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Exhibit 10.1
EXECUTION COPY
MASTER AIRCRAFT PURCHASE AGREEMENT
dated as of May 5, 1999
among
GENERAL ELECTRIC CAPITAL CORPORATION
and
THE OTHER SELLERS LISTED ON ANNEX A HERETO
and
AIRCRAFT FINANCE TRUST
and
AFT TRUST-SUB I
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1. INTERPRETATION.........................................................1
2. SALE AND PURCHASE......................................................9
3. DELIVERY AND ACCEPTANCE................................................9
4. SUBSTITUTE AND UNDELIVERED AIRCRAFT...................................11
5. PAYMENTS..............................................................13
6. CONDITIONS PRECEDENT - SELLER.........................................16
7. CONDITIONS PRECEDENT - PURCHASER......................................18
8. REPRESENTATIONS AND WARRANTIES OF GECC AND EACH OTHER SELLER..........22
9. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.......................26
10. INDEMNITY.............................................................28
11. TAXES.................................................................29
12. WARRANTIES AND DISCLAIMERS............................................30
13. ASSIGNMENT............................................................31
14. MISCELLANEOUS.........................................................31
15. SUBROGATION...........................................................34
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LIST OF ATTACHMENTS:
ANNEX A - Sellers
EXHIBIT A - Form of Xxxx of Sale
EXHIBIT B - Form of Acknowledgement of Delivery
EXHIBIT C - Form of Guaranty
SCHEDULE 1 - Aircraft Information
SCHEDULE 2 - Documents and Conditions - Delivery
SCHEDULE 3 - Documents and Conditions - Post-Delivery
SCHEDULE 4 - State of Incorporation
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THIS MASTER AIRCRAFT PURCHASE AGREEMENT (this "Agreement") is dated as of May 5,
1999 among: (i) GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation;
(ii) THE OTHER SELLERS LISTED ON ANNEX A HERETO; (iii) AIRCRAFT FINANCE TRUST, a
Delaware business trust; and (iv) AFT TRUST-SUB I, a Delaware business trust.
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. INTERPRETATION
1.1 For all purposes of this Agreement, the following terms shall have the
following meanings:
"Acknowledgement of Delivery" means, for any Aircraft title to which
passes as a result of being physically delivered pursuant to the terms and
conditions of this Agreement, an executed acknowledgement of delivery from
the Purchaser thereof to the Seller thereof substantially in the form of
Exhibit B.
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common
control with, the Person specified; provided, however, that AFT and its
Subsidiaries, on the one part, and GECC and its Subsidiaries, on the other
part, shall not be considered to be Affiliates of each other.
"AFT" means Aircraft Finance Trust, a Delaware statutory business trust.
"AFT Sub I" means AFT Trust-Sub I, a Delaware statutory business trust.
"Agreed Form" means, when used in relation to any draft certificate,
document, agreement or opinion referred to in this Agreement, (a)
substantially in the form agreed between GECC and AFT on or before the
Initial Closing Date with such changes thereto as may subsequently be
agreed between GECC and AFT and (b) in the case of any opinion, such form
as each of the Rating Agencies shall approve.
"Air Authority" means each Person who is vested with the control and
supervision of, or has jurisdiction over, the registration, airworthiness
and operation of aircraft and other matters relating to civil aviation in
the State of Registration of the relevant Aircraft.
"Aircraft" means each aircraft described in Schedule 1 or, where any such
aircraft has become a Remaining Aircraft pursuant to Section 4.1(a), and
unless the context otherwise requires, any Substitute Aircraft designated
in lieu thereof pursuant to Sections 4.1(b) and (c) and described in the
applicable Substitute Aircraft Supplement, together with the Engines, and
includes where the context admits, a separate reference to the Engines,
Parts and Aircraft Documents.
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"Air Madagascar Aircraft" means the Boeing 767-300ER Aircraft (MSN 25403)
subject to the Lease (the "Air Madagascar Lease") dated October 2, 1998
between Polaris Aircraft (Pacific Coast), Inc. and Air Madagascar listed
in Schedule 1 hereto.
"Aircraft Documents" means, for any Aircraft, all records, logs, technical
data, manuals and other documents defined as "Aircraft Documents" under
the relevant Lease therefor, title to which is vested in the Seller
thereof at Delivery.
"Aircraft No." means, for any Aircraft, the reference number assigned to
such Aircraft in Schedule 1 or the Substitute Aircraft Supplement, as
applicable.
"Aircraft Purchase Price" means on any date, in respect of any Aircraft,
90.43156003256% of the Initial Appraised Value of such Aircraft.
"Aircraft Value" means, in respect of any Aircraft, the product of (i) the
Aircraft Purchase Price of such Aircraft and (ii) the Depreciation Factor
for such Aircraft as of the Delivery Date for such Aircraft.
"Appraised Value" means, for any Aircraft, the average of the three most
recent "Base Value" appraisals for such Aircraft, as obtained by GECC from
the Appraisers.
"Appraisers" means Aircraft Information Services, Inc., BK Associates,
Inc. and Xxxxxx Xxxxx & Xxxxx, Inc. or such other appraisers reasonably
acceptable to AFT.
"Assigned Lease" means, for any Lease the subject of an Assignment of
Lease, such Lease as assigned to the relevant Purchaser or an Affiliate of
such Purchaser ("New Lessor"), and as amended by the applicable Assignment
of Lease.
"Assignment of Lease" means, for any Aircraft, a lease assignment and
assumption agreement in the Agreed Form between the Purchaser thereof and
the Seller thereof to be entered into between such Seller or an Affiliate
of such Seller ("Existing Lessor"), such Purchaser and/or New Lessor and
the relevant Lessee, under which the relevant Lease will be assigned,
assumed and amended so that such Purchaser or New Lessor (as appropriate)
will be substituted as lessor of such Aircraft in place of Existing
Lessor.
"Assignment of Warranties" means, for any Aircraft, an assignment in the
Agreed Form and consented to by the Manufacturer, of the relevant Seller's
right, title and interest in the Manufacturer's warranties in respect of
such Aircraft, subject to the interests of the relevant Lessee.
"Xxxx of Sale" means, for any Aircraft, an executed xxxx of sale from the
Seller thereof to the Purchaser thereof substantially in the form of
Exhibit A and, as necessary, any FAA Xxxx of Sale executed by the Seller
thereof.
"Collections Account" has the meaning specified in the Indenture.
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"Delivery" means, for any Aircraft, transfer of title to such Aircraft
from the Seller thereof to the Purchaser thereof, in accordance with
Section 3.4(a) and the other provisions of this Agreement.
"Delivery Date" means, for any Aircraft, the date on which Delivery
therefor occurs in accordance with this Agreement.
"Delivery Expiry Date" means the date that is 210 days after the Initial
Closing Date.
"Delivery Location" means, for any Aircraft, the location of such Aircraft
at the time of Delivery as GECC shall designate, subject to Section 3.
"Delivery Period" means the period from and including the Initial Closing
Date to and including the Delivery Expiry Date.
"Disclosure Letter" means the First Disclosure Letter or a Supplemental
Disclosure Letter.
"Dollars" and "$" means the lawful currency for the time being of the
United States of America.
"Engine" means, in respect of any Aircraft, each engine for such Aircraft
as described in Schedule 1 or the Substitute Aircraft Supplement, as
applicable, concerning such Aircraft or, where any such engine has been
replaced under the terms of the relevant Lease and title to the
replacement engine has passed to the Seller thereof, such replacement
engine as described in the relevant Xxxx of Sale or Acknowledgement of
Delivery as the case may be, together with all equipment, parts and
accessories belonging to, installed in or appurtenant to such engine and
includes, where the context permits, a separate reference to the Aircraft
Documents concerning such engine.
"Event of Loss" means, for any Aircraft, any event defined as such or as
"Casualty Occurrence" or "Total Loss" or the like in the relevant Lease.
"Expense Reimbursement Amount" means the amount so specified in the letter
agreement of even date herewith (the "Expense Letter") between GECC and
AFT relating to the payment of certain costs and expenses incurred by AFT
in connection with the offering of the Notes.
"FAA Xxxx of Sale" means, with respect to any Aircraft, a Federal Aviation
Administration Xxxx of Sale (AC Form 8050-2) to be executed by the Seller
in favor of the Purchaser, and upon Delivery, filed with the Air Authority
of the United States of America.
"First Disclosure Letter" means a letter from GECC to the Purchaser
setting out certain information as at the date hereof.
"Guaranty" means the Guaranty of GECC in respect of the transactions
contemplated hereby in substantially the form of Exhibit C hereto.
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"GECAS" means GE Capital Aviation Services, Limited, an Irish corporation.
"GECC" means General Electric Capital Corporation, a New York corporation.
"GECC Closing Expenses" means the amounts so specified in the Expense
Letter.
"Government Entity" means:
(1) any national government, political sub-division thereof, or
local jurisdiction therein;
(2) any instrumentality, board, commission, department, division,
organ, court, exchange control authority, or agency of any
thereof, however constituted; or
(3) any association, organization, or institution of which any of
the above is a member or to whose jurisdiction any thereof is
subject or in whose activities any thereof is a participant.
"Head Lease" means, for any Aircraft, any lease therefor in the Agreed
Form between the Purchaser thereof as lessor and an Affiliate of the
Purchaser as lessee.
"Indenture" means the Indenture dated as of the date hereof between AFT,
Resource/Phoenix, Inc., in its capacity as the Administrative Agent and
Bankers Trust Company.
"Initial Appraised Value" means, for any Aircraft, the Appraised Value of
such Aircraft as set forth in Schedule 1 or the Substitute Aircraft
Supplement, as applicable, for such Aircraft.
"Initial Closing Date" means May 5, 1999.
"Intercompany Lease" means, individually or collectively as the context
indicates, the Intermediate Leases and/or the Head Leases.
"Intermediate Lease" means, for any Aircraft, a lease therefor in the
Agreed Form between an Affiliate of the Purchaser as lessor and another
Affiliate of the Purchaser as lessee.
"Lease" means, for any Aircraft, the aircraft lease agreement (as amended
or supplemented by any relevant Lease Document) between the Existing
Lessor thereof and the relevant Lessee identified as such in Schedule 1 or
the Substitute Aircraft Supplement, as applicable, concerning such
Aircraft.
"Lease Assignment Documents" has the meaning ascribed thereto in the
Security Trust Agreement.
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"Lease Documents" means, for any Aircraft, all agreements identified as
such in Schedule 1 or the Substitute Aircraft Supplement, as applicable,
concerning such Aircraft, as such may be amended by any Disclosure Letter
the contents of which have been agreed to by AFT.
"Lease Novation" means, for any Aircraft, a lease novation and amendment
agreement therefor in the Agreed Form, to be entered into between the
Purchaser thereof and/or New Lessor, the Existing Lessor thereof as lessor
and the relevant Lessee, under which the relevant Lease will be novated
and amended so that such Purchaser or New Lessor (as appropriate) will be
substituted as lessor of such Aircraft in place of such Existing Lessor.
"Lessee" means, for any Aircraft, the lessee of such Aircraft as
identified in Schedule 1 or the Substitute Aircraft Supplement, as
applicable, and includes where the context permits a separate reference to
the lessee under an Intercompany Lease.
"Lessee Encumbrance" means, for any Aircraft, any Encumbrance which is
created by or is attributable to the debts or liabilities of the
applicable Lessee or its Affiliates.
"Lessee Furnished Equipment" means, for any Aircraft, those appliances,
parts, accessories, instruments, navigational and communications
equipment, furnishings modules, components and other items of equipment
installed in or furnished with such Aircraft at Delivery and ownership of
which is not required pursuant to the relevant Lease to vest in or be
transferred to the lessor or owner of such Aircraft, as the case may be.
"Losses" has the meaning given to it in Section 10.1.
"Maintenance Reserves" means, for any Aircraft, any amount defined under
the Lease for such Aircraft as a "Maintenance Accrual", "Maintenance Fund"
or "Maintenance Reserve" or the like or as "Supplemental Rent" or
"Variable Rent" in relation to any and/or all of (as the context may
require) airframes, Engines, auxiliary power units and landing gear, in
each case being the amounts held by the lessor under such Lease and being
all amounts due under such Lease.
"Manufacturer" means, for any Aircraft, the manufacturer thereof as
identified in Schedule 1 or the Substitute Aircraft Supplement, as
applicable, and includes where the context admits a separate reference to
the manufacturer of each Engine as identified in Schedule 1 or the
Substitute Aircraft Supplement, as applicable.
"Material Default" means, for any Lease:
(1) any Event of Default as defined in such Lease; or
(2) any default (a "Payment Default") in the making of any payment
when due and payable under such Lease which shall include,
without limitation, defaults that have been cured by either
(i) debiting the Security Deposit with respect to such Lease
unless such Security Deposit has been
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replenished by the applicable Lessee, (ii) restructuring such
Lease to eliminate such default and/or (iii) by waiver; or
(3) any other default under such Lease known to GECC;
unless, in any such case (other than a Payment Default under a Varig
Lease), such Event of Default, Payment Default or other default has
been disclosed to each Rating Agency prior to the Initial Closing
Date.
"Non-Delivered Aircraft Adjustment Amount" means, with respect to any
Aircraft to which the payment provisions of Section 4.2 applies, the
remainder, which may be a negative number, of (A) all Maintenance Reserves
received by or on behalf of the relevant lessor under the Lease of such
Aircraft and paid to AFT pursuant to Section 5.3 hereof, minus (B) the
amount of maintenance or other expenditures made by or on behalf of AFT
for such Aircraft on or after the Initial Closing Date.
"Novated Lease" means, for any Lease subject to a Lease Novation, such
Lease as novated to the Purchaser or New Lessor (as appropriate) of the
Aircraft the subject of such Lease, and as amended by the applicable Lease
Novation.
"Operative Documents" means, for any Aircraft, (i) this Agreement, (ii)
the Guaranty, (iii) the Xxxx of Sale or Acknowledgement of Delivery
therefor, as applicable, and (iv) either (A) the Lease Novation or (B) the
Assignment of Lease therefor.
"Parts" shall mean any part, component, appliance, accessory, instrument
or other item of equipment (other than any of the Engines) installed in or
furnished with or attached to any of the Aircraft at Delivery (or part
thereof) except Lessee Furnished Equipment.
"Permitted Encumbrance" means:
(1) any Purchaser Encumbrance;
(2) the rights conferred by the Lease Documents; and
(3) any Lessee Encumbrances.
"Purchaser" means, for any Aircraft, the purchaser of such Aircraft
pursuant to this Agreement, which shall be, for an Aircraft described in
Schedule 1, AFT Sub I or as designated in writing by AFT at least three
Business Days (or such shorter period as may be agreed) prior to Delivery
of such Aircraft.
"Purchaser Encumbrance" means any Encumbrance which is created by or
results from debts or liabilities or actions or omissions of any Purchaser
or its Affiliates.
"Purchaser Indemnitees" means AFT, each other Purchaser, the Security
Trustee, the Owner Trustee, the Controlling Trustees, the Trustee, the
Holders, the Certificateholders and any of their respective successors and
assigns, shareholders, subsidiaries, Affiliates, directors, servants,
agents and employees.
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"Remaining Aircraft" has the meaning given to it in Section 4.1(a).
"Security Deposit" means, for any Aircraft, the amount (whether in the
form of cash, a letter of credit, guarantee or otherwise) set forth
opposite the term "Security Deposit" in respect of such Aircraft on
Schedule 1 or the Substitute Aircraft Supplement, as applicable.
"Seller" means, for any Aircraft, the seller (as specified in Schedule 1)
of such Aircraft pursuant to this Agreement as listed on Annex A hereto.
"Seller Indemnitees" means, for any Aircraft, the Seller thereof (and each
party named as an Indemnitee with respect to the Lease of such Aircraft
prior to amendment thereof by an Assignment of Lease or Lease Novation, as
the case may be), GECC and any of their respective successors and assigns,
shareholders, subsidiaries, Affiliates, directors, servants, agents, and
employees.
"State of Registration" means, for any Aircraft, the country identified in
Schedule 1 or the Substitute Aircraft Supplement, as applicable,
concerning such Aircraft.
"Subsidiary" of any Person means a corporation, company or other entity:
(i) more than 50% of whose outstanding shares or securities (representing
the right to vote for the election of directors or other managing
authority) are, or (ii) which does not have outstanding shares or
securities (as may be the case in a partnership, joint venture or
unincorporated association), but more than 50% of whose ownership interest
representing the right to make decisions for such other entity is, now or
hereafter owned or controlled, directly or indirectly, by such Person, but
such corporation, company or other entity shall be deemed to be a
Subsidiary only so long as such ownership or controls exists.
"Substitute Aircraft" has the meaning given to it in Section 4.1(b).
"Substitute Aircraft Adjustment Amount" means, with respect to a
Substitute Aircraft and the related Remaining Aircraft, the excess, which
may be a negative number, of (A) for such Remaining Aircraft, all rent or
other sums received by or on behalf of the relevant lessor under the Lease
of such Aircraft and paid to AFT pursuant to Section 5.3 hereof less the
amount of maintenance or other expenditures made by or on behalf of AFT
for such Aircraft on or after the Initial Closing Date, over (B) for such
Substitute Aircraft, all rent or other sums received by or on behalf of
the relevant lessor under the Lease of such Aircraft in respect of the
same period less the amount of maintenance or other expenditures made by
the relevant lessor for such Aircraft on or after the Initial Closing
Date.
"Substitute Aircraft Supplement" means, for any Substitute Aircraft, a
supplement to this Agreement in the Agreed Form which, among other things,
sets forth such matters as GECC and AFT shall agree apply specifically to
such Substitute Aircraft, as provided in Section 4.1(c).
"Supplemental Disclosure Letter" means, for any Aircraft, a letter from
GECC to AFT setting out certain information as of the Delivery Date for
such Aircraft.
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"Taxes" means any and all present and future sales, use, personal
property, customs, ad valorem, value added, turnover, stamp, interest
equalization, income, gross receipts or other taxes, fees, withholdings,
imposts, duties, deductions, levies, or other charges of any nature,
together with any penalties, fines, or interest thereon, imposed, levied,
or assessed by, or otherwise payable to, any Government Entity.
"Termination Date" means the earliest to occur of: (i) the first rent
payment date under the TWA Lease, (ii) the Delivery Date of a Substitute
Aircraft for the Air Madagascar Aircraft, (iii) the date on which the loss
proceeds in respect of the Air Madagascar Aircraft shall become payable to
AFT in accordance with the terms of this Agreement and (iv) the Delivery
Expiry Date.
"TWA Lease" means that certain Aircraft Lease Agreement dated as of March
31, 1999 between (prior to the novation thereof) Polaris Aircraft (Pacific
Coast), Inc, as Lessor and Trans World Airways, Inc. as Lessee, relating
to the Air Madagascar Aircraft.
"Varig Deposit Amount" means, in respect of each Varig Aircraft,
$3,375,000.
"Varig Lease" means either or both of the Leases described in Schedule 1
under which Viacao Aerea Rio-Grandense (Varig, S.A.) is the Lessee of the
Aircraft (individually, a "Varig Aircraft" and collectively, the "Varig
Aircraft").
1.2 In addition to the terms defined in Section 1.1, and for all purposes of
this Agreement, all capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to such terms in the
Indenture.
1.3 (a) In this Agreement, unless the contrary intention is stated, a
reference to:
(i) each of "GECC", any "Seller", "AFT", "AFT Sub I", any
"Purchaser" or any other Person includes without prejudice to
the provisions of this Agreement any successor in title to it
or any permitted assignee;
(ii) words importing the plural include the singular and vice
versa;
(iii) any document includes that document as amended, novated or
supplemented, in each case in accordance with its terms;
(iv) a law (1) includes any statute, decree, constitution,
regulation, order, judgment or directive of any Government
Entity; (2) includes any treaty, pact, compact or other
agreement to which any Government Entity is a signatory or
party; (3) includes any judicial or administrative
interpretation or application thereof; and (4) is a reference
to that provision as amended, substituted or re-enacted; and
(v) a Section or a Schedule is a reference to a clause of or a
schedule to this Agreement.
(b) The headings in this Agreement are to be ignored in construing this
Agreement.
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2. SALE AND PURCHASE
2.1 With respect to each Aircraft, each Seller agrees to sell to the Purchaser
thereof and each such Purchaser agrees to purchase from the relevant
Seller, such Aircraft, including, without limitation, the Aircraft
Documents and any applicable Security Deposit, but excluding any
Maintenance Reserves paid to such Seller or any of its Affiliates prior to
the Initial Closing Date, on and subject to the terms and conditions
contained in this Agreement (including, without limitation, the execution
of a Lease Novation or Assignment of Lease (as the case may be) in respect
of such Aircraft and delivery of the Lease Documents therefor), each in
its "AS IS" and "WHERE IS" condition at the relevant Delivery Location,
free from any Encumbrances other than Permitted Encumbrances. The parties
hereto acknowledge, consent and agree that from and after the Initial
Closing Date, each of the Aircraft shall be subject to the Servicing
Agreement on the terms and conditions provided therein whether or not such
Aircraft shall have been delivered hereunder provided always that (without
prejudice to the terms of the Servicing Agreement) from and after the
Delivery Expiry Date an Aircraft shall cease to be subject to the
Servicing Agreement upon payment by GECC of the amount specified in the
first sentence of Section 4.2 in respect of such Aircraft.
3. DELIVERY AND ACCEPTANCE
3.1 Each of the Sellers and the Purchasers shall use all reasonable efforts to
cause Delivery of each of the Aircraft to occur on a date occurring as
soon as reasonably practicable after the Initial Closing Date, subject to
the other terms and conditions of this Agreement, but in no event later
than the Delivery Expiry Date. Delivery of the Aircraft need not take
place concurrently or in the order set out in Schedule 1.
3.2 GECC and any other Seller of any Aircraft shall cause the Delivery
Location for such Aircraft to be in a jurisdiction:
(a) where GECC has determined, in its sole discretion, that there are no
Taxes (other than income taxes imposed on the Seller thereof) that
would be imposed upon such Seller, the Purchaser thereof or the
Aircraft as a result of the transfer of title to the applicable
Aircraft to such Purchaser, provided that the Seller may (but shall
not be obligated to) complete any sale where such Taxes would be
imposed on such Seller and, with the prior written consent of the
Purchaser thereof, such Seller may (but shall not be obligated to)
complete any sale where such Taxes would be imposed on such
Purchaser; and
(b) where the security, if any, contemplated by the applicable
Assignment of Lease, Lease Novation or any related Lease Document to
be granted to the Purchaser or New Lessor thereof would be effective
relative to such Aircraft.
3.3 GECC shall use reasonable efforts to keep AFT advised as to any
information of which GECC becomes aware as to the intended whereabouts of
each Aircraft on the expected Delivery Date therefor. Each Purchaser
shall, subject to the terms and conditions of this Agreement and using
reasonable efforts, cooperate with the Seller of each Aircraft (at
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such Seller's cost) so as to allow the Delivery to occur when such
Aircraft is at the Delivery Location therefor. In the event that GECC
reasonably believes that the jurisdiction of the Delivery Location is a
jurisdiction where there may be Taxes imposed upon any Seller Indemnitee
or any Purchaser Indemnitee as a result of the transfer of the Seller's
interest in the applicable Aircraft to the Purchaser, the Seller may, to
the extent a favorable Delivery Location cannot be arranged, elect to
treat such Aircraft as a Remaining Aircraft.
3.4 (a) On the date that any Aircraft is to be delivered pursuant to Section
3.1, subject to satisfaction of the conditions precedent set out in
Sections 6 and 7.1, the Seller thereof shall tender such Aircraft
for Delivery. Delivery and acceptance of any Aircraft hereunder
shall take place while such Aircraft is located at the Delivery
Location therefor, by such Seller either (i) subject to Section
3.4(b), delivering physical possession of such Aircraft to the
Purchaser thereof or (ii) executing and delivering to such Purchaser
a Xxxx of Sale. Thereupon, full legal and beneficial title to such
Aircraft, free from Encumbrances other than Permitted Encumbrances,
shall pass from the Seller thereof to the Purchaser thereof.
Simultaneously with physical delivery of any Aircraft or delivery to
the Purchaser of the Xxxx of Sale (as the case may be), title to the
Aircraft Documents therefor shall pass as provided in the Lease
Novation or the Assignment of Lease, as applicable, the Lease
related thereto shall be novated or assigned (as the case may be)
upon the Delivery of such Aircraft. Where Delivery is effected by
delivering physical possession of any Aircraft, the Seller thereof
shall execute and deliver to the Purchaser thereof an
Acknowledgement of Delivery and, at any time after Delivery upon
reasonable request of the Purchaser, a confirmatory xxxx of sale
substantially in the form of the Xxxx of Sale, mutatis mutandis;
notwithstanding the foregoing, the parties hereto agree that each
Seller may refuse any such request of any Purchaser to deliver a
confirmatory xxxx of sale if such delivery would result in the
imposition of any Taxes, including without limitation, documentary
taxes on such Seller, such Purchaser or the Aircraft.
(b) Each Seller of an Aircraft agrees that it will elect to deliver such
Aircraft to the Purchaser thereof pursuant to Section 3.4(a)(ii)
unless Delivery of such Aircraft pursuant to Section 3.4(a)(ii) will
result in any documentary Taxes or other Taxes being imposed upon
such Seller or Purchaser or the Aircraft and/or the opinion
delivered in accordance with Section 7.1(g)(vi) states that delivery
pursuant to Section 3.4(a)(ii) is not a valid transfer of title.
3.5 The risk of loss of, or damage to, each Aircraft (other than a Substitute
Aircraft) and the Aircraft Documents relating thereto shall pass from the
Seller thereof to the Purchaser thereof on the Initial Closing Date
(provided that if Delivery of any such Aircraft shall not occur on or
before the Delivery Expiry Date such risk of loss or damage with respect
to such undelivered Aircraft (and the Aircraft Documents relating thereto)
shall return to the Seller thereof), and the risk of loss of, or damage
to, each Substitute Aircraft and the Aircraft Documents related thereto
shall pass from the Seller thereof to the Purchaser thereof upon physical
delivery of the Substitute Aircraft to such Purchaser or upon
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delivery of the Xxxx of Sale for such Aircraft to such Purchaser by such
Seller, as the case may be, pursuant to Section 3.4(a).
3.6 Each Aircraft to be sold hereunder shall be delivered to the Purchaser "AS
IS" and "WHERE IS", at the Delivery Location and SUBJECT TO EACH AND EVERY
DISCLAIMER OF WARRANTY AND REPRESENTATION AS SET OUT IN SECTION 12 but
without limiting any representation, warranty or covenant of GECC or any
other Seller expressly set forth herein and/or in the Xxxx of Sale or
Acknowledgement of Delivery (as the case may be) for such Aircraft or any
certificate delivered pursuant to this Agreement. Subject to receipt or
satisfaction of the conditions precedent referred to in Section 7.1 and
the other provisions of this Agreement, each Purchaser of an Aircraft
shall unconditionally accept such Aircraft for all purposes hereunder upon
tender for Delivery in accordance with Section 3.4 and the other
provisions of this Agreement in the condition in which such Aircraft
exists on the Delivery Date. Acceptance by any Purchaser of physical
delivery of an Aircraft or of the Xxxx of Sale when such Aircraft is
tendered for Delivery by the Seller thereof shall constitute an
acknowledgement by such Purchaser for the purposes of this Agreement that
such Aircraft is in every respect satisfactory to such Purchaser, provided
that the foregoing is not intended nor shall the same be construed as a
waiver by such Purchaser of any claim that it may have against GECC or any
other Seller for breach of any representation, warranty or covenant
expressly contained in this Agreement.
4. SUBSTITUTE AND UNDELIVERED AIRCRAFT
4.1 (a) If any Seller is unable to effect Delivery of any Aircraft at any
time on or before the date 180 days after the Initial Closing Date
for any reason (including, without limitation, the failure of one or
more of the conditions set forth in Section 7.1) other than an Event
of Loss with respect to such Aircraft, then, in each such case, such
Aircraft shall become a "Remaining Aircraft" and the provisions of
Section 4.1(b) and (c) and Section 4.2 shall apply. If an Event of
Loss occurs in respect of any Aircraft that has not been delivered
prior to the date that is 180 days after the Initial Closing Date,
then GECC may (but shall not be obligated to) elect to designate a
Substitute Aircraft in lieu thereof, in which case the Aircraft
subject to such Event of Loss shall become a "Remaining Aircraft"
and the provisions of Section 4.1(b) and (c) and Section 4.2 shall
apply.
(b) If an Aircraft becomes a Remaining Aircraft, then GECC shall
promptly inform AFT thereof specifying the reason therefor and shall
use reasonable commercial efforts to designate in lieu thereof a
substitute aircraft to be delivered on or before the Delivery Expiry
Date that (i) is subject to an operating lease contract containing
the Core Lease Provisions, (ii) will not result in the weighted
average age of all Aircraft computed as of the Initial Closing Date
to exceed 4.7 years (determined on the basis of the Appraised Value
of each of the Aircraft including the Substitute Aircraft), (iii) is
of the same type as such undelivered Remaining Aircraft, (iv) does
not result in a Concentration Default under the Indenture, and (v)
in respect of which GECC shall have obtained a Rating Agency
Confirmation
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with respect to the substitution of such Remaining Aircraft (each, a
"Substitute Aircraft").
(c) Upon the Delivery of a Substitute Aircraft, the Remaining Aircraft
which was replaced by such Substitute Aircraft shall cease to be
subject to this Agreement and all rights and obligations of the
parties hereunder concerning such Remaining Aircraft shall cease,
and such Substitute Aircraft shall become and thereafter be subject
to the terms and conditions of this Agreement to the same extent as
such Remaining Aircraft, except as to any matters (other than the
matters referred to in Section 4.1(b)) which may be agreed as to
such Substitute Aircraft, which shall be set forth in a Substitute
Aircraft Supplement, except that the substitution of any Aircraft
shall not effect GECC's obligations under Section 4.2 (provided
always that, for the avoidance of doubt, until a Substitute Aircraft
is so delivered for a Remaining Aircraft, such Remaining Aircraft
shall continue to be subject to this Agreement). On the Delivery
Date of a Substitute Aircraft, GECC shall pay or cause the Seller
thereof to pay to the Purchaser thereof, an amount, or, if such
amount is a negative number, AFT shall pay or cause the Purchaser
thereof to pay to GECC, an amount equal to the difference between
(a) the Aircraft Value of the Remaining Aircraft and (b) the sum of
(1) the Aircraft Value of such Substitute Aircraft (which for
purposes of this clause (c) shall be deemed not to exceed the
Aircraft Value of the related Remaining Aircraft) and (2) the
Substitute Aircraft Adjustment Amount. AFT shall promptly thereafter
repay to GECC the amount of the cash Security Deposits, if any, AFT
then holds for such Remaining Aircraft together with, in the case of
a Varig Aircraft, the then unused amount of the related Varig
Deposit Amount, if any, then held by AFT and GECC shall promptly pay
to AFT the amount of the cash Security Deposits, if any, GECC or the
Existing Lessor then holds for such Substitute Aircraft.
(d) If an Aircraft shall have suffered an Event of Loss and no
Substitute Aircraft shall have been designated therefor as provided
above, then the Seller shall have no obligation to deliver and the
Purchaser shall have no obligation to accept delivery of such
Aircraft hereunder.
4.2 If any Aircraft shall not have been delivered on or prior to the Delivery
Expiry Date for any reason, and provided no Substitute Aircraft shall have
been delivered in substitution therefor on or prior to the Delivery Expiry
Date, then (unless such Aircraft shall have suffered an Event of Loss in
respect of which GECC shall be obligated to account to the Purchaser for
any and all loss proceeds received in respect thereof in accordance with
the provisions of Section 5.3 hereof) on such date GECC irrevocably and
unconditionally agrees to pay, or cause the Seller thereof to pay, to AFT
an amount equal to the Aircraft Value of such Aircraft minus the
Non-Delivered Aircraft Adjustment Amount. In addition, AFT shall promptly
thereafter repay to GECC the amount of the cash Security Deposits, if any,
AFT then holds for such Aircraft together with, in the case of a Varig
Aircraft, the then unused amount of the related Varig Deposit Amount, if
any, then held by AFT. If on the Delivery Expiry Date the Lessee of any
such Aircraft (other than a Varig Aircraft) is then in default in the
payment of basic rent under its Lease of such Aircraft in respect of the
period prior to the Delivery Expiry Date, GECC agrees to pay to
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AFT, promptly following GECC's (or the Existing Lessor's) receipt thereof,
the amount of any such basic rent thereafter received by or on behalf of
the Lessor of such Aircraft in respect of the period from and including
the fourth day prior to the Initial Closing Date to but excluding the
Delivery Expiry Date.
4.3 Save as otherwise expressly provided in Sections 4.1 and 4.2, if Delivery
of an Aircraft under this Agreement is delayed or does not occur for any
reason outside the control of the Seller of such Aircraft, including by
reason of the lack of cooperation of any Lessee or other person (other
than such Seller or any of its Affiliates), neither GECC nor any Seller
thereof will be responsible for any damages, losses, including loss of
profit, costs, expenses, liabilities, demands, payments, claims or action
arising from or in connection with the delay or failure suffered or
incurred by the Purchaser.
5. PAYMENTS
5.1 On the Initial Closing Date, and upon the issuance of the Initial
Securities, AFT shall pay for the account of the Purchaser of each
Aircraft to GECC for the account of the Seller thereof the Aircraft
Purchase Price for such Aircraft less the Expense Reimbursement Amount
subject only to the receipt by AFT of each of the following:
(a) the Varig Deposit Amount for each Varig Aircraft for credit to the
applicable Varig Reserve Account under the Indenture;
(b) the rents referred to in Section 5.2 hereof together with a
statement addressed to AFT identifying the same;
(c) the Security Deposits referred to in Section 5.4 hereof;
(d) the Guaranty duly executed and delivered by GECC;
(e) an opinion of independent and in-house counsel as applicable to GECC
as applicable in the Agreed Form as to the due execution and
delivery of the Guaranty and as to such other matters relating
thereto as AFT may reasonably request;
(f) a certification in the Agreed Form from a duly authorized officer of
GECC to the effect that the representations and warranties of GECC
set forth herein are true and correct as of the Initial Closing
Date;
(g) a copy, certified by a duly authorized officer of GECC to be a true,
complete and up-to-date, of the articles of incorporation and
by-laws of GECC; and
(h) a copy, certified by a duly authorized officer of GECC to be a true,
complete and up-to-date, of the resolutions of the Board of
Directors (or duly authorized committee thereof) of GECC, (i)
approving the transactions contemplated by this Agreement and the
Guaranty and the other Operative Documents to which GECC is a party,
and (ii) authorizing a Person or Persons to sign and deliver on
behalf of GECC, this Agreement, the Guaranty and the other Operative
Documents to
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which GECC is a party and any notices or other documents to be given
pursuant hereto or thereto.
Concurrently with the payment of the Aircraft Purchase Price to GECC, GECC
shall pay to the Persons entitled thereto the GECC Closing Expenses due
under the Expense Letter on the Initial Closing Date and thereafter shall
pay the other fees and expenses specified in the Expense Letter.
5.2 If, on or before the Initial Closing Date (and, for the avoidance of
doubt, irrespective of whether or not the Delivery Date for any Aircraft
shall have occurred), GECC, any Seller or any Existing Lessor shall have
received from any Lessee any rent (which for avoidance of doubt shall not
include any Maintenance Reserves) under any Lease in respect of the period
subsequent to the date four Business Days prior to the Initial Closing
Date, then on the Initial Closing Date GECC shall pay or cause the Seller
of the Aircraft subject to such Lease to pay to AFT (for account of the
Purchaser thereof) an amount equal to the portion of any rent received by
or on behalf of such Seller or Existing Lessor, as applicable which
relates to the period subsequent to the date four Business Days before the
Initial Closing Date.
5.3 From and after the Initial Closing Date and to and including the earlier
to occur of the Delivery Expiry Date and the Delivery Date for any
Aircraft (if other than the Initial Closing Date), GECC shall collect, or
cause to be collected, on behalf of the relevant Purchaser any and all
rent or other sums paid by the Lessees under the Leases and shall cause
any and all such sums received by or on behalf of the relevant Existing
Lessor under the related Lease in respect of any period from and after the
Initial Closing Date, and with respect to amounts received in payment of
rent under such Lease, in respect of any period from and after the date
four Business Days before the Initial Closing Date, in each instance, to
be paid to AFT (for account of the relevant Purchaser) within two Business
Days of receipt thereof and each such payment to be accompanied by a
statement identifying the Lease under which such payment was received and
the nature of the payment whether constituting basic rent, Maintenance
Reserves, loss proceeds or otherwise (it being acknowledged and agreed
that to the extent the Security Deposit referred to in Schedule I hereto
in respect of the TWA Lease is paid on the Initial Closing Date as
provided in Section 5.1(c), no further Security Deposit payment need be
made by any Seller in respect of such Lease). Notwithstanding the
foregoing, if an Aircraft suffers an Event of Loss prior to its Delivery
and a Substitute Aircraft shall have been designated therefor in
accordance with the provisions of Section 4 hereof, neither GECC nor the
Seller shall be obligated to pay to the Purchaser thereof any loss
proceeds received in respect thereof and in respect of any Aircraft which
suffers an Event of Loss after the Initial Closing Date but prior to the
Delivery Expiry Date and in respect of which no Substitute Aircraft has
been designated pursuant to the terms of this Agreement, GECC shall
collect on behalf of the relevant Purchaser any and all insurance proceeds
paid in respect of such Aircraft, and upon the receipt thereof, pay the
same to AFT (net of any amount required to be paid by the relevant
Lessee). Further, from and after the date of the termination of the Air
Madagascar Lease (other than by reason of the occurrence of an event of
loss or an event of default thereunder) to, but not including, the
Termination Date, GECC agrees to pay to AFT on each Madagascar Payment
Date (including, without
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limitation, the Termination Date) occurring after the date of termination
of the Air Madagascar Lease an amount equal to $618,500 (pro rated on a
daily basis for any period of less than 30 calendar days) (such amounts
being "Madagascar Rent"). For the purposes of this Section 5.3 a
"Madagascar Payment Date" is the earliest of 30 calendar days after the
Initial Closing Date and the Termination Date provided always that each
subsequent Madagascar Payment Date shall be the earlier of the date
falling 30 calendar days after the previous Madagascar Payment Date and
the Termination Date and provided further that no further payment of
Madagascar Rent shall be payable in respect of any period after the
Termination Date. In addition, GECC agrees to pay (without any right to
re-imbursement from AFT) the costs and expenses required to put the Air
Madagascar Aircraft in the delivery condition required by the TWA Lease.
5.4 On the Initial Closing Date, GECC shall cause an amount equal to the
Security Deposit held by or on behalf of each Existing Lessor in cash (if
any) for each Aircraft to be paid and delivered by the Seller thereof to
AFT (for account of the Purchaser thereof).
5.5 All amounts payable under this Agreement will be made for value on the due
date in Dollars in immediately available funds (and to the extent not
expressly provided herein) to such account as (in the case of any payment
due to GECC or any Seller) GECC or as (in the case of any payment due to
AFT or any Purchaser) AFT may notify AFT or GECC, as the case may be, from
time to time (upon three Business Days' prior written notice). In
furtherance of the foregoing, each Purchaser hereby instructs GECC and
each Seller to make each payment due to AFT or any other Purchaser
hereunder to the Collection Account with advice of credit to the
Administrative Agent and in sufficient detail to enable the Administrative
Agent to determine the Lease under or in respect of which such payment is
being made and the nature thereof.
5.6 If the party making payment (the "Paying Party") fails to pay any amount
payable under this Agreement on the due date, the Paying Party will pay on
demand from time to time to the other party (the "Receiving Party")
interest (both before and after judgment) on that amount, from the due
date to the date of payment in full by the Paying Party to the Receiving
Party, at the rate of LIBOR. All such interest will be compounded monthly
and calculated on the basis of the actual number of days elapsed and a 360
day year.
5.7 Each Purchaser and AFT irrevocably and unconditionally:
(i) guarantees, as a primary obligation, to each Seller and GECC the due
and punctual payment to such Seller or GECC, as the case may be, by
each other Purchaser of all monies due from such other Purchaser
hereunder and will pay to such Seller from time to time, on the
first Payment Date falling at least 5 Business Days after written
demand therefor, any and every sum of money which such other
Purchaser shall at any time be liable to pay to such Seller
hereunder;
(ii) undertakes as a primary obligation to indemnify each Seller and GECC
from time to time on demand from and against any loss incurred by
such Seller or GECC, as the case may be, as a result of any
obligation of any other Purchaser to pay to such Seller or GECC, as
the case may be, any amounts hereunder being or
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becoming void, voidable, unenforceable or ineffective as against
such other Purchaser, for any reason (whether or not known to any
Seller or GECC), the amount of such loss being the amount which such
Seller would otherwise have been entitled to recover from such other
Purchaser; and
(iii) authorizes each Seller and GECC (in their sole discretion by notice
to AFT) from time to time to set off, apply or combine all or any
amounts for the time being due from any Seller or GECC, as the case
may be, to any Purchaser towards the repayment or discharge of any
amount for the time being due to a Seller or GECC from AFT pursuant
to the above.
Each Purchaser acknowledges that:
(a) neither its above-described liability nor the rights, powers and
remedies conferred on a Seller or GECC by this Section or by law
shall be discharged, impaired or otherwise affected by any act,
event or omission which would otherwise operate to discharge, impair
or otherwise affect such liability or such rights, powers or
remedies, and
(b) so long as it is under the above-described liability, it shall not
exercise any rights or remedies which it may at any time have to be
indemnified by or claim any contribution from any other Purchaser.
5.8 GECC authorizes AFT (in its sole discretion by notice to GECC) from time
to time to set off, apply or combine all or any amounts for the time being
due from AFT or any other Purchaser to GECC or any other Seller towards
the repayment or discharge of any and all amounts for the time being due
to AFT or any other Purchaser from GECC or any other Seller hereunder or
under the Guaranty.
6. CONDITIONS PRECEDENT - SELLER
6.1 The obligations of any Seller to deliver any Aircraft hereunder are
subject to the satisfaction of the following express conditions precedent
on or prior to the Delivery Date for such Aircraft:
(a) the relevant Operative Documents for such Aircraft have been entered
into by the parties thereto (other than GECC and any other Seller);
(b) the Servicing Agreement and the Administrative Agency Agreement
shall have been entered into by the parties thereto (other than GECC
and any other Seller);
(c) GECC shall be satisfied that the Delivery Location does not give
rise to any Taxes;
(d) Seller thereof shall have received payment of all amounts due by the
Purchaser of such Aircraft.
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6.2 The obligations of any Seller to deliver any Aircraft hereunder are
further subject to the condition that on or prior to the Delivery Date for
such Aircraft, such Seller has received:
(a) a copy of the constitutional documents of the Purchaser and any
other Affiliate of such Purchaser which is a party to any Operative
Document in respect of such Aircraft, certified, or subject to a
certificate confirming no change thereto, such certification to be
dated not more than ten (10) days prior to the expected Delivery
Date for such Aircraft to be a true, complete and up-to-date copy;
(b) a copy of resolutions of the Controlling Trustees or other
applicable governing body of such Purchaser and any other Affiliate
of such Purchaser which is a party to any Operative Document in
respect of such Aircraft certified, or subject to a certificate
confirming no change to such resolutions, such certification to be
dated not more than ten (10) days prior to the expected Delivery
Date for such Aircraft to be a true, complete and up-to-date copy:
(i) approving the transactions contemplated by this Agreement and
the other Operative Documents to which such Purchaser is or is
to be a party; and
(ii) authorizing a Person or Persons to execute and deliver on
behalf of such Purchaser this Agreement and the other
Operative Documents to which it is or is to be a party and any
notices or other documents to be given pursuant hereto or
thereto;
(c) evidence that all governmental and other licenses, approvals,
certificates, exemptions, consents, registrations and filings
necessary in the relevant State of Registration and any other
relevant jurisdiction (including the domicile of the Lessee of such
Aircraft) for any matter or thing contemplated by this Agreement and
the other applicable Operative Documents for such Aircraft, and any
notices or other documents to be given pursuant hereto or thereto
and for the legality, validity, enforceability, admissibility in
evidence and effectiveness hereof and thereof have been obtained or
effected on an unconditional basis and remain in full force and
effect (or in the case of effecting any licenses, approvals,
consents, certificates, exemptions, registrations and filings, that
arrangements reasonably satisfactory to such Seller have been made
for the effectiveness of the same within any applicable time limit);
(d) a favorable opinion of independent counsel to such Purchaser dated
as of such Delivery Date reasonably acceptable to such Seller in the
Agreed Form as to (1) certain of the matters set out in Section 9
and (2) such other matters as such Seller may reasonably request
with regard to the subject matter contemplated herein or in each
case such Aircraft;
(e) if such Aircraft is to be subject to an Intercompany Lease, a quiet
enjoyment letter in the Agreed Form addressed to the relevant Lessee
from such Purchaser and any Affiliate of the Purchaser that is a
lessor under such Intercompany Lease;
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(f) a quiet enjoyment letter from the Security Trustee addressed to the
relevant Lessee (and if applicable, the relevant sub-lessee) in
substantially the form attached to the relevant Operative Document;
and
(g) a certification from the Purchaser that the representations and
warranties of such Purchaser are true and correct as of the Initial
Closing Date and as of such Delivery Date.
7. CONDITIONS PRECEDENT - PURCHASER
7.1 The obligations of any Purchaser to accept Delivery of any Aircraft
hereunder are subject to satisfaction of the following express conditions
precedent on or prior to the Delivery Date for such Aircraft, subject to
the right of the Purchaser to waive any condition pursuant to Section
7.2(a), and to the rights of such Seller under Section 7.2(b):
(a) the relevant Operative Documents for such Aircraft have been entered
into by the parties thereto (other than AFT or any other Purchaser
or any Affiliate thereof);
(b) AFT shall have received confirmation from the Servicer that such
Aircraft will, upon Delivery to such Purchaser, become an "Aircraft
Asset" under and as defined in the Servicing Agreement;
(c) with respect to any Aircraft other than the Varig Aircraft, no
Material Default shall have occurred and been continuing as of the
Initial Closing Date, or in the case of any Varig Aircraft, no
Material Default shall have occurred and been continuing as of the
Delivery Date of such Aircraft; provided that the parties hereto
agree that with respect to the Varig Leases, no Material Default
that is a Payment Default shall be deemed to be continuing if on the
Delivery Date thereof the Varig Deposit amount for the relevant
Varig Aircraft is $3,375,000 and no other amounts are past due and
payable under such Varig Lease on the Delivery Date;
(d) Purchaser thereof shall have received payment of all amounts due by
the Seller thereof or GECC in respect of such Aircraft;
(e) no Event of Loss shall have occurred with respect to such Aircraft
and such Aircraft shall be free of all Encumbrances other than
Permitted Encumbrances;
(f) a certification from each Seller that the representations and
warranties of such Seller set forth herein are true and correct as
of the date or dates on which they are stated to be given hereunder;
(g) receipt of the following documents by such Purchaser:
(i) a copy certified, or subject to a certificate confirming no
change to such documents, such certification to be dated not
more than ten (10) days prior to the expected Delivery Date
for such Aircraft, by the Secretary of such
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Seller to be a true, complete and up-to-date copy of the
constitutional documents of such Seller;
(ii) a copy certified, or subject to a certificate confirming no
change to such resolutions, such certification to be dated not
more than ten (10) days prior to the expected Delivery Date
for such Aircraft, by the Secretary of such Seller to be a
true copy, and as being in full force and effect and not
amended or rescinded, of resolutions of the Board of Directors
(or duly authorized committee thereof) of such Seller:
(1) approving the transactions contemplated by this
Agreement and the other Operative Documents to which
such Seller is a party;
(2) authorizing a Person or Persons to sign and deliver on
behalf of such Seller or, as the case may be,
authorizing the execution by the relevant Person of this
Agreement and the other Operative Documents to which it
is a party and any notices or other documents to be
given pursuant hereto or thereto;
(iii) a certificate of solvency dated as of such Delivery Date in
the Agreed Form relating to such Seller issued by a director
or authorized officer thereof and, if such Seller is other
than GECC, a certificate of solvency dated as of such Delivery
Date in the Agreed Form relating to GECC issued by a director
or authorized officer of GECC;
(iv) a favorable opinion of independent counsel to GECC dated as of
such Delivery Date reasonably acceptable to such Purchaser in
the Agreed Form, that the sale of such Aircraft constitutes a
"true-sale" and a valid transfer of title to such Aircraft and
that after Delivery such Seller retains no interest in such
Aircraft and as to such other matters as such Purchaser may
reasonably request with regard to the subject matter
contemplated herein;
(v) an opinion dated as of such Delivery Date in the Agreed Form
from counsel to the relevant Seller in the relevant State of
Registration to the effect that (1) the terms of the relevant
Lease or Novated Lease or Assigned Lease and the relevant
Operative Documents and the other Lease Documents are legal,
valid, binding and enforceable under the laws of such country
to the extent necessary to enable such Purchaser to receive
the full benefits of its rights thereunder, (2) such Purchaser
shall be recognized as the owner of such Aircraft under the
applicable laws of such jurisdiction, (3) it is not necessary
for such Purchaser as a result of its ownership of such
Aircraft to qualify to do business in such jurisdiction as a
result of its ownership of such Aircraft and it is not
necessary for the Purchaser to qualify to do business in such
jurisdiction, for the purpose of exercising any remedies under
any Lease Document relating to such Aircraft or otherwise and
(4) payments of rent under the Lease are not
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subject to withholding under the applicable laws of such
jurisdiction or, if subject to withholding, the gross up
provisions of such Lease will be enforceable;
(vi) an opinion dated as of such Delivery Date in the Agreed Form
from counsel to the relevant Seller in the Delivery Location
concerning the Delivery of such Aircraft and any required
filing or recording of the relevant Lease;
(vii) opinions from independent counsel to GECC dated as of such
Delivery Date in any jurisdiction determined to be
appropriate by any Rating Agency and acceptable to such
Purchaser and such Rating Agency, concerning Delivery of such
Aircraft and in any jurisdiction relevant to an Intercompany
Lease concerning such Lease and the parties thereto;
(viii) originals, or certified or faxed copies, of certificates
evidencing the insurance required to be maintained pursuant
to the relevant Assigned Lease or the Novated Lease as
appropriate together with, as applicable, a letter or letters
as required by the Assigned Lease or the Novated Lease in
line with prudent industry practice from time to time and
reasonably acceptable to the Purchaser and to Servicer and
the Advisor under the Servicing Agreement;
(ix) (1) an original of the applicable Lease (together with the
related Lease Assignment Documents) and (2) all originals in
the possession of GECC and/or such Seller of each other Lease
Document that is to be transferred to such Purchaser
(otherwise a copy certified to be true and correct), provided
that, if any such Lease Document contains a material right
for the benefit of the lessor thereunder and such Seller does
not have an original of such Lease Document in its
possession, such Seller shall provide such other assurances
as to the enforceability and admissibility of such Lease
Document in any court in the State of New York as such
Purchaser may reasonably request;
(x) copies of all notices, consents or acknowledgements of such
Seller or the applicable Lessee as are required under the
terms of the Operative Documents;
(xi) a copy of the currently valid certificate of airworthiness
for such Aircraft issued by the appropriate Air Authority;
(xii) evidence that all governmental and other licenses, approvals,
consents, certificates, exemptions, registrations and filings
necessary in the state of incorporation of GECC, any other
Seller, or any Purchaser and any other relevant jurisdiction
(including the domicile of the Lessee) and the relevant State
of Registration for any matter or thing contemplated by this
Agreement and the other applicable Operative Documents for
such
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Aircraft, the bank accounts provided for under the
Administrative Agency Agreement, the Servicing Agreement and
the Indenture and any notices or other documents to be given
pursuant hereto or thereto and for the legality, validity,
enforceability, admissibility in evidence and effectiveness
hereof and thereof have been obtained or effected on an
unconditional basis and remain in full force and effect (or
in the case of effecting any certificates, exemptions,
registrations and filings, that arrangements satisfactory to
such Purchaser have been made for the effectiveness of the
same within any time limit provided therefor under
applicable law and Rating Agency Confirmation has been
received with respect thereto);
(xiii) for any Aircraft where there are Maintenance Reserves or a
Security Deposit held in cash, a certificate provided at
least three Business Days prior to the Initial Closing Date
and at least three Business Days but not more than five
Business Days prior to such Delivery Date from such Seller
stating the amount of Maintenance Reserves or such cash
Security Deposit then held under the Lease of such Aircraft
as the case may be;
(xiv) the documents or satisfaction of the conditions listed in
Schedule 2 relevant to such Aircraft;
(xv) the Disclosure Letter;
(xvi) the report of AFT's and/or such Purchaser's insurance
adviser in the Agreed Form;
(xvii) a copy of the Assignment of Warranties executed by each of
the parties thereto (other than AFT, the relevant Purchaser
or any Affiliate of such Purchaser) with respect to such
Aircraft;
(xviii) a copy of the currently valid Certificate of Registration
for such Aircraft, issued by the appropriate Air Authority;
(xix) notice of expected Delivery Date; and
(xx) a certificate of GECC confirming that so far as is known to
GECC, no Event of Loss has occurred;
(h) the matters disclosed in the First Disclosure Letter, if any, shall
be in substance satisfactory to AFT; and
(i) Subject to Section 7.2(b), on such Delivery Date, if the Security
Deposit held under the Lease for such Aircraft is in the form of a
letter of credit, guarantee or other instrument, GECC shall cause
such letter of credit, guarantee or other instrument to be duly
endorsed, amended or reissued in favor of the Purchaser thereof (or
the relevant Affiliate of such Purchaser) and GECC shall have taken
such other actions as may be necessary to effectuate the assignment
of all right,
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title and interest of such Seller in and to such letter of credit,
guarantee or instrument to such Purchaser.
7.2 (a) Each Purchaser of an Aircraft may, at the request of the Seller
thereof, at its absolute discretion agree to waive satisfaction of
any one or more of the conditions precedent set out in Section 7.1
and in the event of any waiver such Purchaser may impose such
conditions to such waiver as it reasonably thinks fit, provided that
any such waiver is subject to a Rating Agency Confirmation; and
(b) In the event that any letter of credit or guarantee to be issued on
behalf of the relevant Lessee pursuant to the relevant Operative
Documents has not been delivered, the Seller of the Aircraft in
respect of such Lease may at such Seller's own election:
(i) subject to a Rating Agency Confirmation, deliver a letter of
credit in lieu (and until delivery) of any letter of credit or
guarantee to be issued on behalf of the relevant Lessee
pursuant to the Operative Documents, so long as the issuer
thereof is rated at least the same as the issuer (or, if
higher, any confirming bank) of the undelivered letter of
credit or guarantee, such letter of credit to be on
substantially the same terms as the undelivered letter of
credit or guarantee; or
(ii) subject to a Rating Agency Confirmation, have the relevant
Lessee deliver to the Purchaser thereof (or the relevant
Affiliate of such Purchaser) acting as lessor under an
Assigned Lease or Novated Lease therefor a letter of credit or
guarantee or cash (in Dollars) in lieu of and in the amount of
any letter of credit or guarantee set out in Schedule 1 or the
Substitute Aircraft Supplement, as applicable, in each case so
long as such letter of credit or guarantee is on substantially
the same terms as the undelivered letter of credit or
guarantee.
8. REPRESENTATIONS AND WARRANTIES OF GECC AND EACH OTHER SELLER
8.1 GECC and each other Seller (in respect of itself only in the case of each
Seller other than GECC) represents and warrants to each Purchaser as of
the date of this Agreement and on each Delivery Date that:
(a) GECC and each other Seller is a company or trust duly incorporated
and validly existing under the laws of its state of incorporation
and has the corporate or other power to own its assets and carry on
its business as it is contemplated herein;
(b) GECC and each other Seller has the corporate power to enter into and
perform, and has taken all necessary corporate or other action to
authorize the entry into, performance and delivery of, this
Agreement and each other Operative Document to which it is a party;
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(c) the relevant Operative Documents to which GECC and each other Seller
is a party have been, or when executed and delivered will have been,
duly entered into by GECC and each other Seller party thereto and
delivered by GECC and each other Seller party thereto and constitute
or, in the case of any Operative Document to be executed on or about
the applicable Delivery Date, will constitute on such Delivery Date,
the legal, valid and binding obligation of GECC and each other
Seller party thereto, enforceable in accordance with their terms
(subject to customary qualifications in any relevant legal opinion);
(d) the entry into and performance by GECC and each other Seller of, and
the transactions contemplated by, the relevant Operative Documents
to which it is a party do not and will not:
(i) conflict with any laws binding on GECC or any other Seller; or
(ii) result in any breach of, or constitute a default under the
constitutional documents of GECC or any other Seller; or
(iii) result in any breach of, or constitute a default under any
document which is binding upon GECC or any other Seller or any
of their respective assets nor result in the creation of any
Encumbrance (other than the Novated Lease or the Assigned
Lease as the case may be) over any of their respective assets
to be transferred to the relevant Purchaser hereunder;
(e) the provisions of Section 14 concerning applicable law, service of
process and jurisdiction are valid and binding on GECC and each
other Seller under the laws of its jurisdiction of establishment,
and no provision purporting to be binding on GECC or any other
Seller of this Agreement or any of the other applicable Operative
Documents is prohibited, unlawful or unenforceable under the laws of
its state of incorporation;
(f) no liquidator, provisional liquidator, analogous or similar officer
has been appointed in respect of all or any part of the assets of
GECC or any other Seller nor has any application been made to a
court which is still pending for an order for, or any act, matter or
thing been done which with the giving of notice, lapse of time or
satisfaction of some other condition (or any combination thereof)
will lead to, the appointment of any such officers or equivalent in
any jurisdiction;
(g) except if and as advised by GECC to the relevant Purchaser in a
Disclosure Letter, no litigation, arbitration or claim before any
court, arbitrator, governmental or administrative agency or
authority which would have a material adverse effect on the ability
of GECC or any other Seller to observe or perform their respective
obligations under this Agreement or any other applicable Operative
Documents to which GECC or such Seller is a party is in progress, or
to the knowledge of GECC, threatened against GECC or any other
Seller; and
(h) its jurisdiction of incorporation or organization is as specified on
Schedule 4.
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8.2 GECC and each other Seller (in respect of itself only in the case of each
Seller other than GECC) of an Aircraft further represents and warrants on
the Delivery Date for such Aircraft as follows and in respect of such
Aircraft:
(a) except if and as advised by GECC to the Purchaser thereof in a
Disclosure Letter, so far as concerns the obligations of GECC and
any such Seller (and except for the registration of particulars of
the relevant Lease Novation or Assignment of Lease with the
appropriate Air Authority, if applicable) all authorizations,
consents, registrations and notifications required in connection
with the entry into, performance, validity and enforceability of,
this Agreement, the transactions contemplated by this Agreement and
the other applicable Operative Documents to which it is a party,
have been (or will on or before the Delivery Date of such Aircraft
have been) obtained or effected (as appropriate) and are (or will on
their being obtained or effected be) in full force and effect;
(b) except if and as advised by GECC to the Purchaser thereof in a
Disclosure Letter, the Lease Documents listed in Schedule 1 or the
Substitute Aircraft Supplement, as applicable constitute the whole
agreement between the relevant lessor and the relevant Lessee
immediately prior to Delivery relating to such Aircraft and includes
a complete list (other than the Operative Documents) of all
amendments, supplements, novations, and written consents, approvals
and waivers relevant to the Lease, and there are no oral waivers in
effect that would modify or amend the terms thereof;
(c) except if and as advised by GECC to the Purchaser thereof in the
First Disclosure Letter, to GECC's knowledge no Material Default has
occurred and is continuing under the relevant Lease on and as of the
Initial Closing Date;
(d) except if and as advised by GECC to the Purchaser thereof in a
Disclosure Letter, there are no claims which have been asserted by
the Lessee against GECC or any other Seller arising out of the
relevant Lease (other than claims constituting Permitted
Encumbrances);
(e) such Seller has, or at Delivery will have, full legal and beneficial
title to such Aircraft, free from Encumbrances other than Permitted
Encumbrances and the Xxxx of Sale or physical delivery (as
acknowledged in the Acknowledgement of Delivery pertaining thereto),
as applicable, is effective to convey title to the Purchaser
thereof;
(f) to GECC's knowledge, and except if and as advised by GECC to the
Purchaser thereof in the First Disclosure Letter, there are no
Lessee Encumbrances on and as of the Initial Closing Date which is
not permitted pursuant to the terms of the relevant Lease Document;
(g) to GECC's knowledge, (i) such Aircraft has not, except if and as
advised by GECC to the Purchaser thereof in the First Disclosure
Letter, been involved in any incident on or before the Initial
Closing Date which caused damage in excess
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of the amount required to be disclosed to the relevant lessor under
the relevant Lease or which would materially adversely affect the
residual value of such Aircraft, and (ii) the information provided
by GECC and its representatives to the Appraisers with respect to
such Aircraft and on which the Appraisers relied in making their
Appraisals is true and correct in all material respects and there
are no facts or circumstances known to GECC as of the Initial
Closing Date which would render any of the assumptions contained in
the Appraisals for such Aircraft to be materially inaccurate;
(h) to GECC's knowledge, except if and as advised by GECC to the
Purchaser thereof in the First Disclosure Letter, no compulsory
airworthiness directives are outstanding on and as of the Initial
Closing Date against such Aircraft which would require GECC or any
other Seller or such Purchaser to make any contributions to the cost
of compliance therewith pursuant to the terms of the relevant Lease;
(i) to GECC's knowledge, except if and as disclosed by GECC to the
Purchaser thereof in the First Disclosure Letter, no options to
purchase such Aircraft, extend or terminate the relevant Lease have
been exercised on or before the Initial Closing Date by the relevant
Lessee under the relevant Lease Documents;
(j) the information set forth in each of the Disclosure Letters with
respect to such Aircraft is or will be when issued true and accurate
in all material respects as of its date;
(k) except if and as advised by GECC to the Purchaser thereof in a
Disclosure Letter, to GECC's knowledge, the provisions of each Lease
relating to the granting of any Security Deposit thereunder remain
in full force and effect;
(l) to GECC's knowledge and except if and as advised by GECC to the
Purchaser thereof in a Disclosure Letter, no event has occurred or
act or thing done or omitted to be done by GECC or any other Seller
pursuant to which or as a result of which the relevant Lease can be
terminated or the obligations of any such party thereunder would be
rendered invalid or unenforceable;
(m) to GECC's knowledge, except if and as advised by GECC to the
Purchaser thereof in the First Disclosure Letter, such Aircraft is
not as of the Initial Closing Date subject to any sub-lease from the
relevant Lessee;
(n) to GECC's knowledge, the information provided by GECC to the
Purchaser thereof prior to the Delivery Date as to the identities of
all of such Seller's predecessors in title to such Aircraft thereof
is complete and accurate;
(o) to GECC's knowledge, except if and as advised by GECC to the
Purchaser thereof in a Disclosure Letter, such Aircraft has been
accepted by the relevant Lessee under the Lease thereof without
qualification or exception or to the extent that any such acceptance
was given subject to any qualification or exception or subject to
any liability on the part of such Seller or relevant Affiliate of
the Seller to pay or
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reimburse any costs or expenses or to undertake any repairs or
modifications at the expense of such Seller, such qualifications and
exceptions have been discharged or waived by the Lessee and have
ceased to apply and no such costs or expenses remain to be
reimbursed and all defects referred to therein have been duly
rectified or waived by such Lessee;
(p) the information and statements as to and relating to such Aircraft,
the relevant Lease and the Lease Documents set forth in Schedule 1
or the Substitute Aircraft Supplement, as applicable, are true and
complete;
(q) the sale of such Aircraft contemplated hereby constitutes a valid
transfer of such Aircraft to the Purchaser thereof and after
Delivery of such Aircraft such Seller shall retain no right, title
or interest in such Aircraft; and
(r) the Seller of such Aircraft shall have paid to the relevant Lessee
all amounts then due and payable by such Seller to such Lessee in
respect of maintenance theretofore performed on such Aircraft.
8.3 As used herein "to GECC's knowledge" means the awareness of facts or other
information by any person at GECC or GECAS actively involved in the
transactions contemplated by this Agreement or (in respect of any
Aircraft), the leasing of such Aircraft and something being "known to
GECC" shall be construed accordingly.
8.4 GECC and each other Seller acknowledges that each Purchaser is entering
into this Agreement and the other Operative Documents in reliance upon the
accuracy of each of the representations and warranties, which
representations and warranties have been given by GECC and the other
Sellers so as to induce each Purchaser to enter into this Agreement and
the other Operative Documents.
8.5 The representations and warranties may at the sole discretion of the
relevant Purchaser be waived by such Purchaser with or without conditions.
8.6 The benefit of the representations and warranties shall run to the
Security Trustee.
8.7 The representations and warranties in respect of any Aircraft shall
continue and survive in full force and effect after the Delivery Date
therefor for a period of three years after the Initial Closing Date.
8.8 Each of the representations and warranties shall be construed as a
separate and independent representation and warranty and shall not be
limited or restricted by reference to the terms of any other provision of
this Agreement, the other Operative Documents or any other representation
or warranty.
9. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
9.1 AFT hereby represents and warrants to the Seller as of the date of this
Agreement and on each Delivery Date that:
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(a) AFT is a business trust validly existing under the laws of the State
of Delaware, and each other Purchaser is a company or trust duly
established and validly existing under the laws of its jurisdiction
of establishment, and each has the trust or corporate power (as the
case may be) to own its assets and carry on its business as it is
being conducted;
(b) AFT and each other Purchaser has the trust or corporate power (as
the case may be) to enter into and perform, and has taken all
necessary action to authorize the entry into, performance and
delivery of, this Agreement and the other applicable Operative
Documents to which it is a party;
(c) this Agreement and the other applicable Operative Documents to which
it is a party have been, or when executed and delivered will have
been, duly entered into and delivered by AFT and each other
Purchaser and constitute or, in the case of any Operative Document
to be executed on or about the applicable Delivery Date, will
constitute on such Delivery Date, each such Person's legal, valid
and binding obligations;
(d) the entry into and performance by AFT and any other Purchaser of,
and the transactions contemplated by, this Agreement and the other
applicable Operative Documents to which it is a party do not and
will not:
(i) conflict with any laws binding on AFT or any other Purchaser;
or
(ii) result in any breach of, or constitute a default under the
constitutional documents of AFT or any other Purchaser; or
(iii) result in any breach of, or constitute a default under or
result in default under any document which is binding upon AFT
or any other Purchaser or any of their respective assets;
(e) so far as concerns the obligations of AFT and any other Purchaser,
all authorizations, consents, registrations and notifications
required in connection with the entry into, performance, validity
and enforceability of, this Agreement and the other applicable
Operative Documents to which any such Person is a party and the
Servicing Agreement and the transactions contemplated by this
Agreement and the other applicable Operative Documents to which any
such Person is a party, have been obtained or effected (as
appropriate) and are (or will on their being obtained or effected
be) in full force and effect;
(f) the provisions of Section 14 concerning applicable law, service of
process and jurisdiction are valid and binding on AFT and each other
Purchaser under the laws of the State of New York, and no provision
purporting to be binding on AFT or any other Purchaser, this
Agreement or any of the other applicable Operative Documents is
prohibited, unlawful or unenforceable under the laws of the State of
New York;
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(g) no liquidator, provisional liquidator, official manager, trustee,
receiver or receiver and manager or similar officer has been
appointed in respect of all or any part of the assets of AFT or any
other Purchaser nor has any application been made to a court which
is still pending for an order for, or any act, matter or thing been
done which with the giving of notice, lapse of time or satisfaction
of some other condition (or any combination thereof) will lead to
the appointment of any such officers;
(h) no litigation, arbitration or claim before any court, arbitrator,
governmental or administrative agency or authority which would have
a material adverse effect on the ability of AFT or any other
Purchaser to observe or perform its obligations under this Agreement
is in progress, or to the knowledge of any such Person, threatened
against any such Person; and
(i) AFT and each other Purchaser intends for the sale of any Aircraft
contemplated hereby to constitute a valid transfer of such Aircraft
to the relevant Purchaser and intends that after Delivery of such
Aircraft the Seller thereof shall retain no right, title or interest
in such Aircraft.
10. INDEMNITY
10.1 Each Purchaser of an Aircraft agrees to indemnify the Seller on its behalf
and on behalf of each other Seller Indemnitee from and against any claims,
damages, losses, costs, expenses, fees, payments, demands, liabilities,
actions, proceedings, penalties or fines ("Losses") (other than, in each
case, on account of any Taxes resulting from any Delivery) which any
Seller Indemnitee may incur in relation to such Aircraft to the extent it
arises out of a loss or liability incurred after Delivery thereof, except
to the extent such Losses are due to the gross negligence or willful
misconduct of any Seller Indemnitee.
10.2 Without derogation to the disclaimer in Section 12, each Seller of an
Aircraft agrees to indemnify the Purchaser thereof on its behalf and on
behalf of each Purchaser Indemnitee from and against any Losses which any
Purchaser Indemnitee may incur in relation to such Aircraft to the extent
it arises out of a loss or liability incurred prior to Delivery thereof,
except to the extent such Losses are due to the gross negligence or
willful misconduct of any Purchaser Indemnitee.
10.3 If a written claim is made against a party (the "first party") for any sum
which is the subject of an indemnity by the other party (the "indemnifying
party") under this Section 10, the first party will promptly notify the
indemnifying party. If reasonably requested by the indemnifying party in
writing within thirty (30) days following receipt by the indemnifying
party of such notice, and provided the first party is indemnified by the
indemnifying party against costs and expenses, the first party will in
good faith contest in its name (or, at the indemnifying party's election
if such contest may be undertaken by the indemnifying party in its own
name or on behalf of the indemnifying party, permit the indemnifying party
to contest) the validity, applicability and amount of such claim in
appropriate administrative and judicial proceedings; provided that the
first party shall
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have no such obligation if any such contest would expose the first party
itself to a liability claim.
10.4 The relevant Seller shall pay, within forty-five (45) days after receipt
of an approved invoice therefor, costs and expenses, including legal fees
and disbursements, which the relevant Purchaser incurs as a result of (but
subject to the provisions of Section 4.3 in the case of clauses (ii) and
(iii) below):
(i) the application of Section 4.1 (including, without limitation,
costs incurred in arranging or taking steps to arrange the
preparation, execution and delivery of any documents in
anticipation of Delivery of a Substitute Aircraft); or
(ii) any of the documents or conditions referred to in Schedule 2
not being satisfied on or before Delivery of the relevant
Aircraft or any of the documents or conditions referred to in
Schedule 3 not being satisfied on or before Delivery of the
relevant Aircraft; or
(iii) any condition referred to in Section 7.2(a) or (b) not being
satisfied on or before Delivery of the relevant Aircraft.
10.5 If and to the extent that any sums constituting (directly or indirectly)
an indemnity to the first party but paid by the indemnifying party
pursuant to this Agreement are treated as taxable in the hands of the
first party, the indemnifying party will pay to the first party such sums
as will after the tax liability has been fully satisfied indemnify the
first party to the same extent as it would have been indemnified in the
absence of such liability together with interest on the amount payable by
the indemnifying party under this sub-clause at the rate of interest
stated in Section 5.6 in respect of the period commencing on the date on
which the payment of taxation is finally due until payment by the
indemnifying party (both before and after judgment), but the indemnifying
party will be under no liability to make any payment under this Section
10.5 to the first party to the extent the first party would be in a better
position than if no payment by way of indemnity had needed to have been
made.
11. TAXES
11.1 (a) Each Seller of an Aircraft hereby covenants to pay all Taxes imposed
on the Purchaser thereof or on such Aircraft or the Lease Documents
or the Operative Documents as a result of (i) the execution of,
delivery of or performance under this Agreement, (ii) the Delivery
of such Aircraft, (iii) any required re-registration of title to or
the lease of such Aircraft with any Government Entity that is
necessary or advisable to reflect or record the Operative Documents
or the events occurring pursuant to the Operative Documents, (iv)
the purchase by such Purchaser of such Aircraft hereunder or (v)
such Purchaser's entering into of the Lease Documents and the
Operative Documents, other than (x) Taxes that the relevant Lessee
is liable to pay or reimburse under the relevant Lease and/or the
Operative Documents, (y) any Taxes imposed on the Purchaser of such
Aircraft or
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any other Purchaser or that are based on or measured by gross or
net income or receipts (other than sales or use Taxes or Taxes in
the nature of the foregoing) (including, without limitation,
withholding and Taxes on tax preference items) of such Purchaser or
any other Purchaser or that are capital, doing business, accumulated
earnings, personal holding company, excess profits, successor,
estate or net worth Taxes of such Purchaser (including interest,
additions to Tax, penalties, or other charges in respect thereof),
in each case to the extent imposed on the Purchaser or any other
Purchaser or by reason of such Purchaser or an Affiliate thereof
being organized in the jurisdiction imposing such Taxes or
conducting activities in such jurisdiction unrelated to the
transaction contemplated by the Operative Documents or (z) Taxes
resulting from the gross negligence or willful misconduct of such
Purchaser.
(b) The Purchaser covenants not to bring into the United Kingdom any
document subject to stamp duty in the United Kingdom and covered by
the indemnity in Section 11.1(a) above unless it is necessary to do
so to enforce the same, whereupon the Purchaser shall notify the
Seller that it has brought such a document into the United Kingdom
and the Seller shall be responsible for the payment of such duty.
12. WARRANTIES AND DISCLAIMERS
12.1 WITHOUT PREJUDICE TO THE EXPRESS TERMS AND CONDITIONS STATED HEREIN AND IN
THE OTHER OPERATIVE DOCUMENTS, EACH AIRCRAFT WILL BE DELIVERED AND SOLD IN
ITS "AS IS, WHERE IS" CONDITION, AND EXCEPT AS EXPRESSLY STATED IN SECTION
8 OF THIS AGREEMENT AND AS OTHERWISE REPRESENTED AND WARRANTED HEREIN IN
THE OTHER OPERATIVE DOCUMENTS AND/OR IN THE XXXX OF SALE OR
ACKNOWLEDGEMENT OF DELIVERY (AS THE CASE MAY BE) FOR SUCH AIRCRAFT OR ANY
CERTIFICATE DELIVERED PURSUANT TO THIS AGREEMENT, THE SELLER MAKES NO
WARRANTIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE, WITH RESPECT TO ANY OF THE AIRCRAFT.
12.2 SUBJECT AS PROVIDED IN SECTION 12.1 EACH PURCHASER WAIVES RELEASES AND
RENOUNCES ALL WARRANTIES, OBLIGATIONS AND LIABILITIES OF ANY SELLER
INCLUDING BUT NOT LIMITED TO (1) ANY IMPLIED WARRANTY AS TO THE
DESCRIPTION, AIRWORTHINESS, MERCHANTABILITY, FITNESS FOR ANY PURPOSE,
VALUE, CONDITION, DESIGN, DATE PROCESSING, USE OR OPERATION OF THE
AIRCRAFT OR ANY PAST PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE OR
OTHERWISE, (2) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT
(INCLUDING STRICT LIABILITY), AND (3) ANY OBLIGATION, LIABILITY, RIGHT,
CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO THE AIRCRAFT, FOR LOSS OF USE,
REVENUE OR PROFIT WITH RESPECT TO THE AIRCRAFT, FOR ANY LIABILITY OF ANY
LESSEE TO ANY THIRD PARTY, FOR ANY LIABILITY OF THE PURCHASER TO ANY THIRD
PARTY, OR FOR
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ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; AND ALL SUCH
WARRANTIES, GUARANTEES, REPRESENTATIONS, OBLIGATIONS, LIABILITIES, RIGHTS,
CLAIMS OR REMEDIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARE
EXPRESSLY EXCLUDED.
12.3 THIS SECTION 12 SHALL NOT BE MODIFIED EXCEPT BY A WRITTEN AGREEMENT SIGNED
ON BEHALF OF THE SELLER AND THE PURCHASER BY THEIR RESPECTIVE DULY
AUTHORIZED REPRESENTATIVES.
13. ASSIGNMENT
13.1 No Purchaser of an Aircraft shall assign, transfer or otherwise convey
this Agreement or all or any part of its rights hereunder to any Person
without the prior written consent of the Seller of such Aircraft other
than in favor of the Security Trustee under the Security Trust Agreement,
to which the Seller hereby consents.
13.2 No Seller of an Aircraft shall assign, transfer or otherwise convey this
Agreement or all or any part of its rights hereunder to any Person without
the prior written consent of the Purchaser of such Aircraft other than so
far as concerns assignments to existing owners or financiers or Affiliates
of such Seller of amounts or its rights to receive amounts payable to such
Seller hereunder on terms and conditions which do not increase any
obligation of such Purchaser hereunder or otherwise expose such Purchaser
to any increased liability cost or expense. Notwithstanding the foregoing,
the Seller may at any time and from time to time assign its rights under
this Agreement (but not its obligations) with respect to one or more of
the Aircraft to Chicago Deferred Exchange Corporation ("CDEC") and CDEC
may subsequently reassign such rights to the Seller, in each case without
having to obtain the prior written consent of the Purchaser but in each
case giving the Purchaser written notice of such assignment and in the
exercise of such rights, CDEC shall be bound by the terms and provisions
of Section 14.2 hereof.
14. MISCELLANEOUS
14.1 GECC shall indemnify, hold harmless and defend AFT, each other Purchaser
and their respective successors and assigns from and against all
liabilities, obligations, claims, demands, judgements, causes of action,
damages, costs, losses and expenses (including reasonable legal fees,
costs) rising out of or pertaining to any claim which results from any
breach by GECC or any other Seller of any of its obligations,
representations, warranties or covenants under this Agreement, any
Acknowledgement of Delivery or any Xxxx of Sale.
14.2 None of GECC or any other Seller shall take any steps for the purpose of
procuring the appointment of any administrative receiver or the making of
any administrative order or for instituting any bankruptcy,
reorganization, arrangement, insolvency, winding up, liquidation,
composition or any like proceedings under the laws of any jurisdiction in
respect of AFT or any other Purchaser or in respect of any of their
respective liabilities, including, without limitation, as a result of any
claim or interest of any of GECC or any other Seller.
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14.3 No amendment or waiver of any provision of this Agreement, and no consent
to any departure herefrom by any party hereto, shall in any event be
effective unless the same shall be in writing and signed by each party
hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No failure
on the part of any party hereto to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right.
14.4 In the event that any provision of this Agreement or the application
thereof to any party hereto or to any circumstance or in any jurisdiction
governing this Agreement shall, to any extent, be invalid or unenforceable
under any applicable statute, regulation or rule of law, then such
provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of
any such invalid or unenforceable provision to the parties, jurisdictions
or circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of this Agreement.
14.5 All notices and other communications provided for hereunder shall be in
writing (including telecopier) and mailed, telecopied or delivered to the
intended recipient at its address specified in Section 12.05 of the
Indenture or
in the case of GECC or any Seller, as follows:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Senior Vice President-Corporate Treasury and
Global Funding Operation of GE Capital
Facsimile: (000) 000-0000
With a copy to:
GE Capital Aviation Services, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Contracts Leader
Facsimile: (000) 000-0000
and, in the case of any Purchaser, as follows:
AIRCRAFT FINANCE TRUST
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administrator
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Facsimile: (000) 000-0000
with a copy to:
Resource/Phoenix, Inc., Administrative Agent
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxxx, XX 00000
Attention: Financial Services
Facsimile: (000) 000-0000
or, as to each party, at such other address as shall be designated by such
party in a written notice to each other party complying as to delivery
with the terms of this Section 14.5. Each such notice shall be effective
(a) upon receipt when sent through the mails, registered or certified
mail, return receipt requested, postage prepaid, with such receipt to be
effective the date of delivery indicated on the return receipt, or (b) one
Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an authorized officer of the party to which sent,
or (d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt.
14.6 (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE .
(b) Each party hereto hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New
York and of any New York State court sitting in New York City for
the purposes of all legal proceedings arising out of or relating to
this agreement and each other operative document or the transactions
contemplated hereby or thereby. GECC and each other Seller
irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim
that any such proceeding brought in such a court has been brought in
an inconvenient forum. Each Seller (other than GECC so long as GECC
is a New York corporation) hereby irrevocably appoints CT
Corporation System, with an office on the date hereof at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent to receive on its
behalf and on behalf of its property, service of copies of the
summons and complaint and any other process that may be served in
any such action or proceeding. As an alternative method of service,
each of GECC and each other Seller hereby irrevocably consents to
the service of any and all process in any such action or proceeding
by the mailing of copies to it or in any other manner permitted by
Applicable Law.
(c) To the extent permitted by Applicable Law, each of the parties
hereto hereby irrevocably waives the right to demand a trial by
jury, in any such suit, action or other proceeding arising out of
this agreement, the other operative documents, or the subject matter
hereof or thereof or the overall transaction brought by any of the
parties hereto or their successors or assigns.
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14.7 Nothing in Section 14.4 limits the right of AFT or any other Purchaser to
bring proceedings against GECC or any other Seller in connection with this
Agreement:
(i) in any other court of competent jurisdiction; or
(ii) concurrently in more than one jurisdiction.
14.8 Each party hereto will promptly and duly execute and deliver such further
documents to make such further assurances for and take such further action
reasonably requested by any party to whom such first party is obligated,
all as may be reasonably necessary to carry out more effectively the
intent and purpose of this Agreement and the other Operative Documents.
14.9 This Agreement may be executed in any number of counterparts and by any
party hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which, when taken together,
shall constitute one and the same agreement.
15. SUBROGATION
15.1 Upon the provision of substitute collateral by GECC or any other Seller
pursuant to Section 7.2(b)(i), and upon any claim being made against GECC
or any other Seller for breach of any representation or warranty in
Section 8.2, GECC or such other Seller, as the case may be, shall be
subrogated to all rights, remedies and claims of AFT and each other
Purchaser against the Lessee or any Affiliate of the Lessee under the
applicable Novated Lease or Assigned Lease, the Operative Documents, the
Lease Documents and otherwise, with respect to such provision of
substitute collateral or such claim, and AFT shall cooperate, and shall
cause each other Purchaser to cooperate, in taking such action as GECC or
such other Seller may reasonably request in connection with exercising any
such right, remedy or claim (and the reasonable costs and expenses thereof
shall be paid by GECC).
34
38
IN WITNESS WHEREOF, the parties hereto have entered into this Master Aircraft
Purchase Agreement the day and year first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Xxxxxx Xxx
-----------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Owner Trustee
By
-----------------------------------------
Name:
Title:
ALCYONE FSC CORPORATION
By
-----------------------------------------
Name:
Title:
BIRDS OF PARADISE I
By: POLARIS PACIFIC - 1 CORPORATION,
as managing venturer
By /s/ Xxxxxx Xxx
-------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
BIRDS OF PARADISE II
By: POLARIS PACIFIC - 2 CORPORATION,
as managing venturer
By /s/ Xxxxxx Xxx
-------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
AVIATION FINANCIAL SERVICES, INC.
By /s/ Xxxxxx Xxx
-----------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
39
IN WITNESS WHEREOF, the parties hereto have entered into this Master Aircraft
Purchase Agreement the day and year first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By
------------------------------------------
Name:
Title:
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Owner Trustee
By /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
ALCYONE FSC CORPORATION
By
-----------------------------------------
Name:
Title:
BIRDS OF PARADISE I
By: POLARIS PACIFIC - 1 CORPORATION,
as managing venturer
By
-------------------------------------
Name:
Title:
BIRDS OF PARADISE II
By: POLARIS PACIFIC - 2 CORPORATION,
as managing venturer
By
-------------------------------------
Name:
Title:
AVIATION FINANCIAL SERVICES, INC.
By
-----------------------------------------
Name:
Title:
40
IN WITNESS WHEREOF, the parties hereto have entered into this Master Aircraft
Purchase Agreement the day and year first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By
-----------------------------------------
Name:
Title:
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Owner Trustee
By
-----------------------------------------
Name:
Title:
ALCYONE FSC CORPORATION
By /s/ [ILLEGIBLE]
-----------------------------------------
Name:
Title:
BIRDS OF PARADISE I
By: POLARIS PACIFIC - 1 CORPORATION,
as managing venturer
By
-------------------------------------
Name:
Title:
BIRDS OF PARADISE II
By: POLARIS PACIFIC - 2 CORPORATION,
as managing venturer
By
-------------------------------------
Name:
Title:
AVIATION FINANCIAL SERVICES, INC.
By
-----------------------------------------
Name:
Title:
41
GECAS BRUSSELS FSC, INC
By /s/ [ILLEGIBLE]
------------------------------------------
Name:
Title:
ALDEBARAN FSC - ONE CORPORATION
By /s/ [ILLEGIBLE]
------------------------------------------
Name:
Title:
ALDEBARAN FSC - TWO CORPORATION
By /s/ [ILLEGIBLE]
------------------------------------------
Name:
Title:
ALDEBARAN FSC - THREE CORPORATION
By /s/ [ILLEGIBLE]
------------------------------------------
Name:
Title:
ANTARES FSC - TWO CORPORATION
By /s/ [ILLEGIBLE]
------------------------------------------
Name:
Title:
ANTARES FSC - THREE CORPORATION
By /s/ [ILLEGIBLE]
------------------------------------------
Name:
Title:
42
ALNITAK FSC ONE CORPORATION
By /s/ [ILLEGIBLE]
------------------------------------------
Name:
Title:
ALNITAK FSC TWO CORPORATION
By /s/ [ILLEGIBLE]
------------------------------------------
Name:
Title:
ALNITAK FSC THREE CORPORATION
By /s/ [ILLEGIBLE]
------------------------------------------
Name:
Title:
ARCTURUS FSC CORPORATION
By /s/ [ILLEGIBLE]
------------------------------------------
Name:
Title:
POLARIS AIRCRAFT (PACIFIC COAST), INC
By
------------------------------------------
Name:
Title:
43
ALNITAK FSC ONE CORPORATION
By
------------------------------------------
Name:
Title:
ALNITAK FSC TWO CORPORATION
By
------------------------------------------
Name:
Title:
ALNITAK FSC THREE CORPORATION
By
------------------------------------------
Name:
Title:
ARCTURUS FSC CORPORATION
By
------------------------------------------
Name:
Title:
POLARIS AIRCRAFT (PACIFIC COAST), INC
By /s/ Xxxxxx Xxx
-----------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
44
POLARIS HOLDING COMPANY
By /s/ Xxxxxx Xxx
-----------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
AIRCRAFT FINANCE TRUST
By Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By
-----------------------------------------
Name:
Title:
AFT TRUST - SUB I
By Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By
-----------------------------------------
Name:
Title:
45
POLARIS HOLDING COMPANY
By
-----------------------------------------
Name:
Title:
AIRCRAFT FINANCE TRUST
By Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By /s/ Xxxxxx X. XxxXxxxxx
-----------------------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
AFT TRUST - SUB I
By Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By /s/ Xxxxxx X. XxxXxxxxx
-----------------------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
46
B1a
47
ANNEX A
SELLERS
Aircraft Nos.
Name of Seller (See Schedule 1)
1. ALDEBARAN FSC - TWO CORPORATION, a Barbados foreign 1
sales corporation
2. FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national1 2 & 3
banking association, not in its individual capacity,
but solely as Owner Trustee (GECC as Owner
Participant)
3. ALCYONE FSC CORPORATION, a Barbados foreign sales 4, 11 & 12
corporation
4. BIRDS OF PARADISE I, a Californian General US 5
Partnership
5. BIRDS OF PARADISE II, a Californian General US 6
Partnership
6. GENERAL ELECTRIC CAPITAL CORPORATION, a New York 7, 9, 10, 13,
corporation 14, 20, 23, 24,
25, 29 34, 35 &
36
7. AVIATION FINANCIAL SERVICES INC., a Delaware 8, 21 & 22
corporation
8. GECAS BRUSSELS FSC, INC., a Barbados foreign sales 15
corporation
9. ALDEBARAN FSC - ONE CORPORATION, a Barbados foreign 16
sales corporation
10. ALDEBARAN FSC - THREE CORPORATION, a Barbados foreign 17
sales corporation
11. ANTARES FSC - TWO CORPORATION, a Barbados foreign 18
sales corporation
12. ANTARES FSC - THREE CORPORATION, a Barbados foreign 19
sales corporation
13. ALNITAK FSC ONE CORPORATION, a Barbados foreign sales 26
corporation
14. ALNITAK FSC TWO CORPORATION, a Barbados foreign sales 27
corporation
15. ALNITAK FSC THREE CORPORATION, a Barbados foreign 28
sales corporation
16. ARCTURUS FSC CORPORATION, a Barbados foreign sales 30
corporation
17. POLARIS AIRCRAFT (PACIFIC COAST), INC., a California 31
Corporation
18. POLARIS HOLDING COMPANY, a Delaware corporation 32 & 33
48
B1b
49
EXHIBIT A
XXXX OF SALE
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, [_______________], a corporation organized and existing under the
laws of [_______________] and having its registered office at [_______________]
(the "Seller"), owner of the full legal and beneficial title (subject to the
Aircraft Lease Agreement referred to below) to the aircraft, engines, equipment
and documents described below (hereinafter referred to as the "Aircraft"):
1. one (1) [_______________] aircraft bearing manufacturer's serial no.
[_______________] and registration xxxx [_______________]; and
2. [_______________] [_______________] engines bearing the following
manufacturer's serial nos.: [_______________], [_______________],
[_______________];
3. all equipment, accessories and parts belonging to, installed in or
appurtenant to such Aircraft or Engines to the extent title thereto has
been vested in the Seller in under the Aircraft Lease Agreement referred
to below; and
4. all Aircraft Documents relating to the Aircraft and such Engines;
does hereby sell, grant, transfer and deliver all its right, title and interest
in and to the Aircraft (subject to the Aircraft Lease Agreement dated as of
[_______________], between [_______________] and [______________]) unto
[_______________] (the "Purchaser") and its successors and assigns, to have and
to hold the Aircraft forever.
The Seller hereby warrants to the Purchaser, its successors and assigns, that
there is hereby conveyed to the Purchaser good and marketable title to the
Aircraft, free and clear of all Encumbrances (other than Permitted
Encumbrances). The Seller agrees with the Purchaser, and its successors and
assigns, that the Seller will warrant and defend such title forever against all
claims and demands whatsoever. Except as otherwise provided herein or in such
Master Aircraft Purchase Agreement, the Aircraft is sold "AS IS" and "WHERE IS."
This Xxxx of Sale shall be governed by and construed in accordance with the laws
of the State of New York. Capitalized terms used but not otherwise defined
herein shall have the same meanings as used in such Master Aircraft Purchase
Agreement.
50
IN WITNESS WHEREOF, the Seller has caused this Xxxx of Sale to be duly executed
as of this [__] day of [__________], 1999.
_______________________________
By_____________________________
Name:
Title:
The representation, warranties, and
covenants of the above named Seller
under this Xxxx of Sale are hereby
irrevocably and unconditionally
guaranteed and confirmed:
General Electric Capital Corporation
By___________________________
Name:
Title:
51
B1c
52
EXHIBIT B
ACKNOWLEDGEMENT OF DELIVERY
This Acknowledgement of Delivery is given in connection with the Master Aircraft
Purchase Agreement (the "Agreement") dated as of May ___, 1999 among
[_______________], a corporation organized and existing under the laws of
[_______________] and having its registered office at [_______________] (the
"Seller"), [______________], a [company/trust] duly established and existing
pursuant to the laws of [_______________] and having its principal place of
business at _______________ (the "Purchaser") and the other parties thereto.
The Seller hereby acknowledges to the Purchaser that the full legal and
beneficial title (subject to the Aircraft Lease Agreement referred to below) to
the aircraft, engines, equipment and documents described below (hereinafter
referred to as the "Aircraft"):
1. one (1) [_______________] aircraft bearing manufacturer's serial no.
[_______________] and registration xxxx [_______________]; and
2. [_______________] [_______________] engines bearing the following
manufacturer's serial nos.: [_______________], [_______________],
[_______________];
3. all equipment, accessories and parts belonging to, installed in or
appurtenant to such Aircraft or Engines to the extent title thereto has
been vested in the Seller in under the Aircraft Lease Agreement referred
to below; and
4. all Aircraft Documents relating to the Aircraft and such Engines;
has passed by physical delivery from the Seller to the Purchaser in accordance
with the terms of the Agreement (subject to the Aircraft Lease Agreement dated
as of [_______________], between [_______________] and [_______________]).
The Seller hereby warrants to the Purchaser, its successors and assigns, that
there was conveyed to the Purchaser good and marketable title to the Aircraft,
free and clear of all Encumbrances (other than Permitted Encumbrances). The
Seller agrees with the Purchaser, and its successors and assigns, that the
Seller will warrant and defend such title forever against all claims and demands
whatsoever. Except as otherwise provided herein and in the Agreement, the
Aircraft was sold "AS IS" and "WHERE IS".
This Acknowledgement of Delivery shall be governed by and construed in
accordance with the laws of the State of New York. Capitalized terms used but
not otherwise defined herein shall have the same meanings as used in the
Agreement.
53
IN WITNESS WHEREOF, the Seller has caused this Acknowledgement of Delivery to be
duly executed as of this [__] day of [__________], 1999.
_______________________________
By_____________________________
Name:
Title:
The representation, warranties, and
covenants of the above named Seller
under this Acknowledgement of
Delivery are hereby irrevocably and
unconditionally guaranteed and
confirmed:
General Electric Capital Corporation
By___________________________
Name:
Title:
2
54
Exhibit C
GUARANTY
GUARANTY (the "Guaranty") dated as of May 5, 1999 of General
Electric Capital Corporation, a New York corporation ("GECC") in favor of
Aircraft Finance Trust, a Delaware business trust ("AFT") and AFT Trust - Sub I,
a Delaware business trust ("AFT Sub I") (AFT, together with AFT Sub I,
collectively, the "Purchasers").
Reference is made to that certain Master Aircraft Purchase Agreement
dated as of May __, 1999 (the "Asset Purchase Agreement") among GECC, the other
Sellers named therein and AFT and the other Purchasers. All capitalized terms
used but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Asset Purchase Agreement. To induce the Purchasers
to acquire the Aircraft under the Asset Purchase Agreement and to pay the
purchase price thereof on the Initial Closing Date in advance of the Delivery of
the Aircraft and to otherwise perform their respective obligations thereunder,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, GECC is willing to execute and deliver this
Guaranty to the Purchasers and accordingly GECC does hereby agree as follows:
Section 1. Guaranty by GECC. (a) From and after the date hereof,
GECC hereby irrevocably and unconditionally guarantees to the Purchasers the
payment and performance in full when due of each of the obligations of each of
the Sellers under the Asset Purchase Agreement and each Xxxx of Sale,
Acknowledgment of Delivery, Lease Novation and/or Assignment of Lease delivered
pursuant thereto (collectively, the "Guaranteed Obligations"), in each case
after any applicable grace periods or notice requirements, according to the
terms of the Asset Purchase Agreement; provided, however, that with respect to
any payment obligation of any Seller thereunder, GECC shall not be liable to
make any such payment until 15 Business Days (as used herein, a "Business Day"
shall refer to a day other than a Saturday or a Sunday on which commercial banks
are open for business in New York City) following receipt by GECC of a written
demand for payment from AFT. GECC hereby agrees that its obligations hereunder
shall be absolute and unconditional, irrespective of (i) the validity,
regularity or enforceability of the Asset Purchase Agreement, any other
Operative Document or any other agreement or instrument referred to herein or
therein, any change therein or amendment thereto, the absence of any action to
enforce the same, any waiver or consent by the Purchasers with respect to any
provision thereof, the recovery of any judgment against any of the Sellers or
any action to enforce the same, or any other circumstances which may otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor
and (ii) any difference between the law selected as the governing law of the
Asset Purchase Agreement or the other Operative Documents and the law selected
as the governing law of this Guaranty; provided, however, that nothing contained
herein shall be construed to be a waiver by GECC of the foregoing demand for
payment. GECC covenants that this Guaranty will not be discharged except by
complete and final performance of the Guaranteed Obligations.
(b) GECC shall be subrogated to all rights of the Purchasers in
respect of any amounts paid by GECC pursuant to the provisions of this Guaranty;
provided, however, that
55
GECC shall be entitled to enforce, or to receive any payments arising out of or
based upon, such right of subrogation only after all of the Guaranteed
Obligations have been finally paid in full.
(c) This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Guaranteed
Obligations is rescinded or must otherwise be returned by any Purchaser upon the
insolvency, bankruptcy or reorganization of any Seller or otherwise, all as
though such payment had not been made.
Section 2.1. Notices. All notices to GECC under this Guaranty and
copies of all notices to the Sellers under the Asset Purchase Agreement shall,
until GECC furnishes written notice to the contrary, be in writing and mailed,
faxed or delivered to GECC at 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000-0000, and directed to the attention of the Senior Vice President-Corporate
Treasury and Global Funding Operation of GE Capital (facsimile no. (203)
357-4975).
Section 2.2. Governing Law. This Guaranty shall be construed and
enforced in accordance with, and governed by, the laws of the State of New York,
United States of America.
Section 2.3. Interpretation. The headings of the sections and other
subdivisions of this Guaranty are inserted for convenience only and shall not be
deemed to constitute a part hereof.
Section 2.4. Attorney's Cost. GECC agrees to pay all reasonable
attorney's fees and disbursements and all other reasonable and actual costs and
expenses which may be incurred by the Purchasers in the enforcement of this
Guaranty.
Section 2.5 Currency of Payment. Any payment to be made by GECC
shall be made in the same currency as designated for payment in the Asset
Purchase Agreement and such designation of the currency of payment is of the
essence.
Section 2.6 No Set-Off. By acceptance of this Guaranty, AFT and each
of the other Purchasers shall be deemed to have waived any right to set-off,
combine, consolidate or otherwise appropriate and apply (i) any assets of GE
Capital at any time held by any Purchaser or (ii) any indebtedness or other
liabilities at any time owing by any Purchaser to GECC, as the case may be,
against, or on account of, any obligations or liabilities owed by GECC to the
Purchasers under this Guaranty.
2
56
GENERAL ELECTRIC CAPITAL
CORPORATION
By:__________________________
Senior Vice President
Corporate Treasury and
Global Funding Operation
ACKNOWLEDGMENT AND AGREEMENT
AFT for and on behalf of itself and each of the Purchasers does hereby
acknowledge and consent to the provisions of the foregoing Guaranty.
Aircraft Finance Trust
By:__________________________
Title:
3
