EX-10.1 2 file2.htm CREDIT AGREEMENT EXECUTION VERSION CREDIT AGREEMENT dated as of April 5, 2007 among GENESIS ACQUISITION LIMITED, as Borrower, GENESIS LEASE LIMITED, as Manager, THE FINANCIAL INSTITUTIONS SET FORTH ON SCHEDULE IV HERETO as Lenders,...
EXECUTION VERSION
dated as of April 5, 2007
among
GENESIS ACQUISITION LIMITED, as Borrower,
GENESIS LEASE LIMITED, as Manager,
THE FINANCIAL INSTITUTIONS SET FORTH ON SCHEDULE IV HERETO as Lenders,
CITIBANK, N.A., as Administrative Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication Agent,
CALYON, NEW YORK BRANCH, LANDESBANK BADEN-WÜRTTEMBERG, and NORDDEUTSCHE LANDESBANK GIROZENTRALE as Co-Documentation Agents
CITIGROUP GLOBAL MARKETS INC. and WACHOVIA CAPITAL MARKETS, LLC as Joint Lead Arrangers
and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Security Trustee and Account Bank
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINITIONS |
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1 | ||
SECTION 1.1 |
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Defined Terms |
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1 |
SECTION 1.2 |
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Other Definitional Provisions |
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37 |
ARTICLE II THE FACILITY, ADVANCE PROCEDURES AND ADVANCES |
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38 | ||
SECTION 2.1 |
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Facility |
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38 |
SECTION 2.2 |
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Advance Procedures |
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39 |
SECTION 2.3 |
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Representation and Warranty |
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40 |
SECTION 2.4 |
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Pro Rata Payments. |
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40 |
ARTICLE III INTEREST, FEES, ETC. |
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41 | ||
SECTION 3.1 |
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Interest |
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41 |
SECTION 3.2 |
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Interest Payment Dates |
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41 |
SECTION 3.3 |
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Fees |
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41 |
SECTION 3.4 |
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Commitment Fees |
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41 |
SECTION 3.5 |
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Computation of Interest and Fees |
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42 |
SECTION 3.6 |
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Continuation of Advances |
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42 |
ARTICLE IV REPAYMENTS, PREPAYMENTS AND PAYMENTS |
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42 | ||
SECTION 4.1 |
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Required Principal Repayments |
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42 |
SECTION 4.2 |
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Principal Prepayments |
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42 |
SECTION 4.3 |
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Payments Generally |
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44 |
SECTION 4.4 |
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Sharing of Set-Offs |
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44 |
ARTICLE V INCREASED COSTS, ETC. |
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45 | ||
SECTION 5.1 |
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Illegality |
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45 |
SECTION 5.2 |
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Increased Costs |
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45 |
SECTION 5.3 |
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Taxes |
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47 |
SECTION 5.4 |
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Indemnity Regarding Breakage Costs |
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49 |
SECTION 5.5 |
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Notice of Amounts Payable |
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50 |
SECTION 5.6 |
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Mitigation Obligations; Replacement |
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50 |
ARTICLE VI CONDITIONS PRECEDENT |
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51 | ||
SECTION 6.1 |
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Conditions to Effectiveness |
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51 |
SECTION 6.2 |
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Advances |
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53 |
ARTICLE VII ADMINISTRATION OF AIRCRAFT AND LEASES |
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61 | ||
SECTION 7.1 |
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Collection Procedures |
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61 |
SECTION 7.2 |
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Investments |
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65 |
ARTICLE VIII REPRESENTATIONS AND WARRANTIES OF THE BORROWER |
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66 | ||
SECTION 8.1 |
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Subsidiaries |
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66 |
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SECTION 8.2 |
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Organization and Good Standing |
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66 |
SECTION 8.3 |
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Due Qualification. |
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66 |
SECTION 8.4 |
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Enforceability |
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66 |
SECTION 8.5 |
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Security Interest |
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67 |
SECTION 8.6 |
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No Violation |
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67 |
SECTION 8.7 |
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No Proceedings |
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68 |
SECTION 8.8 |
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Approvals |
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68 |
SECTION 8.9 |
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Subsidiaries |
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68 |
SECTION 8.10 |
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Solvency |
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68 |
SECTION 8.11 |
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Compliance with Laws |
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68 |
SECTION 8.12 |
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Taxes |
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69 |
SECTION 8.13 |
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Monthly Report |
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69 |
SECTION 8.14 |
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No Liens, Etc. |
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69 |
SECTION 8.15 |
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Information True and Correct |
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70 |
SECTION 8.16 |
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Environmental Laws |
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70 |
SECTION 8.17 |
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Employment Matters |
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70 |
SECTION 8.18 |
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RICO |
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70 |
SECTION 8.19 |
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Anti-Terrorism Law |
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70 |
SECTION 8.20 |
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Depositary Banks. |
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71 |
SECTION 8.21 |
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Financial Condition |
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71 |
SECTION 8.22 |
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Investment Company Status |
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72 |
SECTION 8.23 |
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Description of Aircraft and Leases |
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72 |
SECTION 8.24 |
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No Default, Etc. |
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72 |
SECTION 8.25 |
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Subsidiary Constituent Documents |
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72 |
SECTION 8.26 |
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Transaction Documents |
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72 |
ARTICLE IX COVENANTS |
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72 | ||
SECTION 9.1 |
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Legal Existence and Good Standing |
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73 |
SECTION 9.2 |
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Protection of Security Interest of the Lenders |
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73 |
SECTION 9.3 |
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Records |
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74 |
SECTION 9.4 |
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Other Liens or Interests |
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74 |
SECTION 9.5 |
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Negative Pledge Clause |
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75 |
SECTION 9.6 |
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Maintain Properties |
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75 |
SECTION 9.7 |
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Ownership, Operation and Leasing of Financed Aircraft |
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76 |
SECTION 9.8 |
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Limitation on Disposition of Aircraft |
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76 |
SECTION 9.9 |
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Extension, Amendment or Replacement of Leases |
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78 |
SECTION 9.10 |
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Servicing Agreement |
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79 |
SECTION 9.11 |
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Representations Regarding Operation |
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79 |
SECTION 9.12 |
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Costs and Expenses |
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79 |
SECTION 9.13 |
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Compliance with Laws, Etc. |
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79 |
SECTION 9.14 |
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Environmental Compliance |
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80 |
SECTION 9.15 |
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Employee Benefit Plans; Employees |
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80 |
SECTION 9.16 |
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Compliance |
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81 |
SECTION 9.17 |
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Notice of Adverse Claim or Loss |
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81 |
SECTION 9.18 |
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Reporting Requirements |
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81 |
SECTION 9.19 |
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Corporate Separateness |
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84 |
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SECTION 9.20 |
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Bankruptcy and Insolvency; Corporate Governance |
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85 |
SECTION 9.21 |
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Limitation on Engaging in Business Activities |
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86 |
SECTION 9.22 |
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Limitation on Transactions with Affiliates |
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87 |
SECTION 9.23 |
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Limitation on Modification Payments and Capital Expenditures |
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87 |
SECTION 9.24 |
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Limitation on Certain Restrictions on Borrower Subsidiaries |
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88 |
SECTION 9.25 |
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Mergers, Etc. Except as otherwise permitted under Section 9.7 or 9.8, t |
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88 |
SECTION 9.26 |
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Distributions, Etc. |
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89 |
SECTION 9.27 |
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Subsidiaries; Investments |
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89 |
SECTION 9.28 |
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Guarantees |
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90 |
SECTION 9.29 |
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Indebtedness |
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90 |
SECTION 9.30 |
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Audits; Inspections |
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91 |
SECTION 9.31 |
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Use of Proceeds; Margin Regulations |
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91 |
SECTION 9.32 |
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Accounting; Irish Tax Residency |
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91 |
SECTION 9.33 |
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Hedging Policy |
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92 |
SECTION 9.34 |
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Insurance |
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92 |
SECTION 9.35 |
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Anti-Terrorism Law; Anti-Money Laundering |
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93 |
SECTION 9.36 |
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Embargoed Person |
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94 |
SECTION 9.37 |
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Interest Coverage Ratio |
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94 |
ARTICLE X THE MANAGER |
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95 | ||
SECTION 10.1 |
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Manager Not to Resign |
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95 |
ARTICLE XI MANAGER DEFAULTS |
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95 | ||
SECTION 11.1 |
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Consequences of a Manager Default |
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95 |
SECTION 11.2 |
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Appointment of Successor Manager; New Management Agreement |
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96 |
ARTICLE XII EVENTS OF DEFAULT |
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97 | ||
SECTION 12.1 |
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Events of Default |
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97 |
SECTION 12.2 |
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Effect of Event of Default |
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98 |
SECTION 12.3 |
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Rights Upon the Facility Termination Date |
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99 |
ARTICLE XIII THE ADMINISTRATIVE AGENT |
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100 | ||
SECTION 13.1 |
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Authorization and Action |
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100 |
SECTION 13.2 |
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Exculpation |
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100 |
SECTION 13.3 |
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Administrative Agent and Affiliates |
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101 |
SECTION 13.4 |
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Lender’s Credit Decision |
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101 |
SECTION 13.5 |
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Certain Matters Affecting the Administrative Agent |
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101 |
SECTION 13.6 |
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Administrative Agent Not Liable |
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102 |
SECTION 13.7 |
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Administrative Agent May Own Advances |
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103 |
SECTION 13.8 |
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Resignation or Removal of Administrative Agent |
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103 |
SECTION 13.9 |
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Successor Administrative Agent |
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104 |
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SECTION 13.10 |
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Eligibility Requirements for Successor Administrative Agent |
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105 |
SECTION 13.11 |
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Merger or Consolidation of Administrative Agent |
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105 |
SECTION 13.12 |
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Administrative Agent May Enforce Claims |
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105 |
SECTION 13.13 |
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Suit for Enforcement |
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105 |
SECTION 13.14 |
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Indemnification of Administrative Agent |
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105 |
SECTION 13.15 |
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Other Arrangements |
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106 |
ARTICLE XIV ASSIGNMENTS |
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106 | ||
SECTION 14.1 |
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Assignments |
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106 |
SECTION 14.2 |
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Documentation |
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107 |
SECTION 14.3 |
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Rights of Assignee |
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107 |
SECTION 14.4 |
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Registration; Registration of Transfer and Exchange |
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107 |
ARTICLE XV INDEMNIFICATION |
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108 | ||
SECTION 15.1 |
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General Indemnity of the Borrower |
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108 |
SECTION 15.2 |
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Waiver of Consequential Damages, Etc. |
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109 |
ARTICLE XVI MISCELLANEOUS |
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109 | ||
SECTION 16.1 |
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No Waiver; Remedies |
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109 |
SECTION 16.2 |
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Amendments, Waivers |
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109 |
SECTION 16.3 |
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Notices, Etc. |
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111 |
SECTION 16.4 |
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Costs and Expenses |
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112 |
SECTION 16.5 |
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Binding Effect; Survival |
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113 |
SECTION 16.6 |
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Captions and Cross References |
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113 |
SECTION 16.7 |
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Severability |
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113 |
SECTION 16.8 |
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Governing Law; Venue |
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114 |
SECTION 16.9 |
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Counterparts |
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115 |
SECTION 16.10 |
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WAIVER OF JURY TRIAL |
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115 |
SECTION 16.11 |
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Third Party Beneficiary |
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115 |
SECTION 16.12 |
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Recourse Against Certain Parties; No Proceedings |
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115 |
SECTION 16.13 |
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ENTIRE AGREEMENT |
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117 |
SECTION 16.14 |
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Resolution of Drafting Ambiguities |
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118 |
SECTION 16.15 |
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Confidentiality |
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118 |
SECTION 16.16 |
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USA Patriot Act Notice |
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119 |
SECTION 16.17 |
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Security Trustee/Account Bank Notice |
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119 |
SECTION 16.18 |
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Security Trustee/Account Protections |
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119 |
SECTION 16.19 |
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Currency Indemnity |
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119 |
SECTION 16.20 |
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Indemnification of Security Trustee and Account Bank |
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120 |
iv
APPENDICES |
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APPENDIX I |
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Eligible Aircraft, Concentration Limits and Core Lease Provisions |
EXHIBITS |
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EXHIBIT A |
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Form of Advance Request |
EXHIBIT B |
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Form of Assignment and Assumption |
EXHIBIT C |
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Form of Monthly Report |
EXHIBIT D |
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Hedging Policy |
EXHIBIT E |
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Form of Management Agreement |
EXHIBIT F |
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Form of Security Trust Agreement |
EXHIBIT G |
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Form of Servicing Agreement |
EXHIBIT H |
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Forms of Organizational Documents and Operating Documents |
EXHIBIT I |
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Forms of Opinion of Counsel to Borrower Group |
EXHIBIT J |
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Form of Opinion of Counsel to Security Trustee/Account Bank |
EXHIBIT K |
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Form of Opinion of Counsel to Administrative Agent/Lenders |
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SCHEDULES |
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SCHEDULE I |
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List of Aircraft |
SCHEDULE II |
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List of Aircraft Owning Entities, the Aircraft Owned by Such Aircraft Owning Entities and the associated Owner Participants and Owner Trustees |
SCHEDULE III |
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List of Leases |
SCHEDULE IV |
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List of Lenders |
SCHEDULE V |
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Account Details |
SCHEDULE VI |
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Capitalization and Subsidiaries |
v
THIS CREDIT AGREEMENT is made and entered into as of April 5, 2007 among: (i) GENESIS ACQUISITION LIMITED, an exempted company organized and existing under the laws of Bermuda (the “Borrower”), (ii) GENESIS LEASE LIMITED, an exempted company organized and existing under the laws of Bermuda (“GLS”), as manager under the Management Agreement (GLS in such capacity, or any successor manager appointed pursuant to Section 11.2 hereof, the “Manager”), (iii) THE FINANCIAL INSTITUTIONS SET FORTH ON SCHEDULE IV HERETO (together with any successors and permitted assigns, the “Lenders”), (iv) CITIBANK, N.A. (“CNA”), as administrative agent for the Lenders (CNA in such capacity, or any successor administrative agent appointed pursuant to Section 13.8, the “Administrative Agent”), and (v) DEUTSCHE BANK TRUST COMPANY AMERICAS, in its capacity as Security Trustee (as defined below) and as Account Bank (as defined below).
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, the following terms have the following meanings:
“Account Bank” means Deutsche Bank Trust Company Americas and any successor or replacement thereof in such capacity.
“Additional Aircraft Concentration Limits” means, for Widebody Aircraft, Freighter Aircraft, Regional Jet Aircraft, Boeing Aircraft, Airbus Aircraft, Out-of-Production Aircraft or Other Manufacturer Aircraft, as of any date of determination, the percentage, if any, set forth opposite the correlative designation “Widebody Aircraft,” “Freighter Aircraft,” “Regional Jet Aircraft,” “Boeing Aircraft,” “Airbus Aircraft,” “Out-of-Production Aircraft” or “Other Manufacturer Aircraft” listed on Table 2 of Appendix I hereto under the heading corresponding to the range of Outstanding Principal Amount as of such date of determination.
“Additional Aircraft Concentration Percentage” means, for Widebody Aircraft, Freighter Aircraft, Regional Jet Aircraft, Boeing Aircraft, Airbus Aircraft , Out-of-Production Aircraft or Other Manufacturer Aircraft, as of any date of determination, the percentage represented by the quotient obtained by dividing:
(a) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Widebody Aircraft, Freighter Aircraft, Regional Jet Aircraft, Boeing Aircraft,
Airbus Aircraft, Out-of-Production Aircraft or Other Manufacturer Aircraft, as applicable, in the Borrower’s Portfolio as of such date of determination; by
(b) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio, as of such date of determination.
“Administrative Agent” has the meaning set forth in the Preamble.
“Advance Commitment Period” means the period commencing on the Closing Date and ending on the Conversion Date.
“Advance Date” means the date on which each Lender makes an Advance under this Agreement in connection with the acquisition of a Financed Aircraft.
“Advance Rate” means, (i) for Tier I Aircraft and Tier II Aircraft, 72.5%, and (ii) for Tier III Aircraft, 65%.
“Advance Request” has the meaning set forth in Section 2.2(a).
“Advances” has the meaning set forth in Section 2.1(a).
“Adverse Claim” means any Lien or any title retention, trust, or other type of preferential arrangement having the effect or purpose of creating a Lien or any claim of ownership, other than Permitted Liens.
“Affected Lender” has the meaning set forth in Section 5.6(a).
“Affected Party” has the meaning set forth in Section 5.2(a).
“Affiliate” of any Person means any other Person that (i) directly or indirectly controls, is controlled by or is under common control with such Person (excluding any trustee under, or any committee with responsibility for administering, any employee benefit plan), or (ii) is an officer, trustee or director of such person. Without limiting the foregoing, a Person shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or indirectly, power:
(a) to vote greater than 50% or more of the securities, membership interests or similar ownership interests (on a fully diluted basis) having ordinary voting power for the election of directors, members, managing partners or similar Persons; or
(b) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise;
provided, however, that in no event shall GECAS be deemed an Affiliate of any Borrower Group Member. The word “Affiliated” has a correlative meaning.
“Aggregate Aircraft Borrowing Base” means, as of any date of determination, the aggregate of the Individual Aircraft Borrowing Bases for all Financed Aircraft in the Borrower’s Portfolio on such date.
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“Agreement” means this Credit Agreement, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Airbus Aircraft” means Aircraft of the following Types (from the list of Types shown on Table 1 of Appendix I hereto): any Type with a designation “A319”, “A320”, “A321” or “A330”.
“Aircraft” means one or more of the commercial aircraft (including, without limitation, the airframe and all engines and parts thereof or with respect thereto) listed on Schedule I hereto, as such schedule may be amended, restated or otherwise modified from time to time pursuant to the terms hereof.
“Aircraft Acquisition Documents” means in respect of any Aircraft to become a Financed Aircraft, any of the related Asset Purchase Agreement, related Lease, a xxxx of sale, a lease assignment and assumption agreement, a lease novation and amendment agreement, and any invoice or other documentation evidencing the purchase price paid for such assets (to the extent not evidenced by any of the foregoing other documents).
“Aircraft Age” means the age in integral number of completed elapsed years of an Aircraft since its date of manufacture (or, if such Aircraft has been subjected to a Freighter Conversion to a Freighter Type, since the related Freighter Conversion Effective Date), such integral number rounded upwards in the case of six months or more having elapsed since the last anniversary of such Aircraft’s date of manufacture (or related Freighter Conversion Effective Date, as applicable). With respect to an Aircraft that becomes a Financed Aircraft on a date that is after a Determination Date (or, if the first Determination Date has not yet occurred, the Closing Date) and is before or on the next succeeding Determination Date, the Aircraft Age of such Aircraft will be deemed to be its Aircraft Age in years on and as of such next succeeding Determination Date, subject to the rounding convention set forth in the preceding sentence.
“Aircraft Age Limit” means, for each Type of Aircraft listed on Table 1 to Appendix I hereto, the number of years set forth opposite such Type under the heading “Maximum Age”.
“Aircraft Asset Expenses” has the meaning set forth in the Servicing Agreement; provided, that when such term is used in the Flow of Funds, Aircraft Asset Expenses shall not be deemed to include (i) expenses that have been paid with funds withdrawn from the Supplemental Rent Account or the Security Deposit Account, and (ii) capital expenditures for the purpose of effecting any optional improvement or modification of any Aircraft Asset other than (x) maintenance expenses to keep any Aircraft airworthy in all respects and in good repair and condition in accordance with international airline industry standards, (y) expenses incurred in order to comply with all airworthiness directives and mandatory orders and other requirements applicable to any Aircraft, and (z) capital expenditures permitted to be incurred by the Servicer under the Servicing Agreement without being required to be included in the then current Approved Budget and without the consent of the Borrower.
“Aircraft Assets” means one or more Aircraft, together with the related assets with respect thereto, including, without limitation, the Leases with respect to such Aircraft (and the
3
Related Security with respect thereto) and any related Security Deposits, Supplemental Rent or other cash reserves.
“Aircraft Limitation Event” means that immediately after giving effect to any of the following:
(a) an acquisition into the Borrower’s Portfolio of an Aircraft, or
(b) the occurrence of a Disposition Event and consequent removal from the Borrower’s Portfolio of an Aircraft,
any of the following is true: (i) any Aircraft Tier Concentration Percentage will exceed the related Aircraft Tier Concentration Limit, (ii) the Weighted Average Portfolio Age will exceed the Weighted Average Portfolio Age Limit or (iii) any Additional Aircraft Concentration Percentage will exceed the related Additional Aircraft Concentration Limit; provided that it shall not constitute an Aircraft Limitation Event if the Additional Aircraft Concentration Percentage with respect to Out-of-Production Aircraft exceeds the related Additional Aircraft Concentration Limit as a result of an Aircraft becoming an Out-of-Production Aircraft on any date after such Aircraft was acquired into the Borrower’s Portfolio, but shall constitute an Aircraft Limitation Event solely for the purposes of the determination in Section 6.2(b) as to whether the Aircraft is an Eligible Aircraft.
“Aircraft Owning Entity” means a Person that is (i) an entity with Organizational Documents and Operating Documents substantially in the forms attached hereto as Exhibit H (or in such other form as shall be reasonably satisfactory to the Administrative Agent), (ii) identified on Schedule II hereto, as such schedule may be amended, restated or otherwise modified from time to time, pursuant to the terms hereof, (iii) the sole legal owner (including, without limitation, an Owner Trust but excluding an Owner Participant) of the Aircraft listed to the right of such Person’s name on such Schedule II hereto (as such schedule may be amended, restated or otherwise modified from time to time pursuant to the terms hereof), and (iv) a Person in which the Borrower owns, whether directly or indirectly, all of the Equity Interests.
“Aircraft Tier Concentration Limit” means, with respect to all Aircraft within a Tier of Aircraft listed on Table 1 to Appendix I hereto, as of any date of determination, the percentage set forth for such Tier under the heading corresponding to the range of Outstanding Principal Amount as of such date of determination, provided that:
(a) with respect to Tier I Aircraft, there is no limitation;
(b) with respect to Tier II Aircraft, there is no limitation for Airbus A321-200 Aircraft at any time the Lenders have made, in the aggregate, Advances of $100,000,000 or less;
(c) until the Commitment Increase Option has become effective pursuant to Section 2.1(c), with respect to Tier II Aircraft, there are at least twice as many Tier I Aircraft as Tier II Aircraft in the Borrower’s Portfolio and no Tier I Aircraft shall be used
4
contemporaneously to satisfy this requirement and the requirement with respect to Tier III Aircraft set forth in clause (d) below; and
(d) until the Commitment Increase Option has become effective pursuant to Section 2.1(c), with respect to Tier III Aircraft, there are at least three times as many Tier I Aircraft as Tier III Aircraft in the Borrower’s Portfolio and no Tier I Aircraft shall be used contemporaneously to satisfy this requirement and the requirement with respect to Tier II Aircraft set forth in clause (c) above.
“Aircraft Tier Concentration Percentage” means, for each Tier of Aircraft listed on Table 1 to Appendix I hereto, as of any date of determination, the percentage represented by the quotient obtained by dividing:
(a) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in such Tier in the Borrower’s Portfolio as of such date of determination; by
(b) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio, as of such date of determination.
“Aircraft Value & Borrowing Base Schedule” means a schedule for an Aircraft provided by the Borrower to the Administrative Agent in form and substance reasonably acceptable to the Administrative Agent recording the Initial Agreed Value and the Individual Aircraft Borrowing Base for such Aircraft, as such schedule may be revised from time to time pursuant to Section 9.18(a)(xi).
“Allocable Advance Amount” means, with respect to any Aircraft, as of any date of determination, an amount equal to the product of (i) the Outstanding Principal Amount as of such date and (ii) a fraction, the numerator of which is equal to the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of such Aircraft as of such date and the denominator of which is equal to the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio at such time.
“Alternate Base Rate” means, as of any date, a fluctuating rate of interest per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the greater of (a) the prime rate (announced from time to time by the Administrative Agent at its principal office in New York, New York as its base rate), and (b) the Federal Funds Rate most recently determined by the Administrative Agent plus 1.00% per annum.
“Anti-Terrorism Laws” has the meaning set forth in Section 8.19.
“Applicable Carrier” means, as of any date, with respect to any Aircraft, the Eligible Carrier that is leasing such Aircraft from the applicable Aircraft Owning Entity, Applicable Intermediary or Section 9.17(a) Entity, on such date.
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“Applicable Foreign Aviation Law” means, with respect to any Aircraft, any applicable law, rule or regulation (other than the FAA Act) of any Government Entity of any jurisdiction not included in the United States, governing the registration, ownership, operation, or leasing of all or any part of such Aircraft, or the creation, recordation, maintenance, perfection or priority of Liens on all or any part of such Aircraft.
“Applicable Foreign Government Entity” means, with respect to any Aircraft, any Government Entity that administers any Applicable Foreign Aviation Law.
“Applicable Intermediary” means, with respect to any Aircraft, the Eligible Intermediary that has leased such Aircraft from the applicable Aircraft Owning Entity or Owner Trustee, and has subleased such Aircraft to an Applicable Carrier.
“Applicable Margin” means (a) during the period commencing on the Closing Date up to but excluding the Conversion Date, a per annum rate equal to the rate set forth below opposite the then Outstanding Principal Amount and the then Portfolio Composition, as of the most recent Determination Date:
Applicable Margin |
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Portfolio Composition |
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Total Outstanding Principal Amount |
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< 60% Tier 1 Aircraft |
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> 60% Tier 1 Aircraft |
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> 75% Tier 1 Aircraft |
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Less than $600,000,000 |
|
1.75 |
% |
1.75 |
% |
1.75 |
% |
$600,000,000 or greater but less than $850,000,000 |
|
1.75 |
% |
1.65 |
% |
1.65 |
% |
$850,000,000 or greater |
|
1.75 |
% |
1.65 |
% |
1.50 |
% |
and (b) thereafter 2.75% per annum.
“Appraisal” means, with respect to any Aircraft, an appraisal of such Aircraft by a Qualified Appraiser, which appraisal is prepared in accordance with ISTAT standards and opines as to the Current Market Value and the Base Value of such Aircraft, taking into account the actual maintenance status of such Aircraft.
“Approved Budget” has the meaning set forth in the Servicing Agreement.
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“Approved Country List” means the list of countries set forth on Appendix I attached hereto that are not Prohibited Countries, as such list may be modified and supplemented from time to time in accordance with the following provisions:
(a) if the Administrative Agent advises the Borrower in writing of (i) a change in law or regulation or in the interpretation thereof by a Government Entity after the Closing Date, or (ii) the implementation or application by a Government Entity after the Closing Date of law or regulation in a particular country then on the Approved Country List, that in either case, in the good faith, reasonable judgment of the Administrative Agent makes the financing of Aircraft registered in such country or leased by a Lessee organized under the laws of or domiciled in such country, subject to a material increase in legal risk as to creditor’s or lessor’s rights, rights of repossession or enforcement, or other material legal risks making it undesirable for a lender to finance such Aircraft (any of the foregoing, an “Adverse Legal Risk Change”), then the Approved Country List shall upon delivery of such written advice be deemed amended and changed to remove such adversely affected country; and
(b) with respect to (i) any adversely affected country described in clause (a) above which has been removed from the Approved Country List, or (ii) any other country which is otherwise not on the current Approved Country List, the Borrower may nonetheless provide that such country be treated for all purposes hereunder as if it were named on the list by either (1) obtaining the written agreement of the Administrative Agent to so treat such country as if on the list (or to actually add the country to an amended version of such list, if mutually agreed with the Borrower), or (2) procuring and maintaining Political Risk/Repossession Insurance in respect of Aircraft either registered in such country or that are leased under a Lease with a Lessee domiciled in or organized under the laws of such country (or both, if such is the case), in an amount not less than the Required Coverage Amount.
“Asset Purchase Agreement” means any aircraft purchase agreement or other similar agreement that documents the purchase by any Borrower Group Member of a Financed Aircraft, and shall include all other agreements, assignments, documents, bills of sale or other instruments forming a part of the transaction documents with respect thereto.
“Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee of such Lender and acknowledged and agreed to by the Administrative Agent, substantially in the form of Exhibit B hereto.
“Available Collections” means in respect of any Payment Date, all Collections on deposit in the Collection Account as of the Calculation Date (as defined in the Management Agreement) immediately preceding such Payment Date.
“Base Value” with respect to any Aircraft, represents an appraiser’s opinion of the underlying economic value of such Aircraft in an open, unrestricted, stable market environment with a reasonable balance of supply and demand, and assumes full consideration of its “highest and best use”, founded in the historical trend of values and in the projection of future value trends and presuming an arm’s length, cash transaction between willing, able and knowledge
7
parties acting prudently, with an absence of duress and with a reasonable period of time available for marketing. Base Value shall be the lower of the mean and median Base Values in three Appraisals most recently delivered to the Administrative Agent.
“Board of Directors” means, with respect to any Person, (i) in the case of any company or corporation, the board of directors of such Person, (ii) in the case of any limited liability company, the board of managers of such Person, (iii) in the case of any limited partnership with a corporate general partner, the Board of Directors of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.
“Boeing Aircraft” means Aircraft of the following Types (from the list of Types shown on Table 1 of Appendix I hereto): any Type with a designation “737”, “747”, “757”, “767”, “777” or “MD”.
“Borrower” has the meaning set forth in the Preamble.
“Borrower Acquisition” has the meaning set forth in Section 9.31(a).
“Borrower Acquisition Documents” means, in respect of any Financed Aircraft, the documents executed in connection with a Borrower Acquisition thereof, including, without limitation, any related Aircraft Acquisition Document.
“Borrower Expenses” means, for purposes of the use of such term in the Flow of Funds, Aircraft Asset Expenses, Operating Expenses and Related Expenses; provided that Borrower Expenses as used in the Flow of Funds shall not include (a) Borrower Income Tax Expenses, (b) expenses that have been or are properly payable or reimbursable with funds withdrawn from the Supplemental Rent Account or the Security Deposit Account, or with the application of funds received from an insurance payment or other third party payment relating to casualty or condemnation (and in either such case such funds are actually available to the Borrower for such purposes and, for the avoidance of doubt, such expenses shall be Borrower Expenses to the extent such funds are not actually available to the Borrower for such purpose), or (c) Overhead Expenses (as defined in the Servicing Agreement).
“Borrower Group Member” means the Borrower or a Borrower Subsidiary.
“Borrower Income Tax Expenses” means, for purposes of the use of such term in the Flow of Funds, Taxes based upon, attributable to or otherwise determinable by relation to, income or net income of the Borrower or any Borrower Subsidiary.
“Borrower Subsidiary” means any direct or indirect Subsidiary of the Borrower, including, without limitation, any Aircraft Owning Entity, any Owner Participant, and any Applicable Intermediary.
“Borrower’s Portfolio” means, when used with respect to Aircraft, all Aircraft then Owned directly or indirectly by any Borrower Group Member or Owner Trust.
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“Borrowing Base” means either of the Individual Aircraft Borrowing Base or the Aggregate Aircraft Borrowing Base, as applicable.
“Borrowing Base Deficiency” means, as of any date of determination, the amount, if any, by which the Outstanding Principal Amount on such date exceeds the Aggregate Aircraft Borrowing Base on such date.
“Business Day” means any day (other than a Saturday or Sunday) and (i) in the case of any day on which the Eurodollar Rate is to be determined, any day on which commercial banks in New York, New York are not authorized or required to be closed and on which dealings are carried on in the London interbank eurodollar market, (ii) in the case of any day on which a payment is to be made hereunder, any day on which commercial banks in New York, New York, London, England or Frankfurt, Germany are not authorized or required to be closed, and (iii) in all other cases, any day on which commercial banks are not authorized or required to close in Xxx Xxxx, Xxx Xxxx, Xxxxxx, Xxxxxxx or Frankfurt, Germany.
“Cape Town Convention” means, collectively, the official English language texts of the Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, adopted on 16 November 2001, at a diplomatic conference in Cape Town, South Africa.
“Capital Markets Transaction” means an issuance, whether by public offering or private placement (whether under Rule 144A promulgated under the Securities Act of 1933 or otherwise), by any special purpose corporation, trust or other entity of any asset-backed securities secured by, or representing an interest in, any Aircraft Assets, and/or beneficial interests in any Borrower Subsidiaries, which Aircraft Assets, and/or beneficial interests in Borrower Subsidiaries, shall have been transferred to such special purpose corporation, trust or other entity by the Borrower and/or one or more Borrower Subsidiaries.
“Chattel Paper Original” means, when used in the provisions of Article VI in connection with delivery requirements and in related provisions in Article IX, that the applicable original Lease and any related lease amendment or supplement being delivered shall have been designated the sole original copy thereof by the applicable Lessor adding substantially the following language to the cover page of such Lease: “To the extent, if any, that this [Lease Agreement] or any [Lease Supplement] hereunder constitutes chattel paper (as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction), no security interest in this [Lease Agreement] or such [Lease Supplement] may be created through the transfer or possession of any counterpart other than the original executed counterpart, which shall be identified as the counterpart containing the receipt therefor executed by the Security Trustee under and as defined in the Security Trust Agreement dated as of April 5, 2007 between GAL, Deutsche Bank Trust Company Americas, as Security Trustee, and the various other parties identified on the signature pages thereof”.
“Closing Date” means April 5, 2007.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder. Section references to the Code are to the Code as in effect
9
at the date of this Agreement and any subsequent provisions of the Code amendatory thereof, supplemental thereto or substituted therefor.
“Collateral” has the meaning set forth in the Security Trust Agreement.
“Collection Account” means an account (number 58368) in the name of the Borrower and maintained with the Account Bank.
“Collections” means (i) any and all rent or lease payments, fees, and other income or payments in respect of any and all Aircraft due or collected under the Leases of such Aircraft excluding Supplemental Rent payments and (except as otherwise provided in clause (iii) below) Security Deposit payments made by the applicable Lessees, (ii) any and all proceeds from the sale, transfer or other disposition of any Aircraft, (iii) the portion of Security Deposits applied against rent or lease payments, (iv) any and all payments received by the Borrower as indemnification payments in respect of (A) any Aircraft Assets or (B) any Aircraft Owning Entity, Owner Participant or other Borrower Subsidiary, pursuant to an Aircraft Acquisition Document or otherwise, (v) any proceeds from any guarantees, letters of credit or similar arrangements related to any and all Leases with respect to any and all Aircraft supporting the obligations described in clauses (i) through (iv) above, (vi) payments received by the Borrower under any Hedge Agreement, and (vii) any proceeds from any insurance (other than liability insurance) with respect to any and all Aircraft; provided that Collections shall not include any Excluded Payments.
“Commitment Amount” means the Initial Commitment Amount until the satisfaction of the terms of Section 2.1(c) and thereafter the Maximum Commitment Amount.
“Commitment Fees” has the meaning set forth in Section 3.4.
“Commitment Increase Amount” means $750,000,000.
“Commitment Increase Option” means a one-time option exercisable by the Borrower in accordance with Section 2.1(c).
“Commitment Increase Option Fee” means the fee payable pursuant to the terms of the Fee Letter in connection with the exercise of the Commitment Increase Option.
“Commitment Letter” means the commitment letter dated November 22, 2006 from Citigroup Global Markets Inc. and Wachovia Capital Markets, LLC to GLS, as amended, supplemented or otherwise modified from time to time.
“Communications” has the meaning set forth in Section 16.3(b).
“Concentration Limit by Country” means, with respect to all Lessees based or domiciled in all Rated Countries, all Other-Rated Countries, all Special Consideration Countries or the United States, as of any date of determination, the percentage, if any, set forth opposite the correlative designation “Rated Country”, “Other-Rated Country”, “Special Consideration Country” or “United States” listed on Table 2 to Appendix I hereto under the heading
10
corresponding to the range of Outstanding Principal Amount as of such date of determination; provided that at any time the Outstanding Principal Amount is equal to $100,000,000 or less, as of such date of determination, the aggregate amount of Advances in respect of all Aircraft leased by all Lessees based or domiciled in all Other-Rated Countries or all Special Consideration Countries may not exceed the amount set forth opposite the correlative designation “Other-Rated Country” or “Special Consideration Country,” under the heading corresponding to the range of Outstanding Principal Amount as of such date of determination.
“Concentration Limit by Country Percentage” means with respect to all Lessees based or domiciled in all Rated Countries, all Other-Rated Countries, all Special Consideration Countries or the United States, as of any date of determination, the percentage represented by the quotient obtained by dividing:
(a) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio leased by all Lessees based or domiciled in a Rated Countries, Other-Rated Countries, all Special Consideration Countries or the United States, as applicable, as of such date of determination; by
(b) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio, as of such date of determination.
“Concentration Limit by Region” means, with respect to all Lessees based or domiciled in all countries in all Regions, as of any date of determination, the percentage, if any, set forth opposite the correlative regional designation “Developed Europe”, “Developed Asia”, “North America”, “Emerging Europe & Africa/Middle East”, “Latin America/Caribbean” or “Emerging Asia/Pacific” listed on Table 2 to Appendix I hereto under the heading corresponding to the range of Outstanding Principal Amount as of such date of determination.
“Concentration Limit by Region Percentage” means, with respect to all Lessees based or domiciled in all countries in all Regions, as of any date of determination, the percentage represented by the quotient obtained by dividing:
(a) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio leased by all Lessees based or domiciled in all countries in such applicable Region, as of such date of determination; by
(b) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio, as of such date of determination.
“Conduit Lender” means Variable Funding Capital Company LLC and each other commercial paper conduit administered by a Non-Conduit Lender, which commercial paper conduit, under an Assignment and Assumption, an amendment to, or an amendment and
11
restatement of this Agreement, as applicable, hereafter agrees to become a party hereto as a Conduit Lender hereunder.
“Contingent Liabilities” means, with respect to any Person, (a) any agreement, undertaking or arrangement by which such Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the indebtedness, obligation or any other liability of any other Person (other than by endorsements of instruments in the course of collection), or guarantees the payment of dividends or other distributions upon the shares of any other Person (the amount of obligation under any Contingent Liabilities shall be deemed to be the maximum outstanding amount of the debt, obligation or other liability guaranteed) and/or (b) liabilities that are contingent in nature which would be included as liabilities on the face of the balance sheet of such Person in accordance with GAAP.
“Contingent Policy” means (i) the insurance policy number AV0061406 provided for the benefit of the Borrower as in effect on the date of the first Advance under this Agreement is made, in the form provided and certified as a true and correct copy by the Borrower to the Administrative Agent for review prior to the Closing Date, with such amendments, addendums, endorsements, extensions or replacements as may have been entered into consistent with the provisions of Section 9.34, or (ii) one or more aviation hull, liability and/or other insurance policies in replacement of the foregoing as the Administrative Agent shall have reasonably approved.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” and “Controlled by” shall have meanings correlative thereto.
“Conversion Date” means the first Business Day that is on or after the third anniversary of the Closing Date.
“Core Lease Provisions” means the Core Lease Provisions set forth in Table 3 to Appendix I hereto.
“Credit Documents” means this Credit Agreement, the Commitment Letter, the Fee Letter, each Service Provider Agreement, the Security Trust Agreement and any Irish Pledge.
“Credit Parties” has the meaning set forth in Section 16.4.
“Current Market Value” means, with respect to an Aircraft, the amount, expressed in terms of currency, that may reasonably be expected for property exchanged between a willing buyer and a willing seller with equity to both, neither under any compulsion to buy or sell and both fully aware of all relevant, reasonably ascertainable facts. Current Market Value shall be the lower of the mean and median Current Market Values in three Appraisals most recently delivered to the Administrative Agent.
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“Default” means any event that, if it continues uncured, will, with lapse of time or the giving of notice or both, constitute an Event of Default.
“Default Rate” means, with respect to any Advance (or portion thereof) on any date of determination, a rate per annum equal to the Lender Rate that would otherwise be in effect with respect to such Advance as of such date of determination plus 2%.
“Determination Date” means, with respect to any Payment Date, the second Business Day immediately preceding such Payment Date.
“Developed Asia” means, as of any date of determination, any country set forth opposite the sub-heading “Asia” under the heading “Developed Markets” on Table 2 to Appendix I hereto, as of such date of determination.
“Developed Europe” means, as of any date of determination, any country set forth opposite the sub-heading “Europe” under the heading “Developed Markets” on Table 2 to Appendix I hereto, as of such date of determination.
“Disposition Event” has the meaning set forth in Section 4.2(b)(i).
“Dollar(s)” and the sign “$” mean lawful money of the United States of America.
“EBITDA” means, for each fiscal quarter of the Borrower, the consolidated net income of the Borrower and its Subsidiaries for such quarter, before any provision for income taxes, interest, depreciation and amortization.
“Effectively Bonded” means, when such term is used in connection with a judgment or order for the payment of money, that (A) (x) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering payment thereof and (y) such insurer, which shall be rated at least “A” by A.M. Best Company or any similar successor entity, has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order, or (B) cash collateral has been posted, in a manner reasonably satisfactory to the Administrative Agent, in an amount sufficient to discharge the applicable judgment or Lien.
“Eligible Aircraft” means any Aircraft that at the time of the Advance with respect to such Aircraft satisfies each of the following requirements:
(a) (i) such Aircraft is Owned by an Aircraft Owning Entity or a Section 9.7(a) Entity, (ii) such Ownership is free and clear of any Adverse Claim, (iii) the Equity Interest with respect to the Aircraft Owning Entity that owns such Aircraft is owned, directly or indirectly, by the Borrower free and clear of any Adverse Claim and (iv) if such Aircraft is Owned by an Aircraft Owning Entity, such Aircraft Owning Entity Owns no more than three Aircraft in the Borrower’s Portfolio;
(b) such Aircraft is of a Type set forth on Table 1 to Appendix I hereto;
13
(c) such Aircraft is the subject of an Eligible Lease;
(d) such Aircraft is covered by all of the insurance required to be provided by the Lessee thereof described on Annex 1 to the Servicing Agreement;
(e) neither the Aircraft Owning Entity, nor, if applicable, the Owner Participant, the Applicable Intermediary, the Owner Trustee or a Section 9.7(a) Entity, with respect to such Aircraft is organized under the laws of, domiciled in, located in, or such Aircraft is registered in any “prohibited jurisdiction” or used by a “prohibited person”, each as defined by the Office of Foreign Assets Control;
(f) the Security Trustee (on behalf of the Administrative Agent and the Lenders) has a duly perfected, first priority Lien on and security interest in (i) the Lease relating to such Aircraft and (ii) the Equity Interests of the Aircraft Owning Entity that Owns such Aircraft and, if applicable, the Owner Participant with respect to such Aircraft;
(g) the Administrative Agent has received (i) Appraisals with respect to such Aircraft from each of the Initial Appraisers to be dated no earlier than 60 days prior to the Advance Date for such Aircraft, and (ii) physical inspection reports (which include a summary of the overall condition of such Aircraft and a specifications report) completed either (x) no earlier than three (3) months prior to the Advance Date for such Aircraft or (y) no earlier than 18 months prior to the Advance Date for such Aircraft (or the date of the most recent heavy maintenance event for such Aircraft) and accompanied by a certification reasonably satisfactory to the Administrative Agent as to the absence of any material adverse change to the condition of such Aircraft since the date of such report;
(h) no Event of Loss has occurred with respect to such Aircraft;
(i) at the time of its addition to the Borrower’s Portfolio as a Financed Aircraft, its Aircraft Age does not exceed the Aircraft Age Limit for Aircraft of that Type;
(j) unless otherwise agreed to by the Majority Lenders, the remaining scheduled term of the Lease for such Aircraft satisfies the Minimum Remaining Term;
(k) unless otherwise agreed to by the Majority Lenders, the aircraft/engine type combination must have more than ten (10) operators as verified through the Airclaims CASE database or such other third party source mutually acceptable to the Borrower and the Majority Lenders;
(l) unless otherwise agreed to by the Majority Lenders, no more than 30% of the world fleet for this Type of Aircraft is operated by the top three (3) operators as verified through the Airclaims CASE database or such other third party source mutually acceptable to the Borrower and the Majority Lenders;
14
(m) the Servicer of the Aircraft must be GECAS or a replacement servicer acceptable to the Majority Lenders;
(n) neither an Aircraft Limitation Event nor a Lessee Limitation Event shall have occurred as a result of including such Aircraft in the Borrower’s Portfolio; and
(o) such Aircraft must not be registered in, or operated by a Lessee domiciled in or organized under the laws of any Prohibited Country.
In addition, if the provisions of clause (b)(2) of the definition of Approved Country List apply to a country, an Aircraft otherwise constituting an Eligible Aircraft under this definition that is registered in such country, or leased by a Lessee organized under the laws of or domiciled in such country, shall cease to be an Eligible Aircraft if the Borrower fails to maintain the Required Coverage Amount for such country as contemplated in Section 9.34(d) and such failure is not remedied within 30 days, unless the Administrative Agent shall have otherwise consented in its sole discretion.
“Eligible Carrier” means any air carrier:
(i) that at the time of the Advance with respect to an Aircraft or at the time of entering into a Lease with such air carrier as Lessee (x) is duly licensed to carry passengers or cargo (as such may be contemplated under the Lease related to the applicable Aircraft) under all Requirements of Law, whether foreign or domestic, and (y) is organized under the laws of or domiciled in a country or jurisdiction that is on the Approved Country List, and
(ii) with respect to which at the time of such Advance or at the time of entering into such Lease no continuing Event of Bankruptcy shall be in effect unless (a) in the case of a Lease to a carrier domiciled in or organized under the laws of the United States, each Aircraft Owning Entity or Section 9.7(a) Entity leasing any Aircraft to such air carrier is entitled, pursuant to an order of the relevant bankruptcy court or under the relevant bankruptcy or insolvency law, to enforce such Aircraft Owning Entity’s or Section 9.7(a) Entity’s, as applicable, rights against such air carrier, including, without limitation, the right to require the performance of such air carrier’s obligations under such Lease or the return of such Aircraft during such air carrier’s bankruptcy or insolvency, and (b) in the case of a Lease to a carrier domiciled in or organized under the laws of a jurisdiction other than the United States, either (x) the Servicer has received, and found satisfactory, legal advice from Local Aircraft Counsel to the effect that the country in which such air carrier is organized has laws with respect to bankruptcy, insolvency, protection of creditors, administration of receivership or reorganization applicable to such air carrier that provide for the entitlement or ability of such Aircraft Owning Entity (or any relevant Applicable Intermediary) or a Section 9.7(a) Entity, to recover possession of such Aircraft in accordance with the terms of such Lease irrespective of such Event of Bankruptcy, or (y) the Administrative Agent has otherwise approved the entering into such Lease.
15
“Eligible Counterparty” means, in respect of any Hedge Agreement with the Borrower, (a) WBNA, (b) CNA, or (c) if WBNA or CNA chooses not to be the Eligible Counterparty with respect to a particular Hedge Agreement, a counterparty for such Hedge Agreement the unsecured long-term debt obligations of which at the time of execution and delivery thereof are rated at least A+ by Standard & Poor’s and at least A1 by Moody’s.
“Eligible Hedge Agreement” means an ISDA interest rate swap or cap agreement, collar or other interest rate hedging instrument between the Borrower and the Eligible Counterparty named therein, including any schedules and confirmations prepared and delivered in connection therewith, pursuant to which the Borrower will receive payments from, or make payments to, the Eligible Counterparty as provided therein and is otherwise consistent with the requirements of Section 9.33 hereof.
“Eligible Investments” means book-entry securities entered on the books of the registrar of such securities and held in the name or on behalf of the Account Bank, negotiable instruments, or securities represented by instruments in bearer or registered form (registered in the name of the Account Bank or its nominee) which evidence:
(a) readily marketable direct obligations of the Government of the United States or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the United States;
(b) insured demand deposits, time deposits or certificates of deposit of any commercial bank that (i) is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated, at the time of the investment or contractual commitment to invest therein, as described in clause (d), (iii) is organized under the laws of the United States or any state thereof and (iv) has combined capital and surplus of at least $500,000,000;
(c) money market deposit accounts, time deposits or savings deposits, in each case as defined by Regulation D of the Board of Governors of the Federal Reserve System and issued or offered by any domestic office of any commercial bank organized under the laws of the United States of America or any state thereof, which institution has a combined capital and surplus and undivided profits of not less than $250,000,000;
(d) repurchase obligations with a term of not more than ten days for underlying securities of the types described in clauses (a) and (b) above entered into with any bank of the type described in clause (b) above;
(e) commercial paper having, at the time of the investment or contractual commitment to invest therein, a rating of at least A-1/P-1 from Standard & Poor’s and Moody’s, respectively;
16
(f) investments in no-load money market funds having a rating from each of Standard & Poor’s and Moody’s in its highest investment category (including such funds for which the Account Bank or any of its affiliates is investment manager or advisor); or
(g) other securities or instruments approved in writing by the Administrative Agent.
“Eligible Lease” means a fully-executed Lease of an Eligible Aircraft between an Aircraft Owning Entity that Owns such Aircraft, an Applicable Intermediary or a Section 9.7(a) Entity (as Lessor) and an Eligible Carrier (as Lessee) which Lease contains terms not less favorable to the Lessor than the Core Lease Provisions (unless the Administrative Agent otherwise reasonably consents in writing); provided, that “Eligible Lease” also means, individually and collectively, (X) a fully-executed lease of any Eligible Aircraft between an Aircraft Owning Entity or a Section 9.7(a) Entity (as lessor) and an Applicable Intermediary (as lessee) (whether or not such lease includes the Core Lease Provisions and whether or not the Lessee thereunder is an Eligible Carrier), and (Y) a fully-executed sublease of such Aircraft between such Applicable Intermediary (as sublessor) and an Eligible Carrier (as sublessee) which sublease contains terms not less favorable to the Lessor than the Core Lease Provisions.
In addition, if any Lessee of an Aircraft under a Lease otherwise constituting an Eligible Lease shall be in violation of any Anti-Terrorism Laws, including, without limitation, the Executive Order and the Patriot Act, such Lease shall cease to be an Eligible Lease due to such status of the Lessee until such violation is cured or the relevant Lease is otherwise terminated.
“Eligible Service Provider” means (a) with regard to the role of Servicer, GECAS for so long as GECAS is the Servicer under the Servicing Agreement and, thereafter, a Person which, at the time of its appointment as a Servicer, (i) is servicing a portfolio of aircraft leases, (ii) is legally qualified and has the capacity to service the Aircraft and the Leases, (iii) has demonstrated the ability professionally and competently to service a portfolio of aircraft leases similar to the Leases with reasonable skill and care, and (iv) is otherwise satisfactory to the Administrative Agent, and (b) with regard to the role of Manager, GLS for so long as GLS is the Manager under the Management Agreement and, thereafter, a Person which, at the time of its appointment as a Manager (i) has demonstrated the ability professionally and competently to act as Manager under the Management Agreement, and (ii) is otherwise satisfactory to the Administrative Agent.
“Embargoed Person” has the meaning set forth in Section 9.36.
“Emerging Asia/Pacific” means, as of any date of determination, any country set forth opposite the sub-heading “Asia/Pacific” under the heading “Emerging Markets” on Table 2 to Appendix I hereto, as of such date of determination.
“Emerging Europe & Africa/Middle East” means, as of any date of determination, any country set forth opposite the sub-headings “Europe” and “Africa/Middle East”, in each case, under the heading “Emerging Markets” on Table 2 to Appendix I hereto, as of such date of determination.
17
“Employee Benefit Plan” means, with respect to any Person, any employee benefit plan within the meaning of Section 3(3) of ERISA which (i) is maintained for employees of a Person or any of its ERISA Affiliates or is assumed by such Person or any of its ERISA Affiliates in connection with any acquisition or (ii) has at any time been maintained for the employees of such Person or any current or former ERISA Affiliate.
“Environmental Laws” means any federal, state, local or foreign statute, law, ordinance, code, rule, regulation, order, decree, permit or license regulating, relating to, or imposing liability or standards of conduct concerning, any environmental matters or conditions, environmental protection or conservation, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended; the Superfund Amendments and Reauthorization Act of 1986, as amended; the Resource Conservation and Recovery Act, as amended; the Toxic Substances Control Act, as amended; the Clean Air Act, as amended; the Clean Water Act, as amended; together with all regulations promulgated thereunder, and any other “Superfund” or “Superlien” law.
“Equity Interest” means, with respect to any Person, all of the issued and outstanding shares, interests or other equivalents of capital stock of such Person, whether voting or non-voting and whether common or preferred, all partnership, joint venture, limited liability company, beneficial interests in a trust (statutory or common law) or other equity interests in or other indicia of ownership of such Person, all options, warrants and other rights to acquire, and all securities convertible into, any of the foregoing, all rights to receive interest, income, dividends, distributions, returns of capital and other amounts of such Person (whether in cash, securities, property, or a combination thereof), and all additional stock, warrants, options, securities, interests and other property of such Person, from time to time paid or payable or distributed or distributable in respect of any of the foregoing, including all rights to receive amounts due and to become due under or in respect of any Investment Agreement or upon the termination thereof, all rights of access to the books and records of any such Person, and all other rights, powers, privileges, interests, claims and other property in any manner arising out of or relating to any of the foregoing, of whatever kind or character (including any tangible or intangible property or interests therein), and whether provided by contract or granted or available under applicable law in connection therewith, including the right to vote and to manage and administer the business of any such Person pursuant to any applicable Investment Agreement, together with all certificates, instruments and entries upon the books of financial intermediaries at any time evidencing any of the foregoing, in each case whether now owned or existing or hereafter acquired or arising.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate”, as applied to any Person, means any other Person or trade or business which is a member of a group which is under common control with such Person, who together with such Person, is treated as a single employer within the meaning of Section 414(b) and (c) of the Internal Revenue Code.
“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
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“Eurodollar Rate” means, with respect to any Advance and for any Interest Period, the rate per annum determined by the Administrative Agent by reference to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars appearing on the display designated as “Page 3750” on the Telerate Service or, following replacement of such page, by Reuters Monitor Money Rates Service, “Page LIBOR01” on such Service (or any successor to or substitute for such service, as determined by the Administrative Agent from time to time for the purposes of providing quotations of interest rates applicable to deposits in Dollars in the London interbank market) at approximately 11:00 a.m., London time, on the second Business Day before (and for value on) the first day of the Interest Period related to such Advance as the rate for deposits with a maturity equal to such Interest Period; provided, that if such rate is not available at such time for any reason, then the “Eurodollar Rate” shall be the rate at which deposits in Dollars in a principal amount of not less than $1,000,000 and for a maturity comparable to such Interest Period are offered by the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, on the second Business Day before (and for value on) the first day of such Interest Period.
“Eurodollar Rate Advances” has the meaning set forth in Section 5.1.
“Eurodollar Rate Reserve Percentage” of any Lender for any Interest Period in respect of which interest is computed by reference to the Eurodollar Rate means the reserve percentage, if any, applicable two (2) Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) (or if more than one such percentage shall be applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for such Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the yield rate on Eurocurrency Liabilities is determined) having a term equal to such Interest Period.
“Event of Bankruptcy” shall be deemed to have occurred with respect to a Person if either:
(a) a case or other proceeding shall be commenced, without the application or consent of such Person, in any court, seeking the liquidation, examination, reorganization, debt arrangement, dissolution, winding up, or composition or readjustment of all or substantially all of the debts of such Person, the appointment of a trustee, receiver, examiner, conservator, custodian, liquidator, assignee, sequestrator or the like for such Person or all or substantially all of its assets, or any similar action with respect to such Person under any law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of sixty (60) consecutive days; or an order for relief in respect of such Person shall be entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other proceeding under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or
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other similar law now or hereafter in effect, or shall consent to the appointment of or taking possession by a receiver, examiner, conservator, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) for such Person or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail to, or admit in writing its inability to, pay its debts generally as they become due, or, if a corporation or other entity, its Board of Directors shall vote to implement any of the foregoing.
“Event of Default” has the meaning set forth in Section 12.1.
“Event of Loss” means with respect to any Aircraft (a) if the same is subject to a Lease, a “Total Loss,” “Casualty Occurrence” or “Event of Loss” or the like (however so defined in the applicable Lease); or (b) if the same is not subject to a Lease, (i) its actual, constructive, compromised, arranged or agreed total loss, (ii) its destruction, damage beyond repair or being rendered permanently unfit for normal use for any reason whatsoever, (iii) requisition for title, confiscation, restraint, detention, forfeiture or any compulsory acquisition or seizure or requisition for hire (other than a requisition for hire for a consecutive period not exceeding 180 days) by or under the order of any government (whether civil, military or de facto) or public or local authority or (iv) its hijacking, theft or disappearance, resulting in loss of possession by the owner or operator thereof for a period of 30 consecutive days or longer. An Event of Loss with respect to any Aircraft shall be deemed to occur on the date on which such Event of Loss is deemed pursuant to the relevant Lease to have occurred or, if such Lease does not so deem or if the relevant Aircraft is not subject to a Lease, (A) in the case of an actual total loss or destruction, damage beyond repair or being rendered permanently unfit, the date on which such loss, destruction, damage or rendering occurs (or, if the date of loss or destruction is not known, the date on which the relevant Aircraft was last heard of); (B) in the case of a constructive, compromised, arranged or agreed total loss, the earlier of (1) the date 30 days after the date on which notice claiming such total loss is issued to the insurers or brokers and (2) the date on which such loss is agreed or compromised by the insurers; (C) in the case of requisition of title, confiscation, restraint, detention, forfeiture, compulsory acquisition or seizure, the date on which the same takes effect; (D) in the case of a requisition for hire, the expiration of a period of 180 days from the date on which such requisition commenced (or, if earlier, the date upon which insurers make payment on the basis of such requisition); or (E) in the case of clause (iv) above, the final day of the period of 30 consecutive days referred to therein.
“Excluded Payments” has the meaning assigned to such term in the Security Trust Agreement.
“Executive Order” has the meaning set forth in Section 8.19.
“FAA” means the United States Federal Aviation Administration.
“FAA Act” means 49 U.S.C. Subtitle VII, §§ 40101 et seq., as amended from time to time, any regulations promulgated thereunder and any successor provision.
“FAA Counsel” means a law firm having nationally recognized expertise in FAA matters that is reasonably satisfactory to the Administrative Agent, it being understood that as of the
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Closing Date, the firms of Xxxxx Xxxxxxxxx; Daugherty, Fowler, Peregrin, Xxxxxx & Xxxxxx; Xxxxx and Xxxxxxx; and McAfee & Xxxx, are each satisfactory to the Administrative Agent.
“Facility Termination Date” means the earliest to occur of (i) the Stated Maturity Date, (ii) the date of the declaration, or automatic occurrence, of the Facility Termination Date pursuant to Section 12.2, and (iii) the date on which both of the following conditions exist: (A) the aggregate outstanding Advances and all other Obligations have been indefeasibly paid in full, and (B) the commitment of each Non-Conduit Lender to make any Advances hereunder shall have expired or been terminated.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Fee Letter” means the fee letter dated November 22, 2006 from Citigroup Global Markets Inc. and Wachovia Capital Markets, LLC to GLS.
“Fees” means, (i) the Commitment Fees and (ii) all fees and other amounts payable by the Borrower to the Administrative Agent under the Fee Letter.
“Financed Aircraft” means an Aircraft with respect to which an Advance is made and which is listed as a “Financed Aircraft” on Schedule I hereto, as such schedule may be amended, restated or otherwise modified from time to time pursuant to the terms hereof.
“Fiscal Year” means a fiscal year for financial accounting purposes commencing on January 1 and ending on December 31.
“Flow of Funds” means the cash flow allocation and distribution provisions set forth at Section 7.1(e).
“Freighter Aircraft” means any one of the Types of Aircraft designated as “B737-300F”, “B747-400F”, “B757-200F”, “B767-200F”, “B767-300F”, or “MD-11F” on Table 1 to Appendix I hereto or any other Aircraft listed on Table 1 of Appendix I, which is designated by the Borrower as a Freighter Aircraft.
“Freighter Conversion” means the conversion of an Aircraft constituting a passenger Aircraft to one of the Types of Freighter Aircraft; provided that no such conversion may be made to an Aircraft on or after the 20-year anniversary of the date of manufacture of such Aircraft. For avoidance of doubt, an Aircraft that has been originally manufactured as a Freighter Aircraft is not considered to have been subjected to a Freighter Conversion.
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“Freighter Conversion Effective Date” means the date by which each of the following has occurred: (a) the completion of such Freighter Conversion, (b) the delivery of appropriate completion and/or airworthiness certificates associated therewith to the Administrative Agent, in form and substance reasonably acceptable to it, and (c) the placing of such Aircraft back into service following such Freighter Conversion.
“Future Lease” means, with respect to each Aircraft, any Eligible Lease as may be in effect at any time after the Closing Date between a Borrower Group Member (as Lessor) and an Eligible Carrier (as Lessee).
“GAAP” means generally accepted accounting principles in the United States of America in effect from time to time.
“GECAS” means GE Commercial Aviation Services Limited, a limited company incorporated and existing under the laws of Ireland.
“Genesis Group” means GLS and its consolidated Subsidiaries.
“GLS” has the meaning set forth in the Preamble.
“Government Entity” means: (a) any national government, political sub-division thereof, or local jurisdiction therein; (b) any instrumentality, board, commission, department, division, organ, court, exchange control authority, or agency of any thereof, however constituted; or (c) any association, organization, or institution of which any of the above is a member or to whose jurisdiction any thereof is subject or in whose activities any thereof is a participant.
“Hazardous Material” means and includes any pollutant, contaminant, or hazardous, toxic or dangerous waste, substance or material (including without limitation petroleum products, asbestos-containing materials and lead), the generation, handling, storage, transportation, disposal, treatment, release, discharge or emission of which is subject to any Environmental Law.
“Hedge Agreement” means one of the hedge agreements entered into by the Borrower pursuant to the terms of Section 9.33 hereof.
“Hedging Policy” has the meaning set forth in Section 9.33(a).
“ICR Date” means the earlier of the six-month anniversary of the Closing Date and the date the Outstanding Principal Amount first equals or exceeds $100,000,000.
“Indebtedness” of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative to the face amount of all letters of credit, whether or not drawn, banker’s acceptances issued for the account of
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such Person or other similar instruments (including reimbursement obligations with respect thereto);
(c) all obligations of such Person as lessee under leases (or other agreements conveying the right to the use) of any property (whether real, personal or mixed) that have been or should be in accordance with GAAP recorded as capitalized lease liabilities;
(d) all obligations of such Person to pay the deferred and unpaid purchase price of property, which purchase price is due more than six months after the date of purchasing such property to the extent payment deferrals for such property were arranged primarily as a method of raising finance or financing the acquisition of such property;
(e) all obligations secured by an Adverse Claim upon property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such obligations; and
(f) all Contingent Liabilities of such Person in respect of any of the foregoing.
“Indemnified Amounts” has the meaning set forth in Section 15.1.
“Indemnified Party” has the meaning set forth in Section 15.1.
“Independent Director” means an individual that is not at the time of appointment as a director on the Board of Directors of the Borrower or any of its Subsidiaries or at any time when such individual is serving as a director of such Person and has not been for the five years prior to such appointment (i) an employee, officer, director, consultant, customer or supplier, or the beneficial holder (directly or indirectly) of more than 5% of any ownership interest, of the Servicer, the Manager or any Affiliate of any such Person, or (ii) a spouse of, or Person related to (but not more remote than first cousins), a Person referred to at (i) above.
“Individual Aircraft Borrowing Base” means, for any Aircraft as of any date of determination, the product of (i) the Advance Rate (expressed as a decimal) for such Aircraft and (ii) the Initial Agreed Value or the Reappraised Agreed Value, whichever is more recent, of such Aircraft as of such date.
“Initial Agreed Value” means, with respect to an Aircraft, the lowest of: (a) the documented purchase price of such Aircraft (excluding any sales fees, commissions or expenses), (b) the Current Market Value of such Aircraft as of the date of the initial Appraisal, and (c) the Base Value of such Aircraft as of the date of the initial Appraisal.
“Initial Appraisers” means each of Airclaims Limited, Aircraft Information Services, Inc. and Xxxxxx Xxxxx & Xxxxx, Inc.
“Initial Commitment Amount” means $250,000,000.
“Interest Expense” means, for each fiscal quarter of the Borrower, interest and Commitment Fees accrued during such quarter.
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“Interest Period” means, as to any Advance (or portion thereof), the period commencing on the date of such Advance and ending on the next succeeding Payment Date, and thereafter the period commencing on the last day of the immediately preceding Interest Period and ending on the Payment Date falling in the first or third calendar month thereafter, as notified by the Borrower to the Administrative Agent in writing pursuant to Section 3.6; provided that:
(i) if any Interest Period for any Advance commencing before the Facility Termination Date would otherwise end on a date after the Facility Termination Date, such Interest Period shall be deemed to and shall end on the Facility Termination Date; and
(ii) the duration of each such Interest Period that commences on or after the Facility Termination Date, if any, shall be of such duration as shall be selected by the Administrative Agent.
“International Registry” means the international registry located in Dublin, Ireland, established pursuant to the Cape Town Convention.
“International Registry Procedures” means the official English language text of the Procedures for the International Registry issued by the supervisory authority thereof pursuant to the Cape Town Convention.
“Investment Agreement” means, with respect to any Person, any Operating Document or Organizational Document, joint venture agreement, limited liability company operating agreement, stockholders agreement or other agreement creating, governing or evidencing any Equity Interests and to which such Person is now or hereafter becomes a party, as any such agreement may be amended, modified, supplemented, restated or replaced from time to time pursuant to the terms thereof.
“Ireland” means the Republic of Ireland.
“Irish Bank” means any bank authorized under the laws of Ireland to maintain bank accounts with customers in Ireland.
“Irish Pledge” means each Equitable Charge on Shares granted or to be granted by the applicable Borrower Group Member in favor of the Security Trustee relating to each of its Irish incorporated Subsidiaries.
“Irish VAT Refund Account” means an account in the name of the Borrower and maintained with an Irish Bank.
“Latin America/Caribbean” means, as of any date of determination, any country set forth opposite the sub-heading “Latin America/Caribbean” under the heading “Emerging Markets” on Table 2 to Appendix I hereto, as of such date of determination.
“Lease” means a lease agreement, which is listed on Schedule III hereto, as such schedule is supplemented (or, if not so supplemented, required to be supplemented) pursuant to
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the terms hereof from time to time, between an Aircraft Owning Entity, an Applicable Intermediary or a Section 9.7(a) Entity, as lessor of an Aircraft, and an airline, air freight company or similar entity, as lessee of such Aircraft, in each case together with all schedules, supplements and amendments thereto, and each other document, agreement and instrument related thereto.
“Leasing Company Practice” means the customary commercial practice of any leading international aircraft operating lessor, including the Servicer.
“Lender Rate” means with respect to any Advance and for any Interest Period, but subject to Section 5.1, the interest rate per annum equal to the Eurodollar Rate applicable to such Interest Period plus the Applicable Margin.
“Lenders” has the meaning set forth in the Preamble.
“Lessee” means the lessee under the applicable Lease.
“Lessee Concentration Limit” means, with respect to all Single Lessees, all Special Consideration Country Lessees or the Three Largest Lessees, as of any date of determination, the percentage, if any, set forth opposite the correlative designation “Single Lessee”, “Special Consideration Country Lessee” or “Three Largest Lessees” listed on Table 2 to Appendix I hereto under the heading corresponding to the range of Outstanding Principal Amount as of such date of determination; provided that at any time the Outstanding Principal Amount is equal to $100,000,000 or less, as of such date of determination, the aggregate amount of Advances in respect of all Aircraft leased by all Single Lessees or all Special Consideration Country Lessees may not exceed the amount set forth opposite the correlative designation “Single Lessee” or “Special Consideration Country Lessee,” under the heading corresponding to the range of Outstanding Principal Amount as of such date of determination.
“Lessee Concentration Percentage” means, with respect to all Single Lessees, all Special Consideration Country Lessees or the Three Largest Lessees, as of any date of determination, the percentage represented by the quotient obtained by dividing:
(a) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio leased by all Single Lessees, all Special Consideration Country Lessees or the Three Largest Lessees, as applicable, as of such date of determination; by
(b) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio, as of such date of determination.
“Lessee Limitation Event” means that at any time immediately after giving effect to any of the following:
(a) an acquisition into the Borrower’s Portfolio of an Aircraft subject to a Lease,
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(b) the occurrence of a Disposition Event and consequent removal from the Borrower’s Portfolio of an Aircraft subject to a Lease, or
(c) the leasing of an Aircraft within the Borrower’s Portfolio,
any of the following is true: (i) any Lessee Concentration Percentage will exceed the related Lessee Concentration Limit, (ii) any Concentration Limit by Region Percentage will exceed the related Concentration Limit by Region or (iii) any Concentration Limit by Country Percentage will exceed the related Concentration Limit by Country; provided that, notwithstanding clause (c) above, the Borrower or any Borrower Subsidiary shall be entitled to renew or extend any Lease to the existing Lessee thereunder irrespective of the effect of such renewal or extension on any of the Lessee Concentration Limit, the Concentration Limit by Region or the Concentration Limit by Country (and, if any of the Lessee Concentration Limit, the Concentration Limit by Region or the Concentration Limit by Country absent such exception would be exceeded as a result of any such renewal or extension, the Borrower shall give written notification thereof to the Administrative Agent).
“Lessor” means the lessor under the applicable Lease.
“Lien” means any security interest, lien, mortgage, charge, pledge, preference, equity or encumbrance of any kind, including tax liens, mechanics’ liens, conditional sale and any liens that attach by operation of law.
“Local Aircraft Counsel” means any law firm having expertise in Applicable Foreign Aviation Law matters that is reasonably satisfactory to the Administrative Agent.
“LTV Maintenance Test” means that (x) the ratio of the Outstanding Principal Amount to the Initial Agreed Values or Reappraised Agreed Values, whichever is more recent, of all Aircraft immediately after a Disposition Event or an Event of Loss is not greater than (y) the ratio of the Outstanding Principal Amount to the Initial Agreed Values or Reappraised Agreed Values, whichever is more recent, of all Aircraft prior to such Disposition Event or Event of Loss.
“Majority Lenders” means, at any time, Lenders which have advanced more than 50% of the Outstanding Principal Amount or, if no Advances are outstanding, which are obligated to advance more than 50% of the Commitment Amount.
“Manager” has the meaning set forth in the Preamble.
“Manager Default” means the occurrence of any of the events described as a Replacement Event, as defined in the Management Agreement.
“Management Agreement” means the Management Agreement, dated as of the date hereof, among the Borrower, the Security Trustee and the Manager, substantially in the form of Exhibit E hereto, as the same may be amended, modified and/or restated from time to time pursuant to the terms hereof.
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“Material Adverse Effect” means a material adverse effect on (i) the business, financial condition or operation of the Borrower and its Subsidiaries, taken as a whole, (ii) the Borrower’s ability to perform its obligations under this Agreement or any other Transaction Document, or (iii) the validity or enforceability of this Agreement or any of the other Credit Documents.
“Maximum Commitment Amount” means $1,000,000,000.
“Minimum Remaining Term” means, with respect to the remaining scheduled term of the Lease of any prospective Financed Aircraft, two (2) years.
“Modification Payment” has the meaning set forth in Section 9.23.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Monthly Report” means the monthly report in substantially the form of Exhibit C hereto prepared by the Manager.
“Multiemployer Plan” means, as to any Person, a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which such Person or any ERISA Affiliate is making, or is accruing an obligation to make, contributions or has made, or been obligated to make, contributions within the preceding six (6) Fiscal Years.
“New Accord” has the meaning set forth in Section 5.2(b).
“New Rules” has the meaning set forth in Section 5.2(b).
“Non-Conduit Lender” means any Lender other than a Conduit Lender.
“Non-Conduit Lender Commitment” means the obligation of any Non-Conduit Lender to make Advances to the Borrower up to the maximum aggregate amount set forth opposite the name of such Non-Conduit Lender in Schedule IV or, with respect to a Non-Conduit Lender that has entered into an Assignment and Assumption, the maximum aggregate amount set forth therein as such Non-Conduit Lender’s Non-Conduit Lender Commitment, in each case as such amount may be reduced or increased in accordance with the terms of this Agreement.
“Non-Excluded Taxes” has the meaning set forth in Section 5.3(a).
“Non-Trustee Account” means any account in the name of the Borrower and maintained with a Non-Trustee Account Bank.
“Non-Trustee Account Bank” means a bank (other than the Account Bank) with which a Non-Trustee Account is maintained.
“North America” means Canada, Greenland and the United States.
“Notice and Acknowledgment” means a Notice and Acknowledgment in form and substance reasonably acceptable to the Administrative Agent; provided that a notice and acknowledgment substantially in the form attached as Exhibit B to the Security Trust Agreement
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(but with changes from such form as determined by the Servicer in its sole discretion to address the comments or requests made by, and negotiations of the Servicer with, the Lessee as to the Lessee’s representations and coverage of indemnitees therein, but in all cases to include a Lessee representation in the form of clause (a) of paragraph 8 of such Exhibit B) shall be deemed acceptable to the Administrative Agent.
“Obligations” means all obligations of the Borrower, the Manager, or any Borrower Subsidiary to the Lenders, the Administrative Agent, the Eligible Counterparties, the Servicer and the Security Trustee arising under or in connection with this Agreement, and each other Transaction Document to which the Borrower, the Manager, or any Borrower Subsidiary is a party.
“Obligor” means a Person obligated to make payments with respect to a Lease.
“OFAC” has the meaning set forth in Section 8.19.
“Operating Documents” means with respect to any corporation, limited liability company, partnership, limited partnership, limited liability partnership, trust or other legally authorized incorporated or unincorporated entity, the bylaws, memorandum and articles of association, operating agreement, partnership agreement, limited partnership agreement, trust agreement or other applicable documents relating to the operation, governance or management of such entity.
“Operating Expenses” means amounts due by any Borrower Group Member with respect to (i) owner trustee fees and expenses, (ii) Taxes (other than Borrower Income Tax Expenses), and (iii) all other operating and administrative expenses payable or reimbursable by the Borrower.
“Opinion of Counsel” means a written opinion of independent counsel reasonably acceptable to the Administrative Agent, which opinion, if such opinion or a copy thereof is required by the provisions of this Agreement to be delivered to the Administrative Agent, is reasonably acceptable in form and substance to the Administrative Agent.
“Organizational Documents” means with respect to any corporation, company, limited liability company, partnership, limited partnership, limited liability partnership, trust or other legally authorized incorporated or unincorporated entity, the articles of incorporation, certificate of incorporation, memorandum of association, articles of organization, certificate of limited partnership, certificate of trust or other applicable organizational or charter documents relating to the creation of such entity.
“Other Manufactured Aircraft” means Aircraft of the following Types (from the list of Types shown on Table 1 of Appendix I hereto): any Type with a designation “ERJ-170”.
“Other-Rated Country” means, as of any date of determination, any country (other than any Special Consideration Country) with a credit rating below BBB by Standard & Poor’s or below Baa2 by Moody’s, as of such date of determination.
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“Out-of-Production Aircraft” means Aircraft of the Types shown on Table 1 of Appendix I hereto (other than Freighter Aircraft) that are no longer in production.
“Outstanding Principal Amount” means, as of any date of determination, the sum of the outstanding principal amount of all Advances on such date.
“Own” means, with respect to an Aircraft, to hold legal, direct and sole ownership of such Aircraft. The terms “Ownership” and “Owned by” have a correlative meaning.
“Owner Participant” means a Borrower Subsidiary which is the sole beneficial owner of one or more Aircraft by means of owning, pursuant to an Owner Trust Agreement, all of the beneficial interest in the Owner Trust which Owns such Aircraft.
“Owner Trust” means an owner trust, reasonably satisfactory to the Administrative Agent, (i) that is the legal owner of an Aircraft and (ii) all of the beneficial interest in which is owned by an Owner Participant pursuant to an Owner Trust Agreement.
“Owner Trust Agreement” means a trust agreement, reasonably satisfactory to the Administrative Agent, between an Owner Participant and an Owner Trustee.
“Owner Trustee” means a Person, not in its individual capacity, but solely in its capacity as the owner trustee of an Owner Trust under an Owner Trust Agreement, which such Person shall be (i) a bank or trust company having a combined capital and surplus of at least One Hundred Million Dollars ($100,000,000) and that is reasonably satisfactory to the Administrative Agent, or (ii) any other Person that is reasonably satisfactory to the Administrative Agent, it being understood that as of the Closing Date any of Xxxxx Fargo Bank, National Association, Xxxxx Fargo Bank Northwest, National Association, Wilmington Trust Company, and U.S. Bank, National Association each are satisfactory to the Administrative Agent.
“Patriot Act” has the meaning set forth in Section 8.19.
“Payment Date” means the 19th day of each calendar month commencing April 19, 2007, or if such 19th day is not a Business Day, the next succeeding Business Day.
“Pension Plan” means, with respect to any Person, any employee pension benefit plan within the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (i) is maintained for employees of such Person or any of its ERISA Affiliates or is assumed by such Person or any of its ERISA Affiliates in connection with any acquisition or (ii) has at any time been maintained for the employees of such Person or any current or former ERISA Affiliate.
“Periodic Appraisal” means the Appraisal delivered pursuant to Section 9.18(a)(xi).
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“Permitted Investments” means:
(i) the issuance, sale, delivery, transfer or pledge of ownership interest in any Borrower Group Member to or for the benefit of any other Borrower Group Member;
(ii) subject to the overall limitation thereon in subclause (y)(1) of Section 9.8, issuances or sales of ownership interests of foreign Borrower Subsidiaries to nationals in the jurisdiction of incorporation or organization of such Borrower Subsidiary, as the case may be, to the extent required by applicable law or necessary in the determination of the Board of Directors of the Borrower to avoid adverse tax consequences or to facilitate the registration or leasing of any Aircraft; and
(iii) the issuance, sale, delivery, transfer or pledge of any ownership interests of a Borrower Subsidiary in order to effect the sale of all Aircraft owned by such Borrower Subsidiary in compliance with Section 9.8 hereof.
“Permitted Lien” means:
(i) any Lien for Taxes if (a) such Taxes shall not be due and payable, or (b) the obligation to pay such Taxes is being contested in good faith by appropriate proceedings and adequate reserves have been made therefor;
(ii) in respect of any Aircraft, any repairer’s, carrier’s or hangar keeper’s, warehousemen’s, mechanic’s or materialmen’s Lien or employee and other like Liens arising in the ordinary course of business by operation of law or any engine or parts-pooling arrangements or other similar Lien;
(iii) any Lien for any air navigation authority, airport tending, gate or handling (or similar) charges or levies arising in the ordinary course of business;
(iv) any Lien created in favor of a Secured Party pursuant to the Transaction Documents;
(v) any permitted lien or encumbrance, as defined under any Eligible Lease, on any Aircraft (other than Liens or encumbrances created by the relevant Lessor);
(vi) the respective rights of the Aircraft Owning Entity, any Applicable Intermediary, any Section 9.7(a) Entity and the lessee under any applicable Lease (including restrictions on the Lessor’ right to grant a security interest in the applicable Lease or Aircraft and to transfer the applicable Lease or Aircraft) (and the rights of any sublessee under any permitted sublease relating to such Lease) and the documents related thereto;
(vii) Liens arising out of any judgment or amount with respect to which an appeal or proceeding for review is being prosecuted in good faith by appropriate proceedings diligently conducted and with respect to which a stay of execution is in effect, and such stay is Effectively Bonded;
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(viii) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation;
(ix) deposits and other Liens to secure the performance of bids, trade contracts (other than for borrowed money), leases, letters of credit, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature in the ordinary course of business, including with respect to the repossession of any Aircraft or other enforcement action in respect of a Lease;
(x) Liens in connection with any transfer of title to or Lease of an Aircraft (A) to or in favor of a trust or entity that is not a Borrower Subsidiary for the purposes of registering the Aircraft under the laws of an applicable jurisdiction, or for tax or other regulatory purposes, where the Borrower or a Borrower Subsidiary retains the beneficial or economic ownership of the Aircraft or (B) from such trust or entity to the Borrower or a Borrower Subsidiary (subject in the case of subclause (A) of this subclause (xi) to the limitations set forth in subclause (y) of Section 9.8 below);
(xi) any Lien created by or through or arising from debt or liabilities or any act or omission of any Lessee in each case either in contravention of the relevant Lease (whether or not such Lease has been terminated) or without the consent of the relevant Lessor;
(xii) any head lease, lease, conditional sale agreement or purchase option granted by a lessor or owner as to the purchase of the related Aircraft under or in respect of the initial Lease existing on the date of acquisition of such Aircraft;
(xiii) any Lien of an insurer for salvage; and
(xiv) any other Lien with respect to any Aircraft not referred to in clauses (i) through (xiii) which would not adversely affect the owner’s rights and does not secure Indebtedness in excess of, individually, the lesser of (x) $250,000 and (y) 0.25% of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of such Aircraft.
“Person” means an individual, partnership, corporation, business trust, limited liability company, joint stock company, trust, unincorporated association, joint venture, government or any agency or political subdivision thereof or any other entity.
“Platform” has the meaning set forth in Section 16.3(c).
“Political Risk/Repossession Insurance” means, with respect to any country described in clause (b)(2) of the definition of Approved Country List, insurance coverage provided for the benefit of the Borrower related to an Aircraft registered in such country or a Lessee based or domiciled in such country, in the form provided and certified as a true and correct copy by the Borrower to the Administrative Agent for review prior to the related Advance Date, but subject to supplement and endorsement as necessary to procure coverage levels up to at least the Required Coverage Amount and/or to effect such other additional coverages or increases in coverage as the Borrower or the Servicer may determine to obtain, and with such amendments, addendums, endorsements, extensions or replacements as may have been entered into consistent
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with the provisions of Section 9.34 hereof, provided that with respect to any such insurance for any Aircraft subject to a Lease, such insurance may be subject to such deductible and self-insurance arrangements as are substantially consistent with Leasing Company Practice.
“Portfolio Composition” as of any Determination Date shall mean the percentage represented by the quotient obtained by dividing:
(a) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Tier I Aircraft in the Borrower’s Portfolio as of such Determination Date; by
(b) the sum of the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio, as of such Determination Date.
“Prohibited Countries” means those countries, as reasonably determined by the Administrative Agent from time to time and notified to the Borrower and the Servicer, in which Aircraft may not be registered in, or operated by lessees domiciled in or organized under the laws of, such countries, which countries are presently listed in Table 2 to Appendix I hereto, under the sub-heading “Prohibited”.
“Qualified Appraiser” means any of Initial Appraisers and any other appraisal firms selected and retained by the Borrower and approved by the Administrative Agent, at the direction of the Majority Lenders.
“Qualifying Lender” means a Lender, beneficially entitled to the interest payable to such Lender under this Agreement and (x) (a) which is an entity qualifying as a body corporate; (b) which, by virtue of the law of a relevant territory, is resident for the purposes of tax in that relevant territory (a relevant territory for this purpose means (i) a Member State of the European Community (other than Ireland) or (ii) a territory which has concluded a double-tax treaty with Ireland which has force of law in Ireland and such relevant territory); and (c) to which the interest payments under this Agreement are not made in connection with a trade or business carried on by such Lender through a branch or agency in Ireland or (y) which is a bank carrying on a bona fide banking business in Ireland within the meaning of Section 246(3)(a) of the Irish Taxes Consolidation Xxx 0000.
“Rated Country” means, as of any date of determination, any country (other than the United States and any Special Consideration Country) with a credit rating of at least BBB by Standard & Poor’s and at least Baa2 by Moody’s, as of such date of determination.
“Rating Agency” means Standard & Poor’s or Moody’s.
“Reappraised Agreed Value” means, with respect to any Aircraft as of any date of determination, the lower of the Current Market Value for such Aircraft as of the most recent Report Date or the Base Value for such Aircraft as of the most recent Report Date.
“Records” means all Leases and other documents, books, records and other information (including, without limitation, computer programs, tapes, disks, data processing software (to the extent permitted by any applicable licenses) and related property and rights) directly related to
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the Leases and the other Aircraft Assets related to the Aircraft, and the servicing thereof, whether maintained by the Servicer for the express benefit of the Borrower, and in which the Borrower has an interest expressly provided under the Servicing Agreement, the Lessee or the Borrower or any of its Affiliates.
“Region” means Developed Europe, Developed Asia, North America, Emerging Europe & Africa/Middle East, Latin America/Caribbean and Emerging Asia/Pacific.
“Regional Jet Aircraft” means Aircraft of the following Types (from the list of Types shown on Table 1 of Appendix I hereto): any Type with a designation “ERJ-170”.
“Related Expenses” means amounts due by any Borrower Group Member to an Obligor under a Lease or related document that are not funded out of the Supplemental Rent Account or the Security Deposit Account.
“Related Security” means with respect to any Lease:
(a) any and all security interests or Liens and property subject thereto from time to time purporting to secure payment under such Lease;
(b) all guarantees, indemnities, warranties, letters of credit, escrow accounts, insurance policies and proceeds and premium refunds thereof and other agreements or arrangements of whatever character from time to time supporting or securing payment under such Lease whether pursuant to such Lease or otherwise, the beneficiary of which is the Borrower or any Borrower Subsidiary;
(c) the Records relating to such Lease; and
(d) all proceeds of the foregoing.
“Replaced Lender” has the meaning set forth in Section 5.6(b).
“Replacement Lender” has the meaning set forth in Section 5.6(b).
“Report Date” means the twenty-two-month anniversary of the Closing Date and each six-month anniversary thereafter.
“Required Coverage Amount” means, with respect to any country described in clause (b)(2) of the definition of Approved Country List, an amount of available coverage under Political Risk/Repossession Insurance with respect to covered events affecting the related Financed Aircraft, which amount results in net proceeds available under such coverage at least equal to 105% of the aggregate Allocable Advance Amounts of Financed Aircraft registered in such country or leased by a Lessee organized or domiciled in such country (with such Allocable Advance Amount measured as of the date the Aircraft became a Financed Aircraft hereunder).
“Requirement of Law” means, as to any Person, any law, treaty, rule, order or regulation or determination of a regulatory authority or arbitrator or a court or other Government Entity, in each case applicable to or binding upon such Person or any of its property or to which such
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Person or any of its property is subject, including, without limitation, each Applicable Foreign Aviation Law applicable to such Person or the Aircraft Owned or operated by it or as to which it has a contractual responsibility.
“Section 5.3 Indemnitee” has the meaning set forth in Section 5.3(a).
“Section 9.7(a) Entity” has the meaning set forth in Section 9.7(a).
“Secured Party” has the meaning set forth in the Security Trust Agreement.
“Security Deposit” means any security deposits, commitment fees, consultant fees and any other supplemental rent payments in respect thereof payable by any Lessee under a Lease.
“Security Deposit Account” means an account (number 58421) in the name of the Borrower and maintained with the Account Bank.
“Security Trust Agreement” means the Security Trust Agreement, dated as of the date hereof and substantially in the form of Exhibit F hereto, among the Security Trustee, the Borrower and each of the Borrower Subsidiaries from time to time, as such agreement may be amended, modified and/or restated from time to time pursuant to the terms hereof.
“Security Trustee” means, for purposes of this Agreement and the other Transaction Documents and any related agreements or instruments, Deutsche Bank Trust Company Americas in its capacity as security trustee under the Security Trust Agreement, together with any of its successors and permitted assigns in such capacity.
“Security Trustee Fees and Expenses” means the fees and expenses and other amounts payable to the Security Trustee and Account Bank pursuant to this Agreement or the Security Trust Agreement, including, without limitation, amounts payable pursuant to any indemnification provisions thereunder.
“Seller” means any seller or transferor of an Aircraft or Aircraft Owning Entity under a related Aircraft Acquisition Document.
“Service Provider Agreements” means, collectively, the Servicing Agreement and the Management Agreement.
“Service Provider Fees” means (a) the fees for the services of the Servicer under the Servicing Agreement, and (b) the Management Fee and Reimbursable Expenses for the services of the Manager under (and each as defined in) the Management Agreement.
“Service Providers” means, collectively, the Servicer and the Manager.
“Servicer” means GECAS or any successor to GECAS in such capacity acceptable to the Majority Lenders.
“Servicer Default” means the occurrence of any of the events described in Section 10.02(b) of the Servicing Agreement.
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“Servicer Standard of Performance” means, collectively, the Standard of Care and the Conflicts Standard, in each case as such terms are defined in the Servicing Agreement.
“Servicer Termination Event” means a Servicer Default or a Manager Default.
“Servicer’s Monthly Report” means the monthly report in substantially the form of Exhibit A to the Servicing Agreement.
“Servicer’s Quarterly Report” means the quarterly report in substantially the form of Exhibit B to the Servicing Agreement.
“Servicing Agreement” means the Servicing Agreement, dated as of the date hereof, between the Servicer and the Borrower, substantially in the form of Exhibit G hereto, as the same may be amended, modified and/or restated from time to time pursuant to the terms hereof.
“Settlement Date” means, with respect to any Advance, (x) each Payment Date, or (y) the date on which the Borrower shall repay or prepay Advances pursuant to Section 4.1 or Section 4.2.
“Single Lessee” means any single Lessee under an Eligible Lease.
“Solvent” means, when used with respect to any Person, that at the time of determination:
(i) the fair value of its assets (both at fair valuation and at present fair saleable value on an orderly basis) is in excess of the total amount of its liabilities, including Contingent Liabilities; and
(ii) it is then able and expects to be able to pay its debts as they mature;
(iii) with respect to any Person formed, organized or incorporated under the laws of Ireland, it is neither unable nor deemed to be unable to pay its debts within the meaning of Section 214 of the Companies Act, 1963 (as amended) or Section 2(3) of the Companies (Amendment) Xxx 0000; and
(iv) it has capital sufficient to carry on its business as conducted and as proposed to be conducted.
“Special Consideration Country” means, as of any date of determination, any country listed on Table 2 to Appendix I opposite “Special Consideration,” as of such date of determination.
“Special Consideration Country Lessee” means any single Lessee based or domiciled in a Special Consideration Country.
“Standard & Poor’s” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
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“State” means a State in the United States of America.
“Stated Maturity Date” means the later of (i) the Conversion Date and (ii) if the Term Option has become effective pursuant to Section 2.1(e), the second anniversary of the Conversion Date or, in either case, if such date is not a Business Day, the first Business Day following the Conversion Date or such second anniversary.
“Subsidiary” means, with respect to any Person (for purposes of this definition only, the “Parent”) at any date, (i) any Person the accounts of which would be consolidated with those of the Parent in the Parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (ii) any other corporation, limited liability company, association, trust or other business entity of which securities or other ownership interests representing more than 50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors thereof are, as of such date, owned, controlled or held by the Parent and/or one or more subsidiaries of the Parent, (iii) any partnership (a) the sole general partner or the managing general partner of which is the Parent and/or one or more subsidiaries of the Parent or (b) the only general partners of which are the Parent and/or one or more subsidiaries of the Parent and (iv) any other person that is otherwise Controlled by the Parent and/or one or more subsidiaries of the Parent.
“Supplemental Rent Account” means an account (number 58369) in the name of the Borrower and maintained with the Account Bank.
“Supplemental Rent” means, with respect to any Aircraft, maintenance reserves or other supplemental rent payments based on usage of such Aircraft payable by the Lessee under the Lease for such Aircraft for the purpose of reserving or calculating potential liability in respect of payments for future maintenance and repair of such Aircraft.
“Taxes” means all taxes, levies, imposts, duties, charges, fees, deductions or withholdings including any interest, penalty or addition thereto imposed, levied, collected, withheld or assessed by any Governmental Entity.
“Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
“Term Period” means, after the Term Option has become effective pursuant to Section 2.1(e), the period beginning on the Conversion Date and ending on the Facility Termination Date.
“Term Option” means a one-time option exercisable by the Borrower in accordance with Section 2.1(e).
“Third Party Event” has the meaning set forth in Section 9.13.
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“Three Largest Lessees” means, as of any date of determination, after calculating the Initial Agreed Value or Reappraised Agreed Value, whichever is more recent, of all Aircraft in the Borrower’s Portfolio leased to all Lessees, each of the three Lessees with the highest such agreed value for all Aircraft leased to them.
“Tier” means any of the categories designated “I”, “II” or “III” listed next to the Types of Aircraft set forth on Table 1 to Appendix I. “Tier I Aircraft”, “Tier II Aircraft” and “Tier III Aircraft” each have a correlative meaning.
“Transaction Documents” means the Credit Documents, any Aircraft Acquisition Document, and any other documents executed or to be executed and delivered by the Borrower, any Service Provider or any Borrower Subsidiary in connection therewith.
“Type” means with respect to an Aircraft, the designation of Aircraft type or model which designation is set forth under the heading “Aircraft Type” on Table 1 to Appendix I hereto.
“UCC” means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction or jurisdictions.
“WBNA” means Wachovia Bank, National Association, as a Lender or an Eligible Counterparty.
“Weighted Average Portfolio Age” means, as of any date for which the same is determined, the weighted (by Initial Agreed Value or Reappraised Agreed Value, whichever is more recent) average Aircraft Age of the Borrower’s Portfolio as of such date.
“Weighted Average Portfolio Age Limit” means 10 years until the Commitment Increase Option has become effective pursuant to Section 2.1(c), and thereafter 8 years.
“Widebody Aircraft” means Aircraft of the following Types (from the list of Types shown on Table 1 of Appendix I): any Type with a designation “747”, “767”, “777”, “A330” or “MD-11”.
SECTION 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement have the meanings as so defined herein when used in any Transaction Document, certificate, report or other document made or delivered pursuant hereto.
(b) Each term defined in the singular form in Section 1.1 or elsewhere in this Agreement shall mean the plural thereof when the plural form of such term is used in this Agreement or any other Transaction Document, certificate, report or other document made or delivered pursuant hereto, and each term defined in the plural form in Section 1.1 shall mean the singular thereof when the singular form of such term is used herein or therein.
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(c) The words “hereof,” “herein,” “hereunder” and similar terms when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, subsection, schedule and exhibit references herein are references to articles, sections, subsections, schedules and exhibits to this Agreement unless otherwise specified.
(d) All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the Uniform Commercial Code in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9 or any other article of the Uniform Commercial Code in the State of New York.
ARTICLE II
THE FACILITY, ADVANCE PROCEDURES AND ADVANCES
SECTION 2.1 Facility.
(a) Advances. Subject to the terms and conditions of this Agreement, (i) each of the Conduit Lenders may, in its sole discretion, and, if such Conduit Lender does not, each related Non-Conduit Lender shall and (ii) each of the Non-Conduit Lenders shall, in each case during the Advance Commitment Period, ratably, in an amount equal to the Non-Conduit Lender Commitment of such related Non-Conduit Lender or such other Non-Conduit Lender, make Advances to the Borrower in such amounts as may be requested by the Borrower pursuant to Section 2.2 (the “Advances”).
(b) Advance Limits, etc. Advances pursuant to clause (a) above are subject to the following requirements:
(i) the Advance for an Aircraft shall not exceed the Individual Aircraft Borrowing Base for such Aircraft; and
(ii) after giving effect to such Advances, the aggregate principal amount of all Advances at any one time outstanding shall not exceed the Commitment Amount at such time.
Payments or prepayments of the Advances may be reborrowed from time to time prior to the Conversion Date, but only to finance a portion of the acquisition cost of acquiring another Financed Aircraft into the Borrower’s Portfolio and otherwise subject to the terms and conditions applicable to such Advances herein.
(c) Commitment Increase. The Borrower may elect to increase the Commitment Amount by an amount equal to the Commitment Increase Amount by giving the Administrative Agent at least 30 days’ prior written notice of such election, provided that such increase shall become effective only if (i) such election is to occur on or prior to the 18-month anniversary of the Closing Date, (ii) the Administrative Agent shall have received in full the Commitment Increase Option Fee, (iii) no Default, Event of Default, Manager Default or Servicer Default exists or will result from the exercise of the Commitment Increase Option, (iv) all
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representations and warranties under the Transaction Documents are true and correct in all material respects on and as of the effective date of the increase in the Commitment Amount (except, that any such representations or warranties expressly stated by their terms to be made only at or as of one or more particular dates or times, shall be made only at or as of such specified dates or times and are not so automatically repeated), and (v) the Borrower shall have furnished to the Administrative Agent such evidence of legal and corporate authority and legal opinions from counsel to the Borrower as the Administrative Agent may request in connection therewith.
(d) Commitment Termination and Reduction. On the Conversion Date, the unused Non-Conduit Lender Commitment of each Lender shall automatically be reduced to zero. Upon not less than ten Business Days’ notice to the Administrative Agent, the Borrower shall have the right to terminate the Non-Conduit Lender Commitments or to reduce the unused portion of the Non-Conduit Lender Commitments, as the case may be. Any such reduction shall be in an amount equal to $5,000,000 or a whole multiple thereof and shall ratably reduce permanently each Non-Conduit Lender Commitment then in effect.
(e) Term Option. The Borrower has the right, exercisable upon at least 30 days’ prior written notice to the Administrative Agent (provided such notice is received by the Administrative Agent no later than 30 days prior to the Conversation Date), to extend the Stated Maturity Date to the second anniversary of the Conversion Date (the “Term Option”), provided that at the time of exercise of such Term Option, no Default, Event of Default, Servicer Termination Event, or event that would constitute a Servicer Termination Event but for the passage of time or the giving of notice or both, has occurred and is continuing or will result from the exercise of such Term Option.
SECTION 2.2 Advance Procedures.
(a) Advances. During the Advance Commitment Period, the Borrower may request Advances from time to time hereunder, by giving notice (each an “Advance Request”) to the Administrative Agent, of the proposed Advances not later than 11:00 a.m., New York time, four (4) Business Days prior to the proposed date of such Advances. Each Advance Request shall be substantially in the form of Exhibit A and shall include (i) the date and amount of the requested Advances and (ii) a borrowing base certification reasonably satisfactory to the Administrative Agent, setting forth the information required therein. Each Advance Request (x) shall be for an aggregate principal amount of at least $5,000,000 (except that the final Advance Request preceding the Conversion Date may be for a lesser amount), (y) shall be made against, and in connection with the anticipated acquisition into the Borrower’s Portfolio of the Aircraft specified in such Advance Request, and (z) shall be allocated pro rata among the Non-Conduit Lenders based on their respective Non-Conduit Lender Commitments. Each Advance Request shall be irrevocable unless and to the extent otherwise agreed among the parties in connection with making such Advances on the applicable Advance Date.
(b) Lending Procedures.
(i) The Administrative Agent shall promptly send notice of each requested Advance to all of the Non-Conduit Lenders concurrently by facsimile, or electronic mail
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promptly confirmed by facsimile, specifying the date of such Advance and each Non-Conduit Lender’s ratable share of the Advance being requested.
(ii) Subject to the fulfillment of the conditions set forth in Section 6.2, promptly (but not later than 2:00 p.m., New York time) on the date specified for each Advance under this Section 2.2, each Lender shall or shall cause an Affiliate of such Lender to, pursuant to the terms and subject to the conditions of this Agreement, make the amount of the Advance to be made by it on such day available by wire transfer to the Administrative Agent in the amount of such Lender’s ratable share of the Advance to be made on such day. Such wire transfer shall be directed to the Administrative Agent and shall be in the form of Dollars constituting immediately available funds. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower by delivery of the proceeds thereof in immediately available funds to the specified account as shall be directed in the applicable Advance Request by the Borrower and reasonably acceptable to the Administrative Agent.
(c) Failure to Fund. Notwithstanding anything herein to the contrary, a Non-Conduit Lender shall not be obligated to make an Advance under this Section 2.2 at any time in an amount which would exceed such Non-Conduit Lender’s Non-Conduit Lender Commitment, less the amount of any prior Advances still outstanding made by such Non-Conduit Lender. Each Non-Conduit Lender’s obligation shall be several, such that the failure of any Non-Conduit Lender to make available to the Administrative Agent any funds in connection with any Advance shall not relieve any other Non-Conduit Lender of its obligation, if any, hereunder to make funds available on the date of such Advance, but no Non-Conduit Lender shall be responsible for the failure of any other Non-Conduit Lender to make funds available in connection with any Advance; provided, that if a Non-Conduit Lender shall fail to make available to the Administrative Agent any funds in connection with any Advance, any other Non-Conduit Lender may, in its sole discretion, make available to the Administrative Agent any such funds without regard to the pro rata provisions of this Agreement and without regard to the Non-Conduit Lender Commitment of such Non-Conduit Lender, each of which shall be deemed to be adjusted to reflect such Advance without any act of any Person being necessary therefor.
SECTION 2.3 Representation and Warranty. Each delivery of an Advance Request shall automatically constitute a representation and warranty by the Borrower to the Administrative Agent and the Lenders that, on the date of such Advance, and after giving effect to such Advance and the consummation of the transactions contemplated in the making of such Advance, (a) the representations and warranties contained in Article VIII will be true and correct in all material respect as of the date of such Advance as though made on such date (except, that any such representations or warranties expressly stated by their terms to be made only at or as of one or more particular dates or times, shall be made only at or as of such specified dates or times and are not so automatically repeated), and (b) no Default or Event of Default has occurred and is continuing or will result from the making of such Advance.
SECTION 2.4 Pro Rata Payments. Except as otherwise provided herein, (a) each payment on account of the principal of and interest on the Advances and the Commitment Fee
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shall be made to the Administrative Agent for the account of the Lenders pro rata based on the outstanding principal amount of Advances funded by such Lenders, (b) all payments to be made by the Borrower for the account of each of the Lenders on account of principal, interest and fees, shall be made without diminution, setoff, recoupment or counterclaim, and (c) the Administrative Agent will promptly distribute to the Lenders in immediately available funds payments received in fully collected, immediately available funds from the Borrower.
SECTION 3.2 Interest Payment Dates. Interest accrued on (i) each Advance shall be payable in arrears on the last day of each Interest Period and (ii) the amount of Advances being repaid or prepaid on any other Settlement Date shall be paid on such Settlement Date, provided that interest payable at the Post-Default Rate shall be payable from time to time on demand.
SECTION 3.3 Fees. The Borrower agrees to assume the obligations of GLS under the Fee Letter and to pay to the person entitled thereto the Fees in the amounts and on the dates set forth in the Fee Letter and in this Agreement.
SECTION 3.4 Commitment Fees. The Borrower agrees to pay to the Administrative Agent for the benefit of the Lenders non-refundable commitment fees (the “Commitment Fees”) as follows:
(a) 0.375% per annum on the unused amount of the Initial Commitment Amount, payable in arrears on the third Payment Date after the Closing Date, on each third Payment Date thereafter and on the Conversion Date, in each case, including the first day but excluding the last day of any such fee accrual period; and
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(b) 0.375% per annum on the unused amount of the Commitment Increase Amount, whether or not the Commitment Increase Option is exercised, for a period of 18 months after the Closing Date and thereafter only if the Commitment Increase Option is exercised, in each case payable in arrears on the third Payment Date after the Closing Date and on each third Payment Date thereafter and on the Conversion Date, in each case, including the first day but excluding the last day of any such fee accrual period.
SECTION 3.5 Computation of Interest and Fees. All Fees and interest payable hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day of any Interest Period). The Lender Rate shall be determined by the Administrative Agent in accordance with the provisions of this Agreement and such determination shall be conclusive absent manifest error.
SECTION 3.6 Continuation of Advances. The Borrower shall have the right as of the last day of an Interest Period with respect to an Advance upon prior irrevocable notice to the Administrative Agent not later than 10:00 a.m., New York City time, three Business Days prior to such date, to select the Interest Period with respect to such Advance. Each notice pursuant to this Section 3.6 shall be irrevocable and shall refer to this Agreement and specify the ensuing Interest Period with respect thereto. If no Interest Period is specified in any such notice or if the Borrower failed to provide such notice, the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
REPAYMENTS, PREPAYMENTS AND PAYMENTS
SECTION 4.1 Required Principal Repayments.
SECTION 4.2 Principal Prepayments.
(i) all such voluntary prepayments shall require at least four (4) Business Days’ prior written notice to the Administrative Agent, which notice shall be irrevocable;
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(ii) all such voluntary prepayments shall be in a minimum amount of $5,000,000 (unless such payment results in a repayment in full); and
(iii) all such voluntary prepayments shall be paid into the Collection Account and applied in accordance with the Flow of Funds on the next Payment Date.
(ii) If there is a Borrowing Base Deficiency as of any Payment Date, the Borrower shall prepay on such Payment Date the Outstanding Principal Amount by an amount equal to the amount of such Borrowing Base Deficiency by deposit to the Collection Account, which amounts shall be applied in accordance with the Flow of Funds.
(iii) If there is a Borrowing Base Deficiency as of any Report Date, the Borrower shall prepay on the Payment Date immediately succeeding such Report Date the Outstanding Principal Amount by an amount equal to the amount of such Borrowing Base Deficiency by deposit to the Collection Account, which amounts shall be applied in accordance with the Flow of Funds.
(iv) If the LTV Maintenance Test shall not be satisfied in connection with a Disposition Event or an Event of Loss, the Borrower shall prepay, on the Payment Date specified in Section 4.2(b)(i) with respect to such Disposition Event or Event of Loss, as the case may be, the Outstanding Principal Amount by an amount equal to the amount by which the Outstanding Principal Amount is required to be reduced in order for the LTV Maintenance Test to be satisfied, by deposit of such amount into the Collection Account. Any amounts prepaid in accordance with this clause (iv) shall be applied in accordance with the Flow of Funds.
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(v) The Borrower shall give at least four (4) Business’ Day’s prior written notice of any prepayment pursuant to this Section 4.2(b) to the Administrative Agent, which notice shall be irrevocable.
SECTION 4.3 Payments Generally. Subject to, and in accordance with, the provisions of this Agreement, all payments of principal of, or interest on, the Advances shall be made (whether pursuant to the Flow of Funds or otherwise) no later than 1:00 p.m., New York time, on the day when due in lawful money of the United States of America in immediately available funds to the Administrative Agent, to the account of the Administrative Agent at Citibank, N.A., ABA No. 000000000, Account No. 00000000, Account Name: Agency/Medium Term Finance, Reference: Genesis Acquisition Ltd., or such other account as the Administrative Agent shall designate in writing to the Borrower not fewer than three (3) Business Days prior to the intended effective date of any such payment. Funds received by the Administrative Agent after 1:00 p.m., New York time, on the date when due will be deemed to have been received by the Administrative Agent on the next following Business Day.
SECTION 4.4 Sharing of Set-Offs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain, at any time, payment or recover any amount in respect of any principal of, or interest on, any of its Advances or other Obligations resulting in such Lender receiving payment of a proportion of the aggregate amount of its Advances and accrued interest thereon or other Obligations greater than it would have been entitled to receive as provided herein, then such Lender shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Advances, respectively, and such other Obligations of the other Lenders, respectively, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by such Lenders, respectively, ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Advances and other amounts owing them as provided herein, provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Advances to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under any applicable Requirement of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim
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with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. If under applicable bankruptcy, insolvency or any similar law any Lender receives a secured claim in lieu of a setoff or counterclaim to which this paragraph applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Lender is entitled under this paragraph to share in the benefits of the recovery of such secured claim.
SECTION 5.1 Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain Advances as contemplated by this Agreement based upon the Eurodollar Rate (“Eurodollar Rate Advances”), such Lender shall give notice thereof to the Administrative Agent and the Borrower describing the relevant provisions of such Requirement of Law, following which the Non-Conduit Lender Commitment of a Non-Conduit Lender hereunder to make Eurodollar Rate Advances, and the agreement of any Lender to continue Eurodollar Rate Advances as such, as applicable, shall be suspended until such time as such Non-Conduit Lender may again make and maintain Eurodollar Rate Advances hereunder, and (a) such Lender’s Eurodollar Rate Advances then outstanding shall accrue interest at the Alternate Base Rate plus the Applicable Margin (i) from the next succeeding Payment Date or (ii) on any earlier date as required by law until such Requirement of Law shall be effective with respect to such Lender, or (b) if such Requirement of Law shall so mandate, such Lender’s Eurodollar Rate Advances shall be prepaid by the Borrower, together with accrued and unpaid interest thereon and all other amounts payable by the Borrower under this Agreement, on or before such date as shall be mandated by such Requirement of Law. If any such conversion of any Eurodollar Rate Advance occurs on a day that is not a Payment Date, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 5.4.
(a) If (i) there shall be any increase in the cost to any Lender or any of its Affiliates or participants or any Person providing such Lender with a liquidity or credit enhancement arrangement (each of the foregoing an “Affected Party”) of agreeing to make or making, funding or maintaining any Advance hereunder or (ii) any reduction in any amount receivable in respect thereof or otherwise under this Agreement, and such increased cost or reduced amount receivable is due to either:
(x) the introduction of or any change (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation of any law, regulation or accounting principle after the Closing Date (other than in respect of Taxes and other amounts addressed by Section 5.3); or
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(y) the compliance with any guideline or request from any central bank or other Government Entity (whether or not having the force of law) issued after the Closing Date,
then the Borrower shall from time to time, from and after the first Payment Date occurring at least five (5) Business Days after the Borrower’s receipt of written demand by such Affected Party, pay such Affected Party additional amounts sufficient to compensate such Affected Party for such increased cost or reduced amount receivable.
(b) If any Affected Party shall have reasonably determined that (i) the applicability of any law, rule, regulation or guideline adopted after the Closing Date, or the implementation after the Closing Date of any such law, rule, regulation or guideline, pursuant to or arising out of (A) the July 1988 paper of the Basel Committee on Banking Regulations and Supervisory Practices entitled “International Convergence of Capital Measurement and Capital Standards,” or (B) the proposal for New Basel Capital Accord issued by the Basel Committee on Banking Supervision (as revised from time to time, the “New Accord”), or (ii) the adoption of any other law, rule, regulation or guideline after the Closing Date regarding capital adequacy, or the initial implementation after the Closing Date of any such law, rule, regulation or guideline adopted but not initially implemented prior to the Closing Date, and in either case affecting such Affected Party (including, but not limited to, any rule to be so adopted or so implemented with respect to recourse, residuals, liquidity commitments or direct credit substitutes, referred to hereinafter as the “New Rules”), or (iii) any change arising in the foregoing or in the interpretation or administration of any of the foregoing by any Government Entity, central bank or comparable agency charged with the interpretation or administration thereof, or (iv) compliance by such Affected Party (or any lending office of such Affected Party), or any holding company for such Affected Party which is subject to any of the capital requirements described above, with any request or directive of general application issued regarding capital adequacy (whether or not having the force of law) of any such Government Entity, central bank or comparable agency has or would have the effect of reducing the rate of return on such Affected Party’s capital or on the capital of any such holding company as a direct consequence of such Affected Party’s obligations hereunder or arising in connection herewith to a level below that which such Affected Party or any such holding company could have achieved but for such adoption, change or compliance (taking into consideration such Affected Party’s policies and the policies of such holding company with respect to capital adequacy) by an amount deemed by such Affected Party to be material, then from time to time after the Borrower’s receipt of a written demand from such Affected Party, the Borrower shall pay such Affected Party such additional amounts as will compensate such Affected Party or any such holding company for any such reduction suffered.
(c) If as a result of any event or circumstance similar to those described in Section 5.2(a) or Section 5.2(b), any Affected Party is required to compensate a bank or other financial institution providing liquidity support, credit enhancement or other similar support to such Affected Party (whether directly or through a participation) with respect to amounts similar to those described in Section 5.2(a) or Section 5.2(b) in connection with this Agreement or the funding or maintenance of Advances hereunder, then within ten days after demand by such Affected Party, the Borrower shall pay to such Affected Party such additional amount or amounts as may be necessary to reimburse such Affected Party for any amounts paid by it. The
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Borrower acknowledges to each Lender that such Lender is providing no assurance that the committed liquidity support provided with respect to this Agreement will be assigned a zero percent credit-conversion factor under risk-based capital guidelines adopted by applicable bank regulatory authorities in response to the framework therefor announced in July, 1988 by the Basel Committee on Banking Regulations and Supervisory Practices or in response to the New Accord or under the New Rules. Notwithstanding the foregoing, no amount shall be payable under this subsection (c) except to the extent the affected bank or other financial institution providing the aforementioned support is a party to this Agreement as a Lender and is accordingly subject to the same provisions and restrictions applicable herein to a Lender party hereto (including without limitation, the provisions of Sections 5.2, 5.5 and 5.6 with respect to any claims made under this subsection (c)).
(d) Any failure or delay on the part of any Affected Party to demand compensation pursuant to clause (a), (b) or (c) of this Section 5.2 shall not constitute a waiver of such Affected Party’s right to demand such compensation; provided, that the Borrower shall not be required to compensate an Affected Party pursuant to such clauses of this Section 5.2 for any increased costs incurred or reductions suffered more than 90 days prior to the date that such Affected Party notifies the Borrower of the event or events giving rise to such increased costs or reductions and of such Affected Party’s intention to claim compensation therefor (except that, if such event or events have a retroactive effect, then the 90 day period referred to above shall be extended to include the period of retroactive effect thereof).
(e) The Borrower shall pay to any Lender, so long as such Lender shall be required under regulations of the Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid Eurodollar Rate Advances of such Lender during each Interest Period, for such Interest Period, at a rate per annum equal, at all times during such Interest Period, to the remainder obtained by subtracting (i) the Eurodollar Rate for such Interest Period from (ii) the rate obtained by dividing such Eurodollar Rate referred to in clause (i) above by that percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period, payable on each date on which interest is payable on such Advances. Such additional interest shall be determined by such Lender and notice thereof (accompanied by a statement setting forth the basis for the amount being claimed) given to the Borrower through the Administrative Agent within 90 days after any interest payment is made with respect to which such additional interest is requested. Such written statement shall, in the absence of manifest error, be conclusive and binding for all purposes.
(a) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future Taxes now or hereafter imposed, levied, collected, withheld or assessed by any Government Entity, excluding income, gross receipts, franchise, net worth, doing business and similar Taxes imposed on, respectively, the Administrative Agent, the Security Trustee or any Lender solely as a result of a present or former connection between, respectively, the Administrative Agent, the Security Trustee or such Lender and the jurisdiction of the Government Entity imposing such tax
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or any political subdivision or taxing authority thereof or therein (other than any such connection arising from the Administrative Agent, Security Trustee or Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded Taxes (“Non-Excluded Taxes”) are required to be withheld from any amounts payable to the Administrative Agent, the Security Trustee or any Lender hereunder, respectively (each a “Section 5.3 Indemnitee”), the amounts so payable to such Section 5.3 Indemnitee shall be increased to the extent necessary to effectively yield to such respective Section 5.3 Indemnitee (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in or pursuant to this Agreement as if such Non-Excluded Taxes would not have been required to be withheld. Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as possible thereafter, the Borrower shall send to the Administrative Agent and the Security Trustee for their respective accounts or for the account of the applicable Lender, as the case may be, a certified copy of an original official receipt (or other evidence reasonably satisfactory to such Person) received by the Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent or the Security Trustee, as the case may be, the required receipts or other required documentary evidence, the Borrower shall indemnify the Administrative Agent, the Security Trustee and the Lenders for any incremental Taxes (and related costs) that may become payable, respectively, by the Administrative Agent, the Security Trustee or any Lender as a result of any such failure. The agreements in this Section 5.3 shall survive the termination of this Agreement and the payment of all other amounts payable hereunder.
(b) Each Section 5.3 Indemnitee shall, to the extent it may lawfully do so, deliver to the Borrower, or to the Administrative Agent in the case of any Lender (in such number of copies as shall be requested by the recipient), on or prior to the date on which such Person becomes a Lender, Administrative Agent or Security Trustee under this Agreement (and from time to time thereafter upon the request of Borrower and the Administrative Agent), but only if such Person is legally entitled to do so, any form or information prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in withholding tax duly completed together with such supplementary documentation as may be prescribed by any applicable Requirement of Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made. Each Section 5.3 Indemnitee agrees to take such actions as the Borrower shall reasonably request and as are consistent with applicable Requirements of Law to claim any available reductions or exemptions from Non-Excluded Taxes and to otherwise cooperate with the Borrower to minimize any amounts payable by the Borrower under this Section 5.3, provided that any material costs incurred in taking such actions (including attorneys’ fees) shall be for the account of the Borrower. Each Lender further represents that it is a Qualifying Lender as of the Closing Date or other date as of which it becomes a Lender hereunder, and agrees to advise the Borrower reasonably promptly following its becoming aware that it is no longer a Qualifying Lender.
Without limiting the foregoing, each Person that is an assignee pursuant to Article XIV shall, upon the effectiveness of the related transfer, be required to provide all of the forms and statements required pursuant to this Section 5.3.
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(c) The Borrower agrees to pay any present or future stamp, sales, documentary, filing, registration, excise or property Taxes or any other Taxes, fees, charges or other levies payable, or determined to be payable, in connection with the execution, delivery, filing, recording or registration of this Agreement and any other Transaction Documents and agrees to indemnify any Section 5.3 Indemnitee against any liabilities (including related costs) with respect to or resulting from any delay in paying or the omission to pay such Taxes.
(d) The Borrower shall indemnify any Section 5.3 Indemnitee, within ten (10) Business Days after written demand therefor, for the full amount of any Non-Excluded Taxes (including Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by any such Section 5.3 Indemnitee, and any penalties, interest and reasonable expenses (including costs of contesting such Non-Excluded Taxes) arising therefrom or with respect thereto. A certificate as to the amount of such payment or liability delivered to the Borrower by any Lender (with a copy to the Administrative Agent), by the Security Trustee or by the Administrative Agent on its own behalf or on behalf of any Lender, setting forth in reasonable detail the manner in which such amount was determined, shall be conclusive absent manifest error.
(e) If any Section 5.3 Indemnitee receives a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.3, such Section 5.3 Indemnitee shall pay over such refund (net of all out-of-pocket expenses of such Section 5.3 Indemnitee and without interest, other than any interest paid to it with respect to such refund) to the Borrower (but only to the extent of the amounts paid by the Borrower under this Section 5.3 with respect to the Taxes giving rise to such refund, plus any interest received with respect to such refund); provided, that the Borrower, upon the request of any such Section 5.3 Indemnitee, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed) to the Section 5.3 Indemnitee in the event such Section 5.3 Indemnitee is required to repay such refund to any Government Entity. This subsection (e) shall not be construed to require any Section 5.3 Indemnitee to make available its Tax Returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
SECTION 5.4 Indemnity Regarding Breakage Costs. The Borrower hereby agrees to indemnify each Lender and to hold each Lender harmless from any loss or reasonable expense which such Lender may sustain or incur as a consequence of (a) default or rescission, as applicable, by the Borrower in making a borrowing of any Advance hereunder on the date requested after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any repayment or prepayment on the date specified therefor in a notice given by the Borrower in accordance with the provisions of this Agreement, (c) the making of a prepayment of Advances on a day which is not the last day of an Interest Period with respect thereto or (d) the making of a repayment or prepayment other than in accordance with the provisions of this Agreement. This covenant shall survive the termination of this Agreement and the payment of all other amounts payable hereunder.
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SECTION 5.5 Notice of Amounts Payable. In the event that any Lender becomes aware that any amounts are or will be owed to it pursuant to Section 5.1, 5.2, 5.3(a) or 5.4, then it shall promptly notify the Borrower thereof; provided that any failure to provide such notice shall not affect the Borrower’s obligations hereunder or under the other Transaction Documents or result in any liability of or on the part of such Lender. The amounts set forth in such notice shall be conclusive and binding for all purposes absent manifest error.
SECTION 5.6 Mitigation Obligations; Replacement.
(a) If any Lender or any of its Affiliates unable to make or continue Eurodollar Rate Advances in accordance with Section 5.1 requests compensation under Section 5.2, or requires the Borrower to pay any additional amount to such Lender, any of its Affiliates or any Governmental Entity for the account of such Lender or any of its Affiliates pursuant to Section 5.3, then such Lender (an “Affected Lender”) shall use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Affected Lender, such designation or assignment (i) would permit such Lender to make Eurodollar Rate Advances, (ii) would eliminate or reduce amounts payable pursuant to Section 5.2 or 5.3, as the case may be, in the future and (iii) would not subject such Affected Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Affected Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Affected Lender in connection with any such designation or assignment. A certificate setting forth such costs and expenses submitted by such Affected Lender to the Borrower shall be conclusive absent manifest error.
(b) Notwithstanding anything to the contrary contained herein, prior to the occurrence of any Event of Default hereunder, the Borrower shall have the right to replace an Affected Lender which has not completed one of the mitigating actions described in subsection (a) of this Section 5.6 resulting in it being able to make Eurodollar Rate Advances or the elimination of any amounts payable pursuant to Section 5.2 or 5.3 within 60 days of the Borrower receiving notice from an Affected Lender (each such Affected Lender being so replaced, a “Replaced Lender”) with one or more other lending institutions (which may, but need not be, existing Lenders hereunder) reasonably acceptable to the Administrative Agent (any, a “Replacement Lender”) that have agreed to purchase the outstanding Advances held by and (as applicable) Non-Conduit Lender Commitments maintained by such Affected Lender, pursuant to Article XIV and one or more Assignment and Assumptions; provided that:
(i) each such assignment shall be arranged by the Borrower in coordination with the Administrative Agent; and
(ii) no Replaced Lender shall be obligated to make any such assignment pursuant to this subsection (b) unless and until such Replaced Lender shall have received one or more payments from the Replacement Lender in an aggregate amount equal to the aggregate outstanding principal amount of the Advances owing to such Replaced Lender, and from the Borrower an aggregate amount equal to all accrued and unpaid interest and fees thereon (including, in any event, any breakage indemnities of the type described in
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Section 5.4) to the date of such payment and all other amounts payable to such Replaced Lender under the Credit Documents, including without limitation all amounts which, by virtue of its making claims against the Borrower therefor, caused the Lender to become an Affected Lender hereunder.
Upon the effectiveness of such assignment, the Replacement Lender shall become a Lender hereunder and (except with respect to any indemnities or other amounts payable under this Agreement with respect to events or circumstances arising prior to the replacement of such Replaced Lender, which shall survive as to such Replaced Lender) the Replaced Lender shall cease to constitute a Lender hereunder.
SECTION 6.1 Conditions to Effectiveness. The effectiveness of this Agreement on the Closing Date is subject to the fulfillment of the following conditions precedent (in addition to the conditions precedent to all Advances specified in Section 6.2):
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(viii) Servicing Agreement. All notices, consents, certificates, opinions and other documents required to be delivered pursuant to Schedule 8.01 of the Servicing Agreement, including, without limitation, a favorable opinion of special New York and Irish counsel to the Servicer, and the Borrower shall not have waived any condition precedent to the Servicer’s obligations under the Servicing Agreement; and
(d) Waivers and Consents. All necessary waivers, consents, approvals and authorizations required in connection with the Transaction Documents dated as of the Closing Date and the transactions contemplated therein shall have been delivered.
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SECTION 6.2 Advances. The making of any Advance under this Agreement in connection with the acquisition of a Financed Aircraft is subject to the fulfillment of the following conditions precedent:
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(i) Resolutions. Certified resolutions of the Boards of Directors of each Borrower Subsidiary that is becoming a Borrower Group Member in connection with such Advance, approving and adopting the Transaction Documents to be executed by such Person, and authorizing the execution, delivery and performance thereof and approving and authorizing the transactions to be consummated pursuant thereto and all incidental actions in connection therewith (including, without limitation, the grant of security interest as provided in the Security Trust Agreement);
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recorded under Applicable Foreign Aviation Law, and (C) as to such other matters as the Administrative Agent may reasonably request (which request may include, with respect to jurisdictions of concern to the Lenders, an opinion satisfactory to the Administrative Agent advising as to creditors’ rights, including rights of recovery and repossession of aircraft);
(x) Security Interest Granted by Non-U.S. Lessor. With respect to each Financed Aircraft to be acquired with proceeds of such Advance, the Lessor of which is domiciled or otherwise connected with a country other than the United States such that the laws of such country would or could, in the reasonable judgment of the Administrative Agent, govern or establish the perfection and effect of perfection and/or priority of the Security Trustee’s security interest in such Lease granted by the Lessor under the Security Trust Agreement, a legal opinion, in form and substance reasonably satisfactory to the Administrative Agent, addressing and confirming the taking of such actions or making of such filings in such country as would or could govern or establish the perfection and effect of perfection and/or priority of the Security Trustee’s security interest (or confirming that such actions will be taken or filings will be made, to the extent that such actions or filings cannot under applicable law be taken or made prior to the making of the related Advance to the Borrower), or the Borrower shall have otherwise confirmed or established, in a manner reasonably satisfactory to the Administrative Agent, that the taking of such actions or making of such filings as are specified in the legal opinion shall have occurred or will occur;
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evidence reasonably satisfactory to the Administrative Agent, evidencing all insurance required to be maintained by the applicable Obligor under the Lease and/or the applicable Notice and Acknowledgment, in each case, together with all endorsements required under the Transaction Documents and/or the applicable Notice and Acknowledgment, and (B) certificates of insurance from qualified brokers of aircraft insurance or other evidence satisfactory to the Administrative Agent with respect to the Contingent Policy, together with all endorsements required under the Transaction Documents;
(xiii) Lien/Registration Searches. To the extent available under the applicable law, the Administrative Agent shall have received searches of the applicable title and/or lien registration records, in the jurisdiction(s) of registration of each Financed Aircraft to be acquired with the proceeds of such Advance;
(d) Financing Statements, Other Registrations, etc.
(i) The Administrative Agent shall have received Uniform Commercial Code financing statements appropriate for filing in all places required by applicable law to perfect the Liens of the Security Trustee for the benefit of the Lenders and the Eligible Counterparties under the Transaction Documents as first priority Liens as to the interests in any Borrower Subsidiary that is becoming a Borrower Group Member in connection with such Advance and as to any other items of Collateral, in which a security interest may be perfected by the filing of financing statements, and such
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other documents and/or evidence of other actions or registrations as may be necessary under applicable law (including Bermuda and Irish law and the Cape Town Convention) to perfect, within the time period provided for in the Security Trust Agreement, or otherwise ensure the effectiveness of the related Liens of the Security Trustee for the benefit of the Lenders and the Eligible Counterparties under the Transaction Documents as first priority Liens (and, in the case of any pledge of equity interests in Borrower Group Members that are organized under the laws of Ireland, the entry into an Irish Pledge with respect to such interests);
(ii) The Borrower shall have delivered to the Security Trustee all stock certificates and other certificates, if any, evidencing ownership of any Equity Interests in any Borrower Subsidiary that is becoming a Borrower Group Member in connection with such Advance, accompanied in each case by duly executed stock or transfer powers (or other appropriate transfer documents) in blank, in each case if customary under the law of the jurisdiction governing the pledges;
(iii) The Borrower shall have delivered to the Security Trustee fully executed “control agreements” (to the extent required by any applicable Requirements of Law) that have been executed by the respective issuers (and consented to by the Borrower) with respect to any uncertificated Equity Interests of any Borrower Subsidiary that is becoming a Borrower Group Member in connection with such Advance;
(iv) Each of the applicable Aircraft Owning Entities and Owner Participants shall have delivered to the Security Trustee fully executed “control agreements” (to the extent required by any applicable Requirements of Law) with respect to any uncertificated Equity Interests in any Owner Trust, Applicable Intermediary or other Subsidiary, that is becoming a Borrower Group Member in connection with such Advance;
(v) Subject to the proviso below, there shall have been delivered evidence satisfactory to the Administrative Agent of the taking of such actions (including, without limitation, becoming a “transacting user entity” with the International Registry) and the making of such registrations (including prospective registrations) in the International Registry pursuant to the Cape Town Convention and the International Registry Procedures to obtain the benefits and protections of the Cape Town Convention as may be applicable and available to the transactions contemplated by the Credit Documents as the same relate to the Borrower Acquisition Documents that are the subject of such Advance; provided it is understood that (A) other than as is necessary in connection with the registration of an “international interest” in the International Registry, no mortgages are being taken directly on the Aircraft, (B) if a related Lease is not, at the time of the making of the related Advance available to the Borrower, an “international interest” then it is not a condition precedent to such making of the related Advance to undertake the search or any of the registrations described in clause (C) immediately below, and (C) where the related Lease is or has become, at the time of the making of the related Advance, an “international interest”, it is a condition to the making of the related Advance to the Borrower that (i) a search of the registry with respect to the
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relevant Aircraft reveals no prior registration of an interest or prospective interest in such Lease (other than by the Lessor) that will remain in effect after the relevant Advance, (ii) the Lessor’s interest in the Lease be registered as and to the extent necessary to permit timely compliance with the condition in the immediately succeeding clause (iii), and (iii) the Lessor’s security assignment of the Lease to the Security Trustee shall have been registered;
(vi) For each Lease with a Lessor that is located within a State (or the District of Columbia) within the United States (within the meaning of Article 9 of the Uniform Commercial Code), (A) if such Lease was originated by the Lessor prior to the Closing Date, the Borrower shall have delivered to the Security Trustee, if available, a Chattel Paper Original of the applicable Lease and any related lease amendment or supplement, in each case signed by the Lessee (and complied with the other requirements set forth in the definition of Chattel Paper Original herein), and in any case, if available, a duplicate “hard copy” original of the Lease signed by the Lessee if available, and (B) if such Lease was originated by the Lessor after the Closing Date, the Borrower shall have delivered to the Security Trustee a Chattel Paper Original of the applicable Lease (together with any related lease amendment or supplement constituting an extension or renewal thereof), in each case signed by the Lessee (and complied with the other requirements set forth in the definition of Chattel Paper Original herein); and
(vii) The applicable Borrower Subsidiary owning or to become the owner of the related Financed Aircraft shall have duly authorized, executed and delivered a “Grantor Supplement” as defined in and as contemplated under the Security Trust Agreement, and the Borrower shall have duly authorized, executed and delivered a related “Collateral Supplement” as defined in and contemplated under the Security Trust Agreement, and such Collateral Supplement shall have been registered in the “Register of Charges” of Bermuda (with a search of such Register of Charges revealing no prior registration with respect to the Collateral that is the subject matter of such Collateral Supplement).
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(f) Waivers and Consents. All necessary waivers, consents, approvals and authorizations required in connection with the Transaction Documents dated as of the related Advance Date and the transactions contemplated therein shall have been delivered, including, without limitation, all material governmental (including regulatory) registrations, certificates, licenses, permits and authorizations required for the use and operation of the Financed Aircraft, including, without limitation, a current certificate of airworthiness for the Financed Aircraft (issued by the applicable aviation authority and in the appropriate category for the nature of operations of such Financed Aircraft).
(i) No Event of Loss. No Event of Loss has occurred with respect to any such Financed Aircraft as of the related Advance Date.
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(m) Payment of Costs and Expenses. Payment of all costs and expenses (including legal fees) accrued prior to the related Advance Date in accordance with Section 16.4 hereof to the extent invoiced or otherwise notified to the Borrower in writing and in a manner and at such time as the Administrative Agent and the Borrower may have agreed in order to mutually close on the related Advance Date.
(p) Section 9.7(a) Entity. If the Financed Aircraft is to be acquired by a Section 9.7(a) Entity pursuant to subclause (x) of Section 9.8, the Administrative Agent shall be reasonably satisfied with the proposed arrangement and shall have received (in addition to any other requirements provided in this Agreement), in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders, a favorable opinion of Local Aircraft Counsel: (i) addressing and confirming the taking of such actions or making of such filings in such country as would or could govern or establish the perfection and effect of perfection and/or priority of the Security Trustee’s security interest (or confirming that such actions will be taken or filings will be made, to the extent that such actions or filings cannot under applicable law be taken or made prior to the making available of the Advance associated with the related transaction); and (ii) stating that under the law of the relevant jurisdiction, a Borrower Subsidiary may not own such Aircraft.
(q) Borrower Group Member Opinion. With respect to each Borrower Group Member entering into or becoming party to a Credit Document in respect of or relating to a Financed Aircraft, a legal opinion of counsel to such Borrower Group Member from the jurisdiction of organization of such Borrower Group Member, addressing substantially the same matters as to the relevant additional Borrower Group Member(s) as were addressed in respect of the Borrower in the opinion of Bermuda counsel to the Borrower delivered on the Closing Date.
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(s) The giving of the Advance Request shall constitute a certification by the Borrower to the effect that the conditions set forth in this Section 6.2 have been fulfilled (both as of the date of the Advance Request and, unless the Borrower otherwise notifies the Administrative Agent prior to the Advance Date, as of the Advance Date). The Administrative Agent shall be entitled to assume that the conditions specified in clauses (b), (e), (g), (i), (k), (n) and (o) of this Section 6.2 have been fulfilled unless it receives written notice to the contrary from any Lender prior to the Advance Date.
ARTICLE VII
ADMINISTRATION OF AIRCRAFT AND LEASES
SECTION 7.1 Collection Procedures.
(i) cause to be transferred promptly upon receipt thereof any payments in respect of Security Deposits with respect to an Aircraft from the Collections Account to the Security Deposit Account; and
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(ii) cause to be transferred promptly upon receipt thereof any payments in respect of Supplemental Rent with respect to an Aircraft from the Collections Account to the Supplemental Rent Account.
If the Borrower or the Manager shall receive any funds constituting Collections directly, the Borrower and the Manager shall or shall promptly cause (and, in any event, on the Business Day of the Borrower’s or the Manager’s receipt of such funds) the segregation of such funds for any period in which such funds are being held in an account other than the Collection Account and the deposit of such funds to the Collection Account.
Neither the Borrower nor the Manager shall deposit or otherwise credit, or cause to be so deposited or credited:
(A) to the Collection Account, cash or cash proceeds other than Collections (except as otherwise provided in the first sentence of this Section 7.1(c));
(B) to the Security Deposit Account, cash or cash proceeds other than Security Deposits relating to the Aircraft; and
(C) to the Supplemental Rent Account, cash or cash proceeds other than Supplemental Rent.
(A) to the Collection Account, other than Collections relating to the Aircraft;
(B) to the Security Deposit Account, other than Security Deposits relating to the Aircraft; and
(C) to the Supplemental Rent Account, other than Supplemental Rent relating to the Aircraft.
(e) Payment Date Distributions. On each Payment Date, all Available Collections will be applied by the Security Trustee, (x) in the case of clause (i) below, in accordance with instructions and directions to the Security Trustee set forth on the Monthly Report to be delivered to the Security Trustee on the related Determination Date, and (y) in the case of clause (ii) below, in accordance with a written direction received by the Security Trustee from the Administrative Agent, and in each case as follows (and in the order of priority listed):
(i) so long as no Event of Default has occurred and, in any case, prior to the declaration, or automatic occurrence, of the Facility Termination Date:
(A) pro rata (1) to the Security Trustee in payment in full of all accrued Security Trustee Fees and Expenses, (2) to the applicable Service
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Providers, in payment in full (a) of their Service Provider Fees with respect to such Payment Date (except Service Provider Fees owing to the Manager at any time the Manager is an Affiliate of the Borrower) and (b) of expenses and/or indemnification payments payable thereto (other than payments constituting Service Provider Fees) under the Service Provider Agreements as of the last day of the prior calendar month, to the extent not previously paid and (3) to the applicable payees, for payment or reimbursement of Borrower Expenses and for Borrower Income Tax Expenses;
(B) to the Administrative Agent, the due and unpaid Commitment Fees in respect of the unused portion of the Non-Conduit Lender Commitment;
(C) pro rata (1) to the counterparties on any Hedge Agreements for all hedge payments due thereunder (excluding termination payments), if any, and (2) to the Administrative Agent, any interest due under this Agreement, including, without limitation, Section 5.2(e) in respect of outstanding Advances;
(D) ratably to the Administrative Agent and the Lenders for all costs and expenses and other similar amounts (including, without limitation, any amounts payable under Sections 5.1 through 5.4 hereof and under Section 16.4 hereof) payable to the Administrative Agent or any Lender pursuant to the terms of any of the Transaction Documents;
(E) pro rata (1) to the counterparties on any Hedge Agreements for all termination payments, if any, due thereunder and (2) to the Administrative Agent, on behalf of the Lenders, in the amount of the Borrowing Base Deficiency or the amount of any other principal due on the Advances, if any, on such Payment Date;
(F) at any time the Manager is an Affiliate of the Borrower, to the Manager in payment in full of the Service Provider Fees owing to the Manager with respect to such Payment Date; and
(G) to or at the direction of the Borrower, the remaining portion of such funds, provided, that the Borrower may elect, in its sole discretion, to retain all or a portion of such funds in the Collection Account;
(ii) if an Event of Default has occurred and is continuing and, in any case, after the declaration, or automatic occurrence, of the Facility Termination Date:
(A) pro rata (1) to the Security Trustee in payment in full of all accrued Security Trustee Fees and Expenses, (2) to the applicable Service Providers in payment in full (a) of their Service Provider Fees with respect to such Payment Date (except Service Provider Fees owing to the Manager at any time the Manager is an Affiliate of the Borrower) and (b) of expenses and/or
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indemnification payments payable thereto (other than payments constituting Service Provider Fees) under the Service Provider Agreements as of the last day of the prior calendar month, to the extent not previously paid and (3) to the applicable payees, for payment or reimbursement of Borrower Expenses;
(B) to the Administrative Agent, the due and unpaid Commitment Fees in respect of the unused portion of the applicable Non-Conduit Lender Commitment (provided that no Commitment Fees shall be due in respect of any period after the Advance Commitment Period);
(C) pro rata (1) to the counterparties on any Hedge Agreements for the hedge payments due thereunder (excluding termination payments), if any, and (2) to the Administrative Agent, any interest due under this Agreement in respect of outstanding Advances, including interest at the Default Rate;
(D) ratably to the Administrative Agent and the Lenders for all costs and expenses and other similar amounts (including, without limitation, any amounts payable under Sections 5.1 through 5.4 hereof and under Section 16.4 hereof) payable to the Administrative Agent or any Lender pursuant to the terms of any of the Transaction Documents;
(E) pro rata (1) to the counterparties on any Hedge Agreements for all termination payments, if any, due thereunder and (2) to the Administrative Agent, on behalf of the Lenders, in reduction of the Outstanding Principal Amount, the amount required to reduce the Outstanding Principal Amount to zero;
(F) at any time the Manager is an Affiliate of the Borrower, to the Manager in payment in full of the Service Provider Fees owing to the Manager; and
(G) to or at the direction of the Borrower, the remaining portion of such funds, provided, that the Borrower may elect, in its sole discretion, to retain all or a portion of such funds in the Collection Account.
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respect of Supplemental Rent or Security Deposits to Lessees or other third parties pursuant to the terms of any Eligible Lease or the Service Provider Agreements.
The Manager shall promptly notify the Security Trustee in writing of the expected payment of any such refund and the anticipated amount thereof.
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retained in such accounts pursuant to the terms of any applicable Leases (and such income shall not be so transferred).
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the other parties hereto to enter into this Agreement and, in the case of the Lenders, to make Advances hereunder, the Borrower hereby represents and warrants to the Administrative Agent, the Security Trustee and the Lenders, as of (unless otherwise explicitly set forth below) the Closing Date and each Advance Date, as follows:
SECTION 8.2 Organization and Good Standing.
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binding obligations of the Borrower and such Borrower Subsidiaries, as applicable, enforceable in accordance with their respective terms, except as enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization or other similar law, and (ii) general principles of equity.
SECTION 8.5 Security Interest.
(a) The Security Trust Agreement creates or shall create upon registration where registration is required to secure priority, a valid first priority security interest in the Collateral, free and clear of any Adverse Claim other than Permitted Liens, in favor of the Security Trustee, for the benefit of the Administrative Agent and the Lenders, enforceable against the Borrower and the Borrower Subsidiary grantors thereunder, and creditors of and purchasers from such grantors.
(b) None of the Collateral has been pledged, assigned, sold or otherwise encumbered other than pursuant to the terms hereof or of the Security Trust Agreement and except for Permitted Liens, and no Collateral is described in (i) any UCC financing statements filed against any Seller or the Borrower other than UCC financing statements which have been terminated and the UCC financing statements filed in connection with Permitted Liens, the Security Trust Agreement, each of which name the Security Trustee as secured party, or (ii) any other registries or filing records that may be applicable to the Collateral in any other relevant jurisdiction, other than such filings or registrations made in connection with Permitted Liens, the Security Trust Agreement or any other security document in favor of the Security Trustee for the benefit of the Secured Parties or, with respect to the Leases, in favor of the Borrower.
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all material respects with all applicable laws (including, without limitation, any Environmental Law), rules, regulations, judgments (unless such judgment has been properly appealed and such appeal is being diligently prosecuted by such Person), agreements, decrees and orders with respect to the Aircraft, Leases and other Aircraft Assets generally, except in each case where non-compliance could not reasonably be expected to have a Material Adverse Effect.
(a) The Collateral and each part thereof is owned by the Borrower free and clear of any Adverse Claim other than Permitted Liens, and the Borrower has the full right, corporate power and lawful authority to assign, transfer and pledge the same and interests therein, and upon the making of the Advances, the Security Trustee, for the benefit of the Administrative Agent and the Lenders, will have, upon registration if required, acquired a perfected, first priority and valid security interest in such Collateral, free and clear of any Adverse Claim other than Permitted Liens. No effective control agreement, financing statement or other instrument similar in effect covering all or any part of the Collateral has been executed or is on file in any recording office, except such as may have been filed in connection with a Permitted Lien or in favor of the Security Trustee for the benefit of the Secured Parties or, with respect to the Leases, in favor of the Borrower. The use by the Borrower of the Collateral and all rights with respect thereto do not infringe on the rights of any person.
(b) The rights and obligations of the Borrower Group Members as Lessors under the Leases with respect to the Aircraft, and any Equity Interests in any other Person held by such Borrower Group Members, are, in each case, held free and clear of any Adverse Claim other than Permitted Liens, and each such Borrower Group Member has the full right, corporate power and lawful authority to assign, transfer and pledge the same and interests therein, and upon the making of the Advances relating thereto, the Security Trustee, for the benefit of the
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Administrative Agent and the Lenders, will have, upon registration if required, acquired a perfected, first priority and valid security interest in such rights, obligations and Equity Interests, free and clear of any Adverse Claim (other than Permitted Liens).
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None of the Borrower, any Borrower Subsidiary nor any broker or other agent of any of them acting or benefiting in any capacity in connection with the Advances is any of the following:
(i) a person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
(ii) a person owned or controlled by, or acting for or on behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
(iii) a person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;
(iv) a person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or
(v) a person that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) at its official website or any replacement website or other replacement official publication of such list.
None of the Borrower, any Borrower Subsidiary nor any broker or other agent of any of them acting in any capacity in connection with the Advances (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in the preceding paragraph, (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.
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SECTION 8.22 Investment Company Status. None of the Borrower nor any Borrower Subsidiary is an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended. The making of the Advances by the Lenders, the application of the proceeds and repayment thereof by the Borrower and the consummation of the transactions contemplated by this Agreement and the other Transaction Documents to which the Borrower or any Borrower Subsidiary is a party will not violate any provision of such Act or any rule, regulation or order issued by the Securities and Exchange Commission thereunder.
SECTION 8.23 Description of Aircraft and Leases.
(a) Schedule I attached hereto, as supplemented from time to time pursuant to Section 6.2(h) or Section 9.8 hereof is a true and correct list of all Aircraft acquired from time to time.
(b) Schedule II attached hereto, as supplemented from time to time pursuant to Section 6.2(h) or Section 9.8 hereof, is a true and correct list of all Borrower Group Members and the Aircraft Owned thereby from time to time.
(c) Schedule III attached hereto, as supplemented from time to time pursuant to Section 6.2(h), Section 9.8 or Section 9.9 hereof, is a true and correct list of all Leases (including, without limitation, any head leases) in effect with respect to the Aircraft Owned by Borrower Group Members.
SECTION 8.24 No Default, Etc. There does not exist (as of the Closing Date and Advance Date), any Default, Event of Default, Servicer Termination Event, or event that would constitute a Servicer Termination Event but for the passage of time or the giving of notice or both.
SECTION 8.25 Subsidiary Constituent Documents. There is in full force and effect with respect to each Borrower Subsidiary, as applicable, a limited liability company agreement, trust agreement or other corporate constituent document substantially in the form of one of the documents attached hereto as Exhibit H or otherwise reasonably acceptable to the Administrative Agent.
SECTION 8.26 Transaction Documents. Each of the Transaction Documents has been duly authorized, executed and delivered by the Borrower and each Borrower Subsidiary.
From the Closing Date until the later of the Facility Termination Date or the day thereafter on which all Obligations shall have been finally and fully paid and performed, the Borrower hereby covenants and agrees as follows:
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SECTION 9.1 Legal Existence and Good Standing. Except as otherwise permitted under Section 9.25, the Borrower shall, and the Borrower shall cause each of the Borrower Subsidiaries to, maintain (a) its legal existence and, if applicable, good standing in the jurisdiction of its formation, incorporation, or organization and (b) its qualification and, if applicable, good standing in all other jurisdictions in which the failure to maintain such qualification and good standing could reasonably be expected to cause a Material Adverse Effect.
SECTION 9.2 Protection of Security Interest of the Lenders.
(a) (i) At or prior to the Closing Date, the Borrower shall have filed or caused to be filed, with respect to itself and each other Borrower Group Member that is a grantor of security interests under the Security Trust Agreement, UCC-1 financing statements and amendments thereto, naming such Borrower Group Member as debtor, naming the Security Trustee (for the benefit of the Lenders, the Eligible Counterparties and the Administrative Agent) as secured party and describing the applicable Collateral (such UCC-1 financing statements and amendments to be satisfactory to the Administrative Agent and otherwise in form and substance sufficient to perfect the security interest evidenced thereby as required by the applicable Uniform Commercial Code to the extent such security interest may be perfected by the filing of financing statements), with the Washington, D.C. Office of Registry and in such other jurisdictions and locations as may be required to perfect the security interests in the Collateral granted under the Security Trust Agreement and/or as the Security Trustee or the Administrative Agent shall have reasonably required. From time to time, at or prior to each Advance Date, the Borrower shall execute and file (or cause to be executed and filed) such financing statements and cause to be executed and filed such continuation statements, and shall make such registrations of international interests and assignments thereof existing or arising under the Cape Town Convention, including without limitation any filings necessary under the Cape Town Convention (provided, that if a Lessee’s cooperation is necessary to effectuate any such registrations, the Borrower shall only be required to make such registration to the extent feasible using commercially reasonable efforts), all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of the Administrative Agent, the Security Trustee and the Lenders under this Agreement and the Security Trust Agreement in the Collateral, and in the proceeds thereof. In addition, with respect to the delivery of any legal opinion in respect of the Cape Town Convention, stated to be a condition precedent to Advances under Section 6.2 hereof, but the execution and delivery of which is relegated to an undertaking of the Borrower under this subsection (a)(i), the Borrower agrees to obtain the relevant legal opinion as soon as feasible but in no event later than twenty (20) Business Days following the date of making the Advance available to the Borrower. The Borrower shall in any case deliver (or cause to be delivered) to the Administrative Agent file-stamped copies of, or filing receipts for, any document filed or registration effected as provided above, as soon as available following such filing or registration. In the event that the Borrower fails to perform its obligations under this subsection, the Security Trustee and the Administrative Agent may (and upon the direction of the Administrative Agent shall) do so at the expense of the Borrower, to the extent that they are legally entitled to do so.
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(ii) Notwithstanding anything herein or in any other Credit Document to the contrary, the Security Trustee shall be under no obligation to file or prepare any financing statement or continuation statement or to take any action or to execute any further documents or instruments in order to create, preserve or perfect the security interest granted hereunder, such obligations being solely the obligations of the Borrower (or, as applicable, a Service Provider).
(b) The Borrower shall not, and shall not permit any other Borrower Group Member that is a grantor of a security interest under the Security Trust Agreement to, change its name, identity, or corporate structure in any manner that would or could make any financing statement or continuation statement filed in accordance with paragraph (a) above seriously misleading within the meaning of § 9-402(7) of the UCC, unless the Borrower shall have given the Administrative Agent at least thirty (30) days prior written notice thereof, and shall promptly file appropriate amendments to all previously filed financing statements and continuation statements.
(c) The Borrower shall give the Administrative Agent at least sixty (60) days’ prior written notice of any change of the Borrower’s, or any other Borrower Group Member’s, jurisdiction of formation or organization. The Borrower shall at all times maintain its registered office within Bermuda, provided that the Borrower may be an Irish tax resident.
(d) The Borrower shall furnish to the Security Trustee and the Administrative Agent from time to time such statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as the Security Trustee or the Administrative Agent may reasonably request, all in reasonable detail.
(e) The Borrower will not maintain, nor permit a Lessor to maintain, for purposes of determining perfection by possession under applicable law, possession of any executed original counterparts of the Leases that would be deemed the Chattel Paper Original in a jurisdiction other than Ireland, unless such Lease is an executed original or Chattel Paper Original deposited with the Security Trustee.
(a) The Borrower shall maintain, or cause to be maintained, its computer systems so that, from and after the time of the Closing Date, its Records indicate clearly that the Collateral is directly or indirectly owned by Borrower or another Borrower Group Member.
(b) The Borrower shall, at its own cost and expense, maintain and update, or cause to be maintained and updated, complete records of the Aircraft, the Leases and the other Aircraft Assets, consistent with the Servicer Standard of Performance.
SECTION 9.4 Other Liens or Interests.
(a) Except for the security interest granted under the Security Trust Agreement, and as otherwise permitted under the Transaction Documents, the Borrower will not sell, pledge, assign or transfer to any other Person (other than as permitted hereunder), or grant, create, incur, assume or suffer to exist any Adverse Claim, in each case other than in respect of Permitted Liens, on any of the Borrower’s assets, including, without limitation, any Aircraft or other
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Aircraft Assets, the Collateral or any interest therein, and the Borrower shall defend the right, title, and interest of the Security Trustee (for the benefit of the Secured Parties) in and to the Collateral against all claims of third parties claiming through or under the Borrower.
(b) Except for the security interest granted under the Security Trust Agreement, and as otherwise permitted under the Transaction Documents, the Borrower shall cause each Borrower Subsidiary not to sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Adverse Claim, in each case other than in respect of Permitted Liens, on any of the Borrower Subsidiaries’ assets, including, without limitation, any Aircraft or other Aircraft Assets, or the Collateral owned by, entered into by or related to such Borrower Subsidiary, or any interest therein. Without limiting the foregoing, the Borrower will not, and will not cause or permit any Borrower Subsidiary to, do anything to impair the rights of the Administrative Agent or the Lenders in any Aircraft or other Aircraft Assets, or any Leases, Related Security or other Collateral owned by, entered into by or related to such Borrower Subsidiary, or any interest therein other than to the extent expressly permitted under the Transaction Documents.
SECTION 9.5 Negative Pledge Clause. The Borrower shall not, and the Borrower shall not cause or permit any Borrower Subsidiary to enter into or cause, suffer or permit to exist, any agreement with any Person other than the Security Trustee, the Administrative Agent and any Lender pursuant to this Agreement or any other Transaction Documents which prohibits or limits the ability of the Borrower or any Borrower Subsidiary to create, incur, assume or suffer to exist any Adverse Claim upon any of its property, assets or revenues, whether now owned or hereafter acquired other than in respect of Permitted Liens.
SECTION 9.6 Maintain Properties. The Borrower shall (i) with respect to each Aircraft that is subject to a Lease, cause, directly or indirectly, through any Borrower Subsidiary, such Aircraft to be maintained in a state of repair and condition substantially consistent with Leasing Company Practice with respect to similar aircraft under lease, taking into consideration, among other things, the identity of the relevant Lessee (including operating experience thereof) the age and condition of the Aircraft and the jurisdiction in which such Aircraft will be operated or registered under any Lease, and (ii) with respect to each Aircraft that is not subject to a Lease, maintain, and cause each Borrower Subsidiary to maintain, such Aircraft in a state of repair and condition substantially consistent with Leasing Company Practice with respect to aircraft not under lease. Notwithstanding the foregoing, no breach of this Section 9.6 shall be deemed to have occurred by virtue of any Third Party Event; provided that (i) neither the Borrower nor any Borrower Subsidiary consents or has consented to such Third Party Event; and (ii) the Borrower or such Borrower Subsidiary which is the lessor or owner of such Aircraft promptly and diligently takes such customary actions consistent with Leasing Company Practice in respect of such Third Party Event, including as deemed appropriate, seeking to compel such Lessee or other relevant Person to remedy such Third Party Event or seeking to repossess the relevant Aircraft. The Borrower shall and shall cause each Borrower Subsidiary to maintain all properties other than Financed Aircraft necessary to its operations in good working order and condition, make all needed repairs, replacements and renewals to such properties, and maintain free from Adverse Claims all trademarks, trade names, patents, copyrights, trade secrets, know-how, and other intellectual property and proprietary information (or adequate licenses
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thereto), in each case as are reasonably necessary to conduct its business as currently conducted or as contemplated hereby, all in accordance with customary and prudent business practices.
SECTION 9.7 Ownership, Operation and Leasing of Financed Aircraft. The Borrower shall not, and shall not permit any Borrower Subsidiary to:
(a) Other than in connection with a sale, transfer or other disposition permitted under Section 9.8, permit any Person other than the applicable Aircraft Owning Entity (or an Owner Participant as the Owner of all of the beneficial interest in an Owner Trust) to own beneficially or of record any Aircraft (except to the extent required by applicable law); provided that, in connection with an Aircraft that is proposed to not be Owned by a Borrower Subsidiary pursuant to subclause (x) of Section 9.8 below (each such entity which Owns an Aircraft, a “Section 9.7(a) Entity”), the Administrative Agent shall have received (in addition to any other requirements provided in this Agreement) payment of all costs and expenses (including legal fees) accrued prior to the making of the Advance in respect of such transaction in accordance with Section 16.4 hereof to the extent invoiced or otherwise notified to the Borrower in writing and in a manner and at such time as the Administrative Agent and the Borrower may have agreed;
(b) Enforce any Lease with respect to any Aircraft in a manner other than the manner in which the Servicer is required to enforce such Lease under the Servicing Agreement;
(c) Enter into a Lease with respect to an Aircraft unless such Lease is an Eligible Lease; and
(d) Enter into a Future Lease with a Lessee if that would result in a Lessee Limitation Event.
SECTION 9.8 Limitation on Disposition of Aircraft. The Borrower shall not sell, transfer or otherwise dispose of any Aircraft or any Equity Interest in any Borrower Subsidiary, or allow any Borrower Subsidiary to sell, transfer or otherwise dispose of any Aircraft or any Equity Interest in any Borrower Subsidiary, except (x) in connection with a transfer of title or another interest in an Aircraft (1) to or in favor of a trust or entity that is not a Borrower Subsidiary for the purposes of registering the Aircraft under the laws of an applicable jurisdiction, or for tax or other regulatory purposes, where the Borrower or a Borrower Subsidiary retains the beneficial or economic ownership of the Aircraft or (2) from such trust or entity to the Borrower or a Borrower Subsidiary, except that, without the consent of the Administrative Agent, at any one time not more than three Aircraft may be subject to the arrangements described in subclause (1) of this subclause (x) or subclause (x) of the definition of “Permitted Lien”, to the extent that such arrangements cause title to such Aircraft to be held by Persons that are not Borrower Subsidiaries, (y) in connection with transfers wholly among the Borrower Group Members, or (z) pursuant to any such other sale, transfer or other disposition in which the following conditions are satisfied:
(a) such sale, transfer or other disposition is not structured as a sale and leaseback transaction;
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(b) until the Borrower shall have delivered to the Administrative Agent the initial Periodic Appraisals, the price for such sale, transfer or other disposition (net of closing costs, broker fees and other related expenses, and net of Tax liabilities payable by the Borrower or any Borrower Subsidiary attributable to such sale, transfer or disposition) equals or exceeds an amount equal to the Allocable Advance Amount together with accrued interest thereon with respect to the related Aircraft as of the date of such sale, transfer or other disposition (if the date of such sale, transfer or other disposition is a Payment Date) or as of the immediately preceding Payment Date (if the date of such sale, transfer or other disposition is not a Payment Date);
(c) such sale, transfer or other disposition (other than with respect to Out-of-Production Aircraft) will not result in an Aircraft Limitation Event or a Lessee Limitation Event;
(d) no Event of Default shall have occurred at or prior to the time of, or shall occur as a result of, such sale, transfer or other disposition; and
(e) after giving effect to such sale, transfer or other disposition, and if the date of such sale, transfer or other disposition is a Payment Date, after giving effect to the distribution of funds under the Flow of Funds on such Payment Date, or if not, then after giving effect to the distribution of funds under the Flow of Funds on the next Payment Date, no Borrowing Base Deficiency will exist.
Any Borrower Subsidiary may sell an Aircraft pursuant to a purchase option or other agreement of a similar character with a Lessee or transfer an Aircraft to a Lessee or its insurer following the receipt by the Security Trustee of insurance, requisition or condemnation proceeds in connection with an Event of Loss and in either such case the conditions set forth in clauses (z)(a) through (e) above shall have been satisfied (provided that the Security Trustee shall have no obligation to verify that such conditions have been satisfied). The Borrower shall deposit, and shall cause the Borrower Subsidiaries to immediately deposit, in each case with written notice to the Security Trustee, the proceeds of any such sale, transfer or other disposition described in clause (z) above, including, without limitation any such sale, transfer or other disposition of any Aircraft or any Equity Interests in any Borrower Subsidiary in connection with any Capital Markets Transaction, into the Collection Account for application thereof (i) on the date of such deposit (in the case of the proceeds of a Capital Markets Transaction or any significant sale, transfer or other disposition designated as such by the Administrative Agent) in the order of priority set forth in the Flow of Funds hereof with such holdbacks with respect to applications of funds (other than applications to the repayment of Advances) as the Administrative Agent deems desirable and (ii) on the next succeeding Payment Date (in any case other than the case of the proceeds of a Capital Markets Transaction or any significant sale, transfer or other disposition designated as such by the Administrative Agent) in accordance with the Flow of Funds. On the date of any such sale, transfer or other disposition, the Borrower shall deliver to the Administrative Agent amended and restated copies of Schedule I, Schedule II, and Schedule III hereto containing information that is correct after giving effect to such sale, transfer or other disposition.
Notwithstanding the foregoing, an Aircraft that has suffered an Event of Loss may be disposed of at the direction of an insurer that provided insurance covering such Event of Loss and has paid
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into the Collection Account all insurance proceeds to which the Security Trustee, the Borrower and/or the applicable Borrower Subsidiary are entitled to receive in connection with such Event of Loss.
SECTION 9.9 Extension, Amendment or Replacement of Leases.
(a) The Borrower shall not allow any Borrower Subsidiary to amend, replace, or waive any term of, or otherwise modify any Lease if the effect of such amendment or waiver would cause such Lease to cease to comply with the Core Lease Provisions.
(b) Upon the termination of any Lease with respect to any Aircraft, the Borrower shall cause the applicable Borrower Subsidiary to use its reasonable commercial efforts to renew or extend such Lease or lease such Aircraft to another Eligible Carrier pursuant to an Eligible Lease and otherwise shall be in compliance with the terms of the Servicing Agreement. No such additional Lease shall be permitted if it would constitute a Lessee Limitation Event; provided that no Lessee Limitation Event shall be deemed to have occurred as a result of the renewal, extension or replacement of any Lease with the same Eligible Carrier.
(c) Upon execution of any renewal, extension or replacement Lease, the Borrower or the applicable Borrower Subsidiary shall comply with the provisions of Section 2.11(e), (f) or (g) of the Security Trust Agreement, as applicable, and deliver:
(i) to the Security Trustee, and only if the Lease is with a Lessor organized under the laws of a State (or the District of Columbia) within the United States within the meaning of Article 9 of the UCC, the Chattel Paper Original of such renewal, extension or replacement Lease;
(ii) to the Security Trustee, a Notice and Acknowledgment with respect to such Lease;
(iii) to the Security Trustee and the Administrative Agent, certificates of insurance from qualified brokers of aircraft insurance (or other evidence satisfactory to the Administrative Agent), evidencing all insurance required to be maintained by the applicable Obligor, together with endorsements naming (i) the Security Trustee, for the benefit of the Administrative Agent and the Lenders, as a “contract party” and listing the relevant Transaction Documents as “contracts” for purposes of certificates incorporating Lloyd’s AVN67B endorsements or similar language or as “loss payee” or as an “additional insured”, if applicable and (ii) each of the Borrower, the Borrower Subsidiary that is the owner, or lessor, of such Aircraft, the Security Trustee and the Administrative Agent, on behalf of the Lenders, as an additional insured (except to the extent that the applicable Lease does not require the addition of the Administrative Agent as an additional insured);
(iv) to the Administrative Agent, promptly and in any case within 15 days, a copy of such Lease, and an amended and restated Schedule III hereto incorporating all information required under such schedule with respect to such renewal, extension or replacement Lease; and
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(v) to the Security Trustee, with respect to any renewal, extension or replacement Lease, copies of such legal opinions with regard to compliance with the registration requirements of the relevant jurisdiction, enforceability of such Lease and such other matters customary for such transactions, in each case to the extent that receiving such legal opinions is consistent with Leasing Company Practice.
SECTION 9.10 Servicing Agreement.
(d) Breaches. The Borrower shall not commit any material breach of any Service Provider Agreement.
SECTION 9.11 Representations Regarding Operation. The Borrower shall not, and shall not cause or permit any Borrower Subsidiary to represent or hold out, or permit any Applicable Carrier or Owner Trustee to represent or hold out, the Security Trustee, the Administrative Agent or any Lender as (i) the owner or lessor of any Aircraft, (ii) carrying goods or passengers on any Aircraft, or (iii) being in any way responsible for any operation of carriage (whether for hire or reward or gratuitously) with respect to any Aircraft.
SECTION 9.12 Costs and Expenses. The Borrower shall pay all of its and its Subsidiaries’ reasonable costs and disbursements in connection with the performance of its obligations hereunder and under the Transaction Documents.
SECTION 9.13 Compliance with Laws, Etc. The Borrower shall, and shall cause each Borrower Subsidiary to, comply in all material respects with all Requirements of Law (including, without limitation, any Environmental Law), rules, regulations and orders and preserve and maintain its corporate existence, rights, franchises, qualifications, and privileges except to the extent that the failure so to comply with such laws, rules and regulations or the failure so to preserve and maintain such existence, rights, franchises, qualifications, and privileges would not materially adversely affect the Collateral, the collectibility of monies owed under the Leases or the ability of the Borrower, any Service Provider or such Borrower Subsidiary to perform its obligations under the Transaction Documents.
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Without limiting the foregoing, the Borrower shall, and shall cause the Aircraft Owning Entities and Owner Participants to, obtain all material governmental (including regulatory) registrations, certificates, licenses, permits and authorizations required in connection with the Transaction Documents and for the use and operation of the Aircraft Owned by it, including, without limitation, a current certificate of airworthiness for each Aircraft (issued by the applicable aviation authority and in the appropriate category for the nature of operations of such Aircraft), except that (A) no certificate of airworthiness will be required for any Aircraft (x) during any period when such Aircraft is undergoing maintenance, modification or repair, or (y) following the withdrawal or suspension by such applicable aviation authority of certificates of airworthiness in respect of all aircraft of the same model or period of manufacture as such Aircraft (in which case the Borrower and any applicable Borrower Subsidiary will comply with all directions of such applicable aviation authority in connection with such withdrawal or suspension), or (z) with respect to a Lessee as provided in the immediately succeeding paragraph, (B) no registrations, certificates, licenses, permits or authorizations required for the use or operation of any Aircraft need be obtained with respect to any period when such Aircraft is not being operated and (C) no such registrations, certificates, licenses, permits or authorizations will be required to be maintained for any Aircraft that is not the subject of a Lease, except to the extent required under Requirements of Law.
Notwithstanding the foregoing, no breach of this Section 9.13 shall be deemed to have occurred by virtue of any act or omission of a lessee or sub-lessee, or of any Person which has possession of the Aircraft or any engine for the purpose of repairs, maintenance, modification or storage, or by virtue of any requisition, seizure, or confiscation of the Aircraft (other than seizure or confiscation arising from a breach by the Borrower or a Borrower Subsidiary of this Section 9.13) (each, a “Third Party Event”); provided, that (i) neither the Borrower nor any Borrower Subsidiary consents or has consented to such Third Party Event; and (ii) the Borrower or Borrower Subsidiary which is the lessor or owner (or beneficial owner) of such Aircraft promptly and diligently takes such actions as a leading international aircraft operating lessor would customarily take in respect of such Third Party Event, including, as deemed appropriate (taking into account, inter alia, the laws of the jurisdictions in which the Aircraft is located), seeking to compel any applicable Obligor or any other relevant Person to remedy such Third Party Event or seeking to repossess the relevant Aircraft or engine.
SECTION 9.14 Environmental Compliance. If the Borrower or any of the Borrower Subsidiaries shall receive any letter, notice, complaint, order, directive, claim or citation alleging that the Borrower, any Service Provider or any of the Borrower Subsidiaries has violated any Environmental Law, has released any Hazardous Material in violation of any Environmental Law, or is liable for the costs of cleaning up, removing, remediating or responding to a release of Hazardous Materials, the Borrower shall, and shall cause any such Borrower Subsidiary to, within the time period permitted and to the extent required by the applicable Environmental Law or the Government Entity responsible for enforcing such Environmental Law, remove or remedy such violation or release or satisfy such liability.
SECTION 9.15 Employee Benefit Plans; Employees. Neither the Borrower nor any Borrower Subsidiary shall have (i) any Employee Benefit Plan, any Multiemployer Plan or any Pension Plan, or any obligation to fund any such plan, or (ii) more than two employees other
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than as required by any provisions of local law (or in order to obtain more favorable tax treatment), provided that trustees and directors shall not be deemed to be employees for purposes of this covenant.
SECTION 9.16 Compliance. The Borrower shall comply, and shall cause each Borrower Subsidiary to comply, in all material respects with the provisions of the Transaction Documents. The Borrower shall ensure that title to each Aircraft shall be held in a special purpose bankruptcy remote entity (including a trust) (but not the Borrower) whose constitutional documents contain restrictions similar to the restrictions (including, but not limited to, the provisions regarding limited purpose, maintaining separateness from other entities and bankruptcy remoteness) contained in the constitutional documents of the Borrower Subsidiaries; provided that title to each Aircraft shall be held in a single entity unless the Borrower has commercial reasons to have title to more than one Aircraft held in a single entity but in no event shall title to more than three Aircraft be held in any one such entity.
SECTION 9.17 Notice of Adverse Claim or Loss. The Borrower shall notify the Security Trustee and the Administrative Agent promptly, in writing and in reasonable detail, (i) of any Adverse Claim known to it made or asserted against any of the Collateral (other than Permitted Liens), (ii) of the occurrence of any event which would have a material adverse effect on the assignments and security interests granted by the Borrower or the Borrower Subsidiaries under any Transaction Document, (iii) as soon as the Borrower or any Borrower Subsidiary becomes aware, of any loss, theft, damage, or destruction to any Aircraft if the potential cost of repair or replacement of such asset (without regard to any insurance claim related thereto) may exceed the greater of the damage notification threshold under the relevant Lease and $2,000,000; and (iv) as soon as the Borrower or any Borrower Subsidiary becomes aware of any settlement offer received by the Servicer with respect to any claim of damage or loss in excess of $10,000,000 with respect to an Aircraft.
SECTION 9.18 Reporting Requirements.
(a) The Borrower (itself or through any applicable Service Provider) shall furnish, or cause to be furnished, to the Administrative Agent and, in the case of clauses (i) and (vi) below, to the Security Trustee:
(i) on each Determination Date, the Monthly Report;
(ii) as soon as available and in any event within 90 days after the end of each Fiscal Year, a copy of the audited consolidated financial statements, prepared in accordance with GAAP, for such year of (x) Genesis Group and (y) the Borrower and its consolidated Subsidiaries, certified by any firm of nationally recognized independent certified public accountants reasonably acceptable to the Administrative Agent, accompanied by a certificate of the officer in charge of financial matters of GLS or the Borrower, as applicable, identifying such financial statements as being the financial statements of such Person described in this paragraph (ii) and stating that the information set forth therein fairly presents the financial condition of GLS or the Borrower, as applicable, and its consolidated Subsidiaries as of the last day of such Fiscal Year then ended, in conformity with GAAP;
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(iii) as soon as available and in any event within 60 days after the end of each of the first three quarters of each Fiscal Year, with respect to (x) Genesis Group and (y) the Borrower and its consolidated Subsidiaries, unaudited consolidated balance sheets as of the end of such quarter and as at the end of the previous Fiscal Year, and consolidated statements of income for such quarter and for the period commencing at the end of the previous Fiscal Year and ending with the end of such quarter prepared in accordance with GAAP, certified by the officer in charge of financial matters of GLS or the Borrower, as applicable, identifying such balance sheets or statements as being the balance sheets or statements of such Person described in this paragraph (iii) and stating that the information set forth therein fairly presents the financial condition of GLS or the Borrower, as applicable, and its consolidated Subsidiaries as of the last day of such quarter of such Fiscal Year in conformity with GAAP, subject to year-end adjustments and omissions of footnotes and subject to the auditors’ year end report;
(iv) promptly after receipt thereof, a copy of any “management letter” received by the Borrower from its certified public accountants and the management’s response thereto;
(v) on each Determination Date and on each third Determination Date following the Closing Date, the Borrower shall deliver or cause to be delivered a Servicer’s Monthly Report or a Servicer’s Quarterly Report, respectively, provided by the Servicer pursuant to the Servicing Agreement, in form and substance acceptable to the Administrative Agent;
(vi) as soon as possible and in any event within five (5) days after the occurrence of a Default, an Event of Default, a Servicer Termination Event, or an event that would constitute a Servicer Termination Event but for the passage of time or the giving of notice or both, a written statement of an officer in charge of financial matters of the Borrower setting forth complete details of such Default, Event of Default, Servicer Termination Event or any such other event, and the action, if any, which the Borrower has taken, is taking and proposes to take with respect thereto;
(vii) promptly, from time to time, such other information, documents, Records or reports respecting the Aircraft, the Leases, the Equity Interests of the Borrower Subsidiaries, the Related Security or the condition or operations, financial or otherwise, of the Borrower, the Borrower Subsidiaries or any of their respective Subsidiaries which the Security Trustee, the Administrative Agent or a Lender may, from time to time, reasonably request;
(viii) prompt written notice of the issuance by any court or governmental agency or authority of any injunction, order, decision or other restraint prohibiting, or having the effect of prohibiting, the making of the Advances hereunder, or invalidating, or having the effect of invalidating, any provision of this Agreement, or any other Transaction Document, or the initiation of any litigation or similar proceeding seeking any such injunction, order, decision or other restraint, in each case, of which it has knowledge;
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(ix) as soon as is available and in any case within thirty (30) days of the Board of Directors of the Borrower approving the Lease Operating Budget and the Aircraft Asset Expenses Budget (each as defined in the Servicer Agreement), a copy of each such budget as well as any amendments or modifications to such budgets;
(x) promptly, upon the request of the Administrative Agent, any reports, documentation, or other written material required to be submitted by the Servicer to the Manager pursuant to the Servicing Agreement, subject to the confidentiality and other provisions of the Servicing Agreement;
(xi) as soon as is available and in any case within sixty (60) days of the Report Date, a Periodic Appraisal from the Appraisers together with a revised Aircraft Value & Borrowing Base Schedule (if applicable) as of a date not earlier than sixty (60) days prior to the date such Appraisal is furnished and, at any time during the continuance of an Event of Default, at the Administrative Agents’ request, an Appraisal of the Aircraft specified in such request from the Appraisers;
(xii) a certificate of the officer in charge of financial matters of the Genesis Group setting forth in reasonable detail the calculations necessary to demonstrate the amount of EBITDA and Interest Expense as of the end of each fiscal quarter;
(xiii) in conjunction with the delivery of each report provided by the Servicer, and at any time there is a loss, sale or other disposition of any Aircraft within the Borrower’s Portfolio, the Borrower shall provide a borrowing base certification demonstrating in a form satisfactory to the Administrative Agent that no Borrowing Base Deficiency exists at the time of such certification; and
(xiv) on each third Determination Date following the Closing Date, the Borrower shall provide an officer’s certificate, in a form reasonably acceptable to the Administrative Agent, certifying that no Default has occurred and is continuing as of the date of such certification.
(b) The Borrower shall provide each Service Provider with any and all information reasonably necessary or appropriate for such Service Provider in connection with its duties hereunder and under the applicable Service Provider Agreements.
(c) The Administrative Agent and the Lenders are hereby authorized to deliver a copy of any such financial or other information delivered hereunder to the Lenders or to the Administrative Agent, to any Government Entity having jurisdiction over any such Person pursuant to any written request therefor or in the ordinary course of examination of loan files, to any rating agency in connection with their respective ratings of commercial paper issued by any Lender or to any other Person who shall acquire or consider the assignment of, or acquisition of any interest in, any Obligation permitted by this Agreement; provided, that such Person (not including any Government Entity or any rating agency) agrees in writing to the confidentiality provisions set forth in Section 16.15.
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SECTION 9.19 Corporate Separateness.
(a) Except to the extent permitted in this Agreement or the other Transaction Documents, the Borrower shall, and shall cause each Borrower Subsidiary to, maintain certain policies and procedures relating to its existence as a separate corporation, company or other legal entity as follows:
(i) the Borrower acknowledges its receipt of a copy of that certain opinion letter issued by Xxxxxxx Xxxx & Xxxxxxx, dated as of the Closing Date addressed to, among others, the Administrative Agent and addressing the issue of substantive consolidation as it may relate to the Borrower, on the one hand, and the Servicer or the Manager, on the other hand. The Borrower hereby agrees to maintain, and to cause each Borrower Subsidiary to maintain, in place all policies and procedures, and take and continue to take all actions, relating to the Borrower or such Borrower Subsidiaries, as applicable; provided that the Borrower or any such Borrower Subsidiary may cease to maintain any policy or procedure if and to the extent that the Borrower or such Borrower Subsidiary delivers to the Administrative Agent an Opinion of Counsel reasonably acceptable to the Administrative Agent providing that such policy or procedure is no longer necessary, due to a change in law or otherwise, for the rendering of such earlier opinion relating to the issue of substantive consolidation.
(ii) The Borrower shall, and shall cause each Borrower Subsidiary to:
(A) maintain its own books and records and bank accounts separate from those of the Servicer, the Manager and any other Person except as otherwise contemplated by the constitutional documents of the Borrower Group Members or the Transaction Documents;
(B) maintain its assets in such a manner that it is not difficult to segregate, identify or ascertain such assets;
(C) except with respect to any Borrower Group Member that is a grantor trust, have a board of directors separate from that of the Servicer, the Manager and any other Person; provided that the individuals serving as directors of each board of directors may be the same individuals on each board of directors;
(D) except with respect to any Borrower Group Member that is a grantor trust, cause its board of directors to meet at least quarterly and keep minutes of such meetings and actions and observe all other corporate and other legal formalities;
(E) hold itself out to creditors and the public as a legal entity separate and distinct from the Servicer, the Manager and any other Person;
(F) prepare separate financial statements and separate tax returns, and if separate returns for the Borrower and the Manager are required under applicable tax law, or if part of a consolidated group, then it will be shown as a
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separate member of such group, and pay any taxes required to be paid under applicable tax law;
(G) allocate and charge fairly and reasonably any common overhead shared with Affiliates;
(H) conduct business in its own name, use separate invoices, stationery and checks and strictly comply with all organizational formalities to maintain its separate existence;
(I) not commingle its assets or funds with those of any other Person (including the Servicer or the Manager);
(J) not hold out its credit or assets as being available to satisfy the obligations of others;
(K) not assume, guarantee or pay the debts or obligations of any other Person or otherwise pledge its assets for the benefit of any other Person;
(L) correct any known misunderstanding regarding its separate identity;
(M) except as permitted by this Agreement, pay its own liabilities only out of its own funds;
(N) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities;
(O) not acquire the securities of the Servicer or the Manager;
(P) cause its Board of Directors and any officers, managers, agents and other representatives of the Borrower or such Borrower Subsidiary, as applicable, to act at all times with respect to the Borrower or such Borrower subsidiary, as the case may be, consistently and in furtherance of the foregoing and in compliance with Applicable Law; and
(Q) except with regard to any trust of which the Borrower or a Subsidiary is the holder of the beneficial interest, to have at least two Independent Directors who may be an Independent Director serving on the board of directors of any of the other Borrower Group Members.
(iii) Subject to requirements of applicable Bermuda law, the Company shall do all things necessary to maintain itself in existence as an “exempted company” under the laws of Bermuda.
SECTION 9.20 Bankruptcy and Insolvency; Corporate Governance. The Borrower (i) shall promptly provide the Security Trustee and the Administrative Agent with written notice of the institution of any proceeding by or against the Borrower or any Borrower Subsidiary, as
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the case may be, seeking to adjudicate any of them bankrupt or insolvent, or seeking liquidation, Irish law examinership, winding up, reorganization, arrangement, adjustment, protection, relief or composition of their debts under any law relating to bankruptcy, insolvency or reorganization, Irish law examinership or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, Irish law examiner or other similar official for either all or for any substantial part of its property; (ii) shall not take any action to waive, repeal, amend, vary, supplement or otherwise modify its constitutional documents, or those of any Borrower Subsidiary in a manner that would adversely affect the rights, privileges or preferences of any Lender, as determined by the Borrower’s Board of Directors, and (iii) shall not, without an affirmative unanimous written resolution of the Board of Directors, take any action to waive, repeal, amend, vary, supplement or otherwise modify the provisions of its constitutional documents which require unanimous resolution of the shareholders of the Borrower or those of any Borrower Subsidiary and shall not permit any Borrower Subsidiary to take any such action without an affirmative unanimous written resolution of the Board of Directors of such Borrower Subsidiary.
(a) acquiring, purchasing, owning, holding, converting, maintaining, modifying, managing, operating, leasing, re-leasing and, subject to the limitations set forth in this Section 9.21, selling or otherwise disposing of Aircraft and spare engines and entering into all contracts and engaging in all related activities incidental thereto, including from time to time accepting, exchanging, holding or permitting any Borrower Subsidiary to accept, exchange or hold promissory notes, contingent payment obligations or equity interests, of Lessees or their Affiliates issued in connection with the bankruptcy, reorganization or other similar process, or in settlement of delinquent obligations or obligations anticipated to be delinquent, of such Lessees or their respective Affiliates in the ordinary course of business (an “Allowed Restructuring”);
(b) providing loans to, guaranteeing or otherwise supporting the obligations and liabilities of any Borrower Group Member, in each case on such terms and in such manner as the Board of Directors sees fit and (whether or not the Borrower or any Borrower Subsidiary derives a benefit therefrom) so long as such loans, guarantees or other supports are provided in connection with the purposes set forth in clause (a) of this Section 9.21;
(c) financing or refinancing the business activities described in clause (a) of this Section 9.21 through the offer, sale and issuance of any securities of the Borrower upon such terms and conditions as the Board of Directors sees fit, for cash or in payment or in partial payment of any property purchased or otherwise acquired by any Borrower Group Member;
(d) engaging in currency and interest rate exchange transactions for the purposes of avoiding, reducing, minimizing, hedging against or otherwise managing the risk of any loss, cost, expense or liability arising, or which may arise, directly or indirectly, from any change or changes in any interest rate or currency exchange rate or in the price or value of any of the Borrower’s or any Borrower Subsidiary’s property or assets, within limits and with providers
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specified in a resolution duly adopted by the Board of Directors of the Borrower, including dealings, whether involving purchases, sales or otherwise, in foreign currency, spot and forward interest rate exchange contracts, forward interest rate agreements, caps, floors and collars, futures, options, xxxxxx and any other currency, interest rate and other similar hedging arrangements and such other instruments as are similar to, or derivatives of, any of the foregoing; provided that the Borrower shall not, and shall not permit any Borrower Subsidiary to, enter into any such hedging arrangements or other instruments that are inconsistent with the Borrower’s Hedging Policy;
(e) (A) establishing, promoting and aiding in promoting, constituting, forming or organizing companies, trusts, syndicates, partnerships or other entities of all kinds in any part of the world for the purposes set forth in clause (a) above; provided that written notification shall have been given to the Administrative Agent that such company, trust, syndicate, partnership or other entity is set up in compliance with this Agreement, (B) acquiring, holding and disposing of shares, securities and other interests in any such company, trust syndicate, partnership or other entity and (C) disposing of shares, securities and other interests in, or causing the dissolution of, any existing subsidiary; provided that any such disposition which results in the disposition of an Aircraft meets the requirements set forth in Section 9.8 hereof; and
(f) taking out, acquiring, surrendering and assigning policies of insurance and assurances with any insurance company or companies which the Borrower or any Borrower Subsidiary may deem appropriate and paying the premiums thereon.
The foregoing limitation does not limit, and shall not apply to: (i) any transaction in connection with the establishment of the Borrower Group or pursuant to the terms of the Transaction Documents; (ii) any transaction within the Borrower Group; (iii) the payment of reasonable and customary fees to, and the provision of reasonable and customary liability insurance in respect of a member of the Borrower’s Board of Directors; (iv) any dividends permitted by this Agreement; and (v) any capital contribution to any Borrower Group Member.
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business in connection with a lease or sale of such Aircraft and (ii) (x) maintenance expenses to keep such Aircraft airworthy in all respects and in good repair and condition in accordance with international airline industry standards, (y) expenses incurred in order to comply with all airworthiness directives and mandatory orders and other requirements applicable to such Aircraft (each such non-excluded expenditure, a “Modification Payment”); provided, that (a) the Borrower may make any capital expenditures, including any Modification Payments, from funds distributed to the Borrower pursuant to the Flow of Funds so long as no Event of Default shall then exist or would occur as a result thereof and (b) no Aircraft Conversion shall result in an Aircraft Limitation Event, and (z) any capital expenditures which may be made by the Servicer without the express prior written approval of the Borrower under Section 7.04 of the Servicing Agreement; provided that this clause (z) shall not be deemed to permit modifications to the then current Approved Budget to the extent that such modifications consist of capital expenditures not otherwise permitted under this Section 9.23.
(i) the resulting entity is a special purpose entity, the charter of which is substantially similar to the Organizational Documents of the Borrower or the equivalent Organizational Documents of such Borrower Subsidiary, as the case may be, and, after such Merger Event payments from such resulting entity to the Lenders and the Eligible Counterparties do not give rise to any withholding tax payments less favorable to the Lenders and the Eligible Counterparties than the amount of any withholding tax payments which would have been required had such event not occurred;
(ii) in the case of a Merger Event involving the Borrower, the surviving successor or transferee entity shall expressly assume all of the obligations of the Borrower under this Agreement and each other Transaction Document to which the
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Borrower is then a party (with, in the case of a transfer only, the Borrower thereupon being released) and in the case of a Merger Event involving such Borrower Subsidiary, the surviving successor or transferee entity shall expressly assume all of the obligations of such Borrower Subsidiary under each Transaction Document to which it is then a party (with, in the case of a transfer only, such Borrower Subsidiary thereupon being released);
(iii) the prior written consent of the Administrative Agent is obtained with respect to such Merger Event;
(iv) immediately after giving effect to such Merger Event, no Event of Default shall have occurred and be continuing;
(v) the Borrower delivers to the Administrative Agent an officer’s certificate stating that such Merger Event complies with the above criteria and, if applicable, Section 9.7 and 9.8, and that all conditions precedent provided for herein relating to such Merger Event have been complied with; and
(vi) the Borrower delivers to the Administrative Agent an Opinion of Counsel reasonably acceptable to the Administrative Agent;
provided that this covenant shall not apply to any such Merger Event within and among the Borrower Group, if the Borrower shall have determined that such Merger Event (x) would not materially adversely affect the Security Trustee or the Secured Parties, and (y) is otherwise consistent with Sections 9.16, 9.19 and 9.20; provided further that the Borrower may liquidate or dissolve any Borrower Subsidiary with the consent of the Administrative Agent.
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whatsoever in any other Person or permit to exist any loans or advances to any Person other than (x) Permitted Investments and (y) loans to the Borrower or any Borrower Subsidiary.
Notwithstanding the foregoing, the Borrower and any Borrower Subsidiary may incur each and all of the following:
(a) the Obligations;
(b) Indebtedness permitted under Section 9.28;
(c) Indebtedness under any agreements between the Borrower or any Borrower Subsidiary and any other Borrower Group Member; provided that the agreements or promissory notes evidencing such Indebtedness shall be pledged to the Security Trustee;
(d) obligations to each Seller under each Aircraft Acquisition Document and any related lease assignment and assumption agreements and obligations to purchasers of Aircraft, obligations to Lessees and others under the documents related thereto, including any Indebtedness owed to any Lessee under any such agreement or the Lease with respect to maintenance contributions, redelivery condition adjustment payments, “AD Sharing” or any other obligation of the Borrower or any Borrower Subsidiary to a Lessee or incurred by the Servicer under and in accordance with the terms of the Servicing Agreement without the Borrower’s consent;
(e) Indebtedness to any member of the Genesis Group for the purpose of funding the acquisition of Aircraft or Aircraft Owning Entities;
(f) Indebtedness required in connection with repossession or detention of or other enforcement action with respect to an Aircraft;
(g) Indebtedness in favor of the issuer of a surety, letter of credit or similar instrument to be obtained by the Borrower or any Borrower Subsidiary in connection with the repossession or detention of an Aircraft or other enforcement action under a Lease; and
(h) obligations to any purchaser of Aircraft pursuant to any aircraft purchase agreement, lease, sublease, conditional sale agreement, finance lease, hire purchase agreement or
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other agreement (other than an agreement relating to maintenance, modification or repairs) or any purchase option granted to a Person (other than a purchase option granted by a lessor or owner to a Borrower Group Member as to the purchase of the related Aircraft) to purchase an Aircraft, in each case pursuant to which any Person acquires or is entitled to acquire legal title to, or the economic benefits of ownership of, such Aircraft.
SECTION 9.31 Use of Proceeds; Margin Regulations.
(a) Use of Proceeds. The proceeds of the Advances are to be used solely to finance the purchase by the Borrower, on a “true sale” basis, of Equity Interests in Aircraft Owning Entities and Owner Participants, which interests have been acquired from the applicable Sellers pursuant to the related Aircraft Acquisition Documents (collectively, the “Borrower Acquisition”).
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Borrower shall not take any affirmative action which would cause it to no longer be tax resident in Ireland.
(a) The Borrower shall establish and maintain, as of and after the Closing Date, a hedging policy (“Hedging Policy”) consistent with the criteria and provisions set forth on Exhibit D hereto, and with any changes in such Hedging Policy to be made subject to the provisions set forth on Exhibit D.
(b) The Borrower shall implement and comply with its Hedging Policy as in effect from time to time by entering into Eligible Hedge Agreements with Eligible Counterparties as necessary to so comply.
(a) The Borrower shall maintain in full force and effect the Contingent Policy and shall maintain, and shall cause the Servicer and each Borrower Subsidiary to, maintain or cause to be maintained at its or any of its Subsidiaries’ own cost and expense, with reputable and responsible insurers or, provided that the applicable reinsurance policy contains a cut-through clause requiring the reinsurers to pay the insured directly (other than in any instances where local law requirements mandate otherwise or when it is not the Leasing Company Practice to do so), with insurers that maintain relevant reinsurance with reputable and responsible reinsurers (i) airline hull insurance for each Aircraft in an amount at least equal to 105% of the Allocable Advance Amount for such Aircraft (or the equivalent thereof from time to time if such insurance is denominated in a currency other than U.S. dollars) and (ii) airline liability insurance for each Aircraft and occurrence in an amount at least equal to the relevant amount set forth on Annex I (as amended from time to time only pursuant to the prior written consent of the Administrative Agent) to the Servicing Agreement for each model of Aircraft and (iii) Political Risk/Repossession Insurance for each Aircraft subject to a Lease with a Lessee domiciled in a jurisdiction set forth under the clause (b)(2) of the definition of “Approved Country List”, in an amount at least equal to 105% of the Allocable Advance Amounts (or the equivalent thereof from time to time if such insurance is denominated in a currency other than U.S. dollars) for such Aircraft; provided that with respect to any such insurance for any Aircraft subject to a Lease, such insurance may be subject to such deductible and self-insurance arrangements as are substantially consistent with Leasing Company Practice. The coverage and terms (including endorsements, deductibles and self-insurance arrangements) of any insurance maintained with respect to any Aircraft not subject to a Lease shall be substantially consistent with Leasing Company Practice regarding similar aircraft.
The Borrower shall maintain or cause, directly or indirectly through the Borrower Subsidiaries, to be maintained war risk hull and liability insurance in respect of each Aircraft in a manner which is substantially consistent with Leasing Company Practice.
In determining the amount of insurance required to be maintained by this Section 9.34, the Borrower may take into account any indemnification from, or insurance provided by, any governmental, supranational or inter-governmental authority or agency (other
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than, with respect to Political Risk/Repossession Insurance, any governmental authority or agency of any jurisdiction for which Political Risk/Repossession Insurance must be obtained), the sovereign foreign currency debt rating of which is rated at least A-, or the equivalent, by at least one of the Rating Agencies (provided that such credit rating requirement shall not apply in the case of any war risk insurance), against any risk with respect to an Aircraft at least in an amount which, when added to the amount of insurance against such risk maintained by the Borrower (or which the Borrower has caused to be maintained), shall be at least equal to the amount of insurance against such risk otherwise required by this Section 9.34 (taking into account self-insurance permitted by this Section 9.34). Any such indemnification or insurance provided by such government shall provide substantially similar protection as the insurance required by this Section 9.34.
If at any time, the insurance required by this Agreement ceases, or will cease, to be available, or ceases to be available on commercially reasonable terms in the leading aviation insurance markets, the Administrative Agent and the Borrower agree to hold good faith discussions to ascertain what alternatives (if any) to such insurance exist that can be obtained on commercially reasonable terms and which protect the respective interests of the Borrower and the Lenders having regard to Leasing Company Practice (the “Alternative Insurance Requirements”). In the absence of an agreement, the Administrative Agent and the Borrower agree to refer such dispute to arbitration by two aviation insurance brokers, one selected by the Borrower and one by the Administrative Agent, who will determine the terms of the Alternative Insurance Requirements. A decision by such arbitrators shall be binding upon the parties and the insurance requirement hereunder shall be deemed to have been modified to require such Alternative Insurance Requirements unless such Alternative Insurance Requirements provide for a level and scope of insurance (other than third party liability insurance) lower than the minimum insurance requirements set forth in the Servicing Agreement.
(b) Neither the Contingent Policy, nor any policy implementing the Required Coverage Amount as described in subsection (d) below, shall be amended to adversely affect the coverages or other terms or protections provided by the Contingent Policy or such other policy.
(c) The Borrower shall deliver to the Administrative Agent copies of Lessee insurance certificates evidencing the insurance coverages required under the applicable Lease, to the extent not delivered at or prior to the related Advance Date, as soon as available (together with a broker’s letter of undertaking, if applicable, in each case, provided that the Servicer is undertaking efforts to obtain the same from the Lessee, consistent with the Servicer Standard of Performance).
(d) The Borrower agrees that, to the extent that it shall have obtained the Required Coverage Amount in respect of a country to be included (or treated as if included) on the Approved Country List, that it will maintain such Required Coverage Amount in effect for so long as the Borrower’s Portfolio has exposure to such country.
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(a) Anti-Terrorism Law. Directly or indirectly, (i) knowingly conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in Section 8.19, (ii) knowingly deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order or any other Anti-Terrorism Law, or (iii) knowingly engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law (and the Borrower, the Aircraft Owning Entities and the Owner Participants shall, and shall cause any Borrower Subsidiary to, deliver to the Lenders any certification or other evidence requested from time to time by any Lender in its reasonable discretion, confirming their compliance with this Section 9.35).
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ARTICLE X
ARTICLE XI
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to manage the interests of the Borrower, the Aircraft Owning Entities and the Owner Participants and otherwise assume the rights and obligations of the prior Manager under this Agreement and the Management Agreement; provided, however, that the prior Manager may retain copies of any items so delivered; and, provided further that the prior Manager shall not be liable for any acts, omissions or obligations of any successor Manager. The terminated Manager shall grant the Security Trustee, the Administrative Agent and the successor Manager reasonable access within ten (10) Business Day’s notice to the terminated Manager’s premises at the terminated Manager’s expense.
SECTION 11.2 Appointment of Successor Manager; New Management Agreement.
(a) On and after the time a Manager receives a notice of termination pursuant to Section 11.1 or Section 12.2(c), the Administrative Agent shall appoint any Eligible Service Provider as a successor Service Provider for such services, and shall have no liability to the Servicer, Security Trustee, the Lenders, the Borrower, the Aircraft Owning Entities or the Owner Participants in doing so, to be the successor in all respects to the terminated Manager in its capacity as Service Provider under this Agreement and the Management Agreement and the transactions set forth or provided for in this Agreement and the Management Agreement, and such successor Manager shall be subject to all the responsibilities, restrictions, duties, liabilities and termination provisions relating thereto placed on the prior Manager by the terms and provisions of this Agreement and the Management Agreement; provided, however, that such successor Manager shall not be liable for any acts, omissions or obligations of the Manager prior to such succession or for any breach by such prior Manager of any of its representations and warranties contained in this Agreement or the Management Agreement or in any related document or agreement. Such successor shall take such action, consistent with this Agreement, and the Management Agreement, as shall be necessary to effectuate any such succession. The Borrower, the Aircraft Owning Entities and the Owner Participants shall enter into a market standard management agreement with any successor Manager for the provision of management services in form and substance substantially the same as the Management Agreement or otherwise reasonably satisfactory to the Majority Lenders. Any successor Manager acting as Manager hereunder shall be subject to termination under Section 11.1 or Section 12.2(c) hereof.
(b) If any successor Manager appointed by the Administrative Agent shall be legally unable to act as a Manager and the Administrative Agent shall not have appointed a successor Manager that is legally able and willing to act as Manager, such successor Manager may petition a court of competent jurisdiction to appoint any Eligible Service Provider as its successor. Pending such appointment, the outgoing Manager shall continue to act as Manager under the Management Agreement until a successor has been appointed and accepted such appointment.
(c) Any successor Manager shall be entitled to such compensation as the outgoing Manager would have been entitled to under the Management Agreement if the Manager had not been terminated hereunder. If any successor Manager is appointed for any reason, the Administrative Agent and such successor Manager may agree on additional compensation to be paid to such successor Manager. In addition, any successor Manager shall be entitled to reasonable transition expenses incurred in acting as successor Manager under the Management Agreement.
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(d) In the event of the termination of the rights and obligations of the Manager (or any successor thereto) pursuant to Section 11.1 or Section 12.2(c), or a resignation by the Manager pursuant to this Agreement or the Management Agreement, such Manager shall be deemed to be the applicable Manager pending appointment of a successor Manager pursuant to this Section 11.2(d).
ARTICLE XII
(a) (i) Default by the Borrower in the payment of any principal of any Advance on the Stated Maturity Date, (ii) default by the Borrower in the payment of any principal when due (other than as described in clause (iii)), (iii) default by the Borrower in the payment of principal to cure a Borrowing Base Deficiency within sixty (60) days after the applicable Report Date as of which there is a Borrowing Base Deficiency, (iv) default by the Borrower in the payment within five (5) Business Days after the due date of any interest on any Advance or any Commitment Fees payable to a Lender or other Fees payable to the Administrative Agent (including in each case, without limitation, due to the unavailability of funds to be distributed for such purpose on any Payment Date pursuant to the Flow of Funds); (v) default by the Borrower in the payment within ten (10) Business Days after the due date of any Security Trustee Fees and Expenses (including, without limitation, due to the unavailability of funds to be distributed for such purpose on any Payment Date pursuant to the Flow of Funds), or (vi) any failure by the Borrower to, or cause the Servicer to, make any deposit of funds to the Security Deposit Account, the Supplemental Rent Account or the Collection Account within three Business Days after receipt thereof;
(b) The Borrower or any Borrower Subsidiary shall fail to perform or observe (i) its covenant in Section 9.18(a)(xi), (ii) its covenant in Section 9.37 (Interest Coverage Ratio), or (iii) any other term, covenant or agreement contained in this Agreement (other than those described in clause (a) above), or any other Credit Document on its part to be performed or observed and any such failure under clause (ii) or (iii) shall remain unremedied for thirty (30) days after such breach, provided such breach is curable within thirty (30) days and the Borrower has notified the Security Trustee of such cure period in form and substance satisfactory to the Administrative Agent;
(c) Any representation or warranty of the Borrower or any Borrower Subsidiary made or deemed to have been made hereunder or in any other Credit Document or any written information or certificate furnished by or on behalf of the Borrower or any Borrower Subsidiary to the Security Trustee, the Administrative Agent or any Lender for purposes of or in connection with this Agreement or any other Credit Document (including, without limitation, any certificates delivered pursuant to Article VII and any Monthly Report) shall prove to have been incorrect or untrue in any material respect when made, and, within thirty (30) days, the circumstances or condition in respect of which such representation, warranty or statement was
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untrue or incorrect (if capable of elimination or otherwise curable) shall not have been eliminated or otherwise cured;
(d) An Event of Bankruptcy shall have occurred and remained continuing with respect to the Borrower or any Borrower Subsidiary;
(e) One or more judgments, orders or decrees for the payment of money in an aggregate amount in excess of $5,000,000 shall be rendered against the Borrower or any Borrower Subsidiary and the same shall remain undischarged, unvacated or not Effectively Bonded for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon properties of the Borrower or any Borrower Subsidiary to enforce any such judgment;
(f) The Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower and such lien shall not have been released within thirty (30) days;
(g) (i) Any Credit Document shall (except in accordance with its terms, including under any termination rights), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower or any Borrower Subsidiary, as applicable; (ii) the Borrower or any Borrower Subsidiary shall, directly or indirectly, contest in writing the effectiveness, validity, binding nature or enforceability of any Credit Document; or (iii) subject only to Permitted Liens, (A) any assignment, Lien or security interest granted by the Borrower or any Borrower Subsidiary under or in connection with any Credit Document or any of the transactions contemplated thereby shall, in whole or in part, cease to be a perfected, first priority assignment, Lien or security interest, as the case may be, against the Borrower or (B) such Borrower Subsidiary or the Security Trustee shall otherwise fail to have a first priority, perfected security interest in any Collateral;
(h) Any Hedge Agreement is terminated by the counterparty thereunder on account of a default thereunder by the Borrower;
(i) The Borrower is required to register as an investment company under the Investment Company Act of 1940;
(j) GECAS is not the Servicer for any reason and has not been replaced by a replacement servicer acceptable to the Majority Lenders.
SECTION 12.2 Effect of Event of Default.
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SECTION 12.3 Rights Upon the Facility Termination Date.
(i) Subject to any Obligors’ rights under the Leases, sell or otherwise dispose of the Collateral in a commercially reasonable manner, in a recognized market (if one exists) at such price or prices as the Administrative Agent may, upon the direction of the Majority Lenders, reasonably deem satisfactory and apply the proceeds thereof to the Obligations in the order of priority set forth in the Flow of Funds hereof; provided that prior to the occurrence of a Servicer Default, the Administrative Agent shall instruct the Servicer to so sell or dispose.
(ii) The parties recognize that it may not be possible to purchase or sell all of the Collateral on a particular Business Day, or in a transaction with the same purchaser, or in the same manner because the market therefor may not be liquid. Accordingly, the Administrative Agent may elect, in its sole discretion acting on the direction of the Majority Lenders, but subject to clause (i) above, the time and manner of liquidating any item of Collateral and nothing contained herein shall (A) obligate the Security Trustee to liquidate any Collateral on the occurrence of the Facility Termination Date or to liquidate all of the Collateral in the same manner or on the same Business Day or (B) constitute a waiver of any right or remedy of the Lenders.
(iii) The Administrative Agent and the Lenders shall have, in addition to all the rights and remedies provided herein and provided by applicable federal, state, foreign, and local laws (including, without limitation, the rights and remedies of a secured party under the Uniform Commercial Code of any applicable state, to the extent that the Uniform Commercial Code is applicable, and the right to offset any mutual debt and claim), all rights and remedies available to the Lenders in law, in equity, or under any other agreement between the Lenders and the Borrower.
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of the Flow of Funds and any amount remaining after payment in full of the Obligations will be returned to the Borrower, its successors or assigns, or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may otherwise direct.
ARTICLE XIII
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notice by telephone), consent, certificate or other instrument or writing (which may be by telex or facsimile transmission) believed by it to be genuine and signed or sent by the proper party or parties; and (f) shall not have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Transaction Document or otherwise exist against any thereof. Without limiting the generality of the clause (f) above, the use of the term “agent” herein and in the other Transaction Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under any agency doctrine of any applicable law; such term is instead used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
SECTION 13.5 Certain Matters Affecting the Administrative Agent.
(a) The Administrative Agent may rely and shall be protected in acting or refraining from acting upon any resolution, officer’s certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Administrative Agent may consult with counsel, and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by the Administrative Agent under this Agreement in good faith and in accordance with such Opinion of Counsel.
(c) Notwithstanding anything to the contrary, the Administrative Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of any Lender pursuant to the provisions of this Agreement unless such Lender shall have furnished to the Administrative Agent security or indemnity
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satisfactory to the Administrative Agent against the costs, expenses and liabilities that may be incurred therein or thereby.
(d) The Administrative Agent shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument opinion, report, notice, request, consent, order, approval, bond or other paper or documents, unless requested in writing to do so by the Majority Lenders; provided, however, that if the payment within a reasonable time to the Administrative Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Administrative Agent, not reasonably assured to the Administrative Agent by the security afforded to it by the terms of this Agreement, the Administrative Agent may require indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding; the reasonable expense of every such examination shall be paid by the Person making such request or, if paid by the Administrative Agent, shall be reimbursed by the Person making such request upon demand.
(e) The Administrative Agent may execute any of the trusts or powers under this Agreement or any other Transaction Document or perform any duties under this Agreement or any other Transaction Document either directly or by or through agents or attorneys or custodians. The Administrative Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by the Administrative Agent. The Administrative Agent shall not be responsible for any misconduct or negligence attributable to the acts or omissions of any Service Provider.
(f) The Administrative Agent may rely, as to factual matters relating to any Service Provider, on an officer’s certificate of the applicable Service Provider.
(g) The Administrative Agent shall not be required to take any action or refrain from taking any action under this Agreement, or any Transaction Document referred to herein, nor shall any provision of this Agreement or any such Transaction Document be deemed to impose a duty on the Administrative Agent to take action, if the Administrative Agent shall have been advised by counsel that such action is contrary to the terms of this Agreement or any Transaction Document or is contrary to law.
(h) The Borrower and the Manager hereby (i) acknowledge that the Lenders have the right, in certain instances, to require the Administrative Agent to take or refrain from taking certain actions under the terms of this Agreement and the other Transaction Documents and (ii) agree that the Administrative Agent has no liability to the Borrower or the Manager with respect to taking or refraining from taking any such actions at the request of any Lender.
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Borrower, GLS, any Service Provider, or the Security Trustee with any covenant or the breach by the Borrower, GLS, any Service Provider or the Security Trustee, of any warranty or representation made under this Agreement or any other Transaction Document or in any related document and the accuracy of any such warranty or representation prior to the Administrative Agent’s receipt of notice or other discovery of any noncompliance therewith or any breach thereof, any investment of monies by or at the direction of the Borrower or the applicable Service Provider, or any loss resulting therefrom (it being understood, however, that the Administrative Agent shall remain otherwise responsible for any Collateral that it may hold directly); the acts or omissions of the Borrower, GLS, any Service Provider, the Security Trustee, or any Obligor, any action of a Service Provider taken in the name of GLS, the Borrower or the Administrative Agent and/or Lenders which are authorized to provide such instruction in accordance with this Agreement or any of the other Transaction Documents; provided, however, that the foregoing shall not relieve the Administrative Agent of its obligations to perform its duties under this Agreement. The Administrative Agent shall not be accountable for the use or application by the Borrower of any proceeds of the Advances, or for the use or application of any funds paid to a Service Provider in respect of the Leases or any other Aircraft Assets related to the Aircraft.
SECTION 13.8 Resignation or Removal of Administrative Agent.
(a) Subject to the provisions of subsection (c) of this Section 13.8, any Person acting as Administrative Agent may at any time resign as Administrative Agent under this Agreement and the other Transaction Documents by giving thirty (30) days’ written notice thereof to the Service Providers, the Borrower, the Eligible Counterparties and the Lenders. Upon receiving such notice of resignation, the Majority Lenders (with, so long as no Default is then continuing, approval of the Borrower and the Service Providers, not to be unreasonably withheld or delayed) shall promptly appoint a successor Administrative Agent by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Administrative Agent and the other copy of which instrument shall be delivered to the successor Administrative Agent. If no successor Administrative Agent shall have been so appointed and have accepted appointment within thirty (30) days after the giving of such notice of resignation, the resigning Administrative Agent may petition any court of competent jurisdiction for the appointment of a successor Administrative Agent. The Borrower shall reimburse the resigning Administrative Agent pursuant to the Flow of Funds hereof for all expenses which shall have been incurred by such resigning Administrative Agent in accordance with this Agreement and the other Transaction Documents prior to the effective date of resignation of such resigning Administrative Agent.
(b) The Administrative Agent may be removed at any time for cause by the Majority Lenders upon thirty (30) days prior written notice to the Administrative Agent, the Borrower, the Security Trustee, the Service Providers and the Eligible Counterparties. If at any time the
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Administrative Agent shall be legally unable to act, or shall be adjudged a bankrupt or insolvent or a receiver of the Administrative Agent or of its property shall be appointed or any public officer shall take charge or control of the Administrative Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Majority Lenders shall remove the Administrative Agent. If the Administrative Agent shall have been removed under the authority of this Section 13.8(b), the Majority Lenders (with, so long as no Default is then continuing, approval of the Borrower, not to be unreasonably withheld or delayed) shall promptly appoint a successor Administrative Agent by written instrument, in duplicate, one copy of which instrument shall be delivered to the Administrative Agent so removed and the other copy of which instrument shall be delivered to the successor Administrative Agent. The Borrower shall reimburse the removed Administrative Agent pursuant to the Flow of Funds for all expenses which shall have been incurred by such removed Administrative Agent in accordance with this Agreement and the other Transaction Documents prior to the effective date of removal of such removed Administrative Agent.
(c) Any resignation or removal of the Administrative Agent and appointment of a successor Administrative Agent pursuant to any of the provisions of this Section 13.8 shall not become effective until acceptance of appointment by the successor agent as provided in Section 13.9.
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office under this Agreement to all Lenders at their addresses as shown in the Register. If the Borrower fails to mail such notice within ten (10) days after acceptance of appointment by the successor Administrative Agent, the successor Administrative Agent shall cause such notice to be mailed at the expense of the Borrower.
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liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any other Transaction Document or any action taken or omitted by the Administrative Agent under this Agreement or any other Transaction Document; provided, that no such Non-Conduit Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct.
ARTICLE XIV
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Commitment of the applicable assignee. In addition, any Lender or any of its Affiliates may pledge or assign any of its rights under this Agreement and under the Transaction Documents to any Federal Reserve Bank within the United States, or if a Qualifying Lender at the time of such pledge or assignment, to any liquidity or credit support provider or any commercial paper conduit collateral trustee without notice to or consent of the Borrower or the Administrative Agent. In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of Borrower or the Administrative Agent, collaterally assign or pledge all or any portion of its rights under this Agreement and under the Transaction Documents, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities, in each case provided that each such holder is a Qualifying Lender. Notwithstanding the foregoing, each Conduit Lender shall have the right, at any time, to assign and/or participate its Advances without the prior consent of the Borrower or any other party hereto to any liquidity or credit support provider of such Conduit Lender, to the related Non-Conduit Lender or any of its Affiliates that is a Qualifying Lender at the time of such assignment or participation, to any commercial paper conduit that is a Qualifying Lender at the time of such assignment or participation, and is administered by any Affiliate thereof or administered by any other Person for the exclusive or non-exclusive benefit of any Affiliate of such Non-Conduit Lender, and/or to any other Lender.
SECTION 14.4 Registration; Registration of Transfer and Exchange.
(a) The Administrative Agent shall maintain an account or accounts evidencing the indebtedness of the Borrower to each Lender resulting from each Advance made by such Lender hereunder, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. The entries made in such accounts shall be conclusive and binding for all purposes, absent manifest error. The Administrative Agent shall keep a register (the “Register”) in which, subject to such reasonable regulations as it may prescribe, the Administrative Agent shall provide for the registration of Advances and Non-Conduit Lender Commitments held by each Lender and of any transfers of such Advances and Non-Conduit Lender Commitments. The Administrative Agent is hereby appointed “Registrar” for the purpose of registering any transfers of Advances and Non-Conduit Lender Commitments held by
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the Lenders as herein provided. The entries made in the Register by the Registrar shall be conclusive and binding for all purposes, absent manifest error.
(b) With respect to any Lender, the transfer of any Non-Conduit Lender Commitment of any Lender and the rights to principal of, and interest on, any Advances shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent.
(c) No Advance and/or Non-Conduit Lender Commitment may be transferred, and the Administrative Agent shall not register the transfer of an Advance and/or a Non-Conduit Lender Commitment, unless the proposed transferee shall have paid the Administrative Agent a fee of $3,500 and delivered to the Administrative Agent either (i) evidence satisfactory to it that the transfer of such Advance and/or Non-Conduit Lender Commitment is exempt from registration or qualification under the Securities Act of 1933, as amended, and all applicable state securities laws and that the transfer does not constitute a “prohibited transaction” under ERISA or (ii) an express agreement by the proposed transferee to be bound by and to abide by the provisions of this Section 14.4.
ARTICLE XV
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ARTICLE XVI
(i) waive, amend, supplement or modify any provision set forth in any of the following definitions without the consent of each of the Lenders: Advance Commitment Period, Term Period, Advance Rate, Aggregate Aircraft Borrowing Base, Borrowing Base Deficiency, Individual Aircraft Borrowing Base, Conversion Date, Maximum Commitment Amount and Facility Termination Date;
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(ii) reduce the principal amount of any Advance or reduce the interest payable in respect thereof, or reduce any fee payable hereunder, or change the form or currency of payment of any Obligation, without the written consent of each Lender affected thereby;
(iii) (A) change the Stated Maturity Date, (B) postpone the date for payment of any Obligation hereunder or (C) change the amount of, waive or excuse any such payment, without the written consent of each Lender affected thereby;
(iv) increase the maximum duration of Interest Periods hereunder, without the written consent of each Lender affected thereby;
(v) permit the assignment or delegation by GLS, the Borrower or any of the Borrower Subsidiaries of any of its respective rights or obligations under any Transaction Document (except as delegated pursuant to the Service Provider Agreements), without the written consent of each Lender;
(vi) release any material portion of the Collateral from the Lien of the Security Trust Agreement (other than in connection with a transfer, sale or other disposition permitted under Section 9.8 hereof or as otherwise provided in or contemplated by the Transaction Documents), or alter the relative priorities of the Obligations entitled to the Liens of the Security Trust Agreement, without the consent of each Lender and each Eligible Counterparty;
(vii) change the amount of, or order of priority in which, payments of funds on deposit in the Collection Account are to be applied in accordance with the terms hereof, without the written consent of each Lender affected thereby and each Eligible Counterparty affected thereby;
(viii) change any provision in Section 4.4 or any other provision hereof in any manner which would alter the pro rata allocation among the Lenders, respectively, of Advances to be made hereunder or repayments in respect thereof, in each case without the written consent of each Lender affected thereby;
(ix) change any provision of this Section 16.2, without the consent of each Lender affected thereby and each Eligible Counterparty affected thereby;
(x) change the percentage set forth in the definition of Majority Lenders, without the written consent of each Lender affected thereby;
(xi) change or waive any provision of Article XIII as the same applies to the Administrative Agent, or any other provision hereof as the same applies to the rights or obligations of the Administrative Agent, in each case without the written consent of the Administrative Agent; or
(xii) waive, amend, supplement, modify or change any provision of the Credit Documents without the consent of each Service Provider and Eligible Counterparty adversely affected thereby.
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Administrative Agent’s Counsel
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, THE “AGENT PARTIES”) HAVE ANY LIABILITY TO ANY OBLIGOR, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
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Administrative Agent and the Lenders (the “Credit Parties”), including, without limitation, due diligence expenses, and printing, reproduction, document delivery and communication costs, each as incurred in connection with the transactions contemplated hereunder, or the preparation, review, negotiation, execution and delivery of the Transaction Documents, (iii) all fees and expenses of the Administrative Agent in connection with any amendments, waivers and consents (but not any assignments or participation agreements) executed in connection with the Transaction Documents, (iv) all costs and expenses, if any (including counsel fees and expenses), of the Credit Parties, in connection with the enforcement of the Transaction Documents (but excluding expenses incurred by the Administrative Agent in unsuccessful litigation against the Borrower), and (v) all costs and expenses (including counsel fees and expenses) of the Security Trustee and the Account Bank. The Borrower shall pay all amounts under this Section 16.4 from time to time upon demand pursuant to the Flow of Funds and after the Borrower and the Service Providers have been furnished with reasonably detailed evidence thereof. The Borrower’s obligations under this paragraph shall survive any termination of this Agreement.
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SECTION 16.8 Governing Law; Venue.
(a) THIS AGREEMENT SHALL IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION, EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE INTERESTS OF THE SECURITY TRUSTEE FOR THE BENEFIT OF THE LENDERS AND THE ELIGIBLE COUNTERPARTIES IN THE COLLATERAL, OR REMEDIES HEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(b) EACH PARTY TO THIS AGREEMENT AGREES THAT ANY SUIT, LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT TO WHICH IT IS A PARTY OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT THEREOF MAY BE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK, AND IN THE COURTS OF ITS OWN CORPORATE DOMICILE, IN RESPECT OF ACTIONS BROUGHT AGAINST IT AS A DEFENDANT, AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF EACH SUCH COURT FOR THE PURPOSE OF ANY SUCH SUIT, ACTION, PROCEEDING OR JUDGMENT.
(c) EACH PARTY TO THIS AGREEMENT HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, LEGAL ACTION OR PROCEEDING ARISING DIRECTLY OR INDIRECTLY UNDER OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT TO WHICH IT IS A PARTY IN ANY COURT REFERRED TO IN CLAUSE (b) ABOVE AND HEREBY FURTHER WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY CLAIM THAT SUCH COURT IS NOT A CONVENIENT FORUM FOR ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING.
(d) EACH OF THE BORROWER AND THE MANAGER AGREES THAT THE PROCESS BY WHICH ANY SUIT, ACTION OR PROCEEDING IS BEGUN MAY BE SERVED ON IT BY BEING DELIVERED IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING IN THE CITY OF NEW YORK TO XXXXXXX & ASSOCIATES, WITH AN OFFICE ON THE DATE HEREOF AT 000 XXXXXXX XXXXXX, XXXXX 000, XXXXXX, XXXXXXXX 00000, AND EACH OF THEM HEREBY APPOINTS XXXXXXX & ASSOCIATES ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF SUCH SERVICE OF LEGAL PROCESS.
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(b) Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Transaction Document shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Requirement of Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 16.12 Recourse Against Certain Parties; No Proceedings.
(a) No recourse under or with respect to any obligation, covenant or agreement (including, without limitation, the payment of any fees or any other obligations) of any Lender or Eligible Counterparty as contained in this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any
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administrator of such party or any incorporator, affiliate, stockholder, officer, employee or director of such party or of any such administrator, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of such party contained in this Agreement and all of the other agreements, instruments and documents entered into by it pursuant hereto or in connection herewith are, in each case, solely the corporate obligations of such person, and that no personal liability whatsoever shall attach to or be incurred by any administrator of such party or any incorporator, stockholder, affiliate, officer, employee or director of such party or of any such administrator, as such, or any other of them, under or by reason of any of the obligations, covenants or agreements of such party contained in this Agreement or in any other such instruments, documents or agreements, or that are implied therefrom, and that any and all personal liability of every such administrator of such party and each incorporator, stockholder, affiliate, officer, employee or director of such party or of any such administrator, or any of them, for breaches by such party of any such obligations, covenants or agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement. The provisions of this Section 16.12 shall survive the termination of this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, no Conduit Lender shall have any obligation to pay any amount required to be paid by it hereunder in excess of any amount available to such Conduit Lender after paying or making provision for the payment of any short-term promissory notes issued by it in connection with this Agreement. All payment obligations of each Conduit Lender hereunder are contingent on the availability of funds in excess of the amounts necessary to pay its short-term promissory notes; and each of the other parties hereto agrees that it will not have a claim under Section 101(5) of the Bankruptcy Code if and to the extent that any such payment obligation owed to it by such Conduit Lender exceeds the amount available to such Conduit Lender to pay such amount after paying or making provision for the payment of its short-term promissory notes.
(c) Each of the Manager and the Security Trustee agrees that it will not institute against the Borrower or any Borrower Subsidiary, or join any other Person in instituting against the Borrower or any Borrower Subsidiary, any insolvency proceeding (namely, any proceeding of the type referred to in the definition of Event of Bankruptcy) so long as any Advances or other amounts due from the Borrower hereunder shall be outstanding or there shall not have elapsed one year plus one day since the last day on which any such Advances or other amounts shall be outstanding. The foregoing shall not limit such Person’s right to file any claim in or otherwise take any action with respect to any insolvency proceeding that was instituted by any Person other than such Person or after the expiry of such one year plus one day period.
(d) Each of the parties hereto (other than the relevant Conduit Lender) agrees that it will not institute against, or join any other Person in instituting against, such Conduit Lender any insolvency proceeding (namely, any proceeding of the type referred to in the definition of Event of Bankruptcy) so long as any commercial paper issued by such Conduit Lender shall be outstanding or there shall not have elapsed one year plus one day since the last day on which any such commercial paper shall have been outstanding. The foregoing shall not limit such Person’s right to file any claim in or otherwise take any action with respect to any insolvency proceeding
116
that was instituted by any Person other than such Person or after the expiry of such one year plus one day period.
(e) Each of the parties hereto hereby agrees that all amounts payable by the Borrower or any Borrower Subsidiary in respect of the Obligations hereunder shall be recoverable only from and to the extent of:
(i) amounts on deposit in the Collection Account;
(ii) any other assets of the Borrower and the Borrower Subsidiaries and any proceeds thereof;
(iii) in the case of any payments by way of indemnity to be made by the Borrower pursuant to any Transaction Document, to any liability insurance proceeds payable in respect of such indemnity obligation on the part of the Borrower; provided that any such liability insurance proceeds shall be held in trust for the Person entitled to the relevant indemnity by the recipient thereof; and
(iv) any other Collateral pledged under the Security Trust Agreement,
and in consequence each of the parties hereto (other than the Borrower) hereby agrees (A) that it shall look solely to the foregoing property for payment of all amounts payable by the Borrower or any Borrower Subsidiary in respect of the obligations hereunder and that neither the Borrower nor any Borrower Subsidiary shall be otherwise personally liable therefor and (B) that it shall not petition for the bankruptcy, Irish law examinership, insolvency, winding up, liquidation, reorganization, amalgamation or dissolution of the Borrower or any Borrower Subsidiary (or any of their assets or undertakings); provided that if any such proceeding is commenced by any other Person, such party shall be entitled to join, claim or prove in such proceeding; provided, that the foregoing provisions of this Section 16.12(e) shall not:
(1) limit or restrict in any way the accrual of interest on any unpaid amount (although the limitations as to the personal liability of the Borrower and each Borrower Subsidiary shall apply to such interest on such unpaid amount); or
(2) limit or restrict in any way the personal liability of the Borrower or any Borrower Subsidiary for the discharge of its non-monetary obligations in relation to its covenants, undertakings, representations and warranties (or any monetary obligations arising from any breach thereof) under any other Transaction Document.
117
SECTION 16.15 Confidentiality.
(a) Unless otherwise required by applicable law, the Borrower and the Manager each agrees to maintain the confidentiality of the financial terms and conditions of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby and the identity of the parties hereto, to the other Transaction Documents and otherwise participating in such transactions; provided, that this Agreement may be disclosed to (i) third parties to the extent such disclosure is made pursuant to a written agreement of confidentiality in form and substance reasonably satisfactory to the Administrative Agent, (ii) the Borrower’s legal counsel and auditors and (iii) any Government Entity if required by law.
(b) Each of the Administrative Agent, the Security Trustee, the Account Bank (in each case, for itself and not on behalf of any Lender or other party hereto) and each of the Lenders agrees with the Borrower and the Service Providers to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to it, its Affiliates, investors, potential investors, credit enhancers and each such Person’s respective partners, directors, officers, employees, agents, advisors and other representatives (it being understood that the persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it, (c) to the extent required by applicable Requirements of Law or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Transaction Document or any action or proceeding relating to this Agreement or any other Transaction Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 16.15(b), to (i) any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under this Agreement, (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations or (iii) any rating agency for the purpose of obtaining a credit rating applicable to any Lender, (g) to the Borrower, any member of the Genesis Group or any of their respective Subsidiaries or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 16.15(b) or (y) becomes available to the Administrative Agent, the Security Trustee, the Account Bank, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than a member of the Genesis Group, the Borrower, a Service Provider, a Lessee or any of their respective Subsidiaries. For purposes of this Section, “Information” means all information received from any member of the Genesis Group, the Borrower, any of its respective Subsidiaries or from the Servicer or a Lessee relating to the Genesis Group, the Borrower or any of its respective Subsidiaries or any of their respective businesses, including any information relating to a Lessee or a Lease, other than any such
118
information that is available to the Administrative Agent, the Security Trustee, the Account Bank or any Lender on a nonconfidential basis prior to disclosure by any member of the Genesis Group, the Borrower or any of its respective Affiliates. Any person required to maintain the confidentiality of Information as provided in this Section 16.15(b) shall be considered to have complied with its obligation to do so if such person has exercised the same degree of care to maintain the confidentiality of such Information as such person would accord to its own confidential information.
119
the amount (if any) by which the sum originally due to such Entitled Person in Dollars hereunder exceeds the amount of the Dollars purchased and transferred as aforesaid.
[Signature pages to follow.]
120
|
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GENESIS ACQUISITION LIMITED, as Borrower | ||
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By: |
/s/ Xxxx XxXxxxx | |
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Name: |
Xxxx XxXxxxx |
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Title: |
Director |
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|
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Genesis Acquisition Limited | ||
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|
Clarendon Xxxxx | ||
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0 Xxxxxx Xxxxxx | ||
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Xxxxxxxx, XX 00 | ||
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Xxxxxxx | ||
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Xxxxxxxxx No.: 000 000 0000/295 1861 |
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GENESIS LEASE LIMITED, as Manager | ||
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By: |
/s/ Xxxx XxXxxxx | |
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Name: |
Xxxx XxXxxxx |
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Title: |
Director |
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Genesis Lease Limited | ||
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Xxxxxxxxx Xxxxx | ||
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0 Xxxxxx Xxxxxx | ||
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Xxxxxxxx, XX 00 | ||
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Xxxxxxx | ||
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Xxxxxxxxx No.: 000 000 0000/295 1861 |
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CITIBANK, N.A., as Administrative Agent | ||
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By: |
/s/ Xxxxxx Xxxxxxxx | |
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Name: |
Xxxxxx Xxxxxxxx |
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|
Title: |
VP |
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Citibank, N.A. | ||
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0 Xxxxx Xxx, Xxxxx 000 | ||
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Xxx Xxxxxx, XX 00000 | ||
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Attention: Xxxx Xxxxxxxx | ||
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Telephone: 000-000-0000 | ||
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Fax: 000-000-0000 |
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CITIBANK, N.A., as Lender | ||
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By: |
/s/ Xxxxxx Xxxxxxxx | |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
VP |
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Citibank, N.A. | ||
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0 Xxxxx Xxx, Xxxxx 000 | ||
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Xxx Xxxxxx, XX 00000 | ||
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Attention: Xxxx Xxxxxxxx | ||
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Telephone: 000-000-0000 | ||
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Fax: 000-000-0000 |
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WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender | ||
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By: |
/s/ Xxxx X. Xxxx | |
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Name: |
Xxxx X. Xxxx |
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Title: |
Director |
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With a copy to: | ||
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| ||
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Conduit Administration c/o Wachovia Capital Markets, LLC One Wachovia Center 000 X. Xxxxxxx Xx., XX-00 Xxxxxxxxx, XX 00000-0000 Fax: 000-000-0000 Email: xx.xxxxxxxx@xxxxxxxx.xxx | ||
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| ||
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with a further copy to: | ||
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| ||
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Xxxx Xxxx Wachovia Capital Markets, LLC One Wachovia Center 000 X. Xxxxxxx Xx., XX0000 Xxxxxxxxx, XX 00000 Fax: 000-000-0000 |
Credit Agreement
|
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VARIABLE FUNDING CAPITAL COMPANY LLC, as Lender | ||
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By: |
Wachovia Capital Markets, LLC As attorney-in-fact | |
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By: |
/s/ Xxxxxxx X. Xxxxxx, Xx. | |
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Name: |
Xxxxxxx X. Xxxxxx, Xx. |
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Title: |
Director |
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With a copy to: | ||
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| ||
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Conduit Administration c/o Wachovia Capital Markets, LLC One Wachovia Center 000 X. Xxxxxxx Xx., XX-00 Xxxxxxxxx, XX 00000-0000 Fax: 000-000-0000 Email: xx.xxxxxxxx@xxxxxxxx.xxx | ||
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| ||
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with a further copy to: | ||
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| ||
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Xxxx Xxxx Wachovia Capital Markets, LLC One Wachovia Center 000 X. Xxxxxxx Xx., XX0000 Xxxxxxxxx, XX 00000 Fax: 000-000-0000 |
Credit Agreement
|
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Security Trustee and Account Bank | ||
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By: |
/s/ Xxxxxx X. Xxxxxx | |
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
Vice President |
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By: |
/s/ Xxxxxxx Xxxxxxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxxxxxx |
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Title: |
Associate |
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00 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Trust and Securities/Structured Finance Services Fax: 000-000-0000 |
Credit Agreement
|
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ALLIED IRISH BANKS, P.L.C., as Lender | ||
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By: |
/s/ Xxxxx Xxxxxxxx | |
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Name: |
Xxxxx Xxxxxxxx |
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Title: |
Senior Vice President |
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By: |
/s/ Xxxxxxx Xxxx | |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Senior Vice President |
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Allied Irish Banks, p.l.c., Xxxxxxxxxx, Xxxxxxxxxxx, Xxxxxx 0, Xxxxxxx, Telephone No.: 000 0 0000000 Facsimile No.: 353 1 6682508 |
Credit Agreement
|
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ALLIANCE & LEICESTER COMMERCIAL FINANCE plc, as Lender | ||
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By: |
/s/ Xxxxxxxx Xxxxxxxx | |
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|
Name: |
Xxxxxxxx Xxxxxxxx |
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|
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Title: |
Senior Manager |
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|
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Alliance & Leicester Commercial Finance plc 0xx Xxxxx 000 Xxx Xxxxxxxxx Xxxxxx Xxxxxx XXX 0XX Telephone No.: 000 0000 0000 |
Credit Agreement
|
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THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, as Lender | ||
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By: |
/s/ Xxxxxx Xxxxxxx | |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Associate Director |
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Bank of Scotland Aircraft Finance 000 Xxxxxxxxxxx Xxxxxx XX0X 0XX XX Attn: Xxxxxx Xxxxxxx Telephone No.: 00 (0) 000 000 0000 Facsimile No.: 00 (0) 000 000 0000 |
Credit Agreement
|
|
BTMU CAPITAL CORPORATION, as Lender | ||
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By: |
/s/ Xxxxxx Xxxxx | |
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Name: |
Xxxxxx Xxxxx |
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|
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Title: |
Senior Vice President |
|
|
|
|
|
|
|
BTMU Capital Corporation 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxx, XX 00000-0000 XXX Telephone No.: 000-000-0000 Facsimile No.: 000-000-0000 |
Credit Agreement
|
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BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH as Lender | ||
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By: |
/s/ Xxxx Xxxxxxxxxxxx | |
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Name: |
Xxxx Xxxxxxxxxxxx |
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Title: |
VP |
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|
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|
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By: |
/s/ Xxxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxxx Xxxxxxx |
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Title: |
VP |
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Bayerische Hypo- und Vereinsbank AG, London Branch Moor House 000 Xxxxxx Xxxx Xxxxxx XX0X 0XX Booking office: Telephone No.: 00 00 0000 0000-0000 Facsimile No.: 44 20 7826 1488 Email: Xxxx.xxxxxxxx@xxxxxxxxx.xxx | ||
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| ||
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|
Other issues: MIF 2 AF Telephone No.: 00 00 000-00000 Facsimile No.: 49 89 378 20345 Email: xxxx.xxxxxxxxxxxx@xxx.xx |
Credit Agreement
|
|
LANDESBANK BADEN-WÜRTTEMBERG, as Lender | ||
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By: |
/s/ Xxxxxx Xxxxxxxxxxxx | |
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Name: |
Xxxxxx Xxxxxxxxxxxx |
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Title: |
Vice President |
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By: |
/s/ Xxxxxxxxx Xxxxxx | |
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Name: |
Xxxxxxxxx Xxxxxx |
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Title: |
Senior Project Manager |
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Landesbank Baden-Württemberg 6751 H Structured Finance Xx Xxxxxxxxxxxx 0 00000 Xxxxxxxxx Xxxxxxx Attn: Xxxxxxxxx Xxxxxx Telephone No: x00 000 000 00000 Facsimile No.: x00 000 000 00000 xxxxxxxxx.xxxxxx@xxxx.xx |
Credit Agreement
|
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NEC LEASING, LTD., as Lender | ||
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By: |
/s/ Xxxxxxxx Xxxx | |
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Name: |
Xxxxxxxx Xxxx |
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Title: |
President |
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NEC Leasing, Ltd. NEC-Sumisei Building 29-11, Shiba 5-chome, Xxxxxx-xx Xxxxx 000-0000, Xxxxx Telephone No: 00 00-0000-0000 Facsimile No.: 00 00-0000-0000 Attn: Xxxxxxxx Xxxxxx Email: xxxxxxx@xxx.xxx.xxx.xx.xx |
Credit Agreement
|
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NORDDEUTSCHE LANDESBANK GIROZENTRALE, as Co-Documentation Agent and as Lender | ||
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By: |
/s/ Xxxxxx | |
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Name: |
Xxxxxx |
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Title: |
SVP |
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By: |
/s/ Xxxxxxx | |
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Name: |
Xxxxxxx |
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Title: |
VP |
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Norddeutsche Landesbank Girozentrale Ship and Aircraft Finance Department Friedrichswall 10 30159 Hannover Germany Attn: Xxxxxxx Xxxxxx Telephone No: 00 000 000 0000 Facsimile No.: 49 511 361 4785 |
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WESTLB AG, LONDON BRANCH as Lender | ||
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By: |
/s/ Xxxx Xxxxx | |
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Name: |
Xxxx Xxxxx |
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Title: |
Director |
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By: |
/s/ Xxxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxxx Xxxxxxx |
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Title: |
Executive Director |
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WestLB AG London Branch Woolgate Exchange 00 Xxxxxxxxxx Xxxxxx Xxxxxx XX0X 0XX XX Telephone No: 00 0 00 0000 0000 Facsimile No.: 44 0 20 7020 7820 Attn: Xxxx Xxxxx |
Credit Agreement
|
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BAYERISCHE LANDESBANK, as Lender | ||
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By: |
/s/ Xxxxxxxxx Xxxx | |
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Name: |
Xxxxxxxxx Xxxx |
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Title: |
First Vice President |
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By: |
/s/ Xxxxxx Xxxxx | |
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Name: |
Xxxxxx Xxxxx |
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Title: |
Vice President |
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Bayerische Landesbank Departm. 2611/Aircraft Finance Xxxxxxxx Xxxxxx 00 00000 Xxxxxxxx Xxxxxxx Telephone No: 00 00 0000-00000 Facsimile No.: 49 89 2171-23763 |
Credit Agreement
|
|
CALYON NEW YORK BRANCH, as Lender | ||
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By: |
/s/ Xxxxx Xxxxxxx | |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Managing Director |
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By: |
/s/ Xxxxx Xxxxxxx | |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Director |
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|
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Calyon Corporate Investment Bank Credit Agricole Group Calyon Building 1301 Avenue of the Americas Xxx Xxxx, XX 00000-0000 XXX Telephone No.: 000-000-0000 Facsimile No.: 000-000-0000 |
Credit Agreement
|
|
DEKABANK DEUTSCHE GIROZENTRALE, as Lender | ||
|
|
By: |
/s/ Xxxxxxxx Xxxxx | |
|
|
|
Name: |
Xxxxxxxx Xxxxx |
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|
|
Title: |
First Vice President |
|
|
|
|
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|
|
By: |
/s/ Xxxxxxx Xxxxx | |
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|
|
Name: |
Xxxxxxx Xxxxx |
|
|
|
Title: |
Assistant Vice President |
|
|
|
|
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|
|
DekaBank Deutsche Girozentrale Mainzer Xxxxxxxxxxx 00 00000 Xxxxxxxxx xx Xxxx Xxxxxxx Telephone No.: 00 00 00 00-0000 Facsimile No.: 49 69 71 47-7147 Email: xxxxxxxxxxxxx@xxxxxxxx.xx |
Credit Agreement
|
|
LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE, | ||
|
|
| ||
|
|
as Lender | ||
|
|
By: |
/s/ Kohrsmeier-Xxxxxxxx | |
|
|
|
Name: |
Kohrsmeier-Xxxxxxxx |
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|
Title: |
|
|
|
|
|
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By: |
/s/ Xxx Xxxxxxx | |
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Name: |
Xxx Xxxxxxx |
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Title: |
|
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|
|
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|
Landesbank Hessen-Thüringen Girozentrale MT 2150 - Asset Finance Xxxx Xxxxxxx Xxxxxx 00-00 00000 Xxxxxxxxx xx Xxxx Xxxxxxx Attn: Xxx Xxxxxxx Telephone No.: x00 00 0000-0000 Facsimile No.: x00 00 0000-0000 Email: xxx.xxxxxxxx@xxxxxx.xx |
Credit Agreement
|
|
NATIXIS TRANSPORT FINANCE, as Lender | ||
|
|
By: |
/s/ Xxxxxxxxx XxXxxxxxx | |
|
|
|
Name: |
Xxxxxxxxx XxXxxxxxx |
|
|
|
Title: |
CEO |
|
|
|
|
|
|
|
|
/s/ Xxxx Xxxxxxxx | |
|
|
|
Name: |
Xxxx Xxxxxxxx |
|
|
|
Title: |
CFO |
Credit Agreement
Appendix I
Table 1:
Eligible Aircraft
Aircraft Type |
|
Maximum Age |
|
Commitment Amount =< $250MM |
|
Commitment Amount > $250MM |
|
Tier I | |||||||
A319-100 |
|
10 |
|
|
|
|
|
A320-200 |
|
10 |
|
|
|
|
|
B737-700 |
|
10 |
|
100% |
|
100% |
|
B737-800 |
|
10 |
|
|
|
|
|
Tier II | |||||||
A321-200 |
|
10 |
|
|
|
|
|
A330-200 |
|
10 |
|
|
|
|
|
B737-400 (EFIS) |
|
12 |
|
34% for whole |
|
|
|
B737-300 (EFIS) |
|
12 |
|
Tier with minimum |
|
|
|
B747-400F |
|
7 |
|
requirement of |
|
50% |
|
B757-200 ETOPS |
|
12 |
|
two Tier I Aircraft |
|
|
|
B757-200F |
|
7 |
|
for each Tier II |
|
|
|
B767-300ER |
|
12 |
|
Aircraft |
|
|
|
B767-200F |
|
7 |
|
|
|
|
|
B767-300F |
|
7 |
|
|
|
|
|
B777-200ER |
|
10 |
|
|
|
|
|
B777-300ER |
|
10 |
|
|
|
|
|
ERJ-170 |
|
N/A |
|
|
|
|
|
Tier III | |||||||
A330-300 |
|
10 |
|
|
|
|
|
B737-300(Analog) |
|
12 |
|
25% for whole |
|
|
|
B737-400 (Analog) |
|
12 |
|
Tier with minimum |
|
|
|
B737-300F |
|
7 |
|
requirement of |
|
25% |
|
B737-300QC |
|
10 |
|
three Tier I Aircraft |
|
|
|
B737-500 |
|
12 |
|
for each Tier III |
|
|
|
B757-200 |
|
12 |
|
Aircraft |
|
|
|
MD-11F |
|
10 |
|
|
|
|
|
142
Table 2:
Concentration Limits
Warehouse Concentration Limits |
|
Warehouse Size (Outstanding Principal Amount) Up to $100MM |
|
Warehouse Size (Outstanding Principal Amount) >100 - 175 MM |
|
Warehouse Size (Outstanding Principal Amount) >175 - 250 MM |
|
Warehouse Size (Outstanding Principal Amount) > 250 MM |
|
Lessee Concentration Limits | |||||||||
Single Lessee |
|
$75MM |
|
50.00% |
|
30.00% |
|
15.00% |
|
Special Consideration Country Lessee |
|
$50MM |
|
30.00% |
|
20.00% |
|
10.00% |
|
Three Largest Lessees |
|
N/A |
|
80.00% |
|
50.00% |
|
30.00% |
|
Country Concentration Limits | |||||||||
United States |
|
N/A |
|
50.00% |
|
30.00% |
|
25.00% |
|
Rated Country |
|
N/A |
|
50.00% |
|
30.00% |
|
22.50% |
|
Other-Rated Country |
|
$75MM |
|
50.00% |
|
30.00% |
|
15.00% |
|
Special Consideration Country |
|
$50MM |
|
30.00% |
|
20.00% |
|
10.00% |
|
Region Concentration Limits | |||||||||
Developed Europe |
|
N/A |
|
70.00% |
|
55.00% |
|
40.00% |
|
Developed Asia |
|
N/A |
|
70.00% |
|
50.00% |
|
35.00% |
|
North America |
|
N/A |
|
50.00% |
|
30.00% |
|
25.00% |
|
Emerging Europe & Africa/Middle East |
|
N/A |
|
60.00% |
|
45.00% |
|
35.00% |
|
Latin America/Caribbean |
|
N/A |
|
50.00% |
|
35.00% |
|
25.00% |
|
Emerging Asia/Pacific |
|
N/A |
|
60.00% |
|
45.00% |
|
40.00% |
|
Additional Aircraft Concentration Limits | |||||||||
Widebody Aircraft |
|
N/A |
|
60% |
|
40% |
|
25% |
|
Freighter Aircraft |
|
N/A |
|
50% |
|
30% |
|
15% |
|
Regional Jet Aircraft |
|
N/A |
|
15% |
|
15% |
|
10% |
|
Boeing Aircraft |
|
N/A |
|
N/A |
|
N/A |
|
70% |
|
Airbus Aircraft |
|
N/A |
|
N/A |
|
N/A |
|
70% |
|
Out-of-Production Aircraft |
|
45% |
|
45% |
|
45% |
|
45% |
|
Other Manufacturer Aircraft |
|
N/A |
|
15% |
|
15% |
|
10% |
|
Region |
|
Countries |
|
|
|
Developed Markets: |
|
|
Xxxxxx |
|
Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxxx, Denmark, Faroe Islands, Finland, France, Germany, Greece, Iceland, Ireland, Isle of Man, Italy, Liechtenstein, Luxembourg, Monaco, Netherlands, Norway, San Marino, Spain, Svalbard (Finland), Sweden, Switzerland, United Kingdom, Vatican City (Holy See) |
Xxxxx Xxxxxxx |
|
Xxxxxx, Xxxxxxxxx xxx Xxxxxx Xxxxxx |
Asia |
|
Australia, Hong Kong, Japan, New Zealand and Singapore |
Emerging Markets: |
|
|
Europe |
|
Armenia, Azerbaijan, Belarus, Bosnia & Herzegovina, Bulgaria, Channel Islands, Croatia, Cyprus, Czech Republic, Estonia, Georgia, Gibraltar, Hungary, Kosovo, Latvia, Lithuania, Macedonia, Malta, Moldova, Montenegro, Nagorno-Karabakh, Northern Cyprus, Poland, Portugal, Reunion (French), Romania, Russia, Saint Pierre and Miquelon (French), Xxxxxxxx, Xxxxxxxx, Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxx |
Asia/Pacific |
|
Afghanistan, American Samoa, Bangladesh, Bhutan, Brunei Darussalam, Cambodia, China, Christmas Island, Cocos Island, Xxxx Islands, Fiji, French Polynesia, Guam (USA), India, Indonesia, Kazakhstan, Kiribati, Kyrgyz Republic, Laos, Macao, Malaysia, Maldives, Xxxxxxxx Islands, Micronesia, Mongolia, Nauru, Nepal, New Caledonia, Norfolk Island, North Korea, Northern Mariana Islands, Pakistan, Palau, Papua New Guinea, Philippines, Samoa, Solomon Islands, South Korea, Sri Lanka, Taiwan, Tajikistan, Thailand, Timor-Leste, Tonga, Turkmenistan, Tuvalu, Uzbekistan, Vanuatu, Vietnam, Wallis & Futuna |
Latin America/Caribbean |
|
Anguilla, Antigua & Barbuda, Argentina, Aruba, Ascension Island, Bahamas, Barbados, Belize, Bermuda, Bolivia, Brazil, British Virgin Islands, Cayman Island, Chile, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Falkland Islands, French Guiana, Grenada, Guadeloupe, Guatemala, Guyana, Haiti, Honduras, Jamaica, Martinique (French), Mexico, Montserrat, Netherlands Antilles, Nicaragua, Panama, Paraguay, Peru, Puerto |
Region |
|
Countries |
|
|
Rico (USA), Saint Helena, Saint Xxxxxxx & the Grenadines, St. Lucia, Suriname, Trinidad & Tobago, Xxxxxxx xx Xxxxx, Turks and Caicos Islands, Uruguay, US Virgin Islands (USA), Venezuela |
Africa/Middle East |
|
Algeria, Angola, Bahrain, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Republic of Congo, Cote d’Ivoire, Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Iran, Iraq, Jordan, Kenya, Kuwait, Lebanon, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Mayotte (French), Morocco, Mozambique, Namibia, Niger, Nigeria, Oman, Palestine, Qatar, Rwanda, São Tomé and Príncipe, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Somalia, Somaliland, South Africa, Sudan, Swaziland, Syria, Tanzania, Togo, Tunisia, Uganda, United Arab Emirates, Western Sahara, Yemen, Zambia, Zimbabwe |
Special Consideration |
|
Aland Islands, Albania, Algeria, American Samoa, Andorra, Angola, Anguilla, Antigua & Barbuda, Aruba, Ascension Island, Bahamas, Bangladesh, Barbados, Bhutan, Botswana, British Virgin Islands, Brunei Darussalam, Christmas Island, Cocos Island, Xxxx Islands, Djibouti, Dominica, Dominican Republic, Falkland Islands, Faroe Islands, Fiji, French Guiana, French Polynesia, Gabon, Gambia, Gibraltar, Greenland, Guadeloupe, Guam (USA), Guinea, Honduras, Isle of Man, Israel, Jamaica, Kazakhstan, Kenya, Kiribati, Lebanon, Lesotho, Liechtenstein, Macedonia, Maldives, Mali, Xxxxxxxx Islands, Martinique (French), Mauritania, Mauritius, Monaco, Xxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxx, Xxxxx, Xxxxx, Xxxxxxxxxxx Antilles, Nicaragua, Norfolk Island, Northern Cyprus, Northern Mariana Islands, Pakistan, Palau, Papua New Guinea, Paraguay, Puerto Rico (USA), Reunion (French), Romania, Saint Helena, Saint Pierre and Miquelon (French), Saint Xxxxxxx & the Grenadines, Samoa, San Marino, Saudi Arabia, Serbia, Seychelles, Slovenia, Sri Lanka, St. Lucia, Suriname, Swaziland, Tajikistan, Tanzania, Timor-Leste, Tonga, Trinidad & Tobago, Tristan da Cunha, Tunisia, Turks and Caicos Islands, Tuvalu, Ukraine, Uruguay, US Virgin Islands (USA), Vanuatu, Vatican City (Holy See), Venezuela, Wallis & Futuna, and all other countries not listed |
Prohibited
Abkhazia, Afghanistan, Azerbaijan, Belarus, Belize, Benin, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Republic of Congo, Cote d’Ivoire, Cuba, Equatorial Guinea, Eritrea, Gambia, Guinea-Bissau, Guyana, Haiti, Iran, Iraq, Kosovo, Kyrgyz Republic, Laos, Liberia, Mayotte (French), Micronesia, Moldova, Montenegro, Myanmar (Burma), Nagorno-Karabakh, Namibia, New Caledonia, Niger, North Korea, Palestine, Pridnestrovie, Rwanda, São Tomé and Príncipe, Senegal, Sierra Leone, Solomon Islands, Somalia, Somaliland, South Ossetia, Sudan, Syria, Togo, Turkmenistan, Uganda, Uzbekistan, Western Sahara, Yemen, and Zimbabwe.
Table 3:
Core Lease Provisions
1. |
Representations and Warranties, etc. |
representations and warranties or a legal opinion or such other comfort acceptable to the Lessor as to, without limitation, the due execution of such Lease by the related Lessee and the validity of such Lessee’s obligations thereunder, due authorization of such Lease and procurement of relevant licenses and permits in connection therewith;
2. |
permission to sublease only if the primary Lessee thereunder remains obligated to make payments on such primary Lease, except with respect to the specific classes of sublessees and under the specific conditions provided in such Lease;
3. |
provisions requiring the Lessee not to create any encumbrances in respect of the Aircraft or the related engines, except for exceptions thereto consistent with Leasing Company Practice, including encumbrances not affecting the use or operation of the Aircraft arising in the ordinary course of the Lessee’s business;
4. |
the Lease shall not permit a Lessee to sell any Aircraft except, with respect to an Aircraft the subject of a purchase option, pursuant to an agreement entered into by such Lessee prior to the exercise of such purchase option to sell or otherwise transfer ownership of such Aircraft upon the exercise of such purchase option;
5. |
Events of Loss |
provisions stipulating that the lease will terminate if there is an Event of Loss with respect to the relevant Aircraft (unless the Lessee is provided a right to provide a replacement Eligible Aircraft in accordance with Leasing Company Practice);
6. |
provisions for redelivery of the relevant Aircraft, including, if applicable, replacement engines and parts, on expiry or termination of the Lease (other than any expiration or termination coincident with the purchase of the relevant Aircraft pursuant to exercise of a purchase option by the relevant Lessee or in cases in which such Lease provides for retention of the relevant Aircraft by the lessee or for delivery to a third party), specifying the required return condition and any obligation upon the Lessee to remedy or compensate the Lessor, directly or indirectly, for any material deviations from such
return condition, in each case considering the other terms of the relevant Lease and to the extent consistent with Leasing Company Practice;
7. |
provisions setting forth the conditions under which the Lessor may terminate a Lease and repossess the relevant Aircraft, at any time after the expiration of any agreed grace period or remedy period, in each case consistent with Leasing Company Practice;
8. |
provisions prohibiting the assignment of any benefits or obligations under the Lease to any Person, subject to exceptions consistent with Leasing Company Practice;
9. |
provisions acknowledging that when the Lessee gives formal notice of acceptance of the relevant Aircraft, it takes delivery of such Aircraft with no condition, warranty or representation of any kind having been given by or on behalf of the Lessor in respect of such aircraft, except as to matters expressly set forth in the Lease or in connection with the acceptance of such Aircraft;
10. |
provisions stating the Lessee’s obligation to make rental payments is absolute and unconditional under any and all circumstances and regardless of other events or similar provisions, subject to exceptions consistent with Leasing Company Practice; and
11. |
Maintenance |
maintenance provisions consistent with Leasing Company Practice.
EXHIBIT A
FORM OF ADVANCE REQUEST
ADVANCE REQUEST
[Date]
CITIBANK, N.A.,
|
as Administrative Agent for the Lenders |
|
under the Credit Agreement referred to below |
0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
|
Facsimile No.: 0-000-000-0000 |
DEUTSCHE BANK TRUST COMPANY AMERICAS,
|
as Security Trustee and as Account Bank |
|
under the Credit Agreement referred to below |
c/o Deutsche Bank National Trust Company
00 XxXxxxxx Xxxxxx, XX 000000
Xxxxxx, XX 00000
Attention: Trust and Securities/Structured Finance Services
|
Facsimile No.: 0-000-000-0000 |
Ladies and Gentlemen:
The undersigned, Genesis Acquisition Limited, an exempted company incorporated and existing under the laws of Bermuda (the “Borrower”) refers to that certain Credit Agreement dated as of April 5, 2007 (as it may be amended, restated, supplemented and/or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, Genesis Lease Limited, as Manager, the Lenders party thereto from time to time, Citibank, N.A., as Administrative Agent, and Deutsche Bank Trust Companies Americas, as Security Trustee and Account Bank, and hereby gives you notice pursuant to Section 2.2(a) of the Credit Agreement that the undersigned requests one or more Advances under the Credit Agreement, and in that connection sets forth below the information relating to each such Advance as required by Section 2.2(a) of the Credit Agreement (capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Credit Agreement):
(i) The Advance Date is ____________, ____.
(ii) The aggregate principal amount of this Advance is $________.
Exh. A-1
(iii) The Interest Period will be of [one] [three] month duration. This election will become effective starting on the Interest Period following the Payment Date which occurs after this Advance Date, unless the Advance Date occurs on the same date as a Payment Date, in which case the interest election will become effective starting on the Advance Date.
(iv) The Lenders are to fund the proceeds of this Advance to the following account:
Bank Name: Citibank, N.A.
Location: New York
Account Name: Agency/Medium Term Finance
Account #: 00000000
ABA #: 000000000
Ref.: Genesis Acquisition Ltd.
(v) The date or dates (any of which shall be a Business Day), not less than four Business Days from the date that the Borrower delivers this Advance Request that the Borrower anticipates that the conditions precedent to funding against any Financed Aircraft to be financed pursuant to the Advances (the “Requested Aircraft”) set forth in Section 6.2 of the Credit Agreement shall be satisfied as to each such Requested Aircraft are set forth in Annex I attached hereto.
(vi) Attached hereto as Annex II is a true and correct copy of the borrowing base certification required by Section 2.2(a) of the Credit Agreement.
(vii) Attached hereto as Annex III are true and correct copies of each of the schedules, annexes, exhibits and other attachments required to be updated or added to the various Transaction Documents, under the terms thereof, pursuant to the consummation of the transactions contemplated in the making of the requested Advances.
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the Advance Date after giving effect to the Advances requested hereunder and the consummation of the transactions contemplated in the making of such Advances:
(A) The date of such Advances is a Business Day;
(B) The representations and warranties of the Borrower contained in Article VIII of the Credit Agreement are true and correct in all material respects, with the same effect as though made on such date (except, that any such representations or warranties expressly stated by their terms to be made only at or as of one or more earlier dates or times, shall be made only at or as of such earlier dates or times);
(C) No Default or Event of Default, Manager Default, Servicer Termination Event, or event that would constitute a Servicer Termination Event but for the passage of time or the giving of notice or both, has occurred and is continuing, or will result from the making of such Advances; and
Exh. A-2
(D) All conditions precedent contained in Section 6.2 of the Credit Agreement which do not require the submission of documentary evidence have been satisfied or will be satisfied as of the Advance Date.
Exh. A-3
Very truly yours,
|
|
GENESIS ACQUISITION LIMITED, as Borrower | ||
|
|
By: |
| |
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
Exh. A-4
ANNEX I
Anticipated Date of Satisfaction of Conditions Precedent for each Requested Aircraft
The Borrower anticipates that the conditions precedent to funding against each of the Requested Aircraft shall be satisfied as to each such Requested Aircraft listed below as set forth in Section 6.2 of the Credit Agreement on the following date(s):
[To be completed by Borrower, as applicable]
Exh. A-5
ANNEX II
Form of Borrowing Base Certification
Advance Request Number
Date of Advance Request
Advance Date
Aircraft Number
MSN
Engines
Date of Manufacture/Conversion
Purchase Date
Lessee
Lease Rental Amount
Rental Frequency
Lease Expiry Date
Lease Payment Currency
Security Deposit
Supplemental Rent
Aircraft Type
Aircraft Tier
Aircraft Tier Concentration Percentage
Aircraft Tier Concentration Limit Exceeded?
Aircraft Age
Aircraft Age Limit Exceeded?
Weighted Aircraft Portfolio Age Limit Exceeded?
Aircraft/Engine Combination Flown by More than Ten Operators?
More than 30% of Aircraft Type Flown by Three or Fewer Operators?
Event of Loss occurred?
Lessee
Single Lessee Concentration Limit Exceeded?
Special Consideration Country Lessee Limit Exceeded?
Three Largest Lessee’s Concentration Limit Exceeded?
Exh. A-6
Country
“Prohibited Jurisdiction” under OFAC?
Prohibited Country?
Country Concentration Limit
Country Concentration Limit Exceeded?
Region
Region Concentration Limit
Region Concentration Limit Exceeded?
Additional Aircraft Concentration Type (1)
Additional Aircraft Concentration Limit
Additional Aircraft Concentration Limit Exceeded?
Ratio of EBITDA to Interest Expense at least 1.5:1? (does not apply for the earlier of the first six months after the Closing Date)
Documented Purchase Price
Current Market Value as of Initial Appraisal
Base Value as of Initial Appraisal
Date of Appraisal
Initial Agreed Value
Outstanding Principal Balance on Existing Portfolio
Aggregate Aircraft Borrowing Base of Existing Portfolio
Advance Rate for Aircraft to be Acquired
Individual Aircraft Borrowing Base of Aircraft to be Acquired
Advance Amount
Individual Aircraft Borrowing Base Exceeded?
Outstanding Principal Balance post-Acquisition
Borrowing Base Deficiency?
Notes:
|
(1) |
Additional Aircraft Concentration Type includes: |
|
• |
Widebody Aircraft |
|
• |
Freighter Aircraft |
|
• |
Regional Jet Aircraft |
|
• |
Boeing Aircraft |
|
• |
Airbus Aircraft |
|
• |
Out-of-Production Aircraft |
|
• |
Other Manufacturer |
Exh. A-7
ANNEX III
Modified and Additional Attachments
[To be attached]
Exh. A-8
EXHIBIT B
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [_________], in its capacity as a Lender under the Credit Agreement identified below (as amended, the “Credit Agreement”) (such Lender, the “Assignor”), and [___________] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement, receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amounts and percentage interests identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity, in each case, solely to the extent related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty of any kind, whether express or implied, by the Assignor.
(a) Assignor: |
|
______________________________ |
(b) Assignee: |
|
______________________________ |
(c) Borrower: |
|
Genesis Acquisition Limited |
(d) Administrative Agent: |
|
Citibank, N.A., as the Administrative Agent under the Credit Agreement |
(e) Security Trustee: |
|
Deutsche Bank Trust Company Americas |
Exh. B-1
(f) Credit Agreement: |
|
That certain Credit Agreement dated as of April 5, 2007 by and among the Borrower, the Manager, the Lenders, the Administrative Agent, the Security Trustee and the Account Bank. |
(g) Assigned Interest: |
|
|
Amount of Non- Conduit Lender Commitment of _____1 |
|
Amount of Non- Conduit Lender Commitment of _____2 assigned |
|
Percentage of Non- Conduit Lender Commitment of _______3 assigned |
|
Amount of Advances of _________4 |
|
Amount of Advances of _____5 assigned |
|
Percentage of Advances of _____6 assigned |
|
$________ |
|
$________ |
|
__._____% |
|
$_______ |
|
$_______ |
|
__._____% |
|
______________
1 |
Applicable Lender. |
2 |
Applicable Lender. |
3 |
Applicable Lender. |
4 |
Applicable Lender. |
5 |
Applicable Lender. |
6 |
Exh. B-2
Effective Date: _____________ ___, 20___
The terms set forth in this Assignment and Assumption are hereby agreed to:
|
|
ASSIGNOR [NAME OF ASSIGNOR] | ||
|
|
By: |
| |
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
ASSIGNEE [NAME OF ASSIGNEE] | ||
|
|
By: |
| |
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
Exh. B-3
Consented to and Accepted:
CITIBANK, N.A., as Administrative Agent | ||
By |
| |
|
Name: |
|
|
Title: |
|
|
|
|
[GENESIS ACQUISITION LIMITED, as Borrower | ||
By |
| |
|
Name: |
|
|
Title:7] |
|
|
|
|
|
______________
7 |
Applicable only if no Event of Default exists; consent deemed to be given if the Borrower does not object to a proposed assignee within five Business Days of any request for such consent. |
Exh. B-4
ANNEX 1 to
Assignment and Assumption
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
(Genesis Acquisition Limited Credit Agreement)
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim created by the Assignor and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby, including providing prior notice of the assignment contemplated by this Assignment and Assumption to the Borrower; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Transaction Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Transaction Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Transaction Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Transaction Document.
1.2 Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement, including the requirements concerning confidentiality and indemnification, as a Lender and a Non-Conduit Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iii) it is a Qualifying Lender as of the Effective Date, and it will notify the Borrower reasonably promptly after it becomes aware that it is no longer a Qualifying Lender, (iv) it has received a copy of the Credit Agreement and the other Transaction Documents, together with copies of such financial statements and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and (v) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Transaction Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Transaction Documents are required to be performed by it as a Lender.
Exh. B-5
2. Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions.
This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. THIS ASSIGNMENT AND ASSUMPTION SHALL IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
Exh. B-6
EXHIBIT C
FORM OF MONTHLY REPORT
Genesis Acquisition Monthly Report
Summary of commercial activity
All of the Company’s [ # ] aircraft are currently on lease, to [ # ] customers in [ # ] countries. The total amounts of supplemental rents / maintenance reserves and security deposits currently held are [$___________] and [$___________] respectively.
• |
On [___________] an LOI was signed with [ ________ ] for the lease of MSN [ # ], a __________, for [ # ] months. This aircraft will be redelivering from [___________]. The lease will have / will not have maintenance reserves/supplemental rent/security deposits |
• |
On [___________] an LOI was signed with [ ________ ] for the sale of MSN [ # ] for [$___________]. The sale will occur on [___________] |
Revenue
Cash Receipts during the Reporting Period – [_____________________]
By Aircraft Type |
|
Rent |
|
Maintenance |
|
Security Deposits |
|
Interest |
|
Other |
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0 |
|
0 |
|
0 |
|
0 |
|
|
|
0 |
|
Cash disbursements expected [_________________________]
Lessee |
|
Serial No. |
|
Description of Cost |
|
Amount |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
Events of Loss
[No Event of Loss was reported during the Reporting Period / Describe Event of Loss].
Exh. C-1
[No event of default was issued in the previous month / Describe Event of Default] .
Lease Receivables and Arrears
The total outstanding is [ $ ______ ] compared to [ $ ______ ] at the end of [ previous reporting period ].
List details of each lease which is in arrears:
Lessee |
|
Serial No. |
|
Months in Arrears |
|
Rent |
|
Maintenance |
|
Interest |
|
Other |
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
0 |
|
0 |
|
0 |
|
0 |
|
0 |
|
Sale, Loss or Disposition of Aircraft
• |
On [___________], MSN [ # ] was sold to [___________]for [$___________] |
• |
On [___________], MSN [ # ] was experienced an Event of Loss |
In order to maintain the Borrowing Base Covenant and LTV Maintenance Test, [$___________] of debt needs to be repaid
Aircraft Type |
|
Serial Number |
|
Initial Appraised/ Reappraised Value [1] |
|
Warehouse Advance Rate [2] |
|
Debt Outstanding [3] |
|
Individual Aircraft Borrowing Base [4 = 1 x 2] |
|
Tier I | |||||||||||
|
|
|
|
|
|
72.5% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tier II | |||||||||||
|
|
|
|
|
|
72.5% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tier III | |||||||||||
|
|
|
|
|
|
65.0% |
|
|
|
|
|
PRESALE, LOSS OR DISPOSAL
Total Debt Outstanding [5 = Total of 3]
Total Initial Appraised/Reappraised Value [6 = Total of 1]
Pre-Sale, Loss or Disposal LTV [7 = 5/6]
Exh. C-2
AIRCRAFT SOLD, LOSS OR DISPOSED
Aircraft Type |
|
Serial Number |
|
Initial Appraised/ Reappraised Value [8] |
|
Warehouse Advance Rate [9] |
|
Debt Outstanding [10] |
|
Individual Aircraft Borrowing Base [11 = 8 x 9] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
POST SALE, LOSS OR DISPOSAL
Total Debt Outstanding [12 = 5 – Total of 10]
Total Initial Appraised/Reappraised Value [ 13 = 6 – Total of 8]
Post-Sale, Loss or Disposal LTV [14 = 12/13]
DEBT TO BE REPAID (Higher of Borrowing Base Deficiency and LTV Maintenance Test)
Borrowing Base Deficiency [15 = 12 – (Aggregate of 4 – Aggregate of 11)]
LTV Maintenance Test [16 = 5 x 13 / 6]
Exh. C-3
Appraisal Test
• |
On [___________],the appraisal tests were performed by Airclaims, AISI and MBA (attached) |
Aircraft Type |
|
Serial Number |
|
Initial Appraised/ Reappraised Value [1] |
|
Warehouse Advance Rate [2] |
|
Debt Outstanding [3] |
|
Individual Aircraft Borrowing Base [4 = 1 x 2] |
Tier I | ||||||||||
|
|
|
|
|
|
72.5% |
|
|
|
|
| ||||||||||
Tier II | ||||||||||
|
|
|
|
|
|
72.5% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tier III | ||||||||||
|
|
|
|
|
|
65.0% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Debt Outstanding [5 = Total of 3] |
|
| ||||||||
Total Initial Appraised/Reappraised Value [6 = Total of 1] |
|
| ||||||||
Total Portfolio Actual LTV [7 = 5/6] |
|
| ||||||||
Borrowing Base Deficiency [8 = 5 – Total of 4] |
|
|
Notes:
Reappraised Value is the lower of (a) Current Market Value and (b) Base Value
Current Market Value shall be the lower of mean or median of maintenance adjusted current market values and base values as applicable from Airclaims, AISI and MBA
Exh. C-4
Reconciliation of Cash Flows
Genesis Acquisition Limited
Monthly Report to Lenders
(Amounts in US$)
Payment Date
Current Calculation Date
Previous Calculation Date
1. Account Activity Summary between Calculation Dates |
|
|
|
|
|
|
|
|
|
|
Prior Balance |
|
Deposits |
|
Withdrawals |
|
Balance on Calculation Date |
Collection Account (see 2 for analysis) |
|
|
|
|
|
|
|
|
Supplemental Rental Account (see 4 for analysis) |
|
|
|
|
|
|
|
|
Security Deposit Account (see 5 for analysis) |
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2. Analysis of Collection Account Activity |
|
|
|
|
|
|
|
|
Balance on Previous Payment Date |
|
|
|
|
|
|
|
|
Collections during period: |
|
|
|
|
|
|
|
|
Lease rent |
|
|
|
|
|
|
|
|
Supplemental Rent |
|
|
|
|
|
|
|
|
Security Deposit |
|
|
|
|
|
|
|
|
Interest Income |
|
|
|
|
|
|
|
|
Other |
|
|
|
|
|
|
|
|
Net transfer from (to) Supplemental Rent Account |
|
|
|
|
|
|
|
|
Net transfer from (to) Security Deposit Account |
|
|
|
|
|
|
|
|
Payment of Expenses (see 3. for analysis) |
|
|
|
|
|
|
|
|
Balance on Current Calculation Date |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3. Analysis of Payment of Expenses |
|
|
|
|
|
|
|
|
1) Security Trustee, Servicer, Borrower expenses |
|
|
|
|
|
|
|
|
2) Commitment Fees |
|
|
|
|
|
|
|
|
3) Swap Payments, Interest |
|
|
|
|
|
|
|
|
4) Other costs of Admin Agent/Lenders, principal and BBD |
|
|
|
|
|
|
|
|
5) Principal, BBD, Swap termination payments |
|
|
|
|
|
|
|
|
6) Manager Fees and Expenses |
|
|
|
|
|
|
|
|
7) Distributions to GLS |
|
|
|
|
|
|
|
|
Total Payments |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4. Analysis of Supplemental Rent Account |
|
|
|
|
|
|
|
|
Opening balance on previous Calculation Date |
|
|
|
|
|
|
|
|
Transfer from collection account |
|
|
|
|
|
|
|
|
Transfer to collection account |
|
|
|
|
|
|
|
|
interest earned |
|
|
|
|
|
|
|
|
Balance on current Collection Date |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5. Analysis of Security Deposit Account |
|
|
|
|
|
|
|
|
Opening balance on previous Calculation Date |
|
|
|
|
|
|
|
|
Transfer from collection account |
|
|
|
|
|
|
|
|
Transfer to collection account |
|
|
|
|
|
|
|
|
interest earned |
|
|
|
|
|
|
|
|
Balance on current Collection Date |
|
|
|
|
|
|
|
|
[* Put in Non-Trustee Account Balances]
Hedging Transactions
Exh. C-5
Genesis Acquisition Quarterly Report
Additional Information Required for Quarterly Report
Eligible Aircraft / Lessee Concentration Limits
[No breach of Eligible Aircraft / Lessee Concentration Limits during the Reporting Period / Describe breach and action steps to repair breach].
Eligible Aircraft Limits
Aircraft Type |
|
Max Age |
|
Commitment Amount =< $250MM |
|
Commitment Amount > $250MM |
|
Number of Aircraft |
|
Age of Aircraft |
|
Appraised Value |
|
Limit Met/ Breach |
Tier I | ||||||||||||||
A319-100 |
|
10 |
|
|
|
|
|
|
|
|
|
|
|
|
A320-200 |
|
10 |
|
100% |
|
100% |
|
|
|
|
|
|
|
|
B737-700 |
|
10 |
|
|
|
|
|
|
|
|
|
|
|
|
B737-800 |
|
10 |
|
|
|
|
|
|
|
|
|
|
|
|
Subtotal Tier I |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tier II | ||||||||||||||
A321-200(5) |
|
10 |
|
|
|
|
|
|
|
|
|
|
|
|
A330-200 |
|
10 |
|
|
|
|
|
|
|
|
|
|
|
|
B737-400 (EFIS) |
|
12 |
|
34% for whole |
|
|
|
|
|
|
|
|
|
|
B737-300 (EFIS) |
|
12 |
|
Tier with minimum |
|
|
|
|
|
|
|
|
|
|
B747-400F |
|
7 |
|
requirement of |
|
50% |
|
|
|
|
|
|
|
|
B757-200 ETOPS |
|
12 |
|
two Tier I Aircraft |
|
|
|
|
|
|
|
|
|
|
B757-200F |
|
7 |
|
for each Tier II Aircraft |
|
|
|
|
|
|
|
|
|
|
B767-300ER |
|
12 |
|
|
|
|
|
|
|
|
|
|
|
|
B767-200F |
|
7 |
|
|
|
|
|
|
|
|
|
|
|
|
B767-300F |
|
7 |
|
|
|
|
|
|
|
|
|
|
|
|
B777-200ER |
|
10 |
|
|
|
|
|
|
|
|
|
|
|
|
B777-300ER |
|
10 |
|
|
|
|
|
|
|
|
|
|
|
|
ERJ-170 |
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
Subtotal Tier II |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tier III | ||||||||||||||
A330-300 |
|
10 |
|
|
|
|
|
|
|
|
|
|
|
|
B737-300(Analog) |
|
12 |
|
25% for whole |
|
|
|
|
|
|
|
|
|
|
B737-400 (Analog) |
|
12 |
|
Tier with minimum |
|
|
|
|
|
|
|
|
|
|
B737-300F |
|
7 |
|
requirement of |
|
25% |
|
|
|
|
|
|
|
|
B737-300QC |
|
10 |
|
three Tier I Aircraft |
|
|
|
|
|
|
|
|
|
|
B737-500 |
|
12 |
|
for each Tier III Aircraft |
|
|
|
|
|
|
|
|
|
|
B757-200 |
|
12 |
|
|
|
|
|
|
|
|
|
|
|
|
MD-11F |
|
10 |
|
|
|
|
|
|
|
|
|
|
|
|
Subtotal Tier III |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL PORTFOLIO |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Pick the applicable Tiering to report on]
Exh. C-6
Lessee Concentration Limits
Warehouse Concentration Limits |
|
Warehouse Size (Debt Drawn) Up to $100MM(1) |
|
Warehouse Size (Debt Drawn) >100 – 175 MM(2) |
|
Warehouse Size (Debt Drawn) >175 – 250 MM(2) |
|
Warehouse Size (Debt Drawn) > 250 MM(2) |
|
Actual Concentration of Portfolio |
Lessee Concentration Limit | ||||||||||
Single lessee |
|
$75MM |
|
50.00% |
|
30.00% |
|
15.00% |
|
|
Any other single lessee habitually based or domiciled in a special consideration country |
|
$50MM |
|
30.00% |
|
20.00% |
|
10.00% |
|
|
Three largest lessees |
|
N/A |
|
80.00% |
|
50.00% |
|
30.00% |
|
|
Country Concentration Limit | ||||||||||
U.S. |
|
N/A |
|
50.00% |
|
30.00% |
|
25.00% |
|
|
Single country rated the equivalent of BBB/Baa2 or better |
|
N/A |
|
50.00% |
|
30.00% |
|
22.50% |
|
|
Other single countries |
|
$75MM |
|
50.00% |
|
30.00% |
|
15.00% |
|
|
Aggregate Special Consideration |
|
$50MM |
|
30.00% |
|
20.00% |
|
10.00% |
|
|
Region Concentration Limit | ||||||||||
Developed Europe |
|
N/A |
|
70.00% |
|
55.00% |
|
40.00% |
|
|
Developed Asia |
|
N/A |
|
70.00% |
|
50.00% |
|
35.00% |
|
|
North America |
|
N/A |
|
50.00% |
|
30.00% |
|
25.00% |
|
|
Emerging Europe and Africa/Middle East |
|
N/A |
|
60.00% |
|
45.00% |
|
35.00% |
|
|
Latin America/Caribbean |
|
N/A |
|
50.00% |
|
35.00% |
|
25.00% |
|
|
Emerging Asia/Pacific |
|
N/A |
|
60.00% |
|
45.00% |
|
40.00% |
|
|
Additional Aircraft Concentration Limit | ||||||||||
Widebody |
|
N/A |
|
60% |
|
40% |
|
25% |
|
|
Freighter |
|
N/A |
|
50% |
|
30% |
|
15% |
|
|
Regional Jet |
|
N/A |
|
15% |
|
15% |
|
10% |
|
|
Manufacturer: Boeing |
|
N/A |
|
N/A |
|
N/A |
|
70% |
|
|
Manufacturer: Airbus |
|
N/A |
|
N/A |
|
N/A |
|
70% |
|
|
Manufacturer: Other |
|
N/A |
|
15% |
|
15% |
|
10% |
|
|
[Pick the applicable Tiering to report on]
Exh. C-7
Pending and potential litigation involving any Aircraft Assets or Leases of which the Servicer has written notice.
Claims being made with respect of any of the Aircraft Assets, of which the Servicer is aware, with an actual or potential liability in excess of $5,000,000.
Leases expiring during the following two quarters ending
Calculation of Interest Coverage
EBITDA (Trailing 3 months) |
|
= |
|
Interest Expense (Trailing 3 months) |
|
= |
|
Interest Coverage |
|
= |
EBITDA / Interest Expense |
|
|
= |
|
Exh. C-8
EXHIBIT D
HEDGING POLICY
Hedging Methods/Objectives
• |
The Borrower will use interest rate derivatives to hedge the interest rate risk (“Exposure”) arising from the mismatch between interest on its debt and interest generated by leases. Interest rate derivatives may include interest rate swaps, caps or collars. |
• |
The Borrower will hedge the currency exposure of all Leases the rental payments under which are denominated in a currency other than Dollars. |
Strategy
• |
The Exposure will be calculated based on the current and projected outstanding principal balances of Advances, the Borrower’s existing interest rate derivatives portfolio, and the Borrower’s existing and future expected lease payments. |
The specific policy is that the Borrower will never be greater than 15% under/overhedged. This is assessed by comparing the dollar sensitivity of a 1 basis point change in interest rates (“DV01”) of future lease cashflows to the DV01 of existing interest rate xxxxxx in place (permitted interest rate caps would be treated as swaps for purposes of this assessment).
• |
If any Eligible Hedge Agreement constituting interest rate caps are used, the spread above the then “at-the-money” strike rate shall not exceed 1.0 %. |
• |
The Borrower will evaluate monthly whether it is in compliance with the Hedging Policy and if its determination concludes that it is not in compliance, the Borrower will promptly make adjustments to its portfolio of Eligible Hedge Agreements to restore compliance. |
• |
If the Borrower desires to amend the Hedging Policy, it may present the proposed change in or replacement of Hedging Policy to the Company Board and Administrative Agent for approval of such modifications. |
Exh. D-1
EXHIBIT E
FORM OF MANAGEMENT AGREEMENT
Exh. E-1
EXHIBIT F
FORM OF SECURITY TRUST AGREEMENT
Exh. F-1
EXHIBIT G
FORM OF SERVICING AGREEMENT
Exh. G-1
EXHIBIT H
FORMS OF ORGANIZATIONAL DOCUMENTS AND OPERATING DOCUMENTS
Exh. H-1
EXHIBIT I
FORMS OF OPINION OF COUNSEL
TO BORROWER GROUP
Exh. I-1
EXHIBIT J
FORM OF OPINION OF COUNSEL
TO SECURITY TRUSTEE/ACCOUNT BANK
Exh. J-1
EXHIBIT K
FORM OF OPINION OF COUNSEL
TO ADMINISTRATIVE AGENT/LENDERS
Exh. K-1
SCHEDULE I
List of Aircraft
Sch. I-1
SCHEDULE II
List of Aircraft Owning Entities, the Aircraft Owned
by Such Aircraft Owning Entities and the associated
Owner Participants and Owner Trustees
Sch. II-1
SCHEDULE III
List of Leases
Sch. III-1
SCHEDULE IV
List of Lenders and Commitments
Lenders |
|
Initial $250 Million Commitment |
|
Additional $750 Million Commitment |
|
Total Commitment |
|
Citibank, N.A. |
|
20,500,000 |
|
61,500,000 |
|
82,000,000 |
|
Wachovia Bank, National Association |
|
20,500,000 |
|
61,500,000 |
|
82,000,000 |
|
Variable Funding Capital Company LLC |
|
|
|
|
|
|
|
Calyon, New York Branch |
|
20,500,000 |
|
61,500,000 |
|
82,000,000 |
|
Landesbank Baden-Württemberg |
|
20,500,000 |
|
61,500,000 |
|
82,000,000 |
|
Norddeutsche Landesbank Girozentrale |
|
20,500,000 |
|
61,500,000 |
|
82,000,000 |
|
The Governor and Company of The Bank of Scotland |
|
20,500,000 |
|
61,500,000 |
|
82,000,000 |
|
WestLB AG London Branch |
|
18,750,000 |
|
56,250,000 |
|
75,000,000 |
|
Bayerische Landesbank |
|
18,750,000 |
|
56,250,000 |
|
75,000,000 |
|
Bayerische Hypo-Und Vereinsbank AG, London Branch |
|
18,750,000 |
|
56,250,000 |
|
75,000,000 |
|
Alliance & Leicester Commercial Finance, p.l.c. |
|
16,000,000 |
|
48,000,000 |
|
64,000,000 |
|
Landesbank Hessen-Thuringen Girozentrale |
|
12,500,000 |
|
37,500,000 |
|
50,000,000 |
|
Sch. IV-1
Natixis Transport Finance |
|
12,500,000 |
|
37,500,000 |
|
50,000,000 |
|
BTMU Capital Corporation |
|
8,750,000 |
|
26,250,000 |
|
35,000,000 |
|
DekaBank Deutsche Girozentrale |
|
8,500,000 |
|
25,500,000 |
|
34,000,000 |
|
Allied Irish Banks, p.l.c. |
|
7,500,000 |
|
22,500,000 |
|
30,000,000 |
|
NEC Leasing, Ltd. |
|
5,000,000 |
|
15,000,000 |
|
20,000,000 |
|
Total |
|
250,000,000 |
|
750,000,000 |
|
1,000,000,000 |
|
Sch. IV-2
SCHEDULE V
Account Details
ACCOUNT NAME |
|
ACCOUNT NUMBER |
COLLECTION ACCOUNT |
|
58368 |
SECURITY DEPOSIT ACCOUNT |
|
58421 |
SUPPLEMENTAL RENT ACCOUNT |
|
00000 |
Xxxxxxxx Bank Trust Company Americas – NY
ABA #: 000-000-000
Chips Bank: 0103
Book Transfer Swift: XXXXXX00
Account #: 00000000
Account Name: |
DEUTSCHE BANK TRUST COMPANY AMERICAS AS SECURITY TRUSTEE FOR GENESIS ACQUISITION LTD RENTAL ACCOUNT |
Sch. V-1
SCHEDULE VI
Capitalization and Subsidiaries
Sch. VI-1