exhibit G hereto,
in form and substance satisfactory to the Representative.
(l) At the time this Agreement is executed and at the Closing Date, the
Washington, D.C. office of KPMG shall have furnished to the parties hereto,
a letter or letters addressed to the parties hereto, dated respectively as
of the date of the Prospectus and the Closing Date, to the effect set forth
in Exhibit H hereto, in form and substance satisfactory to the
Representative.
(m) With respect to the letters, dated and delivered the date of this
Agreement (the "initial letters"), from KPMG to the Representative, pursuant
to Sections 8(l) and 8(m) hereof, the appropriate office of KPMG shall have
furnished to the Representative letters, addressed to the parties hereto and
dated the Closing Date (the "bringdown letters"), (i) confirming that they
are independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of each such bringdown letter (or,
with respect to matters involving changes or developments since the
respective dates as of which certain specified financial information is
given in the Prospectus, as of the date not more than five days prior to the
date of the bringdown letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the conclusions
and findings set forth in the respective initial letter.
(n) The Representative shall have received from each Issuer on the
Closing Date a certificate, dated the Closing Date and signed by (i), with
respect to the certificate delivered by Airplanes Limited, a member of the
Board of Directors of Airplanes Limited, and (ii), with respect to the
certificate of Airplanes Trust, a Controlling Trustee of Airplanes Trust, in
either case to the effect set forth in clause 8(c)(ii) above and to the
effect that the representations and warranties of such Issuer in Section 1
or 2 hereof, as applicable, are true and correct as of such date and that
such Issuer has complied with all
25
24
its agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date except for such agreements or
conditions as may have been waived by the Representative by notice in
writing.
(o) GPA Group shall have furnished to the Representative a certificate
of GPA Group, dated the Closing Date and executed by an executive officer,
stating that the representations and warranties of GPA Group in Section 3
hereof are true and correct as of the Closing Date; GPA Group has complied
with all its agreements contained herein; the conditions on its part to be
fulfilled pursuant to this Agreement prior to the Closing Date have been
fulfilled or waived by the Representative by notice in writing; and nothing
has come to such officer's attention that would lead such officer to believe
that the Registration Statement or the Prospectus, and any amendment or
supplement thereto, as of the date thereof and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading.
(p) The Representative shall have received evidence satisfactory to the
Representative that each subclass of 1998 Refinancing Certificates shall
have obtained the ratings set forth in the Prospectus.
(q) Each of the Accounts established by the Cash Manager shall be
jointly in the names of the Indenture Trustees with the 1998 Refinancing
Trustee or with the bank or banks set forth in the Cash Management
Agreement.
(r) On or prior to the Closing Date, (i) each Issuer shall have duly
authorized, executed and delivered Supplements Nos. 9 and 10 to the Trust
Agreement , (ii) Airplanes Limited shall have duly authorized, executed and
delivered Supplement No. 1 to the Airplanes Limited Indenture, (iii)
Airplanes Trust shall have duly authorized, executed and delivered
Supplement No. 1 to the Airplanes Trust Indenture, (iv) each Relevant
Document shall be and remain in full force and effect with respect to each
of the Issuers party thereto as of the Closing Date and (v) there shall not
have occurred any breach in any representation or warranty of any party
under the Stock Purchase Agreement other than as has been notified to the
Representative in writing.
(s) Each Issuer shall be in compliance and shall have performed or
complied with all of the covenants, agreements, terms and provisions on its
part to be performed or observed contained in the Trust Agreement and each
Relevant Document to which it is a party, and each GPA Company party thereto
shall have performed or complied in all material respects with all of the
covenants, agreements, terms and provisions on their respective parts to be
performed or observed contained in the Relevant Documents.
(t) Simultaneous with or prior to the Closing Date, the 1998
Refinancing Notes shall have been issued and sold to each of the 1998
Refinancing Trusts.
(u) Subsequent to the respective dates of the audited balance sheets in
the Registration Statement and the Prospectus, (i) the Issuers and their
respective subsidiaries
26
25
shall not have incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary
course of business; (ii) the Issuers shall not have purchased any of their
outstanding capital stock or residual interest, as the case may be, nor
declared, paid or otherwise made any dividend or distribution of any kind,
in the case of Airplanes Limited, on its capital stock, and in the case of
Airplanes Trust, on its residual interest; and (iii) there shall not have
been any material change in the capital stock or residual interest, as the
case may be, short-term debt or long-term debt of the Issuers and their
consolidated subsidiaries, taken as a whole, except in each case as
described in or contemplated by the Prospectus.
(v) The Issuers shall have furnished to the Representative a letter of
each of the Appraisers, addressed to each of the parties hereto and dated
the Closing Date, confirming that each of such Appraisers and each of its
directors and officers (i) is not an affiliate of the Issuers, any of the
GPA Companies, GE Capital Aviation Services Limited, an Irish public limited
company ("GECAS"), or any affiliate of any of the foregoing, (ii) does not
have any substantial interest, direct or indirect, in the Issuers or their
respective subsidiaries, any of the GPA Companies, GECAS or in any affiliate
of any of the foregoing, (iii) is not connected with the Issuers, any of the
GPA Companies, GECAS or any affiliate of any of the foregoing as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions and (iv) has not had and does not have any
past, present or anticipated future interest in any of the Aircraft.
(w) The Luxembourg Stock Exchange shall have approved the 1998
Refinancing Certificates for Listing, subject only to official notice of
issuance.
(x) All of the conditions necessary to be fulfilled for the closing of
the refinancing of the Subclass A-1 Notes of each of Airplanes Limited and
Airplanes Trust and the Subclass A-1 Certificates shall have been fulfilled
without any waivers other than such waivers as shall have been agreed by the
Representative.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
9. Indemnification and Contribution. (a) Each of the Issuers and the GPA
Group agrees to jointly and severally indemnify and hold harmless each
Underwriter, each person, if any, who controls (each, a "Control Person") any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and each of their respective directors, officers, employees or agents,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
by any Underwriter or any such Control Person in connection with defending or
investigating any such action or claim) caused by any untrue or misleading
statement or alleged untrue or misleading statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented), or
caused by any omission or alleged omission to state therein a material fact
27
26
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue or misleading statement or omission based upon the
Underwriter Information or the T-1 Information included therein; provided,
however, that the foregoing indemnity of GPA Group shall be limited to the GPA
Information.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless each of the Issuers and GPA Group, their respective directors and
officers who sign the Registration Statement and each Control Person of either
Issuer or GPA Group, in each case to the same extent as the foregoing indemnity
from the Issuers and GPA Group to such Underwriter, but only with reference to
the information relating to such Underwriter furnished to the Issuers in
writing by such Underwriter through the Representative expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing, and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the
Representative, in the case of parties indemnified pursuant to the second
preceding paragraph, and by GPA Group on its own behalf and the Administrative
Agent on behalf of the Issuers, in the case of parties indemnified pursuant to
the first preceding paragraph. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such
28
27
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
Notwithstanding anything contained herein to the contrary, if indemnity may be
sought pursuant to this Section 9 in respect of any action or proceeding, then
in addition to such separate firm for the indemnified parties, the indemnifying
party shall be liable for the reasonable fees and expenses of not more than one
separate firm (in addition to any local counsel) for the Representative in its
capacity as a "qualified independent underwriter" and all Control Persons, if
any, of the Representative.
(d) If the indemnification provided for in the first or second paragraph
of this Section 9 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers and GPA Group on the one hand and the
Underwriters on the other hand from the offering of the 1998 Refinancing
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Issuers and GPA Group on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Issuers and GPA Group on the one hand and the Underwriters on the other hand in
connection with the offering of the 1998 Refinancing Certificates shall be
deemed to be in the same respective proportions as the aggregate net proceeds
from the offering of the 1998 Refinancing Certificates (before deducting
expenses) received by the Issuers and GPA Group on the one hand and the total
underwriting commissions received by the Underwriters on the other hand, in
each case as set forth in the table on the cover page of the Prospectus, bear
to the Initial Aggregate Principal Amount of the 1998 Refinancing Certificates.
The relative fault of the Issuers and/or GPA Group on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by (a) the Issuers, (b) GPA Group or (c) the Underwriters
(i.e., the Underwriter Information) and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, provided that GPA Group shall not be responsible for any
such information other than the GPA Information. The Underwriters' respective
obligations to contribute pursuant to this Section 9 are several in proportion
to the respective principal amounts of 1998 Refinancing Certificates they have
purchased hereunder, and not joint.
(e) The Issuers, GPA Group and the Underwriters agree that it would not be
just or equitable if contributions pursuant to this Section 9 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any
29
28
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the 1998
Refinancing Certificates underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay or become liable to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 9 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 9
and the representations, warranties and agreements of the Issuers and GPA Group
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any Control Person with respect to
any Underwriter or by or on behalf of the Issuers or GPA Group, their
respective officers or directors or any Control Person with respect to the
Issuers or GPA Group and (iii) acceptance of and payment for any of the 1998
Refinancing Certificates.
10. Termination. This Agreement shall be subject to termination by notice
given by the Representative to the Issuers, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
the New York Stock Exchange, the London Stock Exchange or the Luxembourg Stock
Exchange, (ii) trading of any securities of any Issuer shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or in London by the
relevant London or United Kingdom authorities or (iv) there shall have occurred
any outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis that, in the Representative's judgment, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event makes it,
in the Representative's judgment, impracticable to market the 1998 Refinancing
Certificates on the terms and in the manner contemplated in the Prospectus.
11. Effectiveness; Defaulting Underwriters. (a) This Agreement shall
become effective upon the later of (x) execution and delivery hereof by the
parties hereto and (y) release of notification of the effectiveness of the
Registration Statement by the Commission.
(b) If, on the Closing Date, any one or more of the Underwriters shall
fail
30
29
or refuse to purchase 1998 Refinancing Certificates that it or they have agreed
to purchase hereunder on such date, and the aggregate principal amount of 1998
Refinancing Certificates which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the 1998 Refinancing Certificates to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of each subclass of 1998 Refinancing
Certificates set forth opposite their respective names in Schedule I bears to
the aggregate principal amount of 1998 Refinancing Certificates set forth
opposite the names of all such non-defaulting Underwriters in Schedule I, or in
such other proportions as the Representative may specify, to purchase the 1998
Refinancing Certificates which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no
event shall the principal amount of any 1998 Refinancing Certificates that any
Underwriter has agreed to purchase pursuant to Section 4 be increased pursuant
to this Section 11 by an amount in excess of one-ninth of such principal amount
of 1998 Refinancing Certificates without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase 1998 Refinancing Certificates and the aggregate
principal amount of 1998 Refinancing Certificates with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of 1998
Refinancing Certificates to be purchased on such date, and arrangements
satisfactory to the Representative and the Issuers for the purchase of such
1998 Refinancing Certificates are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Issuers or GPA Group. In any such case
either the Representative or the Issuers shall have the right to postpone the
Closing Date but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
12. Expense Reimbursement. If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the part of
either Issuer to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason either Issuer shall be unable to perform
its obligations under this Agreement, the Issuers will jointly and severally
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
13. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to any Underwriter, shall be delivered or sent by mail, telex or
facsimile transmission to Xxxxxx Xxxxxxx & Co. Incorporated, 00 Xxxxx
Xxxxxx, Xxxxxx Xxxxx, X00 0XX London (Telecopy No: x00-000-000-0000),
Attention: C. Xxxxx Xxxxxxxx, with a copy to the General Counsel at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Telecopy No.: x0-000-000-0000);
(b) if to Airplanes Limited or Airplanes Trust, shall be delivered or
sent by
31
30
mail, telex or facsimile transmission to the address of the Issuers set
forth in the Registration Statement, with a copy to GPA Financial Services
(Ireland) Limited, an Irish limited company, as Xxxxxxxxxxxxxx Xxxxx, XXX
Xxxxx, Xxxxxxx, Xxxxxx Xxxxx, Xxxxxxx, Attention: Company Secretary
(Telecopy No.: x000-00-000-000);
(c) if to GPA Group, shall be delivered or sent by mail, telex or
facsimile transmission to GPA House, Xxxxxxx, County Clare, Ireland,
Attention: [Xxxxxxx Xxxxxx] (Telecopy No.: x000-00-000-000);
Any such statement, requests, notices or agreements shall take effect at
the time of receipt thereof. The Issuers and GPA Group shall be entitled to
act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by the Representative.
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the sole benefit of and be binding upon the Underwriters, each Issuer and
GPA Group and any Control Person of each of them and, to the limited extent
provided herein, to their respective directors, officers, employees, agents and
successors. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 14, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
15. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
16. Submission to Jurisdiction; Appointment of Agent for Service;
Obligation Currency. Any suit, action or proceeding against any party to this
Agreement arising out of or relating to this Agreement, any transaction
contemplated hereby or any judgment entered by any court in respect thereof may
be brought in any New York State court located in the County of New York or
Federal court sitting in the Second Circuit, and each such party hereby submits
to the nonexclusive jurisdiction of such courts for the purpose of any such
suit, action or proceeding. To the extent that service of process by mail is
permitted by applicable law, each party hereto irrevocably consents to the
service of process in any such suit, action or proceeding in such courts by the
mailing of such process by registered or certified mail, postage prepaid, at
its address for notices provided above. Each party to this Agreement
irrevocably agrees not to assert any objection which it may ever have to the
laying of venue of any such suit, action or proceeding in any New York State
court located in the County of New York or Federal court sitting in the Second
Circuit, and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum. Each of the Issuers
hereby irrevocably designates and appoints Corporation Service Company, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, and GPA Group hereby irrevocably
designates and appoints GPA Corporation, Xxx Farm Corporate Park, 00 Xxxxxxx
Xxxxxxx Xxxx, Xxxxxxx, XX 00000, as their respective authorized agents
(together, the "Process Agents"), upon whom process may be served in any such
suit or proceeding, it being understood that such designations and appointments
shall become effective immediately without any further action on the part of
the Issuers or GPA Group. Each of the Issuers and
32
31
GPA Group hereby represents to each Underwriter that it has notified its
Process Agent of such designation and appointment and that such Process Agent
has accepted the same in writing. Each of the Issuers and GPA Group hereby
irrevocably authorizes and directs its Process Agent to accept such service.
Each of the Issuers and GPA Group further agrees that service of process upon
its Process Agent and written notice of said service to the Issuers and GPA
Group, as applicable, mailed by first class mail or delivered to such Process
Agent, shall be deemed in every respect effective service of process upon the
Issuers and GPA Group, as applicable, in any such suit or proceeding. Nothing
herein shall affect the right of any Underwriter or any Control Person with
respect to any Underwriter to serve process in any other manner permitted by
law. Each of the Issuers and GPA Group agrees that a final action in any such
suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other lawful manner. If either
of the Issuers or GPA Group has or hereafter acquires immunity from
jurisdiction or legal process or from attachment in aid of execution or from
execution with respect to itself or its property, such Issuer or GPA Group, as
the case may be, hereby irrevocably waives, to the fullest extent permitted
under applicable law, such immunity in respect of its obligations hereunder in
any action which may be instituted in any federal or state court sitting in New
York, New York, or in any competent court in Jersey, Channel Islands by any
Underwriter or by any Control Person of any Underwriter or any director,
officer, employee or agent of any Underwriter. This waiver is intended to be
effective upon the execution of this Agreement without any further act by
either Issuer or GPA Group before any such court, and the introduction of a
true copy of this Agreement into evidence in any such court shall, to the
fullest extent permitted by applicable law, be conclusive and final evidence of
such waiver.
The obligation of the parties hereto to make payments hereunder is in U.S.
dollars (the "Obligation Currency") and such obligation shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency or any other
realization in such other currency, whether as proceeds of setoff, security,
guarantee, distributions, or otherwise, except to the extent to which such
tender, recovery or realization shall result in the effective receipt by the
party which is to receive such payment of the full amount of the Obligation
Currency expressed to be payable hereunder.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or affect the meaning or
interpretation of, this Agreement.
18. Waiver of Jury Trial. To the fullest extent permitted by applicable
law, each party to this Agreement waives any right it may have to a trial by
jury in respect of any litigation directly or indirectly arising out of, under
or in connection with this Agreement.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
Very truly yours,
AIRPLANES LIMITED
33
By __________________________________
Name:
Director
AIRPLANES U.S. TRUST
By __________________________________
Name:
Controlling Trustee
GPA GROUP plc
By __________________________________
Name:
Title:
Accepted, March --, 1998
XXXXXX XXXXXXX & CO. INCORPORATED
Acting severally on behalf of itself and the
the several Underwriters named herein
By Xxxxxx Xxxxxxx & Co. Incorporated
By _____________________________________
Name:
Title:
34
SCHEDULE I
SUBCLASS A-6 CERTIFICATES
UNDERWRITERS COMMITMENT
Xxxxxx Xxxxxxx & Co Incorporated $
Xxxxxx Brothers Inc.
Salomon Brothers Inc.
Total $
SUBCLASS A-7 CERTIFICATES
UNDERWRITERS COMMITMENT
Xxxxxx Xxxxxxx & Co. Incorporated $
Xxxxxx Brothers Inc.
Salomon Brothers Inc
Total $
35
SCHEDULE II
INITIAL PRICE TO PUBLIC COMMISSIONS
CLASS AGGREGATE (PERCENTAGE OF (PERCENTAGE OF
DESIGNATION PRINCIPAL AMOUNT PRINCIPAL AMOUNT) PRINCIPAL AMOUNT)
Subclass A-6 $
Subclass A-7 $
SELLING CONCESSION DEALER REALLOWANCE
CLASS (PERCENTAGE OF (PERCENTAGE OF
DESIGNATION PRINCIPAL AMOUNT) PRINCIPAL AMOUNT)
Subclass A-6
Subclass A-7
36
SCHEDULE III
GPA INFORMATION
[ To come ]
