ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT (the Second Taca Assignment) in respect of [***]Aircraft between AVIANCA HOLDINGS S.A., as Avianca Holdings GROUPO TACA HOLDINGS LIMITED as Taca and AIRBUS S.A.S. as the Seller
Exhibit 4.9.3
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
(the Second Taca Assignment)
in respect of [***]Aircraft
between
as Avianca Holdings
GROUPO TACA HOLDINGS LIMITED
as Taca
and
AIRBUS S.A.S.
as the Seller
[***] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended
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This assignment, assumption, and amendment agreement (hereinafter referred to as the “Second Taca Assignment”) is made between:
| (1) | AVIANCA HOLDINGS S.A., legal successor of AVIANCATACA HOLDING S.A., a company created and existing under Panamanian law having its registered office at Xxxxx Xxxxxxxx de la Guardia Xx. 0, Xxxxxx xx Xxxxxx, Xxxxxxxxx xx Xxxxxx (the “Avianca Holdings”); |
| (2) | GRUPO TACA HOLDINGS LIMITED, created and existing under the laws of the Commonwealth of The Bahamas and having its principal office at Winterbotham Place, Marlborough and Queen Streets. P.O. Box N-3026 Nassau, The Bahamas (“Taca”); and |
| (3) | AIRBUS S.A.S., a société par actions simplifiée, created and existing under French law having its registered office at 0 Xxxx Xxxxx Xxxxxxx Xxxxxxxx, 00000 Xxxxxxx-Xxxxx, Xxxxxx and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (the “Seller”). |
together referred to as the “Parties” and each a “Party”.
WHEREAS:
| (A) | On December 27th, 2011, the Seller and Avianca Holdings have entered into an A320 Family Purchase Agreement (the “Avianca Holdings Agreement”), for the purchase by Avianca Holdings and the sale by the Seller of fifty-one (51) aircraft (the “Aircraft”), upon the terms and subject to the conditions contained therein; |
| (B) | On February 28th, 2013, Avianca Holdings and the Seller have entered into an Amendment N°1 to the Avianca Holdings Agreement to amend certain its provisions (the “Amendment N°1 to the Avianca Holdings Agreement”); |
| (C) | On February 28th, 2013, Taca, Avianca Holdings and the Seller have entered into an Assignment, Assumption and Amendment Agreement (the “First Taca Assignment”), whereby Avianca Holdings partially transferred and assigned to Taca its rights, title, benefits and interests and its obligations and liabilities under the Avianca Holdings Agreement as amended by the Amendment No1 to the Avianca Holdings Agreement in relation to [***]of the Aircraft. |
The Avianca Holdings Agreement as partially transferred and assigned by to Taca pursuant to the First Taca Assignment, is hereinafter referred to as the “Taca Agreement”.
| (D) | On March 31st, 2014, Taca and the Seller have entered into an Amendment N°1 to the Taca Agreement (the “Amendment N°1 to the Taca Agreement”) to [***]Aircraft bearing [***]into A[***] Aircraft and [***]Aircraft bearing rank [***] into [***] Aircraft. |
| (E) | Taca wishes that, with respect to [***]Aircraft out of the twenty-five (25) for which Avianca Holdings’s rights, title, benefits and interests and its obligations and liabilities have been transferred to Avianca |
[***] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended
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pursuant to the First Taca Assignment, such rights, title, benefits and interests and obligations and liabilities be transferred back to Avianca Holdings.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
| 1 | INTERPRETATION |
In this Second Taca Assignment:
| (i) | references to Clauses are to be construed as references to the clauses of this Second Taca Assignment; |
| (ii) | references to this Second Taca Assignment (or to any specified provisions of this Second Taca Assignment) or any other document shall be construed as references to this Second Taca Assignment, that provision or that document as in force for the time being and as amended in accordance with its terms. |
| (iii) | words importing the plural shall include the singular and vice versa; |
| (iv) | headings to Clauses or sections are for convenience only and are to be ignored in construing this Second Taca Assignment; |
| (v) | references to a person shall be construed as including references to an individual, firm, company, corporation, unincorporated body of persons or any state or any agency thereof and shall include references to its successors, permitted transferees and permitted assigns; |
| (vi) | references to any statute or statutory provision include any statute or statutory provision which amends, extends, consolidates or replaces the same, or which has been amended, extended, consolidated or replaced by the same, and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute; |
| (vii) | liability includes any obligation or liability (whether present or future, actual or contingent, secured or unsecured, as principal or surety or otherwise); and |
| (viii) | the words herein, hereof and hereunder, and words of similar import shall be construed to refer to a document in its entirety and not to any particular provision of such document. |
| 2 | ASSIGNMENT AND ASSUMPTION |
The following [***]Aircraft (the “Second Taca Assignment Aircraft”) are hereby transferred from the Taca Agreement to the Avianca Holdings Agreement.
[***]]
For the avoidance of doubt, any changes to the Specification of such Second Taca Assignment Aircraft contracted between Taca and the Seller between the date of the First Taca Assignment
[***] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended
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and the date hereof are transferred with such Aircraft, including, without limitation the conversion of the [***]Aircraft bearing rank [***]into [***] Aircraft under the Amendment N°1 to the Taca Agreement.
| 3 | AMENDMENTS TO THE TACA AGREEMENT |
| 3.1 | Clause 1 of the Taca Agreement is hereby deleted in its entirety and replaced with the following quoted text: |
QUOTE
The Seller shall sell and deliver and the Buyer shall buy and take delivery [***]) Aircraft, of which [***]) are [ ] Family Aircraft and [***] are NEO Family Aircraft on the applicable Delivery Date at the Delivery Location upon the terms and conditions contained in this Agreement.
UNQUOTE
| 3.2 | The delivery schedule set out in Clauses 9.1.1.1 and 9.1.1.2 of the Taca Agreement is hereby replaced with the delivery schedule set out below: |
[***]
| 3.3 | Clause 5.10 of the Taca Agreement is hereby deleted in its entirety and replaced with the following text: |
QUOTE
| 5.10 | Set-Off |
The Seller may set-off any [***]obligation owed by the Buyer and/or Avianca Holdings S.A. and/or Aerovias Del Continente Americano S.A. Avianca and/or Avianca Leasing L.L.C (individually or collectively the “Relevant Set-Off Parties”), to the Seller and/or its Affiliates against any obligation (whether or not matured) owed by the Seller to any of the Relevant Set-Off Parties (it being understood that if this obligation is unascertainable it may be estimated reasonably and in good faith and the set-off made in respect of such estimate), regardless of the place of payment or currency, [***]
UNQUOTE
| 3.4 | Clause 5.11 of the Taca Agreement is hereby deleted in its entirety and replaced with the following text: |
QUOTE
| 5.11 | Cross-Collateralisation |
| 5.11.1 | The Buyer hereby agrees that, notwithstanding any provision to the contrary in this Agreement, in the event that: |
| (a) | the Buyer should fail to make any [***]payment owing under this |
[***] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended
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| Agreement, or |
| (b) | the Buyer, and/or Avianca Holdings S.A. and/or Aerovias Del Continente Americano S.A. Avianca and/or any of their respective Subsidiaries (collectively, the “Relevant Parties”) on the one hand, should fail to make any [***]payment owing to Seller and/or any of the Seller’s Affiliates on the other hand, under any other agreement (individually, an “Other Agreement”), then the Seller may: |
| (i) | withhold payment to the Relevant Parties of any sums that may be due to or claimed by the Relevant Parties from the Seller or its Affiliates pursuant to this Agreement or any Other Agreement, including Predelivery Payments, unless or until the default under this Agreement or the Other Agreement is cured or remedied; and |
| (ii) | apply any amount of any Predelivery Payment it then holds under this Agreement in respect of any of the Aircraft as well as any other monies held pursuant to any Other Agreement (collectively the “Relevant Amounts”) in such order as the Seller deems appropriate in satisfaction of any amounts due and unpaid by any of the Relevant Parties and to compensate for any losses and/or damages the Seller or its Affiliates may suffer as a result of any of the Relevant Parties’ failure to make payments in a timely manner under this Agreement or any Other Agreement. The Buyer acknowledges that the application of any of the Relevant Amounts as aforesaid may result in any of the Relevant Parties being in default (unless such default is otherwise cured or remedied) in relation to the agreement in respect of which such Relevant Amounts were originally granted or required to be paid, as the case may be. |
The rights granted to the Seller in the preceding paragraphs (i) and (ii) are without prejudice and are in addition to and shall not be deemed a waiver of any other rights and remedies the Seller or its Affiliates may have at law or under this Agreement or any Other Agreement, including the right of set-off.
| 5.11.2 | In the event that the Seller applies any amount of any Predelivery Payment it then holds under this Agreement in respect of any of the Aircraft in satisfaction of the amount due and unpaid by any of the Relevant Parties or to compensate for losses and/or damages to the Seller or its Affiliates as a result of any of the Relevant Parties’ failure to make payment in a timely manner under this Agreement or any Other Agreement, then the Seller shall notify the Buyer to that effect. Within three (3) Business Days of issuance of such notification, the Buyer shall pay by wire transfer of funds immediately available to the Seller the portion of the Predelivery Payment that has been applied by the Seller as set forth above. |
Failure of the Buyer or any other Relevant Party to pay such amount in full, shall
[***] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended
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entitle the Seller to collect interest on such unpaid amount in accordance with Clause 5.7 hereof from the fourth (4th) Business Days following the Seller’s written request to the Buyer for such payment.
UNQUOTE
| 3.5 | Clause 9.1.1.4 of the Taca Agreement is hereby deleted in its entirety |
| 4 | PRE-DELIVERY PAYMENTS TRANSFER |
| 4.1 | Taca and the Seller acknowledge that, pursuant to the Taca Agreement, Taca has paid to the Seller certain Pre-delivery Payments, in relation to the Second Taca Assignment Aircraft. |
| 4.2 | Pursuant to certain arrangements between Taca and Avianca Holdings and for good and valuable consideration, Taca hereby irrevocably instructs the Seller (i) to apply the Pre-delivery Payments paid by Taca to the Seller pursuant to the Taca Agreement in respect of the Second Taca Assignment Aircraft for the benefit of Avianca Holdings and (ii) to treat such payment as having been made by and on behalf of Avianca Holdings towards partial satisfaction of its obligations to pay the Pre-delivery Payment pursuant to the Avianca Holdings Agreement. |
| 4.3 | Each of the Seller and Avianca Holdings accepts the instructions contained in this Clause 4.2 and the Seller hereby agrees to transfer the benefit of the Pre-delivery Payment amount in respect of the Second Taca Assignment Aircraft in accordance therewith. Taca agrees that [***] |
| 5 | REPRESENTATIONS AND WARRANTIES |
| 5.1 | Each Party to this Second Taca Assignment represents and warrants to each other Party that: |
| (i) | it is duly established and validly existing under the laws of the place of its incorporation and has full power, authority and legal right to execute and perform this Second Taca Assignment; |
| (ii) | it has taken all necessary legal and corporate action to authorise the execution and performance of this Second Taca Assignment; |
| (iii) | its execution and delivery of this Second Taca Assignment, and the performance by it of its obligations hereunder, does not, and will not, violate any provision of its constitutive documents or any provision of any applicable law in any material respect; and |
| (iv) | this Second Taca Assignment constitutes a legal, valid and binding obligation of such Party in accordance with its terms. |
| 5.2 | As of the date hereof, each of Taca and the Seller represents and warrants to each of the other Parties that it is not in default under the Taca Agreement and has not created or granted any Encumbrance with respect to the Taca Agreement so far as it relates to the Second Taca Assignment Aircraft or its rights thereunder. |
In this Clause 5.2, “Encumbrance” means any encumbrance or security interest whatsoever,
[***] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended
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howsoever created or arising including (without prejudice to the generality of the foregoing) any right of ownership, security, mortgage, pledge, charge, encumbrance, lien, assignment, statutory right in rem, hypothecation, title, retention, attachment, levy, claim, right of possession or detention, right of set-off (but excluding any right of set-off arising by way of operation of law) or any agreement or arrangement having a similar effect to any of the foregoing.
| 6 | INDEMNITY |
Taca shall indemnify and hold harmless the Seller for:
| (i) | any liabilities, costs, expenses and obligations arising out of this Second Taca Assignment which would not have been incurred by the Seller had the Second Taca Assignment not occurred, including, without limitation, liabilities, costs, expenses and obligations relating to (1) any amendment to the Specification of any Second Taca Assignment Aircraft (as such has been agreed between Taca and the Seller in accordance with the terms of the Agreement with respect to the Aircraft); or (2) the performance of any additional work on the Second Taca Assignment Aircraft beyond what is currently contemplated in the Taca Agreement with regard to the Aircraft; and |
| (ii) | all reasonable out-of-pocket costs and expenses incurred by the Seller (including all reasonable costs and expenses relating to external legal and tax advice) in connection with the negotiation, preparation and execution of any of the agreements and arrangements contemplated by this Second Taca Assignment, such amounts to be borne by Taca. |
| 7 | FUTURE AMENDMENTS |
No amendment, modification or waiver in respect of this Second Taca Assignment will be effective unless in writing (including a writing evidenced by a facsimile or e-mail transmission) and executed by each of the Parties.
| 8 | GOVERNING LAW |
THIS SECOND TACA ASSIGNMENT WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION OTHER THAN SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
Each of the Parties (i) hereby irrevocably submits itself to the nonexclusive jurisdiction of the courts of the state of New York, New York County, or the United States District Court for the Southern District of New York, for the purposes of any suit, action or other proceeding arising out of this Second Taca Assignment, the subject matter hereof or any of the transactions contemplated hereby brought by any party or parties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, to the extent permitted by applicable law, any defense based on sovereign or other immunity or that the suit, action or proceeding which is referred to in Clause (i) above is brought
[***] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended
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in an inconvenient forum, that the venue of such suit, action or proceeding is improper, or that this Second Taca Assignment or the subject matter hereof or any of the transactions contemplated hereby may not be enforced in or by these courts.
THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 1988 WILL NOT APPLY TO THIS TRANSACTION.
| 9 | CONFIDENTIALITY |
This Second Taca Assignment (and its existence) shall be treated by all of the Parties as confidential in accordance with clause 22.12 of the Avianca Holdings Agreement and the Taca Agreement.
| 10 | ENTIRE AGREEMENT |
This Second Taca Assignment constitutes the entire agreement between the Parties and supersedes all previous negotiations, representations, undertakings and agreements heretofore made between the parties with respect to its subject matter.
[***] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended
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| 11 | COUNTERPARTS |
This Second Taca Assignment (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.
[***] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended
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IN WITNESS WHEREOF, the Parties hereto have executed this Consent in three (3) originals on the day and year written below.
December , 2014
Name:
Title:
Signature:
GROUPO TACA HOLDINGS LIMITED
Name:
Title:
Signature:
AIRBUS S.A.S.
Name:
Title:
Signature:
[***] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended
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