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Exhibit 10.1
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EXECUTION COPY
ADMINISTRATIVE AGENCY AGREEMENT
among
GPA ADMINISTRATIVE SERVICES LIMITED,
GPA GROUP PLC, as Guarantor,
AerCo LIMITED,
and
THE ENTITIES LISTED ON APPENDIX A HERETO
Dated as of July 15,1998
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
PAGE
SECTION 1.01. Definitions...................................... 1
ARTICLE 2
APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION 2.01. Appointment...................................... 8
SECTION 2.02. Limitations...................................... 8
SECTION 2.03. Administrative Services.......................... 10
SECTION 2.04. Accounting and Draft Accounts.................... 18
SECTION 2.05. Additional Administrative Services............... 21
SECTION 2.06. Additional Aircraft.............................. 21
SECTION 2.07. New Subsidiaries................................. 21
SECTION 2.08. AerCo Group Responsibility....................... 22
ARTICLE 3
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
SECTION 3.01. Standard of Performance.......................... 22
SECTION 3.02. Liability and Indemnity.......................... 22
SECTION 3.03. Conflicts of Interest............................ 24
ARTICLE 4
ADMINISTRATIVE AGENT UNDERTAKINGS
SECTION 4.01. The Administrative Agent......................... 24
ARTICLE 5
UNDERTAKINGS OF AERCO GROUP
SECTION 5.01. Cooperation...................................... 27
SECTION 5.02. Information...................................... 27
SECTION 5.03. Scope of Services................................ 28
SECTION 5.04. Ratification..................................... 28
SECTION 5.05. Covenants........................................ 29
SECTION 5.06. Ratification by Subsidiaries..................... 30
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ARTICLE 6
APPROVALS
PAGE
SECTION 6.01. Approvals......................................... 30
ARTICLE 7
EFFECTIVENESS
SECTION 7.01. Effectiveness...................................... 31
ARTICLE 8
ADMINISTRATIVE FEES, EXPENSES AND SUBORDINATION
SECTION 8.01. Administrative Fees............................... 31
SECTION 8.02. Expenses.......................................... 32
SECTION 8.03. Taxes............................................. 32
SECTION 8.04. Payment of Expenses............................... 33
SECTION 8.05. Subordination of Fees and Expenses................ 33
ARTICLE 9
TERM, REMOVAL OF OR TERMINATION BY THE ADMINISTRATIVE AGENT
SECTION 9.01. Term.............................................. 33
SECTION 9.02. Right to Terminate................................ 33
SECTION 9.03. Consequences of Termination....................... 36
SECTION 9.04. Survival.......................................... 36
ARTICLE 10
ASSIGNMENT AND DELEGATION
SECTION 10.01. Assignment and Delegation........................ 37
ARTICLE 11
GUARANTEE
SECTION 11.01. Guarantee........................................ 37
SECTION 11.02. Absolute Obligations............................. 38
SECTION 11.03. Guarantor's Representations...................... 39
SECTION 11.04. Successors and Assigns; Amendments............... 39
SECTION 11.05. Limitations...................................... 40
SECTION 11.06. Payments; Costs of Enforcement................... 40
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ARTICLE 12
MISCELLANEOUS
PAGE
SECTION 12.01. Notices......................................... 40
SECTION 12.02. Governing Law................................... 41
SECTION 12.03. Jurisdiction.................................... 42
SECTION 12.04. Agent for Service of Process.................... 42
SECTION 12.05. WAIVER OF JURY TRIAL............................ 42
SECTION 12.06. Counterparts; Third Party Beneficiaries......... 42
SECTION 12.07. Entire Agreement................................ 43
SECTION 12.08. Power of Attorney............................... 43
SECTION 12.09. Restrictions on Disclosure...................... 43
SECTION 12.10. Rights of Setoff................................ 44
SECTION 12.11. No Partnership.................................. 44
SECTION 12.12. Implied Terms Excluded.......................... 45
Appendix A............................................... Subsidiaries
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ADMINISTRATIVE AGENCY AGREEMENT dated as of July 15, 1998, (the
"AGREEMENT") among GPA ADMINISTRATIVE SERVICES LIMITED, a company incorporated
under the laws of Ireland (the "ADMINISTRATIVE AGENT"), GPA GROUP PLC, a
company incorporated under the laws of Ireland (the "GUARANTOR" or "GPA
GROUP"), AerCo LIMITED, a company incorporated under the laws of Jersey,
Channel Islands ("AERCO") and the entities listed on Appendix A hereto.
For the consideration set forth herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Administrative
Agent, the Guarantor, and AerCo Group each agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have the
following meanings. Unless otherwise defined herein, all capitalized terms
used but not defined herein have the meanings assigned to such terms in the
Indenture.
"ADDITIONAL FEE" has the meaning assigned to such term in Section 8.01
hereto.
"ADDITIONAL NOTES" has the meaning assigned to such term in the Offering
Memorandum.
"ADMINISTRATIVE FEE" has the meaning assigned to such term in Section
8.01(a) hereof.
"ADMINISTRATIVE SERVICES" has the meaning assigned to such term in Section
2.01(a) hereof.
"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 (i) that GPA Group and its
Subsidiaries, on the one part, and Xxxxxxx & Xxxxx and its Subsidiaries, on the
other part, shall not be considered to be Affiliates of each other, (ii) each
of AerCo and its Subsidiaries and Affiliates, on the one part, and Xxxxxxx &
Xxxxx and its Subsidiaries, on the other part, shall not be considered to be
Affiliates of each other and (iii) each of AerCo and its Subsidiaries and
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Affiliates, on the one part, and GPA Group and its Subsidiaries, on the other
part, shall not be considered to be Affiliates of each other.
"AFTER-TAX BASIS" means on a basis such that any payment received, deemed
to have been received or receivable by any Person shall, if necessary, be
supplemented by a further payment to that Person so that the sum of the two
payments shall, after deduction of all Federal, state, local and Irish or other
foreign Taxes, penalties, fines, interest, additions to Tax and other charges
resulting from the receipt (actual or constructive) or accrual of such payments
imposed by or under any Federal, state, local or Irish or other foreign law or
Governmental Authority (after taking into account any current deduction to
which such Person shall be entitled with respect to the amount that gave rise
to the underlying payment and on a present value basis (determined on the basis
of discounting at 8% any deductions, credits, or other tax benefits in other
years to which such Person reasonably anticipates being entitled)) be equal to
the payment received, deemed to have been received or receivable.
"AIRCRAFT ASSET" has the meaning assigned to such term in the Servicing
Agreement.
"AERCO GROUP" has the meaning assigned to such term in Section 2.01(a)
hereof.
"AERCO" means AerCo Limited, a company incorporated under the laws of
Jersey, Channel Islands.
"ANNUAL APPRAISED VALUE" means the average Base Value of an Aircraft at
the time acquired by a member of AerCo Group as determined annually by three
independent appraisers, which initially shall be Aircraft Information Services,
Inc., BK Associates, Inc. and Airclaims Limited, or, thereafter, be such other
independent appraisers as may be selected by the Administrative Agent and
approved by the board of AerCo.
"ASSET EXPENSES BUDGET" has the meaning assigned to such term in Section
7.04(a) of the Servicing Agreement.
"BUSINESS OBJECTIVES" means maximizing the cash flows derived from the
leases relating to the Aircraft over time, subject to the constraints imposed
by the Indenture and Servicing Agreement, and seeking to achieve a balanced and
diversified portfolio (including, without limitation, with respect to lessees,
geography and lease term lengths), in all cases taking into account the
then-existing and anticipated market conditions affecting the operating leases
of used aircraft and the commercial aviation industry generally.
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"COMPETITOR" has the meaning assigned to such term in the Servicing
Agreement.
"CONCENTRATION THRESHOLDS" has the meaning assigned to such term in
Section 2.02(a) of Schedule 2.02(a) of the Servicing Agreement.
"CONFLICTS STANDARD" has the meaning assigned to such term in Section
3.02(b) of the Servicing Agreement.
"CONSOLIDATED QUARTERLY DRAFT ACCOUNTS" has the meaning assigned to such
term in Section 2.04(b)(ii) hereof.
"CONSOLIDATING QUARTERLY DRAFT ACCOUNTS" has the meaning assigned to such
term in Section 2.04(b)(iii) hereof.
"CONTROL" of a Person (including, with its correlative meanings,
"controlled by" and "under common control with") means possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise) of such Person.
"DOLLARS" or "$" means the lawful money of the United States of America.
"DRAFT ACCOUNTS" has the meaning assigned to such term in Section 2.04
(b)(iii) hereof.
"EU" means the European Union.
"FEE PERIOD" has the meaning assigned to such term in Section 8.01(a)
hereof.
"FIXED FEE" has the meaning assigned to such term in Section 8.01 hereto.
"GOVERNMENTAL AUTHORITY" means any court, administrative agency or
commission or other governmental agency or instrumentality (or any officer or
representative thereof) domestic, foreign or international, of competent
jurisdiction including, without limitation, the EU.
"GUARANTEED OBLIGATIONS" has the meaning assigned to such term in Section
11.01(a) hereof.
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"GUARANTEED PARTIES" has the meaning assigned to such term in Section
11.01(a) hereof.
"GUARANTOR" means GPA Group.
"INDENTURE" means the Indenture dated as of July 15, 1998, between AerCo
and the Trustee.
"INFLATION FACTOR" means with respect to any calendar year the result
(expressed as a decimal) of the following calculation:
IF = (X-1) x 0.75
where:
"IF" means the Inflation Factor;
"X" means the average of (a) the quotient (expressed as a decimal) of (i)
the U.S. CPI published in respect of the most recently ended calendar year (the
"New Year") divided by (ii) the U.S. CPI published in respect of the calendar
year immediately preceding the New Year and (b) the quotient (expressed as a
decimal) of (i) the Irish CPI published in respect of the New Year divided by
(ii) the Irish CPI published in respect of the immediately preceding calendar
year. For the avoidance of doubt, if X is less than 1, the Inflation Factor
shall be a negative number.
"INITIAL PERIODS" has the meaning assigned to such term in Section 7.04(b)
of the Servicing Agreement.
"IRISH CPI" means the Consumer Price Index (all items) published quarterly
by the Central Statistics Office of Ireland (current base date November 1989 =
100) or by any other Irish governmental department or other Person to which the
publication thereof may have been transferred. If the base date for Irish CPI
is at any time revised then Irish CPI shall be calculated for the purposes
hereof as so revised.
"LEDGERS" has the meaning assigned to such term in Section 2.04(b)(i)
hereof.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, encumbrance, charge or security interest in or on such asset, (b)
the interest of a vendor or a lessor which is not a Person within AerCo Group
under any conditional sale agreement, capital lease or title retention
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agreement relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOSSES" means any and all liabilities (including liabilities arising out
of the doctrine of strict liability), obligations, losses, damages, penalties,
Taxes, actions, suits, judgments, costs, fees, expenses (including reasonable
legal fees, expenses and related charges and costs of investigation) and
disbursements, of whatsoever kind and nature; provided that the term "Losses"
shall not include any indemnified party's management time or overhead expenses.
"MAINTENANCE RESERVES" means the aggregate of
(i) any cash amount payable under a Lease and expressed as (a) a
maintenance reserve, (b) constituting a fund for application towards
the cost of maintenance, overhauls or repairs or (c) supplemental
rent payable by reference to the level of utilization of such
aircraft or of any engine, part or complement thereof; and
(ii) any letters of credit, guarantees or other credit support
provided either as security for the cost of maintenance, overhauls or
repairs, or as security for the general obligations of the Lessee
under the Lease, but in an amount calculated by reference to the
level of utilization of such aircraft or of any engine, part or
complement thereof,
in respect of all of the Leases.
"MATERIAL ADVERSE EFFECT" with respect to any Person means an event,
condition, matter, change or effect that impacts or, insofar as reasonably can
be foreseen, in the future is likely to impact, in a material adverse manner,
the condition (financial or otherwise), properties, assets, liabilities,
earnings, capitalization, shareholders' equity, licenses or franchises,
businesses, operation or prospects of such Person or the ability of such Person
to consummate the transactions contemplated by the Indenture or to perform
fully any of its obligations under any of the Related Documents.
"NOTES OFFERING" has the meaning assigned to such term in Section 8.01
hereof.
"OFFERING MEMORANDUM" means the offering memorandum issued in connection
with the purchase by AerCo of Aircraft Lease Portfolio
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Securitization 94-1 Limited and the Transferring Companies and the issuance by
AerCo of the Notes.
"OPERATING BUDGET" has the meaning assigned to such term in Section
7.04(a) of the Servicing Agreement.
"ONE YEAR PERIOD" has the meaning assigned to such term in Section 2.04(a)
hereof.
"PERIOD" has the meaning assigned to such term in Section 2.04(a) hereof.
"QUARTER" means each fiscal quarter of AerCo or any of its Subsidiaries,
as applicable.
"RATINGS" means the ratings assigned to the Notes by the Rating Agencies.
"REDUCING FEE" has the meaning assigned to such term in Section 8.01(a)
hereof.
"REIMBURSABLE EXPENSES" has the meaning assigned to such term in Section
8.02(b) hereof.
"RELEVANT JURISDICTION" means, in the case of AerCo, Jersey, Channel
Islands; and, in the case of a Subsidiary of AerCo, the jurisdiction in which
it is incorporated, or if the context requires, tax resident.
"RENTAL FEE" has the meaning assigned to such term in Section 8.01 hereto.
"REPRESENTATIVES" with respect to any Person means the officers,
directors, employees, advisors and agents of such Person.
"SCHEDULE 2.02 (A)" has the meaning assigned to such term in Section
2.03(m) hereof.
"SERVICE PROVIDERS" has the meaning assigned to such term in Section
2.02(d) hereof.
"SERVICES" has the meaning assigned to such term in Section 2.02(a) of the
Servicing Agreement.
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"STANDARD OF CARE" has the meaning assigned to such term in Section 3.01
of the Servicing Agreement.
"STANDARD OF PERFORMANCE" has the meaning assigned to such term in Section
3.01 of the Administrative Agency Agreement.
"STIPULATED INTEREST RATE" means, for any period, a rate per annum equal
to LIBOR in effect during such period plus 2% per annum.
"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 control exists.
"THREE YEAR PERIOD" has the meaning assigned to such term in Section
2.04(a) hereof.
"TRANSACTION COSTS" means all out-of-pocket expenses incident to any Notes
Offering (specifically excluding, except to the extent otherwise expressly
included herein, any direct or indirect commissions, discounts, fees or other
remuneration allowed or paid to any underwriters in connection with any such
Notes Offering), including the cost of printing any offering documents
(including the Offering Memorandum) and any expenses (including fees and
disbursements of counsel) incurred by any underwriters in connection with
qualification of the Notes for sale under the laws of such jurisdictions as the
underwriters designate and the printing of memoranda relating thereto, for any
fees charged by investment rating agencies for the rating of the Notes, for any
filing fees of the National Association of Securities Dealers, Inc. relating to
the Notes and for expenses incurred in distributing any Prospectuses.
"U.S. CPI" means with respect to any calendar year or any period during
any calendar year the "Consumer Price Index for All Urban Consumers (CPI-U)
U.S. City Average for All Items" published by the Bureau of Labor Statistics
for the United States Department of Labor (1982-1984=100). If the U.S. CPI
shall be converted to a different standard reference base or otherwise revised
after the date hereof, U.S. CPI shall thereafter be calculated with use of such
new or revised statistical measure published by the Bureau of Labor
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Statistics or, if not so published, as may be published by any other reputable
publisher of such price index selected by Servicing Company.
"U.K. GAAP" has the meaning assigned to such term in Section 2.04(b)(i)
hereto.
"YEAR" means each 12 month fiscal year (or such shorter fiscal period as
agreed upon in the future) ended June 30 or as modified in the future.
ARTICLE 2
APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION 2.1. Appointment. (a) AerCo hereby appoints the Administrative
Agent as the provider of the administrative and related services set forth in
Sections 2.03 through 2.07 (the "ADMINISTRATIVE SERVICES") to AerCo and each
Subsidiary of AerCo (collectively, "AERCO GROUP") on the terms and subject to
the conditions set forth in this Agreement.
(b) The Administrative Agent hereby accepts such appointments and agrees
to perform the Administrative Services on the terms and subject to the
conditions set forth in this Agreement.
(c) The Administrative Services do not include any service or matter which
is the responsibility of the Servicer under the Servicing Agreement, the Cash
Manager under the Cash Management Agreement, the Company Secretary under the
Secretarial Services Agreement or the company secretaries of AerCo Group's
Subsidiaries.
(d) The Administrative Services do not include any service or matter that
falls under the categories of "investment business services" or "investment
advice" under the Investment Intermediaries Act, 1995 or any other applicable
provision of Irish law that would require such services to be performed by an
entity that has obtained prior authorization from the Central Bank of Ireland.
SECTION 2.2. Limitations. (a) The Administrative Agent agrees (with
respect to the Administrative Services agreed by it to be carried out
hereunder) to comply with the terms of the articles of incorporation, by-laws,
trust agreements or similar constituting documents of each Person within AerCo
Group and all agreements to which any Person within AerCo Group is a party
(including all Related Documents), provided that copies of such documents and
agreements have been delivered to the Administrative Agent and, without
prejudice to the foregoing, not to enter into, on behalf of any Person within
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AerCo Group, any commitments, loans or obligations or charge, mortgage, pledge,
encumber or otherwise restrict or dispose of the property or assets or expend
any funds of any Person within AerCo Group save (i) as expressly permitted by
the terms of this Agreement or (ii) upon the express direction of, as
applicable, any of the board of directors of AerCo or any of its Subsidiaries.
(b) Each Person within AerCo Group hereby appoints AerCo to act as its
representative and, having been duly authorized to do so by each of its
Subsidiaries, as the representative of each of its Subsidiaries with respect to
any matter in respect of which any Person within AerCo Group, or AerCo Group as
a whole, is required or permitted to take any action pursuant to the terms of
this Agreement. Accordingly, in connection with the performance of the
Administrative Services, the Administrative Agent shall in all cases be entitled
to rely on the instructions (or other actions) of AerCo as representative of
each Person within AerCo Group. The Administrative Agent further agrees to make
reasonable efforts so as not to take any action inconsistent with the Servicing
Agreement.
(c) In connection with the performance of the Administrative Services, the
Administrative Agent shall (i) have no responsibility for the failure of any
other Person (other than any Person acting as a delegate of the Administrative
Agent under this Agreement pursuant to Section 10.01 hereof) providing services
directly to AerCo Group to perform its obligations to AerCo Group, (ii) in all
cases be entitled to rely upon the instructions of AerCo Group or any of its
Representatives and upon notices, reports or other communications made by any
Person providing services to AerCo Group (other than any Affiliate of the
Administrative Agent) and shall not be responsible for the accuracy or
completeness of any such notices, reports or other communications except to the
extent that the Administrative Agent has actual notice of any matter to the
contrary and (iii) not be obligated to act in any manner which is reasonably
likely to (A) violate any Applicable Law, (B) lead to an investigation by any
Governmental Authority or (C) expose the Administrative Agent to any liabilities
for which, in the Administrative Agent's good faith opinion, adequate bond or
indemnity has not been provided.
(d) Subject to the limitations set forth in Section 2.02(a), in connection
with the performance of the Administrative Services, the Administrative Agent
is expressly authorized by AerCo and each other Person within AerCo Group (i)
to engage in and conclude commercial negotiations with the Persons providing
services to AerCo Group, including, without limitation, where the context
permits, the Servicer, the Cash Manager, the Reference Agent, the Company
Secretary and other Persons performing similar services or advising AerCo Group
(the "SERVICE PROVIDERS") and with their
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Representatives, and (ii) after such consultation, if any, as the
Administrative Agent deems necessary under the circumstances, to act on such
Person's behalf with regard to any and all matters requiring any action on the
part of the Administrative Agent under the Servicing Agreement. AerCo Group
agrees that it will give the Administrative Agent and the Servicer 60 days
prior written notice of any limitation or modification of the authority set
forth in this Section 2.02(d).
(e) The Administrative Agent may rely on the advice of any law firm,
accounting firm, risk management adviser, tax adviser, insurance adviser,
aircraft appraiser or other professional adviser appointed by any Person within
AerCo Group and any Person appointed in good faith by the Administrative Agent
and shall not be liable for any claim by any Person within AerCo Group to the
extent that it was acting in good faith upon the advice of any such persons.
(f) Notwithstanding the appointment of, and the delegation of authority and
responsibility to, the Administrative Agent hereunder, AerCo and each other
Person within AerCo Group shall continue to have and exercise through its board
of directors real and effective central control and management of all matters
related to its ongoing business, operations, assets and liabilities, subject to
matters that are expressly the responsibility of the Administrative Agent in
accordance with the terms of this Agreement, and each of AerCo and each other
Person within AerCo Group shall at all times conduct its separate ongoing
business in such a manner as the same shall at all times be readily identifiable
from the separate business of the Administrative Agent, and none of the Persons
within AerCo Group is merely lending its name to decisions taken by others.
SECTION 2.3. Administrative Services. The Administrative Agent hereby
agrees to perform and provide the following services for each Person within
AerCo Group and their respective governing bodies:
(a) administrative services:
(i) except in such instances in which such preparation and distribution is
required to be done by another party by Applicable Law, preparation and
distribution, at such time as shall be agreed with the Administrative
Agent, of draft board or trustees meeting agendas and any other papers
required in connection with such meetings;
(ii) maintaining, or monitoring the maintenance of, the books, records,
registers and associated filings of each Person within AerCo
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Group, other than those required to be maintained by the Company
Secretary;
(iii) providing any administrative assistance reasonably necessary to
assist any Person within AerCo Group in carrying out its obligations,
including providing timely notice of decisions to be made, or actions to
be taken, under any of the Related Documents; provided, that if such
obligations of AerCo Group under any of the Related Documents are only
required upon receipt of notice to AerCo Group or the Administrative
Agent, then the Administrative Agent shall provide such administrative
assistance only to the extent it has received such notice or is otherwise
aware of such obligations (it being understood that the Administrative
Agent shall not be deemed to be otherwise aware of such obligations solely
because notice has been provided to a Person within AerCo Group or GPA
Group other than the Administrative Agent);
(iv) assisting AerCo Group in: (a) developing its interest rate
management policy and developing financial models, cash flow projections
and forecasts, by proposing such policies, models, projections and
forecasts to the relevant board for approval, and, after such approval,
implementing them to the extent required by AerCo Group, and (b) making
its aircraft lease, sale and capital investment decisions to the extent
(i) such assistance is not contemplated to be provided by the Servicer
pursuant to the Servicing Agreement and (ii) such decisions are not
required to be made by the board;
(v) procuring, when the Administrative Agent considers in good faith that
it is appropriate or necessary to do so, and coordinating the advice of,
legal counsel, accounting, tax and other professional advisers at the
expense of the relevant Person within AerCo Group, to assist such Person
in carrying out its obligations, and supervising, in accordance with
instructions from such Person, such legal counsel and other advisers;
(vi) as frequently as is necessary for AerCo Group to comply with its
obligations under the Related Documents and as required in connection with
the acquisition of Additional Aircraft, arranging for the Appraisals to be
made and providing the Appraisals to the relevant Service Providers;
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(vii) providing the Cash Manager with information with respect to the
Annual Appraised Value of the Aircraft and any changes thereto; and
(viii) providing assistance to the Servicer with respect to matters for
which such assistance is contemplated by the Servicing Agreement or is
reasonably necessary in order for the Servicer to perform its duties in
accordance with the Servicing Agreement.
(b) to monitor the performance of the Service Providers and to report on such
performance to the board of directors of AerCo on a quarterly basis, including:
(i) with respect to the Servicer:
(A) monitoring and reviewing the information and other reports
provided by the Servicer pursuant to the Servicing Agreement,
including with respect to the status of Lease payments, Lessee
receivables, Maintenance Reserves, security deposits, adjustments of
rentals and claims against Maintenance Reserves in accordance with
Lease terms (to the extent provided to the Administrative Agent);
(B) assisting in evaluating the Servicer's performance relative to
the Standard of Care and the Conflicts Standard;
(C) assisting in establishing standards for evaluating the Servicer's
performance relative to the terms of the Servicing Agreement
generally, assisting in evaluating such performance against such
standards and recommending action with respect thereto;
(D) reviewing and providing advice with respect to recommendations
made by the Servicer for approval by any Person within AerCo Group;
(E) monitoring the compliance of the Servicer with its obligations
under the Servicing Agreement; and
(F) authorization of payment by the Cash Manager of invoices approved
by the Servicer in accordance with Section 6.03 of Schedule 2.02(a)
of the Servicing Agreement;
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(ii) with respect to the other Service Providers:
(A) to the extent not provided for in the relevant agreement,
assisting in establishing standards for performance evaluation and
compliance with the terms of such agreement;
(B) assisting in evaluating the performance and compliance of each
Service Provider against its obligations under the relevant agreement
or such standards as are established pursuant to subsection
2.03(b)(ii)(A) above;
(C) monitoring and reviewing the information and reports provided by
the Cash Manager to the Administrative Agent and the relevant Person
within AerCo Group and reviewing and providing advice with respect to
such reports; and
(D) implementing any other request by Persons within AerCo Group to
evaluate the performance of the Service Providers under the relevant
agreements with such Persons within AerCo Group, which shall be at
the expense of such Persons, to the extent services are required that
are materially greater in scope than those being provided pursuant to
the express terms of this Agreement;
(c) to the extent that (i) the following services are not provided by the other
Service Providers, and (ii) the relevant information is provided to the
Administrative Agent by Persons within AerCo Group or the Service Providers, to
act as liaison with the Rating Agencies with respect to the rating impact of any
decisions on behalf of AerCo Group, including:
(i) advising the Rating Agencies from time to time of any material changes
in the Portfolio, coordinating with AerCo Group and the Service Providers
and providing the Rating Agencies with such statistical and other
information as they may from time to time request and in connection with
the acquisition of Additional Aircraft (such information to be provided at
AerCo Group's expense to the extent that providing such information
requires services that are materially greater in scope than those being
provided pursuant to the express terms of this Agreement);
(ii) providing the Rating Agencies with the outstanding principal balances
of each class or subclass of Notes and loan-to-value
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ratios (i.e., ratio of debt to Annual Appraised Value of AerCo Group's
assets); and
(iii) coordinating among AerCo Group, the Servicer and the Appraisers to
ensure that the Appraisals are received as required;
(d) to provide assistance to AerCo Group in procuring lessee consents, novations
and other documentation and in taking all other actions necessary in connection
with the reissue or amendment of letters of credit under which the current
beneficiary is the Guarantor or an Affiliate of the Guarantor such that the new
beneficiary becomes a Person within AerCo Group;
(e) to provide assistance to AerCo Group in connection with (i) the reissue or
amendment of letters of credit under which the current beneficiary is the
Guarantor or an Affiliate of the Guarantor such that the new beneficiary becomes
a Person within AerCo Group, (ii) the re-lease and/or sale of the Aircraft,
(iii) the acquisition of Additional Aircraft and issuance of Additional Notes,
(iv) the issuance of Refinancing Notes and (v) any other financing transactions
relating to AerCo Group after the Closing Date, including:
(i) coordinating with the Service Providers, legal and other professional
advisers to monitor the protection of AerCo Group's interests and rights
and coordinating the execution of documentation required at closings;
(ii) providing qualified personnel to attend and provide administrative
support (including the preparation of any certificates required pursuant
to the Servicing Agreement) at the closings in connection with sales or
re-leases of the Aircraft, if required (it being understood that the
Administrative Agent will not be obligated to provide legal counsel or
legal or technical services to AerCo Group);
(iii) coordinating with AerCo Group and the Service Providers and
assisting in the management of the closing process so that closings will
occur on a timely basis;
(iv) providing all necessary administrative support to complete any
documentation and other related matters (including assistance in
completing registration statements, offering memoranda and other offering
or disclosure documents in connection with financings or refinancings);
and
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(v) appointing counsel and other appropriate professional advisers to
represent AerCo Group in connection with any such closings;
(f) to coordinate with the Cash Manager, including:
(i) reviewing the impact on AerCo Group's operation and financial
condition and on the Notes of any proposal for the re-lease or sale of an
Aircraft or the acquisition of Additional Aircraft;
(ii) establishing any sales objectives in connection with expected cash
flow needs;
(iii) analyzing the effect of the budgets developed pursuant to Section
2.04(a) below on the expected cash flows of AerCo Group with respect to
the payment of the Notes; and
(iv) providing written notice to the Cash Manager identifying in
reasonable detail Expenses, Lease obligations or other liabilities of
Persons within AerCo Group for which interim withdrawals may be made
pursuant to Sections 3.04 and 3.05 of the Indenture.
(g) with respect to the implementation, following board approval, of AerCo
Group's interest rate management strategy (including hedging strategy), (i) to
obtain information and reports from, and, where it or the board deems such
opinions appropriate, the opinion of, third party advisers for the purpose of
making decisions as to hedging strategy and swap counterparties and to advise
the board of such opinions; (ii) to provide assistance with respect to any
closings on behalf of AerCo Group in connection with any such hedging
activities; (iii) to calculate the amount of any broken funding costs under any
swap agreements; (iv) at least every three months following the Closing Date,
to assist Persons within AerCo Group in seeking to enter into additional swap
agreements or to sell at market value or unwind part or all of any initial or
future swap agreements entered into by such Persons, in order to rebalance the
fixed and floating mix of interest obligations and the fixed and floating mix
of Rental Payments and (v) from time to time following the Closing Date, to
assist Persons within AerCo Group to sell at market value or unwind part or all
of any initial or future options on interest rate swaps purchased by such
Persons.
(h) based on information produced or provided to it, to prepare, file and/or
distribute, with the assistance of outside counsel and auditors, if
appropriate, all reports to be prepared, filed and/or distributed by AerCo
Group or its governing bodies, subject to board approval in the case of reports
on Form 20-F and 6-K under the Exchange Act, including:
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(i) filings AerCo Group is required to make in various jurisdictions and
preparing such filings or monitoring counsel and advisers in connection
with the preparation and filing of such materials;
(ii) compliance by AerCo Group with the periodic reporting requirements of
the Exchange Act, in particular, working with necessary professional
advisers to AerCo Group and the Service Providers, as appropriate, to
prepare on behalf of AerCo Group and to arrange for the filing and
distribution of an annual report on Form 20-F in respect of AerCo Group
and any required reports on Form 6-K in respect of AerCo Group;
(iii) reports required or recommended to be distributed to investors
(including press releases), and managing investor relations on behalf of
AerCo Group, and preparing or arranging for the preparation and
distribution of such reports at AerCo Group's expense; and
(iv) reports required to be filed with any Governmental Authorities, and
preparing on behalf of AerCo Group or arranging for the preparation of and
arranging for the filing of any reports required to be filed with any
other entity in order for AerCo Group not to be in violation of Applicable
Law or any applicable covenants;
(i) with respect to amendments,
(i) to report on the substance of any proposed amendments to any Related
Documents other than the Leases;
(ii) to the extent requested by AerCo Group or by the parties to Related
Documents and subject to approval by the appropriate board, to coordinate
with AerCo Group's legal counsel, the other parties thereto and their
counsel the preparation and execution of any amendments to the Related
Documents (other than amendments relating to the Aircraft or the Leases),
and to provide assistance in the implementation of such amendments; and
(iii) to the extent reasonably requested by the Servicer, to coordinate
and provide assistance on behalf of AerCo Group with the Servicer and seek
to obtain appropriate approvals to take any action which may be required
to amend the terms of the Leases;
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(j) to the extent reasonably requested by the Servicer, to coordinate and
provide assistance on behalf of AerCo Group with the Servicer and outside
counsel in a Lessee default or repossession situation;
(k) to authorize payment of certain bills and expenses (i) payable to legal and
professional advisers authorized to be engaged or consulted pursuant to this
Agreement or (ii) approved by the board of AerCo or any of its Subsidiaries,
and remit approved invoices to the Cash Manager for payment processing;
(l) to provide to the Servicer periodically (but not more than once each week)
a statement of AerCo Group's interest rate hedging policies;
(m) providing assistance to AerCo with respect to matters for which action by
AerCo is required under the Servicing Agreement and the Indenture, including
such assistance that may be necessary for AerCo to:
(i) comply with Sections 6.06, 7.04 and 7.05 of the Servicing Agreement;
(ii) provide such instructions to the Servicer as the Servicer may require
in interpreting the Indenture, the Concentration Thresholds and Annex 2 to
Schedule 2.02(a) to the Servicing Agreement ("SCHEDULE 2.02(A)");
(iii) direct the Servicer to amend the minimum hull and liability
insurance coverage amounts set forth in Annex 1 to Schedule 2.02(a) to the
Servicing Agreement;
(iv) direct the Servicer that settlement offers received by the Servicer
with respect to claims for damage or loss in excess of $2,000,000 with
respect to an Aircraft Asset are acceptable;
(v) request periodic reports from the Servicer regarding insurance matters;
(vi) grant approvals when such approvals are required by Section 7.05(a)
and Schedule 2.02(a) of the Servicing Agreement;
(vii) provide the Servicer with such information as the Servicer may
reasonably request in connection with the Concentration Thresholds;
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(viii) recommend to the Servicer fixed rates of interest to be considered
by the Servicer in connection with negotiation by the Servicer of proposed
leases and advise the Servicer whether AerCo intends to enter into any
swap agreements with respect to such proposed leases and as to the
additional costs associated with such swap agreements;
(ix) advise the Servicer as required by Section 3.02(d) of Schedule
2.02(a) of the Servicing Agreement; and
(x) direct the Servicer to arrange for the sale of an Aircraft Asset and
certify to the Servicer that such sale complies with the terms of the
Indenture;
(xi) direct the Servicer to arrange for the acquisition of Additional
Aircraft;
(xii) direct the Servicer to cooperate with any additional refinancings,
note offerings, corporate restructurings and any additional issuances of
debt securities to fund such acquisitions;
(xiii) make any discretionary decisions, judgments or assumptions
necessary in connection with the preparation of any projections, and
provide the Servicer with any written policies and guidelines that the
Servicer shall require in connection with such preparation; and
(xiv) request valuations of Aircraft Assets in accordance with Section
5.01 of Schedule 2.02(a) of the Servicing Agreement.
(n) to inform the board of AerCo as soon as is reasonably practicable if the
Administrative Agent believes that (i) net revenues generated by the Leases will
be insufficient to satisfy the payment obligations of AerCo Group and (ii) an
Event of Default will result from such insufficiency, and to advise the board as
to any appropriate action to be taken (subject to the provisions of the Related
Documents) with respect to such insufficiency and to cause the actions directed
by the board to be implemented so as to avoid an Event of Default, if it is
possible to do so; and
(o) to advise the board of AerCo as to the appropriate levels of the Liquidity
Reserve Amount.
SECTION 2.4. Accounting and Draft Accounts. (a) Budgeting Process. The
Administrative Agent shall, in accordance with the procedures, policies and
guidelines described below and on the basis of information generated by the
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Administrative Agent and information provided by the Service Providers and
AerCo Group:
(i) in respect of the Initial Periods, each one Year period (a "ONE YEAR
PERIOD") and each three Year Period (a "THREE YEAR PERIOD" and, together
with a One Year Period, and an Initial Period, each a "PERIOD") during the
term of the Servicing Agreement, and on behalf of AerCo Group, prepare and
deliver to the Servicer, not later than 60 days immediately preceding the
commencement of each Year (other than with respect to the fiscal year
commencing July 1, 1998), a proposed Operating Budget and Asset Expenses
Budget for such Period together with reasonably detailed information
regarding the assumptions underlying such proposed Operating Budget and
Asset Expenses Budget, such proposed Operating Budget and Asset Expenses
Budget to be based, in part, on the information provided by the Servicer
pursuant to Section 7.04(f) of the Servicing Agreement;
(ii) on behalf of AerCo Group, review and discuss with the Servicer the
proposed Operating Budget and the Asset Expenses Budget prepared pursuant
to Section 7.04 of the Servicing Agreement;
(iii) submit the revised proposed Operating Budget and Asset Expenses
Budget for each Period, no later than 30 days immediately preceding the
commencement of each Year, to AerCo for its consideration and approval
(other than with respect to the fiscal year commencing July 1, 1998);
(iv) in the event that the proposed Operating Budget and Asset Expenses
Budget are not approved, review and revise, in consultation with the
Servicer, the Operating Budget and Asset Expenses Budget to the extent
possible to address the concerns of AerCo, it being understood that final
approval of the Operating Budget and Asset Expenses Budget is the
responsibility of AerCo.
(b) Management Accounts and Financial Statements. The Administrative Agent
shall, in accordance with the procedures, policies and guidelines described
below and on the basis of information generated by the Administrative Agent and
information provided by the Service Providers and AerCo Group:
(i) establish an accounting system and maintain the accounting ledgers of
and for each Person within AerCo Group and their Subsidiaries in
accordance with accounting principles generally accepted
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in the United Kingdom, ("U.K. GAAP"), unless otherwise required by
Applicable Law and specified by the relevant boards of Persons within
AerCo Group (collectively, the "LEDGERS");
(ii) prepare and deliver (within 40 days after the end of the relevant
Quarter or, if the end of such Quarter coincides with the end of a Year,
within 75 days after the end of such Year), with respect to AerCo Group,
on a consolidated basis, a draft balance sheet and draft statement of
changes in shareholders' equity or residual trust interest as of the end
of each Quarter and Year, as applicable, and draft statements of income
and cash flows for each Quarter and Year, as applicable (the "CONSOLIDATED
QUARTERLY DRAFT ACCOUNTS");
(iii) to the extent required by Applicable Law, prepare and deliver
(within 40 days after the end of the relevant Quarter or, if the end of
such Quarter coincides with the end of a Year, within 90 days after the
end of such Year), with respect to AerCo Group and such Persons within
AerCo Group as specified by the relevant boards of Persons within AerCo
Group in a written schedule provided to the Administrative Agent (which
schedule may be updated by such boards to the Administrative Agent
delivered at least 30 days prior to the commencement of the relevant
Quarter), on a consolidating company-by-company basis, a draft balance
sheet and statement of changes in shareholders' equity or residual trust
interest as of the end of each Quarter and Year, as applicable, with
respect to such Person and draft statements of income and cash flows for
such Quarter and Year, as applicable (the "CONSOLIDATING QUARTERLY DRAFT
ACCOUNTS" and, together with the Consolidated Quarterly Draft Accounts the
"DRAFT ACCOUNTS"). The board of AerCo shall specify the applicable legal
requirements mandating the preparation of such Consolidating Quarterly
Draft Accounts in the written schedule provided to the Administrative
Agent pursuant to this section;
(iv) arrange for, coordinate with and assist AerCo Group's auditors in
preparing annual audits;
(v) prepare or arrange for the preparation of and arrange for the filing
of AerCo Group's tax returns in conjunction with AerCo Group's tax
advisers after submission to the board of directors to the extent required
by the board or Applicable Law;
(vi) compare the expected cash flows of AerCo Group, as provided by the
Cash Manager, and the budgets to actual results.
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(c) The Administrative Agent shall be entitled to request instructions
from the board of AerCo as to general guidelines or principles to be followed
in preparing Draft Accounts and as to amending or supplementing any such
guidelines or principles. The entry in the Ledgers of any item in accordance
with the specific instructions of AerCo Group shall always be permitted, and
the Administrative Agent shall make such entries upon instruction.
SECTION 2.5. Additional Administrative Services. The Administrative
Agent will provide additional Administrative Services, including (a) providing
assistance in arranging one or more refinancings of all or a portion of the
Notes, and (b) undertaking efforts to avoid any adverse change in the tax
status of any Person within AerCo Group. In addition, subject to Section
8.01(b), upon a request by AerCo Group, the Administrative Agent will take such
other actions as may be appropriate to facilitate AerCo Group's business
operations and assist the relevant boards of directors or trustees in carrying
out their obligations; provided, however, that the Administrative Agent will
not be obligated or permitted to take any action that might reasonably be
expected to result in the business of AerCo Group ceasing to be separate and
readily identifiable from, and independent of, the Administrative Agent, the
Guarantor and any of their Affiliates.
SECTION 2.6. Additional Aircraft. In the event that AerCo Group shall
acquire any Additional Aircraft and notwithstanding that AerCo Group may retain
different service providers for such Additional Aircraft, the Administrative
Agent hereby agrees to provide the same Administrative Services with respect to
all such Additional Aircraft.
SECTION 2.7. New Subsidiaries. The Administrative Agent shall be
responsible for coordinating with outside legal counsel, auditors, tax advisers
and other professional advisers with respect to all corporate and
administrative matters relating to the formation, operation, corporate affairs
and related matters with respect to all Subsidiaries which are or may become
members of AerCo Group, including identifying such outside advisers, a
potential company secretary and candidates for director to the extent
necessary, and shall be permitted to incur expenses in respect of such
Subsidiaries without AerCo Group's consent up to such aggregate amount as shall
be authorized from time to time. To the extent that the Administrative Agent
shall deem it necessary or desirable in order for AerCo Group to carry on its
business, the Administrative Agent shall have the authority to assist in the
formation of new Subsidiaries of AerCo Group and to appoint any director or
company secretary to any such Subsidiary without the consent of AerCo Group.
The Administrative Agent and its personnel may act as company secretary for any
Subsidiary.
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SECTION 2.8. AerCo Group Responsibility. (a) The obligations of the
Administrative Agent hereunder are limited to those matters that are expressly
the responsibility of the Administrative Agent in accordance with the terms of
this Agreement. Notwithstanding the appointment of the Administrative Agent to
perform the Administrative Services, AerCo Group shall remain responsible for
all matters and decisions related to its business, operations, assets and
liabilities.
(b) Without derogating from the authority and responsibility of the
Administrative Agent with respect to the performance of certain of the
Administrative Services as set forth in this Agreement, it is hereby expressly
agreed and acknowledged that the Administrative Agent is not authorized or
empowered to make or enter into any agreement, contract or other legally
binding arrangement, in respect of or relating to the business or affairs of
AerCo Group, or pledge the credit of, incur any indebtedness on behalf of or
expend any funds of any Person within AerCo Group other than as expressly
permitted in accordance with the terms of this Agreement, all such authority
and power being reserved to the appropriate Persons within AerCo Group.
ARTICLE 3
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
SECTION 3.1. Standard of Performance. The Administrative Agent will
devote the same amount of time and attention to and will be required to
exercise the same level of skill, care and diligence in the performance of its
services as it would if it were administering such services on its own behalf
(the "STANDARD OF PERFORMANCE").
SECTION 3.2. Liability and Indemnity. (a) The Administrative Agent
shall not be liable for any Losses or Taxes to or of or payable by AerCo Group
at any time from any cause whatsoever or any Losses or Taxes directly or
indirectly arising out of or in connection with or related to the performance
by the Administrative Agent of this Agreement unless such Losses or Taxes are
the result of the Administrative Agent's own wilful misconduct or gross
negligence or that of any of its directors, officers, agents or employees, as
the case may be.
(b) Notwithstanding anything to the contrary set forth in any other agreement
to which any Person within AerCo Group is a party, AerCo and each other Person
within AerCo Group do hereby assume liability for and do hereby agree to
indemnify and hold harmless on an After-Tax Basis the Administrative
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Agent, its directors, officers, employees and agents and each of them from any
and all Losses or Taxes that may be imposed on, incurred by or asserted against
any of them arising out of, in connection with or related to the Administrative
Agent's performance under this Agreement (including any Losses or Taxes
incurred by the Administrative Agent as a result of indemnifying any Person to
whom it shall have delegated its obligations hereunder in accordance with
Section 10.01, but only to the extent the Administrative Agent would have been
indemnified had it performed such obligations), except as a result of the gross
negligence or wilful misconduct of the Administrative Agent or any of its
directors, officers, employees or agents. This indemnity shall not apply to:
(i) Taxes imposed on net income by the revenue authorities of Ireland in
respect of any payment by AerCo Group to the Administrative Agent due to
the performance of the Administrative Services; and
(ii) Taxes imposed on net income of the Administrative Agent by any
Government Authority other than Irish Authorities to the extent such Taxes
would not have been imposed in the absence of any connection of the
Administrative Agent with such jurisdiction imposing such Taxes other than
any connection that results from the performance by the Administrative
Agent of its obligations under this Agreement.
This indemnity shall expressly inure to the benefit of any director,
officer, agent or employee of the Administrative Agent now existing or in the
future and to the benefit of any successor of the Administrative Agent and
shall survive the expiration of this Agreement.
(c) The Administrative Agent agrees to indemnify and hold harmless on an
After-Tax Basis each Person within AerCo Group, its directors or trustees and
its agents for any Losses whatsoever which they or any of them may incur or be
subject to in consequence of the performance of the Administrative Services or
any breach of the terms of this Agreement by the Administrative Agent, but only
to the extent such Losses arise due to the gross negligence, wilful misconduct
or fraud of the Administrative Agent or any of its directors, officers or
employees, as the case may be; provided, however, that this indemnity shall not
apply and the Administrative Agent shall have no liability in respect of Losses
to the extent that they arise from (i) the wilful misconduct, recklessness or
gross negligence of any Person within AerCo Group, its directors, trustees or
agents, (ii) any breach by the Administrative Agent of its obligations under
this Agreement to the extent such breach is a result of a Service Provider's
failure to perform its obligations to AerCo Group or a failure by AerCo Group
to comply with its obligations under this Agreement, (iii) any action that
AerCo Group requires the Administrative Agent to take pursuant to a
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direction but only to the extent that the Administrative Agent takes such
action in accordance with such direction and in accordance with the provisions
hereof or (iv) a refusal by AerCo Group to take action upon a recommendation
made in good faith by the Administrative Agent in accordance with the terms
hereof.
SECTION 3.3. Conflicts of Interest. Each of AerCo and the Persons within
AerCo Group, acknowledges and agrees that (a) in addition to providing the
Administrative Services under this Agreement, the Administrative Agent may
provide similar services for itself and for other third parties; (b) an
Affiliate of the Administrative Agent has been appointed to act as Cash
Manager, (c) in the course of conducting such activities, the Administrative
Agent will from time to time have conflicts of interest in performing its
duties on behalf of AerCo Group, itself and any other entities in respect of
which it provides such similar services; and (d) AerCo Group has approved the
transactions contemplated by this Agreement and desires that such transactions
be consummated and in giving such approval has expressly recognized that such
conflicts of interest may arise and that when such conflicts of interest arise,
the Administrative Agent shall promptly report the same to AerCo Group and
shall act in a manner that (i) treats AerCo Group equally with such other
entities, (ii) does not violate the Standard of Performance set forth in
Section 3.01 or any of the covenants of the Administrative Agent set forth in
Article 4 hereof and (iii) would not be reasonably likely to have a Material
Adverse Effect on AerCo Group.
ARTICLE 4
ADMINISTRATIVE AGENT UNDERTAKINGS
SECTION 4.1. The Administrative Agent. The Administrative Agent hereby
covenants with AerCo Group that it will conduct its business such that it is a
separate and readily identifiable business from, and independent of, AerCo
Group and further covenants as follows (it being understood that these
covenants shall not prevent any Person within AerCo Group from publishing
financial statements that are consolidated with those of GPA Group, if to do so
is required by Applicable Law or accounting principles from time to time in
effect, and that the Affiliates of the Administrative Agent and certain Persons
within AerCo Group may file a consolidated tax return for United States
federal, state and local income tax purposes):
(a) if the Administrative Agent receives any money whatsoever, which money
belongs to AerCo Group or is to be paid to AerCo Group or into any
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account pursuant to any Related Document or otherwise, it will hold such money
in trust for AerCo Group, and shall keep such money separate from all other
money belonging to the Administrative Agent and shall as promptly as
practicable thereafter pay the same into the relevant account in accordance
with the terms thereof without exercising any right of setoff;
(b) it will comply with any proper directions, orders and instructions which
AerCo Group may from time to time give to it in accordance with the provisions
of this Agreement;
(c) it will not knowingly fail to comply with any legal requirements in the
performance of the Administrative Services;
(d) unless to do so would be in accordance with the Indenture, it will not take
any steps for the purpose of procuring the appointment of any administrative
receiver or the making of an 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 any Person within AerCo Group or in respect of any of their
liabilities, including, without limitation, as a result of any claim or
interest of the Administrative Agent or any of its Affiliates;
(e) it will promptly take or arrange (through the appointment of counsel or
accountants, as appropriate, and by coordinating with the Company Secretary)
for the taking of all steps as may be reasonable to ensure that the Company
Secretary prepares and files the application of AerCo to renew its annual
exemption from Jersey taxation, including coordinating and arranging for the
filing of all necessary papers with the appropriate Jersey fiscal and other
authorities;
(f) it will cooperate with AerCo Group and its agents and directors, including
by providing such information as may reasonably be requested, to permit AerCo
Group or its authorized agents to monitor the Administrative Agent's compliance
with its obligations under this Agreement;
(g) during the term of this Agreement, it will observe all corporate
formalities necessary to remain a legal entity separate and distinct from, and
independent of each Person within AerCo Group;
(h) during the term of this Agreement, it will maintain its assets and
liabilities separate and distinct from each Person within AerCo;
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(i) during the term of this Agreement, it will maintain records, books,
accounts and minutes separate from those of each Person within AerCo Group;
(j) during the term of this Agreement, it will pay its obligations in the
ordinary course of its business as a legal entity separate from each Person
within AerCo Group;
(k) during the term of this Agreement, it will keep its funds separate and
distinct from the funds of each Person within AerCo Group, and it will receive,
deposit, withdraw and disburse such funds separately from the funds of such
Person;
(l) during the term of this Agreement, it will conduct its business in its own
name, and not in the name of any Person within AerCo Group;
(m) during the term of this Agreement, it will not pay or become liable for any
debt of any Person within AerCo Group, other than to make payments in the form
of indemnity as required by the express terms of this Agreement;
(n) during the term of this Agreement, it will not hold out that it is a
division of any Person within AerCo Group, or that any such Person is a
division of it;
(o) during the term of this Agreement, it will not induce any third party to
rely on the creditworthiness of any Person within AerCo Group in order that
such third party will be induced to contract with it;
(p) during the term of this Agreement, it will not enter into any agreements
between it and any Person within AerCo Group that are more favorable to either
party than agreements that the parties would have been able to enter into at
such time on an arm's-length basis with a non-affiliated third party, other
than any agreements in effect on the date hereof (it being understood that the
parties hereto do not intend by this covenant to ratify any self-dealing
transactions);
(q) during the term of this Agreement, it will devote at least one of its
employees to working full time on behalf of AerCo Group; and
(r) during the term of this Agreement, it will (i) forward promptly to the
Servicer a copy of any material communication received from any Person in
relation to any Lease or Aircraft; (ii) grant such access to the Servicer to
its books of account, documents and other records and to its employees as may
be reasonably necessary for the Servicer to perform its obligations in respect
of
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any Lease or Aircraft under the Servicing Agreement, provided, however, that
the Servicer shall not have access to the minutes of the Administrative Agent's
board meetings and other confidential business information; and (iii) execute
and deliver such documents and do such acts and things as the Servicer may
reasonably request in order to effect the purposes of the Servicing Agreement.
ARTICLE 5
UNDERTAKINGS OF AERCO GROUP
SECTION 5.1. Cooperation. AerCo and the other Persons within AerCo
Group, shall use commercially reasonable efforts to cause any Service Provider
to, at all times cooperate with the Administrative Agent to enable the
Administrative Agent to provide the Administrative Services, including
providing the Administrative Agent with all powers of attorney as may be
reasonably necessary or appropriate for the Administrative Agent to perform the
Administrative Services in accordance with this Agreement.
SECTION 5.2. Information. AerCo or its agents will provide the
Administrative Agent with the following information in respect of itself and
all other Persons within AerCo Group:
(a) copies of all Related Documents, including the articles of incorporation,
by-laws, trust agreements (or equivalent documents) of each such Person, and
copies of all books and records maintained on behalf of such Persons;
(b) details of all bank accounts and bank mandates maintained by any Person
within AerCo Group;
(c) names of and contact information with respect to the board of directors,
board of trustees, company secretaries and registered offices of any Person
within AerCo Group;
(d) such other information as is necessary to the Administrative Agent's
performance of the Administrative Services; and
(e) a copy of any information provided to AerCo Group pursuant to the Servicing
Agreement;
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provided, that such information as is referred to in this Section 5.02
(with the exception of paragraph (e)) shall be provided to the Administrative
Agent upon execution of this Agreement and, in respect of any amendment or
changes to the information provided to the Administrative Agent upon execution
of this Agreement, promptly following the effectiveness of such amendments or
changes.
SECTION 5.3. Scope of Services. (a) In the event that any Person within
AerCo Group shall enter into any agreement, amendment or other modification of
any Leases or shall take any other action that has the effect of increasing in
any material respect the scope, nature or level of the Administrative Services
to be provided under this Agreement without the Administrative Agent's express
prior written consent, AerCo Group shall so notify the Administrative Agent and
the Administrative Agent shall not be obligated to perform the affected
Administrative Service to the extent of such increase unless and until the
Administrative Agent and AerCo Group shall agree on the terms of such increased
Administrative Service (it being understood that (i) the Administrative Agent
shall have no liability to any Person within AerCo Group directly or indirectly
arising out of, in connection with or related to the Administrative Agent's
failure to perform such increased Administrative Service prior to any such
agreement and (ii) AerCo Group shall not be permitted to engage another Person
to perform the affected Administrative Service without the prior written
consent of the Administrative Agent unless the Administrative Agent has
indicated it is unable or unwilling to act in respect of the affected
Administrative Service).
(b) In the event that AerCo Group shall acquire Additional Aircraft, AerCo
Group shall so notify the Administrative Agent and the Administrative Agent
shall be obligated to provide the Administrative Services with respect to such
Additional Aircraft in accordance with Section 2.06 hereof.
SECTION 5.4. Ratification. Each Person within AerCo Group hereby
ratifies and confirms and agrees to ratify and confirm (and shall furnish
written evidence thereof upon request of the Administrative Agent) any act or
omission by the Administrative Agent in accordance with this Agreement in the
exercise of any of the powers or authorities conferred upon the Administrative
Agent under the terms of this Agreement, it being expressly understood and
agreed that none of the foregoing shall have any obligation to ratify and
confirm, and expressly does not ratify and confirm, any act or omission of the
Administrative Agent in violation of this Agreement, the Standard of
Performance or for which the Administrative Agent is obligated to indemnify
AerCo Group or any Subsidiary under Article 3 hereof.
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SECTION 5.5. Covenants. Each of AerCo and the other Persons within AerCo
Group covenants with the Administrative Agent that it will conduct its business
such that it is a separate and readily identifiable business from, and
independent of, the Administrative Agent, the Guarantor and any of its
Affiliates (it being understood that these covenants shall not prevent any
Person within AerCo Group from publishing financial statements that are
consolidated with those of GPA Group, if to do so is required by Applicable Law
or accounting principles from time to time in effect);
(a) during the term of this Agreement, it will observe, and will cause its
Subsidiaries to observe, all corporate formalities necessary to remain legal
entities separate and distinct from, and independent of, the Administrative
Agent, the Guarantor and any of its Subsidiaries;
(b) during the term of this Agreement, it will maintain, and will cause its
Subsidiaries to maintain, each of their respective assets and liabilities
separate and distinct from those of the Administrative Agent;
(c) during the term of this Agreement, it will maintain, and will cause its
Subsidiaries to maintain, records, books, accounts, and minutes separate from
those of the Administrative Agent;
(d) during the term of this Agreement, it will pay, and will cause its
respective Subsidiaries to pay, each of their respective obligations in the
ordinary course of business as legal entities separate from the Administrative
Agent
(e) during the term of this Agreement, it will keep, and will cause its
Subsidiaries to keep, each of their respective funds separate and distinct from
any funds of the Administrative Agent, and will receive, deposit, withdraw and
disburse such funds separately from any funds of the Administrative Agent;
(f) during the term of this Agreement, it will conduct, and will cause its
respective Subsidiaries to conduct, each of their respective businesses in
their own name, and not in the name of the Administrative Agent;
(g) during the term of this Agreement, it will not agree, and will cause its
Subsidiaries not to agree, to pay or become liable for any debt of the
Administrative Agent, other than to make payments in the form of indemnity as
required by the express terms of this Agreement;
(h) during the term of this Agreement, it will not hold out, and will cause its
Subsidiaries not to hold out, that any of them is a division of the
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Administrative Agent, or that the Administrative Agent is a division of any of
them;
(i) during the term of this Agreement, it will not induce, and will cause its
Subsidiaries not to induce, any third party to rely on the creditworthiness of
the Administrative Agent in order that such third party will be induced to
contract with it;
(j) during the term of this Agreement, it will not enter into, and will cause
its Subsidiaries not to enter into, any transaction between any of them and the
Administrative Agent that are more favorable to either party than transactions
that the parties would have been able to enter into at such time on an
arm's-length basis with a non-affiliated third party, other than any agreements
in effect on the date hereof (it being understood that the parties hereto do
not intend by this covenant to ratify any self-dealing transactions); and
(k) during the term of this Agreement, it will observe, and it will cause its
Subsidiaries to observe, all material corporate or other procedures required
under Applicable Law and under each of their respective constitutive documents.
SECTION 5.6. Ratification by Subsidiaries. AerCo hereby undertakes to
procure that, if so requested by the Administrative Agent, any subsidiary of
AerCo formed or acquired after the date hereof, shall execute an agreement with
the Administrative Agent adopting and confirming, as regards such Subsidiary,
the terms of this Agreement, and agreeing to ratify anything done by the
Administrative Agent in connection herewith.
ARTICLE 6
APPROVALS
SECTION 6.1. Approvals. The Administrative Agent recognizes that certain
instructions hereunder and under the other Related Documents to be given by
AerCo Group may also require the approval of an AerCo Group Subsidiary. In
such circumstances, the Administrative Agent will seek approval from the
relevant AerCo Group Subsidiary and shall report on such approval to AerCo
Group; provided, however, that nothing herein shall in any way diminish any
authority which may be granted to AerCo to act as representative of each Person
within the AerCo Group.
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ARTICLE 7
EFFECTIVENESS
SECTION 7.1. Effectiveness. The effectiveness of this Agreement and all
obligations of the parties hereunder shall be conditioned upon the execution
hereof by all parties to this Agreement.
ARTICLE 8
ADMINISTRATIVE FEES, EXPENSES AND SUBORDINATION
SECTION 8.1. Administrative Fees. (a) In consideration of the
Administrative Agent's performance of the Administrative Services, AerCo Group
agrees to pay to the Administrative Agent the following fees: (i) a fee (an
"ADMINISTRATIVE FEE") of 2.0% of the rental payments made by the Lessees under
the Leases received in respect of each Fee Period from AerCo in respect of its
services to AerCo (the "RENTAL FEE") subject to an annual minimum of $200,000
(the "FIXED FEE"); provided however, if the Rental Fee Percentage (as defined
in the Servicing Agreement) is adjusted according to Section 10.01 of the
Servicing Agreement, the Administrative Fee will be reduced by the amount of
the increase in Servicing Fees (as defined in the Servicing Agreement)
resulting from such Rental Fee Percentage adjustment; and
(ii) a fee for participation in and cooperation with refinancings and other
public or private securities offerings ("NOTES OFFERINGS") of 0.025% of the Net
Proceeds of any such offering (the "ADDITIONAL FEE"). "NET PROCEEDS" means the
cash proceeds received by any person selling Notes (other than underwriters)
within AerCo Group or any other person in connection with any Notes Offering,
less Transaction Costs incurred by any person within AerCo Group or any such
other person in connection with any such Notes Offering (other than the fees
payable pursuant to this Section 8.01).
The Administrative Fee shall be payable in arrears for each period
commencing on the Closing Date (or, thereafter, the most recent Calculation
Date) and ending on the next succeeding Calculation Date during the term of
this Agreement (each such period, a "FEE PERIOD"), such payment to be made no
later than the Payment Date immediately following the end of each such Fee
Period.
(b) The above fees have been calculated on the basis of estimated time and
resources having regard to the expectations of AerCo Group and the
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Administrative Agent concerning the services required from the Administrative
Agent. To the extent the performance of the Administrative Services requires
an investment of time, resources or services that is materially greater or less
than anticipated, the Administrative Agent and AerCo Group shall negotiate in
good faith to arrive at an adjustment to the Administrative Fees that
appropriately reflects the work performed by the Administrative Agent.
(c) The Fixed Fee shall be automatically adjusted as of each March 31 during
the term of this Agreement commencing March 31, 1999, for inflation by
multiplying such fees in effect on such March 31 by the sum of 1.00 plus (if
positive) or minus (if negative) the Inflation Factor with respect to the
immediately preceding calendar year.
SECTION 8.2. Expenses. (a) The Administrative Agent shall be responsible
for all telephone, facsimile and communications costs and expenses directly
relating to or associated with the Administrative Agent's performance of its
duties as set forth in this Agreement up to an annual amount of $200,000.
(b) Subject to the provisions of Section 8.02(a) and Section 8.05, AerCo Group
shall be responsible for the following expenses incurred by the Administrative
Agent in the performance of its obligations ("REIMBURSABLE EXPENSES"):
(i) reasonable out of pocket expenses, including travel, accommodation and
subsistence and approved expenditures in respect of insurance coverage for
the Administrative Agent;
(ii) annual telephone, fax and communication costs and expenses
necessarily and directly incurred in connection with the performance of
the Administrative Services in excess of $200,000;
(iii) expenses expressly authorized by (i) the boards of any Person within
AerCo Group or (ii) any Person to whom such authority has been delegated,
other than the Administrative Agent or its Affiliates; and
(iv) expenses expressly authorized pursuant to other provisions of this
Agreement.
SECTION 8.3. Taxes. The fees specified in Section 8.01 are net of any
value added tax required to be accounted for by the Administrative Agent.
Where the Administrative Agent is required to account for value added tax in
respect of any amounts payable by or on behalf of AerCo Group to the
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Administrative Agent, AerCo Group shall cause to be paid to the Administrative
Agent such additional amounts as are necessary to discharge such value added
tax upon production of a valid value added tax invoice. AerCo Group and the
Administrative Agent shall cooperate in good faith to file an application for
relief from value added taxes on VAT Form 60A as soon as practicable after the
date of this Agreement.
SECTION 8.4. Payment of Expenses. No later than each Calculation Date,
the Administrative Agent shall deliver a notice to the Cash Manager and AerCo
Group, setting forth the amounts of expenses paid by the Administrative Agent
pursuant to Section 8.02 of this Agreement through and including such
Calculation Date (it being understood that if there are no such expenses the
Administrative Agent will be under no obligation to provide such notice).
Subject to Section 8.05 of this Agreement, on the next Payment Date following
such Calculation Date, AerCo Group agrees to pay to the Administrative Agent
all such amounts.
SECTION 8.5. Subordination of Fees and Expenses. The Administrative
Agent agrees that the fees payable to it under Section 8.01 hereof and the
Reimbursable Expenses shall be paid to it in accordance with the Indenture, and
that all such fees and Reimbursable Expenses shall be subordinated in right of
payment to all other payments set forth in the Indenture as ranking higher in
priority of payment thereto.
ARTICLE 9
TERM, REMOVAL OF OR TERMINATION BY THE ADMINISTRATIVE AGENT
SECTION 9.1. Term. This Agreement shall have a term commencing on the
Closing Date and expiring on the date of payment in full of all amounts
outstanding to be paid on the Notes (including the Class D and E Notes) and any
other securities issued by AerCo relating to Additional Aircraft owned by AerCo
Group.
SECTION 9.2. Right to Terminate. (a) At any time during the term of this
Agreement, AerCo Group shall be entitled to terminate this Agreement on 120
days written notice if:
(i) the Administrative Agent shall materially breach any of its
obligations under this Agreement and, after written notice from AerCo
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the Administrative Agent has failed to cure such breach within 30 days; or
(ii) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking
relief in respect of the Administrative Agent, or of a substantial part of
the property or assets of the Administrative Agent, under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
U.S. Federal or state or foreign bankruptcy, insolvency, receivership or
similar law, and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered or the Administrative Agent, shall go into
liquidation, suffer a receiver or mortgagee to take possession of all or
substantially all of its assets or have an examiner appointed over it or
if a petition or proceeding is presented for any of the foregoing and not
discharged within 60 days; or
(iii) the Administrative Agent shall (A) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
U.S. Federal or state or foreign bankruptcy, insolvency, receivership or
similar law, (B) consent to the institution of, or fail to contest the
filing of, any petition described in clause (ii) above, (C) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, or (D) make a general assignment for the benefit of its
creditors.
(b) At any time during the term of this Agreement the Administrative Agent
shall be entitled to terminate this Agreement on 60 days' written notice if:
(i) any AerCo Group entity shall fail to pay in full when due (A) any
Administrative Fee within 30 days or any Reimbursable Expenses in an
aggregate amount in excess of $750,000 within 30 days, in either case,
after the effectiveness of written notice from the Administrative Agent of
such failure or (B) any other amount payable to the Administrative Agent
hereunder, within 60 days after written notice from the Administrative
Agent of such failure.
(ii) any Person within AerCo Group shall fail to perform or observe or
shall violate in any material respect any material term, covenant,
condition or agreement to be performed or observed by it in respect of
this Agreement for 30 days after AerCo Group shall have
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received notice of such failure (other than with respect to payment
obligations referred to in clause (b)(i) of this Section 9.02);
(iii) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking
relief in respect of AerCo or any other Person within AerCo Group, or of a
substantial part of the property or assets of any of AerCo or any other
Person within AerCo Group under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other U.S. Federal or state or
foreign bankruptcy, insolvency, receivership or similar law, and such
proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered or
AerCo or any other Person within AerCo Group shall go into liquidation,
suffer a receiver or mortgagee to take possession of all or substantially
all of its assets or have an examiner appointed over it or if a petition
or proceeding is presented for any of the foregoing and not discharged
within 60 days; or
(iv) AerCo or any other Person within AerCo Group shall (A) voluntarily
commence any proceeding or file any petition seeking relief under any U.S.
Federal or state or foreign bankruptcy, insolvency, receivership or
similar law, (B) consent to the institution of, or fail to contest the
filing of, any petition described in clause 9.02(b)(iii) above, (C) file
an answer admitting the material allegations of a petition filed against
it in any such proceeding or (D) make a general assignment for the benefit
of its creditors.
(c) No termination of this Agreement by AerCo Group pursuant to Section 9.02(a)
and no termination by the Administrative Agent pursuant to Section 9.02(b)
shall become effective prior to the date of appointment by AerCo Group of a
successor Administrative Agent and the acceptance of such appointment by such
successor Administrative Agent; provided, however, that in the event that a
successor Administrative Agent shall not have been appointed within 90 days
after such termination, the Administrative Agent may petition any court of
competent jurisdiction for the appointment of a successor Administrative Agent.
Upon action by either party pursuant to the provisions of this Section
9.02(c), the Administrative Agent shall be entitled to the payment of any
compensation owed to it hereunder and to the reimbursement of all Reimbursable
Expenses incurred in connection with all services rendered by it hereunder, as
provided in Section 8 hereof, and for so long as the Administrative Agent is
continuing to perform any of the Administrative Services for any Person within
AerCo Group, the Administrative Agent shall be entitled to continue to be paid
all amounts due to it hereunder, net of any
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amounts that shall have been finally adjudicated by a court of competent
jurisdiction to be owed by the Administrative Agent to AerCo Group or not to be
due to the Administrative Agent, until a successor Administrative Agent shall
have been appointed and shall have accepted such appointment in accordance with
the provisions of Section 9.03(c).
(d) The parties hereto agree not to amend this Agreement to reduce the scope of
the Administrative Services to be provided by the Administrative Agent
hereunder unless a third party reasonably acceptable to the parties hereto and
to the Servicer becomes a party to this Agreement and agrees to provide such
Administrative Services in the place of the Administrative Agent.
SECTION 9.3. Consequences of Termination. (a) Notices. (i) Following the
termination of this Agreement by AerCo Group or by the Administrative Agent
pursuant to Section 9.02, the Administrative Agent will promptly forward to
AerCo Group any notices received by it during the year immediately after
termination.
(ii) AerCo Group will notify promptly any relevant third party, including
each Rating Agency, the Trustee, and the Servicer, of the termination of
this Agreement by AerCo Group or by the Administrative Agent and will
request that any such notices and accounting reports and communications
thereafter be made or given directly to the entity engaged to serve as
Administrative Agent, and to AerCo Group.
(b) Accrued Rights. A termination of this Agreement by AerCo Group or by the
Administrative Agent hereunder shall not affect the respective rights and
liabilities of any party accrued prior to such termination in respect of any
prior breaches hereof or otherwise.
(c) Replacement. If this Agreement is terminated by AerCo Group or by the
Administrative Agent under Section 9.02, the Administrative Agent will
cooperate with any person appointed to perform the Administrative Services,
including providing such person with all information and documents reasonably
requested.
SECTION 9.4. Survival. Notwithstanding any termination or the expiration
of this Agreement, the obligations of AerCo Group and the Administrative Agent
under Section 3.02 shall survive such termination or expiration, as the case
may be.
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ARTICLE 10
ASSIGNMENT AND DELEGATION
SECTION 10.1. Assignment and Delegation. (a) No party to this Agreement
shall assign or delegate or otherwise subcontract this Agreement or all or any
part of its rights or obligations hereunder to any Person without the prior
written consent of the other parties, such consent not to be unreasonably
withheld.
(b) Without limiting the foregoing, any Person who shall become a
successor by assignment or otherwise of any party hereto shall be required as a
condition to the effectiveness of any such assignment or other arrangement to
become a party to this Agreement.
ARTICLE 11
GUARANTEE
SECTION 11.1. Guarantee. (a) The Guarantor absolutely, irrevocably and
unconditionally guarantees for the benefit of AerCo Group (the "GUARANTEED
PARTIES"), as primary obligor and not merely as a surety, the following (which
are collectively referred to as the "GUARANTEED OBLIGATIONS"): the full and
punctual payment by the Administrative Agent when due of any and all amounts
that are or may become due and payable by the Administrative Agent to the
Guaranteed Parties under the Administrative Agency Agreement and the timely
performance of all other obligations owed by the Administrative Agent to the
Guaranteed Parties hereunder. The Guarantor hereby further agrees that if the
Administrative Agent shall fail to pay or perform any Guaranteed Obligation
when the same shall become due and payable or is required to be performed, the
Guarantor will pay or perform, as the case may be, such Guaranteed Obligation
promptly upon receipt of notice stating that such Guaranteed Obligation was not
paid when due or performed when required, as the case may be. To the extent
that the Guarantor performs under this Guarantee, the rights of the Guarantor
will be subrogated to the rights of the Administrative Agent under the
Administrative Agency Agreement. The obligations of the Guarantor under this
Guarantee are expressly subject to any defenses that the Administrative Agent
may have against the Guaranteed Parties under the terms of the Administrative
Agency Agreement, including any and all claims, defenses, rights and set-offs
available to the Administrative Agent, except any thereof arising out of, based
on or otherwise described in clause (i) or (ii) of Section Reference to Section
11.02(b) typed in manually -- does not work with cross-ref because sections (a)
& (b) are manually typed in main body of doc11.02(b) hereof. The performance
obligation of the
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Guarantor under this Guarantee will be deemed satisfied when and to the extent
that the Administrative Agent performs its obligations under the Administrative
Agency Agreement. The foregoing guarantee of the Guarantor is given solely to
the Guaranteed Parties and, except as expressly permitted by Section 11.05
hereof, the Guarantor undertakes no liability or responsibility hereby to any
Person other than the Guaranteed Parties.
(b) The Guarantor hereby waives (i) notice of acceptance hereof and (ii)
presentment to, demand of payment from or protest to the Administrative Agent
of any of the Guaranteed Obligations. This Guarantee shall be a continuing
guarantee of payment and performance and not of collection only, and shall
remain operative and in full force and effect until the earlier of such time as
(i) the Guaranteed Obligations shall have been paid and performed in full, (ii)
the Administrative Agency Agreement shall have been terminated in accordance
with its terms or (iii) the Administrative Agency Agreement shall have been
assigned pursuant to its terms by the Administrative Agent to a third party
which is not affiliated with the Guarantor; provided, however, that the
obligations of the Guarantor under this Guarantee shall not terminate with
respect to those provisions that expressly survive the termination of the
Administrative Agency Agreement, as set forth in Section 9.04 hereof, until the
obligations of the Administrative Agent hereunder shall have been performed in
full.
(c) If any Guaranteed Obligation paid by any Person is at any time repaid by
the recipient thereof in compliance with any court order pertaining to any
bankruptcy or insolvency proceedings relating to the Administrative Agent, the
amount so repaid shall not be deemed to have been paid and shall be deemed to
be outstanding, and the obligation of the Guarantor hereunder to pay such
Guaranteed Obligation shall remain in full force and effect.
SECTION 11.2. Absolute Obligations. The obligations of the Guarantor
hereunder shall be absolute and unconditional and shall not be affected by any
circumstances other than (a) any claims, defenses, rights and set-offs
available to the Administrative Agent under the Administrative Agency Agreement
or otherwise (except those set forth in clauses (i) and (ii) of Section
Cross-ref (b) typed in manually-- cross-ref does not work as sub-paras (a) and
(b) typed manually within text of doc11.02(b)) and (b) performance by the
Administrative Agent of its obligations under the Administrative Agency
Agreement, including (i) any lack of genuineness, authorization, validity,
legality or enforceability of the bankruptcy, reorganization or similar
proceeding by or against the Administrative Agent or any other Person or the
appointment of a receiver or examiner with respect thereto or (ii) any
amendment, waiver or other modification of the Administrative Agency Agreement
that shall have been entered into with the consent of the Administrative Agent.
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SECTION 11.3. Guarantor's Representations. The Guarantor represents and
warrants as of the date hereof to the Guaranteed Parties that:
(a) the Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of Ireland, and has full power, authority and legal
right to execute and deliver, and to perform its obligations under, this
Guarantee;
(b) the Guarantor has taken all necessary corporate and legal action to
authorize the guarantee hereunder on the terms and conditions of this Guarantee
and to authorize its execution, delivery and performance;
(c) this Guarantee has been duly executed and delivered by a duly authorized
officer or representative of the Guarantor, and constitutes the legal, valid
and binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms;
(d) the execution, delivery and performance of this Guarantee will not
constitute a default under or violate any provision of any law or regulation,
or any judgment or order of any court, arbitrator or governmental authority, in
each case applicable to the Guarantor, or the certificate of incorporation or
by-laws of the Guarantor, or any agreement to which the Guarantor is a party;
and
(e) no consent of any other Person, and no consent, license, permit, approval
or authorization of, exemption by, notice or report to, or registration, filing
or declaration with, any governmental authority, bureau or agency is required
in connection with the execution delivery, performance, validity or
enforceability with respect to the Guarantor of this Guarantee.
SECTION 11.4. Successors and Assigns; Amendments. (a) This Guarantee
shall be binding upon and inure to the benefit of the Guarantor and the
Guaranteed Parties and their respective permitted successors and assigns. The
Guarantor may not assign its rights or obligations under this Guarantee to any
Person. The Guaranteed Parties may assign their rights under this Guarantee
only to such person as it shall assign its rights under the Administrative
Agency Agreement and only on the terms set forth in Section 10.01 of the
Administrative Agency Agreement.
(b) This Guarantee may not be amended in any material respect without first
obtaining the written permission of the Guaranteed Parties and the Guarantor.
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SECTION 11.5. Limitations. Except as expressly provided in Section 11.06
and without limiting the provisions of Section 11.02, the Guarantor shall have
no greater obligations or liabilities under this Guarantee than does the
Administrative Agent under the Administrative Agreement. Without limiting the
foregoing, the Guarantor shall be entitled to the benefits of Section 3.02 of
the Administrative Agency Agreement and the Guarantor, so long as it shall have
any obligation under this Guarantee, shall be entitled to the benefit of all
indemnities to which the Administrative Agent is entitled under the
Administrative Agency Agreement as if the Guarantor were named as a party
thereto and shall be bound by the provisions thereof to the same extent.
SECTION 11.6. Payments; Costs of Enforcement. (a) All payments to be
made by the Guarantor hereunder shall be made in United States Dollars and in
such funds and in such manner as the Administrative Agent is required to make
such payments under the Administrative Agency Agreement, and all such payments
shall be free and clear of and without deduction or withholding for or on
account of any and all Taxes.
(b) The Guarantor agrees to reimburse the Guaranteed Parties for any reasonable
cost or expense (including the reasonable fees and disbursements of counsel for
the Guaranteed Parties) which may be reasonably incurred by or behalf of the
Guaranteed Parties in connection with the failure of the Guarantor to perform
any of its obligations hereunder and any enforcement proceedings resulting
therefrom.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1. Notices. Subject to paragraph (d) below, all notices,
consents, directions, approvals, instructions, requests and other
communications required or permitted by such agreement to be given to any
Person shall be in writing, and any such notice shall become effective five
Business Days after being deposited in the mails, certified or registered,
return receipt requested, with appropriate postage prepaid for first class
mail, or if delivered by hand or courier service or in the form of a facsimile,
when received (and, in the case of a facsimile, receipt of such facsimile is
confirmed to the sender), and shall be directed to the address or facsimile
number of such Person set forth below (with a copy to the Administrative
Agent):
If to AerCo Limited, or its Subsidiaries, to it at:
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AerCo Limited
c/o Mourant & Co. Secretaries Limited
00 Xxxxxxxxx Xxxxxx
Xx. Xxxxxx
Xxxxxx XX0 0XX, Channel Islands
Attention: Company Secretary
Telephone: 000-00-0000-000-000
Telecopy: 011-44-1534-609-333
If to the Administrative Agent, to it at:
GPA Administrative Services Limited
x/x XXX Xxxxx xxx
XXX Xxxxx
Xxxxxxx
Xx. Xxxxx, Xxxxxxx
Attention: Company Secretary
Telephone: 000-00-000000
Telecopy: 000-00-000000
If to the Guarantor, to it at:
GPA Group plc
GPA House
Xxxxxxx
Co. Clare, Ireland
Attention: Company Secretary
Telephone: 000-00-000000
Telecopy: 000-00-000000
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is conclusively presumed to have been duly given,
whether or not the addressee receives it.
From time to time any party to such agreement may designate a new address
or number for purposes of notice thereunder by notice to each of the other
parties thereto.
SECTION 12.2. Governing Law. This agreement shall be governed by and
construed in accordance with the law of the State of New York.
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SECTION 12.3. Jurisdiction. Except as otherwise expressly provided in
this Agreement, the parties hereto agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or
in connection with, this Agreement or the transactions contemplated hereby may
be brought in the United States District Court for the Southern District of New
York or any other New York State court sitting in New York City, and each of
the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and 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 suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 12.01 shall
be deemed effective service of process on such party.
SECTION 12.4. Agent for Service of Process. Each of AerCo and its
Subsidiaries hereby appoint Corporation Service Company, 000 Xxxxxx Xxxxxx, Xxx
Xxxx, X.X., X.X.X. 00000 as its nonexclusive agent for service of process in
the United States in connection with the Administrative Agency Agreement. The
parties may use any legally available means of service of process. Each of
AerCo and its Subsidiaries will promptly notify the other persons listed in
Section 12.01 of any change in the address of the respective agents; provided,
however, that each of AerCo and its Subsidiaries will at all times maintain an
agent located within New York State for service of process in connection with
the Administrative Agency Agreement, the identity of any successor agent to be
reasonably satisfactory to the Administrative Agent.
SECTION 12.5. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 12.6. Counterparts; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto where
upon the same instrument. This agreement shall become effective when each
party hereto shall have received a counterpart hereof signed by the other party
hereto. No provision of this Agreement is intended to confer upon any Person
other than the parties hereto any rights or remedies hereunder.
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SECTION 12.7. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
SECTION 12.8. Power of Attorney. Each of AerCo and the Subsidiaries
shall appoint the Servicer and its successors, and its permitted designees and
assigns, as their true and lawful attorney-in-fact. All services to be
performed and actions to be taken by the Servicer pursuant tot his Agreement
shall be performed to and on behalf of each of AerCo and the Subsidiaries. The
Servicer shall be entitled to seek and obtain from each of AerCo and the
Subsidiaries a power of attorney in respect of the execution of any specific
action as the Servicer deems appropriate.
SECTION 12.9. Restrictions on Disclosure. The Administrative Agent
agrees that it shall not, prior to the termination or expiration of this
Agreement or within the three years after such termination or expiration,
disclose to any Person any confidential or proprietary information, whether of
a technical, financial, commercial or other nature, received directly or
indirectly from AerCo Group regarding AerCo Group or its business or the
Aircraft, except as authorized in writing by AerCo Group or otherwise permitted
by this Agreement, and except:
(a) to Representatives of the Administrative Agent and any of its Affiliates in
furtherance of the purposes of this Agreement;
(b) to the extent (i) required by Applicable Law or by judicial or
administrative process, including pursuant to any subpoena, civil investigative
demand or similar demand or request of any court, regulatory authority,
arbitrator or arbitration to which the Administrative Agent or an affiliate
thereof is a party, or (ii) reasonably necessary in order to enable the
Administrative Agent to perform the Administrative Agent Services, but in the
case of clause (i) above, in the event of proposed disclosure, the
Administrative Agent shall seek the assistance of AerCo Group to protect
information in which AerCo Group has an interest to the maximum extent
achievable;
(c) to the extent such information is required to be included in any
preliminary or final offering circular, registration statement or contract or
other document pertaining to the transactions contemplated by the Indenture
approved in advance by AerCo.
(d) to the extent that the information:
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(i) was generally available in the public domain;
(ii) was lawfully obtained from a source under no obligation of
confidentiality, directly or indirectly, to any Person within AerCo Group;
(iii) was disclosed to the general public with the approval of any Person
within AerCo Group; or
(iv) was developed independently by the Administrative Agent or any
Affiliates of the Administrative Agent; and
(e) to the extent the Administrative Agent reasonably deems necessary to
protect and enforce its rights and remedies under this Agreement; provided,
however, that in such an event the Administrative Agent shall act in a manner
reasonably designed to prevent disclosure of such confidential information; and
provided further, that prior to disclosure of such information the
Administrative Agent shall inform AerCo of such disclosure.
SECTION 12.10. Rights of Setoff. To the extent permitted by Applicable
Law, the Administrative Agent hereby waives any right it may have under
Applicable Law to exercise any rights of setoff it has under Applicable Law
with respect to any assets it holds owned by, or money or monies it owns to,
any Person within AerCo Group pursuant to and in accordance with the terms and
conditions of this Agreement; provided, however, that this Section 12.09 shall
not affect any rights of setoff or other rights that the Administrative Agent
has or may have under the express terms and conditions of this Agreement.
SECTION 12.11. No Partnership. (a) It is expressly recognized and
acknowledged that this Agreement is not intended to create a partnership, joint
venture or other similar arrangement between any AerCo Group member or members
on the one part and the Administrative Agent on the other part. It is also
expressly understood that any actions taken on behalf of any AerCo Group member
by the Administrative Agent shall be taken as agent for AerCo Group, either
naming the relevant AerCo Group entity, or naming the Administrative Agent as
agent for an undisclosed principal. No AerCo Group member shall hold itself
out as a partner of the Administrative Agent, and the Administrative Agent will
not hold itself out as a partner of any AerCo Group member.
(b) The Administrative Agent shall not have any fiduciary duty or other implied
obligations or duties to any AerCo Group member, any Lessee or any other Person
arising out of this Agreement.
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SECTION 12.12. Implied Terms Excluded. For the avoidance of doubt, the
provisions of Section 39 of the Sale of Goods and Supply of Services Act, 1980
of Ireland are hereby expressly excluded.
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IN WITNESS WHEREOF, this Agreement has been duly executed on the date
first written above.
GPA ADMINISTRATIVE SERVICES LIMITED
By /s/ Xxxx Xxxxxxx
_________________________________________
Name: Xxxx Xxxxxxx
Title: Director
GPA GROUP PLC,
as Guarantor
By /s/ Xxxx Xxxxxxx
_________________________________________
Name: Xxxx Xxxxxxx
Title: Secretary
AERCO LIMITED
By /s/ Xxxxxxxxx X. Xxxxxxx Xx.
_________________________________________
Name: Xxxxxxxxx X. Xxxxxxx Xx.
Title: Director
AERCO IRELAND LIMITED
By /s/ Xxxxxxx X Xxxxxx
_________________________________________
Name: Xxxxxxx X Xxxxxx
Title: Director
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AERCO IRELAND II LIMITED
By /s/ Xxxx Xxxxxxx
_________________________________________
Name: Xxxx Xxxxxxx
Title: Director
AERFI BELGIUM N.V.
By /s/ Xxxx Xxxxxxx
_________________________________________
Name: Xxxx Xxxxxxx
Title: Director
AERCOUSA INC.
By /s/ Xxxxxxxxx Xxxxxxx
_________________________________________
Name: Xxxxxxxxx Xxxxxxx
Title: Director
AIRCRAFT LEASE PORTFOLIO
SECURITIZATION 94-1 LIMITED
By /s/ Xxxxxx Xxxxxx Xxxxxxxx
_________________________________________
Name: Xxxxxx Xxxxxx Xxxxxxxx
Title: Director
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ALPS 00-0 (XXXXXXX) N.V.
By /s/ Xxxxxx Xxxxxx Xxxxxxxx
_________________________________________
Name: Xxxxxx Xxxxxx Xxxxxxxx
Title: Director
PERGOLA LIMITED
By /s/ Xxxxxxx Xxxxxx
_________________________________________
Name: Xxxxxxx Xxxxxx
Title: Director
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APPENDIX A
AerCo Ireland Limited
AerCo Ireland II Limited
AerCoUSA Inc.
AerFi Belgium N.V.
Aircraft Lease Portfolio Securitization 94-1 Limited
ALPS 00-0 (Xxxxxxx) N.V.
Pergola Limited
