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EXHIBIT 10.3
EXECUTION COPY
SECURITY TRUST AGREEMENT
Dated as of July 15, 1998
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T A B L E O F C O N T E N T S
SECTION PAGE
ARTICLE I
DEFINITIONS
1.01. Definitions....................................................... 4
1.02. Construction and Usage............................................ 14
ARTICLE II
SECURITY
2.01. Grant of Security................................................. 15
2.02. Security for Obligations.......................................... 18
2.03. Grantors Remain Liable............................................ 18
2.04. Delivery of Collateral............................................ 18
2.05. Maintenance of Accounts.......................................... 19
2.06. Maintaining the Non-Trustee Accounts............................. 19
2.07. Representations and Warranties of the Grantors................... 20
2.08. Further Assurances............................................... 22
2.09. Place of Perfection; Records..................................... 23
2.10. Voting Rights; Dividends; Etc.................................... 23
2.11. As to the Assigned Agreements and Assigned Leases................ 24
2.12. Transfers and Other Encumbrances; Additional Shares or Interests. 25
2.13. Security Trustee Appointed Attorney-in-Fact...................... 25
2.14. Security Trustee May Perform..................................... 26
2.15. Covenant to Pay.................................................. 26
2.16. As to Permitted Account Investments.............................. 26
2.17. As to Irish Law.................................................. 27
ARTICLE III
REMEDIES
3.01. Remedies......................................................... 28
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ARTICLE IV
REGISTRATION RIGHTS
4.01. Registration Rights............................................... 29
ARTICLE V
SECURITY INTEREST ABSOLUTE
5.01. Security Interest Absolute........................................ 30
ARTICLE VI
THE SECURITY TRUSTEE
6.01. Authorization and Action.......................................... 31
6.02. Absence of Duties................................................. 31
6.03. Representations or Warranties..................................... 32
6.04. Reliance; Agents; Advice of Counsel............................... 32
6.05. Not Acting in Individual Capacity................................. 34
ARTICLE VII
SUCCESSOR TRUSTEES
7.01. Resignation and Removal of Security Trustee....................... 34
7.02. Appointment of Successor.......................................... 34
ARTICLE VIII
AGREEMENT AMONG CERTAIN SECURED PARTIES
8.01. Subordination and Priority....................................... 35
8.02. Exercise of Remedies............................................. 35
8.03. Further Agreements of Subordination.............................. 36
8.04. Possession of Collateral......................................... 38
8.05. Rights of Subrogation............................................ 38
8.06. Further Assurances of Subordinated Representatives............... 38
8.07. No Change in Rights in Collateral................................ 38
8.08. Waiver of Marshalling and Similar Rights......................... 38
8.09. Enforcement...................................................... 39
8.10. Obligations Hereunder Not Affected............................... 39
8.11. Waiver........................................................... 39
8.12. Senior Obligations and Subordinated Obligations Unimpaired....... 40
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8.13. Upon Discharge of Obligations.................................... 40
ARTICLE IX
INDEMNITY AND EXPENSES
9.01. Indemnity........................................................ 40
9.02. Noteholders' Indemnity........................................... 41
9.03. No Compensation from Secured Parties............................. 41
9.04. Security Trustee Fees............................................ 41
ARTICLE X
MISCELLANEOUS
10.01. Amendments; Waivers; Etc........................................ 41
10.02. Addresses for Notices........................................... 42
10.03. No Waiver; Remedies............................................. 42
10.04. Severability.................................................... 42
10.05. Continuing Security Interest; Assignments....................... 42
10.06. Release and Termination......................................... 43
10.07. Currency Conversion............................................. 43
10.08. Governing Law.................................................. 44
10.09. Jurisdiction................................................... 44
10.10. Limitations on Liability of Lively............................. 44
10.11. Letter of Quiet Enjoyment...................................... 45
10.12. Counterparts................................................... 45
10.13. Table of Contents, Headings, Etc............................... 46
SCHEDULES
Schedule I Pledged Stock and Pledged Debt
Schedule II Non-Trustee Account Information
Schedule III Trade Names
Schedule IV Chief Place of Business and Chief Executive or Registered Office
EXHIBITS
Exhibit A Form of Credit Facility Provider Supplement
Exhibit B Form of Swap Provider Supplement
Exhibit C Form of Security Trust Agreement Supplement
Exhibit D Form of Account Letter
Exhibit E Form of Consent and Agreement
Exhibit F Form of Service Provider Supplement
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Exhibit G Form of Tax-Related Disposition Agreement Supplement
Exhibit H Form of Quiet Enjoyment Letter
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SECURITY TRUST AGREEMENT
SECURITY TRUST AGREEMENT dated as of July 15, 1998, among AerCo LIMITED, a
limited liability company incorporated under the laws of Jersey, Channel
Islands ("AerCo" or the "Issuer"), the ISSUER SUBSIDIARIES listed on the
signature pages hereof, LIVELY LIMITED, a limited liability company
incorporated under the laws of Jersey, Channel Islands ("Lively"), as nominee
shareholder or shareholder of shares in certain of the Issuer Subsidiaries
(each of the Issuer, each such Issuer Subsidiary and Lively, a "Grantor"), GPA
ADMINISTRATIVE SERVICES LIMITED, a company incorporated under the laws of
Ireland (the "Administrative Agent"), GPA CASH MANAGER II LIMITED, a limited
liability company organized under the laws of Ireland (the "Cash Manager"), GPA
GROUP PLC, a public limited company incorporated under the laws of Ireland, as
the initial representative of the Class E Noteholders (the "Class E Note
Representative"), XXXXXXX & XXXXX LIMITED, a limited liability company
organized under the laws of Ireland, in its capacity as servicer (the
"Servicer") under the Servicing Agreement (as defined in the Indenture),
MOURANT & CO. SECRETARIES LIMITED, a limited liability company incorporated
under the laws of Jersey, Channel Islands (the "Company Secretary"), BANKERS
TRUST COMPANY, not in its individual capacity (except as otherwise provided in
the Indenture (as defined below)), but solely in its capacity as trustee under
the Indenture (in such capacity, the "Trustee"), BANKERS TRUST COMPANY, as the
Book-Entry Depositary under the Deposit Agreement (as defined in the Indenture)
(the "Book-Entry Depositary"), BANKERS TRUST COMPANY, as the initial Reference
Agent under the Reference Agency Agreement (as defined in the Indenture) (the
"Reference Agent"), and BANKERS TRUST COMPANY, not in its individual capacity
(except as otherwise provided pursuant to Sections 6.03(i) and (ii) hereof),
but solely as the initial Security Trustee (the "Security Trustee").
PRELIMINARY STATEMENTS:
(1) The Trustee has entered into an Indenture dated as of the date hereof
with the Issuer (the "Indenture"), pursuant to which the Issuer is issuing the
Notes. The Issuer has entered into Intercompany Loan Agreements (as defined
below) with the Aircraft-Owning Subsidiaries (as defined below) existing on the
date hereof.
(2) The Issuer is the owner of (i) all of the outstanding ordinary shares,
U.S.$1.00 par value (the "ALPS 94-1 Shares") of Aircraft Lease Portfolio
Securitization 94-1 Limited, a company incorporated with limited liability
under the laws of Jersey, Channel Islands ("ALPS 94-1"), 150,000 ordinary
shares, U.S.$1 per ordinary share and one Irish Pound share of IRL.1
(collectively with the one Irish Pound share of IRL.1 held by Lively for the
benefit of the Issuer, the "AerCo Ireland Shares") of AerCo Ireland Limited, a
limited liability company organized under the laws of Ireland ("AerCo
Ireland"), 150,000 ordinary shares, U.S.$1 per ordinary share and one Irish
Pound share of IRL.1 (collectively with the one Irish Pound share of IRL.1 held
by Lively for the benefit of the Issuer, the "AerCo Ireland II Shares") of
AerCo Ireland II Limited, a limited liability company organized under the laws
of Ireland ("AerCo Ireland II"), and all of the outstanding capital stock (the
"AerCoUSA Shares") of AerCoUSA Inc., a corporation incorporated under the
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laws of the State of Delaware ("AerCoUSA"), described in Schedule I hereto
and (ii) certain rights and claims under the intercompany loan agreements (as
amended from time to time, the "Intercompany Loan Agreements"), described in
Schedule I hereto (the "Pledged Debt"). The AerCoUSA Shares have been
deposited with First Security Bank, National Association, as voting trustee
(the "Voting Trustee"), pursuant to the Voting Trust Agreement and the Voting
Trustee has issued voting trust certificates in respect thereof (the "Voting
Trust Certificates"). AerCo Ireland II is the owner of 1249 ordinary shares
(collectively with the one ordinary share owned by Lively, the "AerFi Shares")
of AerFi Belgium N.V., a company organized under the laws of Belgium ("AerFi"),
described in Schedule I hereto. ALPS 94-1 is the owner of one Irish Pound
share of IRL.1 (collectively with the one Irish Pound share of IRL.1 held by
Lively for the benefit of ALPS 94-1, the "Pergola Shares") of Pergola Limited,
a limited liability company organized under the laws of Ireland ("Pergola"),
499 ordinary shares, FRF 100 per ordinary share (collectively with the one
ordinary share held by Lively for the benefit of ALPS 94-1, the "ALPS 00-0
(Xxxxxx) Xxxxxx") xx XXXX 00-0 (Xxxxxx) S.A.R.L., a limited liability company
organized under the laws of France ("ALPS 94-1 (France)") and 1249 ordinary
shares (collectively with the one ordinary share owned by Lively, the "ALPS
00-0 (Xxxxxxx) Xxxxxx") xx XXXX 00-0 (Xxxxxxx) N.V., a limited liability
company organized under the laws of Belgium ("ALPS 00-0 (Xxxxxxx)"), described
in Schedule I hereto. The ALPS 94-1 Shares, the AerCo Ireland Shares, the
AerCo Ireland II Shares, the Voting Trust Certificates, the AerFi Shares, the
Pergola Shares, the ALPS 94-1 (France) Shares and the ALPS 00-0 (Xxxxxxx)
Shares are referred to herein as the "Pledged Stock".
(3) In accordance with the terms of the Indenture, the Issuer may enter
into one or more Eligible Credit Facilities from time to time providing that
each provider thereunder is entitled to the benefits of this Agreement. Upon
the execution and delivery to the Security Trustee of a supplement to this
Agreement in substantially the form of Exhibit A hereto (a "Credit Facility
Provider Supplement") by each provider of any such Eligible Credit Facility,
such facility shall be a "Secured Credit Facility" hereunder and each provider
party thereto shall be a "Secured Credit Facility Provider" hereunder.
(4) ALPS 94-1, AerCo Ireland, AerCo Ireland II, AerCoUSA, AerFi, Pergola
and ALPS 00-0 (Xxxxxxx) are parties to lease and sub-lease contracts with
respect to the Initial Aircraft and may enter into lease and sub-lease
contracts with respect to Additional Aircraft.
(5) In accordance with Section 9.05(a) of the Indenture, the Issuer may
enter into one or more Swap Agreements from time to time providing that each
Swap Provider party thereto is entitled to the benefits of certain security
under this Agreement. Upon the execution and delivery to the Security Trustee
of a supplement to this Agreement in substantially the form of Exhibit B hereto
(a "Swap Provider Supplement") by each Swap Provider party to any such Swap
Agreement, such Swap Agreement shall be a "Secured Swap Agreement" hereunder
and each Swap Provider party thereto shall be a "Secured Swap Provider"
hereunder.
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(6) In accordance with the terms of the Indenture, the Issuer may enter
into one or more agreements providing for services to AerCo Group in addition
to the Service Provider Documents from time to time providing that each
provider thereunder is entitled to the benefits of certain security under this
Agreement. Upon the execution and the delivery to the Security Trustee of a
supplement to this Agreement in substantially the form of Exhibit F hereto (a
"Service Provider Supplement") by each such party to any such Agreement, such
agreement shall be a "Secured Service Provider Document" hereunder and each
provider party thereto shall be a "Secured Service Provider" hereunder.
(7) In accordance with the terms of the Indenture, the Guarantor
Noteholders are entitled to the benefits of certain security under this
Agreement upon the fulfillment of certain conditions. Upon the execution and
delivery to the Security Trustee of a supplement to this Agreement in
substantially the form of Exhibit C hereto (a "Security Trust Agreement
Supplement") by the Guarantor and/or any Guarantor Subsidiary, the Guarantee in
respect of such Guarantor Noteholders shall be a "Secured Guarantee" hereunder
and such Guarantor Noteholders shall be "Secured Guarantor Noteholders"
hereunder.
(8) In accordance with the terms of the Indenture, the Issuer may enter
into one or more permitted Tax-Related Dispositions from time to time pursuant
to documentation (each, a "Tax-Related Disposition Agreement) providing that
the party or parties thereto (other than members of the AerCo Group) is
entitled to the benefits of certain security under this Agreement. Upon the
execution and delivery to the Security Trustee of a supplement to this
Agreement in substantially the form of Exhibit G hereto (a "Tax Related
Disposition Supplement") by such party or parties to any such Tax-Related
Disposition Agreement, such Tax-Related Disposition Agreement shall be a
"Secured Tax-Related Disposition Agreement" and each such party thereto shall
be a "Secured Tax-Related Disposition Party" hereunder.
(9) The Issuer and the Issuer Subsidiaries may from time to time grant
additional security for the benefit of the relevant Secured Parties (as defined
below). Upon the execution and delivery to the Security Trustee of a Security
Trust Agreement Supplement by the Issuer or any Issuer Subsidiary, the relevant
Secured Parties shall be entitled to the benefit of the Collateral thereunder.
(10) It is a condition precedent to the issuance of the Notes by the Issuer
and a condition precedent to the advance of loans under the Intercompany Loan
Agreements that each Grantor shall have granted the assignments and security
interests and made the pledges and assignments contemplated by this Agreement.
(11) Each Grantor shall derive substantial direct and indirect benefit from
the transactions contemplated by the Indenture and the other Related Documents.
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NOW, THEREFORE, in consideration of the premises, each Grantor hereby
agrees with the Security Trustee for its benefit and the benefit of the
relevant Secured Parties as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. (a) Certain Defined Terms.
As used herein, the following terms have the meanings set forth below:
"1881 Act" has the meaning specified in Section 2.17.
"Acceleration Default" means any Event of Default of the type
described in Section 4.01(f) or 4.01(g) of the Indenture.
"Account Letters" has the meaning specified in Section 2.06(a).
"Additional Grantor" has the meaning specified in Section 10.01.
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"AerCo Ireland" has the meaning specified in the preliminary
statements to this Agreement.
"AerCo Ireland II" has the meaning specified in the preliminary
statements to this Agreement.
"AerCo Ireland II Shares" has the meaning specified in the
preliminary statements to this Agreement.
"AerCo Ireland Shares" has the meaning specified in the preliminary
statements to this Agreement.
"AerCoUSA" has the meaning specified in the preliminary statements
to this Agreement.
"AerCoUSA Shares" has the meaning specified in the preliminary
statements to this Agreement.
"AerFi" has the meaning specified in the preliminary statements to
this Agreement.
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"AerFi Shares" has the meaning specified in the preliminary
statements to this Agreement.
"Agreed Currency" has the meaning specified in Section 10.07.
"Agreement Collateral" has the meaning specified in Section 2.01.
"Aircraft-Owning Subsidiaries" means each of ALPS 94-1, AerCo
Ireland, AerCo Ireland II, AerCoUSA and any Issuer Subsidiary that owns
any Aircraft.
"ALPS 94-1" has the meaning specified in the preliminary statements
to this Agreement.
"ALPS 94-1 Shares" has the meaning specified in the preliminary
statements to this Agreement.
"ALPS 00-0 (Xxxxxxx)" has the meaning specified in the preliminary
statements to this Agreement.
"ALPS 00-0 (Xxxxxxx) Shares" has the meaning specified in the
preliminary statements to this Agreement.
"ALPS 94-1 (France)" has the meaning specified in the preliminary
statements to this Agreement.
"ALPS 94-1 (France) Shares" has the meaning specified in the
preliminary statements to this Agreement.
"Assigned Agreements" has the meaning specified in Section 2.01.
"Assigned Leases" has the meaning specified in Section 2.01.
"Bankers Trust Fee Letter" means the fee agreement dated as of July
15, 1998 between the Issuer and Bankers Trust.
"Book-Entry Depositary" has the meaning specified in the recital of
parties to this Agreement.
"Cash Collateral" has the meaning specified in Section 2.01.
"Cash Manager" has the meaning specified in the recital of parties
to this Agreement.
"Certificated Security" means (i) a certificated security as defined
defined in Section
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8-102(a)(17) of the UCC with respect thereto, but does not include any
Government Security.
"Class" means any class of AerCo Group Notes.
"Class E Note Representative" has the meaning specified in the
recital of parties to this Agreement.
"Collateral" has the meaning specified in Section 2.01.
"Company Secretary" has the meaning specified in the recital of
parties to this Agreement.
"Conduit Companies" means each of AerFi, ALPS 00-0 (Xxxxxxx), Xxxxxxx
and any other Issuer Subsidiary (other than an Aircraft-Owning Subsidiary)
that enters into or has entered into (as lessor or vendor) an aircraft
lease agreement, conditional sale agreement, hire purchase agreement or
other similar arrangement with a Person not an AerCo Group Member (as
lessee or purchaser) in respect of an Aircraft title to which is held by
an Aircraft-Owning Subsidiary.
"Credit Facility Provider Supplement" has the meaning specified in
the preliminary statements to this Agreement or such other agreement
approved by the Administrative Agent providing for a credit facility
provider to become a Secured Party hereunder.
"Government Security" means (i) any security issued or guaranteed by
the United States of America or an agency or instrumentality thereof that
is maintained in book-entry form on the records of the Federal Reserve
Bank of New York and (ii) any security entitlement, as defined in Section
8-102(a)(17) of the UCC, with respect thereto.
"Grantor" has the meaning specified in the preliminary statements to
this Agreement.
"Indenture" has the meaning specified in the preliminary statements
to this Agreement.
"Indenture Obligations" means, in respect of any Class of AerCo
Group Notes, all obligations of the Issuer and any Guarantor under and in
respect of such Class of AerCo Group Notes and the Guarantees, if any, of
such Class of AerCo Group Notes, including, without limitation, all
obligations of the Issuer and any Guarantor to make payments of principal
of, interest on (including interest following the filing of a petition
initiating any proceeding referred to in Section 8.03(a)) and Redemption
Premium, if any, on such Class of AerCo Group Notes, all obligations to
pay any fees, expenses or other amounts under or in respect of such Class
of
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AerCo Group Notes, the Indenture, any Guarantor Indenture or any Related
Document in respect of such Class of AerCo Group Notes, and all
obligations in respect of any amendment, modification, extension, renewal
or refinancing of such Class of AerCo Group Notes.
"Instrument" means any "instrument" as defined in Section
9-105(1)(i) of the UCC.
"Intercompany Loan Agreements" has the meaning specified in the
preliminary statements to this Agreement.
"Intercompany Obligations" means, with respect to each
Aircraft-Owning Subsidiary, its obligations (including, without
limitation, under the guarantee contained therein, if any) to the Issuer
under the Intercompany Loan Agreement with respect to such
Aircraft-Owning Subsidiary or any other agreement providing for repayment
by any Aircraft-Owning Subsidiaries of loans or advances from the Issuer.
"Investment Collateral" has the meaning specified in Section 2.01.
"Issuer" has the meaning specified in the recital of parties to this
Agreement.
"Lease Collateral" has the meaning specified in Section 2.01.
"Lease Obligations" means, with respect to each Conduit Company, its
obligations (as lessee and/or purchaser) to each AerCo Group Member under
each aircraft lease agreement, conditional sale agreement, hire purchase
agreement or other similar agreement with such AerCo Group Member (as
lessor or vendor).
"Lively" has the meaning specified in the recital of parties to this
Agreement.
"Non-Trustee Account Banks" has the meaning specified in Section
2.06.
"Non-Trustee Account Collateral" has the meaning specified in
Section 2.01.
"Obligor" has the meaning specified in Section 2.06.
"Pergola" has the meaning specified in the preliminary statements to
this Agreement.
"Pergola Shares" has the meaning specified in the preliminary
statements to this Agreement.
"Pledged Debt" has the meaning specified in the preliminary
statements to this Agreement.
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"Pledged Stock" has the meaning specified in the preliminary
statements to this Agreement.
"Received Currency" has the meaning specified in Section 10.07.
"Reference Agent" has the meaning specified in the recital of
parties to this Agreement.
"Secured Credit Facility" has the meaning specified in the
preliminary statements to this Agreement.
"Secured Credit Facility Provider" has the meaning specified in the
preliminary statements to this Agreement.
"Secured Guarantee" has the meaning specified in the preliminary
statements to this Agreement.
"Secured Guarantor Noteholders" has the meaning specified in the
preliminary statements to this Agreement.
"Secured Intercompany Obligations" has the meaning specified in
Section 2.02.
"Secured Issuer Obligations" has the meaning specified in Section
2.02.
"Secured Lease Obligations" has the meaning specified in Section
2.02.
"Secured Obligations" has the meaning specified in Section 2.02.
"Secured Other Credit Facility Obligations" means the obligations of
the Issuer and any Guarantor now or hereafter existing under any Secured
Credit Facilities other than the Primary Eligible Credit Facilities.
"Secured Parties" means with respect to (i) the assignments, pledges
and security interests granted by AerCo and by Lively as nominee holder
of one AerCo Ireland Share and one AerCo Ireland II Share: the Service
Providers, the Noteholders, the Secured Credit Facility Providers, the
Secured Swap Providers, the Secured Service Providers, the Secured
Tax-Related Disposition Parties and the Secured Guarantor Noteholders,
(ii) the assignments, pledges and security interests granted by each
Aircraft-Owning Subsidiary and by Lively as nominee holder of one Pergola
Share, by Lively as owner of one AerFi Share and one ALPS 00-0 (Xxxxxxx)
Share: AerCo and (iii) the assignments, pledges and security interests
granted by each Conduit Company and: the AerCo Group Member which enters
into or has entered into (as lessor or vendor) an aircraft lease
agreement, conditional sale
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agreement, hire purchase agreement or other similar arrangement with
such Conduit Company.
"Secured Primary Eligible Credit Facility Obligations" means the
obligations of the Issuer and any Guarantor now or hereafter existing
under any Primary Eligible Credit Facilities.
"Secured Service Provider" has the meaning specified in the
preliminary statements to this Agreement.
"Secured Service Provider Document" has the meaning specified in the
preliminary statements to this Agreement.
"Secured Subordinated Swap Provider Obligations" means the
obligations of the Issuer and any Guarantor now or hereafter existing
under the Secured Swap Agreements that are subordinated to payments
having the priorities specified in Section 3.08 of the Indenture or any
Guarantor Indenture.
"Secured Swap Agreement" has the meaning specified in the
preliminary statements to this Agreement.
"Secured Swap Provider" has the meaning specified in the preliminary
statements to this Agreement.
"Secured Swap Provider Obligations" means the obligations of the
Issuer now or hereafter existing under the Secured Swap Agreements other
than Secured Subordinated Swap Provider Obligations.
"Secured Tax-Related Disposition Agreement" has the meaning
specified in the preliminary statements to this Agreement.
"Secured Tax-Related Disposition Party" has the meaning specified in
the preliminary statements to this Agreement.
"Secured Tax-Related Disposition Party Obligations" means the
obligations of the Issuer now or hereafter existing under the Secured
Tax-Related Disposition Agreements.
"Securities Account" means a securities account as defined in
Section 8-501 of the UCC maintained in the name of the Security Trustee
with a Securities Intermediary of which the "securities intermediary's
jurisdiction" (within the meaning of Section 8-110(e) of the UCC) is the
State of New York.
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"Securities Intermediary" means any "securities intermediary" of the
Security Trustee as defined in 31 C.F.R. Section 357.2, Section
8-102(a)(14) of the UCC or any similar provision of state or federal law.
"Security Collateral" has the meaning specified in Section 2.01(a).
"Security Trust Agreement Supplement" has the meaning specified in
the preliminary statements to this Agreement.
"Security Trustee" has the meaning specified in the recital of
parties to this Agreement.
"Senior Creditors" means, at any time, the holders and owners of
Senior Obligations.
"Senior Obligations" means:
(i) with respect to the Secured Primary Eligible Credit
Facility Obligations, the Service Provider Obligations;
(ii) with respect to the Indenture Obligations in respect of
the AerCo Group Class A Notes and the Secured Swap Provider
Obligations, (A) the Secured Primary Eligible Credit Facility
Obligations and (B) the Service Provider Obligations;
(iii) with respect to the Indenture Obligations in respect of
the AerCo Group Class B Notes, (A) the Indenture Obligations in
respect of the AerCo Group Class A Notes, (B) the Secured Swap
Provider Obligations, (C) the Secured Primary Eligible Credit
Facility Obligations and (D) the Service Provider Obligations;
(iv) with respect to the Indenture Obligations in respect of
the AerCo Group Class C Notes, (A) the Indenture Obligations in
respect of the AerCo Group Class B Notes, (B) the Indenture
Obligations in respect of the AerCo Group Class A Notes, (C) the
Secured Swap Provider Obligations, (D) the Secured Primary Eligible
Credit Facility Obligations and (E) the Service Provider
Obligations;
(v) with respect to the Indenture Obligations in respect of
the AerCo Group Class D Notes, (A) the Indenture Obligations in
respect of the AerCo Group Class C Notes, (B) the Indenture
Obligations in respect of the AerCo Group Class B Notes, (C) the
Indenture Obligations in respect of the AerCo Group Class A Notes,
(D) the Secured Swap Provider Obligations, (E) the Secured Primary
Eligible Credit Facility Obligations and (F) the Service Provider
Obligations;
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(vi) with respect to the Secured Other Credit Facility
Obligations, (A) the Indenture Obligations in respect of the AerCo
Group Class D Notes, (B) the Indenture Obligations in respect of the
AerCo Group Class C Notes, (C) the Indenture Obligations in respect
of the AerCo Group Class B Notes, (D) the Indenture Obligations in
respect of the AerCo Group Class A Notes, (E) the Secured Swap
Provider Obligations, (F) the Secured Primary Eligible Credit
Facility Obligations and (G) the Service Provider Obligations;
(vii) with respect to the Secured Subordinated Swap Provider
Obligations, (A) the Secured Other Credit Facility Obligations, (B)
the Indenture Obligations in respect of the AerCo Group Class D
Notes, (C) the Indenture Obligations in respect of the AerCo Group
Class C Notes, (D) the Indenture Obligations in respect of the AerCo
Group Class B Notes, (E) the Indenture Obligations in respect of the
AerCo Group Class A Notes, (F) the Secured Swap Provider Obligations,
(G) the Secured Primary Eligible Credit Facility Obligations and (H)
the Service Provider Obligations; and
(viii) with respect to the Secured Tax-Related Disposition Party
Obligations, (A) the Secured Subordinated Swap Provider Obligations,
(B) the Secured Other Credit Facility Obligations, (C) the Indenture
Obligations in respect of the AerCo Group Class D Notes, (D) the
Indenture Obligations in respect of the AerCo Group Class C Notes,
(E) the Indenture Obligations in respect of the AerCo Group Class B
Notes, (F) the Indenture Obligations in respect of the AerCo Group
Class A Notes, (G) the Secured Swap Provider Obligations, (H) the
Secured Primary Eligible Credit Facility Obligations and (I) the
Service Provider Obligations; and
(ix) with respect to the AerCo Group Class E Notes, (A) the
Secured Tax-Related Disposition Party Obligations, (B) the Secured
Subordinated Swap Provider Obligations, (C) the Secured Other Credit
Facility Obligations, (D) the Indenture Obligations in respect of the
AerCo Group Class D Notes, (E) the Indenture Obligations in respect
of the AerCo Group Class C Notes, (F) the Indenture Obligations in
respect of the AerCo Group Class B Notes, (G) the Indenture
Obligations in respect of the AerCo Group Class A Notes, (H) the
Secured Swap Provider Obligations, (I) the Secured Primary Eligible
Credit Facility Obligations and (J) the Service Provider Obligations.
"Senior Representative" means the Senior Trustee; provided, however, that
if, at any time prior to the payment in full of the Service Provider
Obligations, the holders of a majority in interest of the accrued and unpaid
Service Provider Obligations at such time agree upon another Person to serve as
Senior Representative, such Person shall be the Senior Representative until the
payment in full of the Service Provider Obligations
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"Service Provider Documents" means the Administrative Agency
Agreement, the Cash Management Agreement, the Indenture, the Deposit
Agreement, any Guarantor Indenture, the Reference Agency Agreement, the
Servicing Agreement, the Secretarial Services Agreement, any Additional
Servicing Agreement, the Bankers Trust Fee Agreement and this
Agreement.
"Service Provider Obligations" means, collectively, the
obligations now or hereafter existing of the Issuer or any AerCo Group
Member to pay fees, expenses, indemnities and other amounts under the
Service Provider Documents (other than the Secured Primary Eligible
Credit Facility Obligations, the Secured Swap Provider Obligations, the
Indenture Obligations in respect of the AerCo Group Class A Notes, the
Indenture Obligations in respect of the AerCo Group Class B Notes, the
Indenture Obligations in respect of the AerCo Group Class C Notes, the
Indenture Obligations in respect of the AerCo Group Class D Notes, the
Secured Other Credit Facility Obligations, the Secured Subordinated
Swap Provider Obligations, the Secured Tax-Related Disposition Party
Obligations and the Indenture Obligations in respect of the AerCo Group
Class E Notes).
"Service Provider Supplement" has the meaning given to such
term in the preliminary statements to this Agreement.
"Servicer" has the meaning specified in the preliminary
statements to this Agreement.
"Subordinated Creditors" means, at any time, the holders
and owners of Subordinated Obligations.
"Subordinated Obligations" means:
(i) with respect to the Service Provider Obligations,
(A) the Secured Primary Eligible Credit Facility Obligations,
(B) the Indenture Obligations in respect of the AerCo Group
Class A Notes and the Secured Swap Provider Obligations, (C)
the Indenture Obligations in respect of the AerCo Group Class
B Notes, (D) the Indenture Obligations in respect of the AerCo
Group Class C Notes, (E) the Indenture Obligations in respect
of the AerCo Group Class D Notes, (F) the Secured Other Credit
Facility Obligations, (G) the Secured Subordinated Swap
Provider Obligations, (H) the Secured Tax-Related Disposition
Party Obligations and (I) the Indenture Obligations in respect
of the AerCo Group Class E Notes;
(ii) with respect to the Secured Primary Eligible
Credit Facility Obligations, (A) the Indenture Obligations in
respect of the AerCo Group Class A Notes and the Secured Swap
Provider Obligations, (B) the Indenture Obligations in respect
of the AerCo Group Class B Notes, (C) the Indenture
Obligations in respect of the AerCo Group Class C Notes, (D)
the Indenture
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Obligations in respect of the AerCo Group Class
D Notes, (E) the Secured Other Credit Facility Obligations,
(F) the Secured Subordinated Swap Provider Obligations, (G)
the Secured Tax-Related Disposition Party Obligations and (H)
the Indenture Obligations in respect of the AerCo Group Class
E Notes;
(iii) with respect to the Indenture Obligations in
respect of the AerCo Group Class A Notes and the Secured Swap
Provider Obligations, (A) the Indenture Obligations in respect
of the AerCo Group Class B Notes, (B) the Indenture
Obligations in respect of the AerCo Group Class C Notes, (C)
the Indenture Obligations in respect of the AerCo Group Class
D Notes, (D) the Secured Other Credit Facility Obligations,
(E) the Secured Subordinated Swap Provider Obligations, (F)
the Secured Tax-Related Disposition Party Obligations and (G)
the Indenture Obligations in respect of the AerCo Group Class
E Notes;
(iv) with respect to the Indenture Obligations in
respect of the AerCo Group Class B Notes, (A) the Indenture
Obligations in respect of the AerCo Group Class C Notes, (B)
the Indenture Obligations in respect of the AerCo Group Class
D Notes, (C) the Secured Other Credit Facility Obligations,
(D) the Secured Subordinated Swap Provider Obligations, (E)
the Secured Tax-Related Disposition Party Obligations and (F)
the Indenture Obligations in respect of the AerCo Group Class
E Notes;
(v) with respect to the Indenture Obligations in
respect of the AerCo Group Class C Notes, (A) the Indenture
Obligations in respect of the AerCo Group Class D Notes, (B)
the Secured Other Credit Facility Obligations, (C) the Secured
Subordinated Swap Provider Obligations, (D) the Secured
Tax-Related Disposition Party Obligations and (E) the
Indenture Obligations in respect of the AerCo Group Class E
Notes;
(vi) with respect to the Indenture Obligations in
respect of the AerCo Group Class D Notes, (A) the Secured
Other Credit Facility Obligations, (B) the Secured
Subordinated Swap Provider Obligations, (C) the Secured
Tax-Related Disposition Party Obligations and (D) the
Indenture Obligations in respect of the AerCo Group Class E
Notes;
(vii) with respect to the Secured Other Credit
Facility Obligations, (A) the Secured Subordinated Swap
Provider Obligations, (B) the Secured Tax-Related Disposition
Party Obligations and (C) the Indenture Obligations in respect
of the AerCo Group Class E Notes;
(viii) with respect to the Secured Subordinated Swap
Provider Obligations, (A) the Secured Tax-Related Disposition
Party Obligations and
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(B) the Indenture Obligations in respect of the AerCo Group
Class E Notes; and
(ix) with respect to the Secured Tax-Related
Disposition Obligations, the Indenture Obligations in respect
of the AerCo Group Class E Notes.
"Subordinated Representative" means, at any time, any trustee
or representative of any holders or owners of any obligations other
than the Senior Representative at such time.
"Swap Provider Supplement" has the meaning specified in the
preliminary statements to this Agreement or such other agreement
approved by the Administrative Agent providing for a Swap Provider to
become a Secured Party hereunder.
"Tax-Related Disposition Supplement" has the meaning specified
in the preliminary statements to this Agreement or such other agreement
approved by the Administrative Agent for a party pursuant to a
Permitted Tax-Related Disposition to become a Secured Party hereunder.
"Trustee" has the meaning specified in the recital of parties
to this Agreement.
"UCC" means the Uniform Commercial Code as in effect on the
date hereof in the State of New York; provided that if by reason of
mandatory provisions of law, the perfection or the effect of perfection
or non-perfection of the security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction
other than New York, "UCC" means the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of the provisions hereof
relating to such perfection or effect of perfection or non-perfection.
"Uncertificated Security" means (i) an uncertificated
security, as defined in Section 8-102(a)(18) of the UCC, and (ii) any
security entitlement, as defined in Section 8-102(a)(17) of the UCC,
with respect thereto, but does not include any Government Security.
"Voting Trust" has the meaning specified in the preliminary
statements to this Agreement.
"Voting Trust Certificates" has the meaning specified in
the preliminary statements to this Agreement.
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(b) Terms Defined in the Indenture. For all purposes of this
Agreement, all capitalized terms used herein but not defined herein shall have
the respective meanings assigned to such terms in the Indenture.
SECTION 1.02. Construction and Usage . The conventions of
construction and usage set forth in the Indenture are hereby incorporated by
reference herein.
ARTICLE II
SECURITY
SECTION 2.01. Grant of Security . Each Grantor hereby assigns
and pledges to the Security Trustee for the benefit of the Secured Parties in
respect of such Grantor, and hereby grants to the Security Trustee for the
benefit of the Secured Parties in respect of such Grantor a security interest
in, all of its right, title and interest in and to the following (collectively,
the "Collateral"):
(a) with respect to each Grantor, all of the following
(the "Security Collateral"):
(i) subject to any prior security interest created
under any other Security Document, the Pledged Stock held by
it or any nominee on its behalf, and the certificates
representing such Pledged Stock, and all dividends, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in
exchange for any or all of such Pledged Stock (including, in
the case of the Voting Trust Certificates, all rights of the
Issuer to receive the AerCoUSA Shares upon termination of the
Voting Trust Agreement);
(ii) subject to any prior security interest created
under the Jersey Debt Security Agreement and the Irish
Subsidiary Share Mortgage, the Pledged Debt owed to it, and
the instruments evidencing such Pledged Debt, and all
interest, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such Pledged Debt;
(iii) all additional shares of Stock and voting trust
certificates from time to time acquired by such Grantor in any
manner, including the Stock of any AerCo Group Member that may
be formed from time to time, and the certificates representing
such additional shares or voting trust certificates and all
dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect
of or in exchange for any or all such additional shares or
voting trust certificates; and
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(iv) all additional indebtedness from time to time
owed to such Grantor by any AerCo Group Member and the
instruments evidencing such indebtedness, and all interest,
cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all of such indebtedness;
(b) with respect to each Grantor, all of the following
(collectively, the "Non-Trustee Account Collateral"):
(i) all of the Non-Trustee Accounts in such Grantor's
name, all funds or any other interest held or required by the
terms of the Indenture or any Guarantor Indenture to be held
therein and all certificates and instruments, if any, from
time to time representing or evidencing such Non-Trustee
Accounts;
(ii) all notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the Security
Trustee for or on behalf of such Grantor in substitution for
or in addition to any or all of the then existing Non-Trustee
Account Collateral of such Grantor; and
(iii) all interest, dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the then existing Non-Trustee Account Collateral of
such Grantor;
(c) with respect to each Grantor, all of the following
(collectively, the "Cash Collateral"):
(i) all funds or any other interest of such Grantor
held or required by the terms of the Indenture or any
Guarantor Indenture to be held in the Accounts and all
certificates and instruments, if any from time to time
representing or evidencing such funds;
(ii) all notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the Security
Trustee for or on behalf of such Grantor in substitution for
or in addition to any or all of the then existing Cash
Collateral of such Grantor; and
(iii) all interest, dividends, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
then existing Cash Collateral of such Grantor;
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(d) with respect to each Grantor, all "investment property"
(as defined in Section 9-115(1)(f) of the UCC) of such Grantor and all
of the following (the "Investment Collateral"):
(i) all Permitted Account Investments made or
acquired from or with the proceeds of any Non-Trustee Account
Collateral or Cash Collateral of such Grantor from time to
time and all certificates and instruments, if any, from time
to time representing or evidencing such Permitted Account
Investments;
(ii) all notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the Security
Trustee for or on behalf of such Grantor in substitution for
or in addition to any or all of the then existing Investment
Collateral of such Grantor; and
(iii) all interest, dividends, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
then existing Investment Collateral of such Grantor;
(e) with respect to each Grantor, all of the following (the
"Agreement Collateral"):
(i) all of such Grantor's rights hereunder in respect
of the Secured Intercompany Obligations owed to it and all of
such Grantor's right, title and interest in and to all other
security assignments, cash deposit agreements and other
security agreements executed in its favor by any Issuer
Subsidiary, in each case as such agreements may be amended or
otherwise modified from time to time (collectively, the
"Assigned Agreements"); and
(ii) all of such Grantor's right, title and interest
in and to all deposit accounts, all funds held therein, all
certificates and instruments, if any from time to time
representing or evidencing such deposit accounts and all other
property of whatever nature, in each case pledged, assigned or
transferred to it or mortgaged or charged in its favor
pursuant to any Assigned Agreement;
(f) with respect to each Grantor, all of the following (the
"Lease Collateral"):
(i) all of such Grantor's right, title and interest
in and to all Leases to which such Grantor is or may from time
to time be party and in any lease, conditional sale agreement,
hire purchase agreement or other similar agreement with
another AerCo Group Member under which it is the
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lessor or vendor (all such Leases, the "Assigned Leases"),
including without limitation, (A) all rights of such Grantor
to receive moneys due and to become due under or pursuant to
such Assigned Leases, (B) all rights of such Grantor to
receive proceeds of any insurance, indemnity, warranty or
guaranty with respect to such Assigned Leases, (C) claims of
such Grantor for damages arising out of or for breach or
default under such Assigned Leases and (D) the right of such
Grantor to terminate such Assigned Leases, to perform
thereunder and to compel performance and otherwise exercise
all remedies thereunder, whether arising under such Assigned
Leases or by statute or at law or in equity; and (g) all
proceeds of any and all of the foregoing Collateral
(including, without limitation, proceeds that constitute
property of the types described in subsections (a), (b),
(c), (d), (e) and (f) of this Section 2.01).
SECTION 2.02. Security for Obligations . This Agreement
secures the payment and performance of (i) with respect to the Issuer, all
obligations of the Issuer now or hereafter existing under the Service Provider
Documents, the AerCo Group Notes, the Secured Guarantee, the Secured Credit
Facilities, the Secured Swap Agreements and the Secured Tax-Related Disposition
Agreements, whether for principal, interest, fees, expenses or otherwise (all
such obligations of the Issuer being the "Secured Issuer Obligations"), (ii)
with respect to each Aircraft-Owning Subsidiary, all Intercompany Obligations of
such Grantor now or hereafter existing, whether for principal, interest, fees,
expenses or otherwise (all such obligations of each such Grantor being the
"Secured Intercompany Obligations" of each Grantor) and (iii) with respect to
each Conduit Company, all Lease Obligations of such Grantor now or hereafter
existing, whether for rental, fees, expenses or otherwise (all such obligations
of each such Grantor being the "Secured Lease Obligations" of such Grantor and,
collectively with the Secured Lease Obligations of each other Grantor, the
Secured Intercompany Obligations of each Grantor and the Secured Issuer
Obligations, the "Secured Obligations"). Without limiting the generality of the
foregoing, this Agreement secures the payment of all amounts that constitute
part of the Secured Obligations and would be owed by any Grantor to the Secured
Parties with respect to such Grantor but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Grantor.
SECTION 2.03. Grantors Remain Liable . Anything contained
herein to the contrary notwithstanding, (a) each Grantor shall remain liable
under the contracts and agreements included in the Collateral to the extent set
forth therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed, (b) the exercise by the
Security Trustee of any of its rights hereunder shall not release any Grantor
from any of its duties or obligations under the contracts and agreements
included in the Collateral, and (c) no Secured Party shall have any obligation
or liability under the contracts and agreements included in the Collateral by
reason of this Agreement, nor shall any Secured Party be obligated to perform
any of the obligations or duties of any
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Grantor thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
SECTION 2.04. Delivery of Collateral . All certificates or
instruments representing or evidencing any Collateral, if deliverable, shall be
delivered to and held by or on behalf of the Security Trustee pursuant hereto
and shall be in suitable form for transfer by delivery, or shall be accompanied
by duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Security Trustee. In the case of the ALPS 94-1
Shares, the Issuer shall forthwith, upon the grant of the security interest in
respect of such shares pursuant to the Jersey Share Security Agreement, cause
such shares to be registered in the name of the Security Trustee or such of its
nominees as the Security Trustee shall direct. In the case of any other
Collateral, the Security Trustee shall have the right, at any time in its
discretion and without notice to the Issuer or the relevant Aircraft-Owning
Subsidiary, as the case may be, to transfer to or to register in the name of the
Security Trustee or any of its nominees any or all of the Security Collateral,
subject only to the revocable rights specified in Section 2.10(a). In addition,
the Security Trustee shall have the right at any time to exchange certificates
or instruments representing or evidencing any Collateral for certificates or
instruments of smaller or larger denominations.
SECTION 2.05. Maintenance of Accounts . So long as any Secured
Obligations shall remain unpaid, the Security Trustee shall have sole dominion
and control over each Account other than any Non-Trustee Account, and no Grantor
shall, at any time, establish any bank account other than pursuant to Article
III of the Indenture, any Guarantor Indenture or in compliance with Section
2.06(a).
SECTION 2.06. Maintaining the Non-Trustee Accounts . So
long as any Secured Obligations shall remain unpaid:
(a) Each Grantor shall maintain each Non-Trustee Account in
its name only with banks ("Non-Trustee Account Banks") that have
entered into letter agreements in substantially the form of Exhibit D
hereto (or made such other arrangements as are acceptable to the
Administrative Agent) with such Grantor and the Security Trustee (the
"Account Letters"); provided that in the case of any Non-Trustee
Account of AerFi existing on the date hereof, AerFi shall, as soon as
practicable after the date hereof, cause the banks where such
Non-Trustee Accounts are held to execute Account Letters to the
Security Trustee.
(b) Each Grantor (i) shall immediately instruct each Person
obligated at any time to make any payment to such Grantor for any
reason (an "Obligor") to make such payment to an Account or a
Non-Trustee Account meeting the requirements of Section 2.06(a), (ii)
shall instruct each of its Non-Trustee Account Banks to transfer to the
Collection Account, in immediately available funds, within one Business
Day of receipt thereof, an amount equal to the credit balance of the
Non-Trustee Account in such Non-Trustee Account Bank (other than any
amount
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required to be left on deposit for local tax or other regulatory or
legal purposes), and (iii) shall transfer or cause its Non-Trustee
Account Banks to transfer to the Security Trustee for deposit in the
Collection Account, within each Business Day, all other proceeds of
Non-Trustee Account Collateral, Cash Collateral and proceeds of
Collateral.
(c) Upon any termination of any Account Letter or other
agreement with respect to the maintenance of a Non-Trustee Account by
any Grantor or any Non-Trustee Account Bank, such Grantor shall
immediately notify all Obligors that were making payments to such
Non-Trustee Account to make all future payments to an Account or to
another Non-Trustee Account meeting the requirements of Section
2.06(a). Subject to the terms of any Lease, upon request by the
Security Trustee, each Grantor shall, and, if prohibited from so doing
by the terms of any Lease, shall use its best efforts to seek the
consent of the relevant lessee to, terminate any or all of its
Non-Trustee Accounts.
SECTION 2.07. Representations and Warranties of the Grantors .
Each Grantor represents and warrants as of the date of this Agreement and as of
each subsequent Closing Date as follows:
(a) If it is a Grantor who holds Pledged Stock as nominee for
the benefit of an AerCo Group Member, it is the legal owner of such
Collateral and in any other case it is the legal owner (other than in
respect of any Pledged Stock held in the name of a nominee for its
benefit) and beneficial owner of the Collateral pledged and assigned by
it hereunder free and clear of any Encumbrance, other than the security
interest created by this Agreement or any other Security Documents and
the restrictions created by the Voting Trust Agreement. No effective
financing statement or other instrument similar in effect covering all
or any part of the Collateral is on file in any recording office,
except (i) such as may have been filed in favor of the Security Trustee
relating to this Agreement, (ii) such as may have been filed in respect
of the obligations of ALPS 94-1 under the Deed of Charge, Assignment
and Priorities dated as of August 24, 1994 among ALPS 94-1 and the
other parties thereto and (iii) such as may have been filed in respect
of the obligations of any Issuer Subsidiaries, all of which obligations
under (ii) and (iii) above have been or are being discharged on the
date hereof.
(b) This Agreement, the pledge of the Security Collateral
pursuant hereto and the pledge and assignment on the date hereof and
from time to time hereafter of the other Collateral pursuant hereto
create, as regards such Grantor, a valid and perfected (other than with
respect to the ALPS 94-1 (France) Shares) security interest therein
and, in the case of the Voting Trust Certificates, in the AerCoUSA
Shares described in Schedule I hereto, securing, in each case, the
payment of the Secured Obligations specified in Section 2.02, subject
in priority to no other claims other than any claims pursuant to any
other Security Document.
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(c) Such Grantor has no trade names except as set forth on
Schedule III hereto.
(d) Such Grantor has no subsidiaries that conduct any business
that are not Grantors hereunder.
(e) No consent of any other Person and no authorization,
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other third party is
required either (i) for the grant by such Grantor of the assignment and
security interest granted hereby, for the execution, delivery or
performance of this Agreement by such Grantor or (ii) for the
perfection or maintenance of the pledge, assignment and security
interest created hereby, except for (1) the filing of financing and
continuation statements under the UCC, (2) the filing of particulars of
charges in the Irish Companies Registration Office and (3) such other
filings as are required under other relevant local law, all of which
filings in respect of Leases existing on the date hereof have been duly
made.
(f) The chief place of business and chief executive or
registered office of such Grantor and, with respect to any Grantor
which is incorporated or conducts business in the United States of
America, the office where such Grantor keeps records of each Assigned
Lease to which it is a party, are located at the address specified
opposite the name of such Grantor on Schedule IV hereto.
(g) All Pledged Stock pledged by such Grantor constitutes the
percentage of the issued and outstanding shares of stock of the issuers
thereof indicated on Schedule I hereto and the Voting Trust
Certificates represent 100% of all outstanding AerCoUSA Shares.
(h) All Pledged Stock pledged by such Grantor has been duly
authorized and validly issued and is fully paid up and nonassessable.
The Pledged Debt has been duly authorized, authenticated or issued and
delivered, is the legal, valid and binding obligation of each obligor
thereunder and is not in default.
(i) The Assigned Agreements and the Assigned Leases to which
such Grantor is party, true and complete copies of which have been
furnished to the Security Trustee, have been duly authorized, executed
and delivered by the relevant Grantors, are in full force and effect
and, to the best of such Grantor's knowledge, are binding upon and
enforceable against all parties thereto in accordance with their terms,
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar or other laws affecting
creditors' rights generally. There exists no default by such Grantor
under any Assigned Agreement or any Assigned Lease to which it is
party. Each party to any Assigned Agreement to which such Grantor is
party other than such Grantor and the Security Trustee has executed and
delivered to the Security Trustee a consent, in substantially the form
of Exhibit E (or any other form approved in writing by the
Administrative Agent), to the
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assignment of the relevant Agreement Collateral to the Security
Trustee pursuant to this Agreement (in the case of parties who are
also party to this Agreement, such parties' consent is adequately
evidenced by their execution of this Agreement). Each party other than
any AerCo Group Member to any Assigned Lease which by its terms
requires the lessor thereunder to obtain the consent of the lessee
thereunder to the assignment thereof, has executed and delivered to
the Security Trustee a consent, in substantially the form of Exhibit E
(or any other form approved in writing by the Administrative Agent),
to the assignment of the relevant Lease Collateral to the Security
Trustee pursuant to this Agreement. Each Conduit Company agrees and
acknowledges that this Agreement constitutes due notice to it of the
assignment of the relevant Lease Collateral hereunder.
SECTION 2.08. Further Assurances . (a) Each Grantor agrees
that from time to time, at the expense of such Grantor, such Grantor shall
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that the Security Trustee
may request, in order to perfect and protect any pledge, assignment or security
interest granted or purported to be granted hereby or to enable the Security
Trustee to exercise and enforce its rights and remedies hereunder with respect
to any Collateral. Without limiting the generality of the foregoing, each
Grantor shall: (i) xxxx conspicuously each Assigned Agreement and Assigned Lease
to which it is a party and each of its records pertaining to the Collateral with
a legend, indicating that such Collateral is subject to the security interest
granted hereby; (ii) if any Collateral shall be evidenced by a promissory note
or other instrument or chattel paper, deliver and pledge to the Security Trustee
hereunder such note or instrument or chattel paper duly indorsed and accompanied
by duly executed instruments of transfer or assignment; and (iii) execute and
file such financing or continuation statements, or amendments thereto, and such
other instruments or notices, as may be necessary or desirable, or as the
Security Trustee may reasonably request, in order to perfect and preserve the
pledge, assignment and security interest granted or purported to be granted
hereby.
(b) Each Grantor hereby authorizes the Security Trustee to
file one or more financing or continuation statements, and amendments thereto,
relating to all or any part of the Collateral without the signature of such
Grantor where permitted by law. A photocopy or other reproduction of this
Agreement or any financing statement covering the Collateral or any part thereof
shall be sufficient as a financing statement where permitted by law.
(c) Each Grantor shall furnish to the Security Trustee from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Security Trustee may reasonably request, all in reasonable detail.
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(d) Each Grantor shall give notice of assignment of the Lease
Collateral granted by such Grantor to the Security Trustee to each party other
than any Grantor party to such Assigned Lease.
(e) Each Grantor shall, immediately upon (i) the incorporation
or acquisition by such Grantor of any Issuer Subsidiary or Guarantor Subsidiary
or (ii) the commencement of operation of leasing activities of any Aircraft by
any Issuer Subsidiary or Guarantor Subsidiary not a Grantor under this
Agreement, cause such Issuer Subsidiary or Guarantor Subsidiary, as the case may
be, to enter into a Security Trust Agreement Supplement and such Grantor shall
take all necessary steps to perfect any security interest in any Security
Collateral in respect of such Issuer Subsidiary or Guarantor Subsidiary not
already perfected.
SECTION 2.09. Place of Perfection; Records . Each Grantor
shall keep its chief place of business and, in the case of a Grantor which is
incorporated or conducts business in the United States of America, chief
executive office or, in the case of any other Grantor, its registered office at
the location therefor specified in Schedule IV or, upon 30 days' prior written
notice to the Security Trustee, at such other locations in a jurisdiction where
all actions required by Section 2.08 shall have been taken with respect to the
Collateral with respect to such Grantor.
SECTION 2.10. Voting Rights; Dividends; Etc. (a) So long as
no Default Notice shall have been delivered to the Issuer or any Guarantor
and no Acceleration Default shall have occurred and be continuing:
(i) Each of the Grantors shall be entitled to exercise any and
all voting and other consensual rights pertaining to the Security
Collateral pledged by such Grantor or any part thereof for any purpose
not inconsistent with the terms of this Agreement, the charter
documents of such Grantor, the Indenture and any Guarantor Indenture;
provided, however, that such Grantor shall not exercise or refrain from
exercising any such right if in its judgment such action would have a
material adverse effect on the value of the Security Collateral or any
part thereof.
(ii) The Security Trustee shall execute and deliver (or cause
to be executed and delivered) to such Grantor all such proxies and
other instruments as such Grantor may reasonably request for the
purpose of enabling such Grantor to exercise the voting and other
rights that it is entitled to exercise pursuant to Section 2.10(a)(i).
(iii) Each Grantor shall be entitled to receive and retain any
and all distributions, dividends and interest paid in respect of the
Security Collateral pledged by such Grantor; provided, however, that
any and all:
(A) distributions, dividends and interest paid or
payable other than in cash in respect of, and instruments and
other property received, receivable
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or otherwise distributed in respect of, or in exchange for,
such Security Collateral;
(B) distributions, dividends and other distributions
paid or payable in cash in respect of such Security Collateral
in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital,
capital surplus or paid-in surplus; and
(C) cash paid, payable or otherwise distributed in
respect of principal of, or in redemption of, or in exchange
for, such Security Collateral
shall be, and shall be forthwith delivered to the Security Trustee to
hold as, Security Collateral and, if received by such Grantor, shall be
received in trust for the benefit of the Secured Parties in respect of
such Grantor, be segregated from the other property or funds of the
Security Trustee and, if by nature deliverable, be forthwith delivered
to the Security Trustee as Security Collateral in the same form as so
received (with any necessary indorsement).
(b) Upon notice to such Grantor by the Security Trustee
following the delivery of a Default Notice to the Issuer or any Guarantor or
following the occurrence and during the continuance of an Acceleration Default,
all rights of such Grantor (i) to exercise or refrain from exercising the voting
and other consensual rights that it would otherwise be entitled to exercise
pursuant to Section 2.10(a)(i) and (ii) to receive the distributions, dividends
and interest payments that it would otherwise be entitled to receive and retain
pursuant to Section 2.10(a)(iii) shall cease, and all such rights shall
thereupon become vested in the Security Trustee, which shall thereupon have the
sole right to exercise or refrain from exercising such voting and other
consensual rights.
(c) All distributions, dividends and interest payments that
are received by such Grantor contrary to the provisions of Section 2.10(a) or
(b) shall be received in trust for the benefit of the Secured Parties in respect
of such Grantor, shall be segregated from other funds of such Grantor and shall
be forthwith paid over to the Security Trustee as Security Collateral in the
same form as so received (with any necessary indorsement).
SECTION 2.11. As to the Assigned Agreements and Assigned
Leases. (a) Each Grantor shall at its expense:
(i) perform and observe all the terms and provisions of the
Assigned Agreements and Assigned Leases to be performed or observed by
it, maintain the Assigned Agreements and Assigned Leases in full force
and effect and enforce the Assigned Agreements and Assigned Leases in
accordance with their terms, to the extent (in the case of the Assigned
Leases) consistent with the reasonable commercial practices of leading
international aircraft operating lessors and take all
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such action to such end as may be from time to time reasonably
requested by the Security Trustee; and
(ii) furnish to the Security Trustee promptly upon receipt
thereof copies of all amendments, modifications, extensions or renewals
of any of the Assigned Agreements or Assigned Leases, and from time to
time (A) furnish to the Security Trustee such information and reports
regarding the Collateral as the Security Trustee may reasonably request
and (B) upon request of the Security Trustee make to each other party
to any Assigned Agreement or Assigned Lease such demands and requests
for information and reports or for action as such Grantor is entitled
to make thereunder.
(b) No Grantor shall cancel or terminate any Assigned
Agreement or consent to or accept any cancellation or termination thereof or
amend or otherwise modify any Assigned Agreement.
SECTION 2.12. Transfers and Other Encumbrances; Additional
Shares or Interests . (a) No Grantor shall (i) sell, assign (by operation of law
or otherwise, other than pursuant to any other Security Document) or otherwise
dispose of, or grant any option with respect to, any of the Collateral except
that the Voting Trust Certificates may be surrendered to the Voting Trustee in
accordance with the terms of the Voting Trust Agreement and, provided that AerCo
pledges for the benefit of the Secured Parties, in a manner reasonably
satisfactory to the Security Trustee, all of the AerCoUSA Shares received upon
surrender of the corresponding Voting Trust Certificates or the voting trust
certificates received in connection with the creation of a new voting trust or
(ii) create or suffer to exist any Encumbrance upon or with respect to any of
the Collateral of such Grantor, other than the pledge, assignment and security
interest created by this Agreement or by any other Security Document.
(b) Except as otherwise provided pursuant to Section 5.02(l)
of the Indenture, each Aircraft-Owning Subsidiary and Conduit Company shall not,
and the Issuer shall not permit any Aircraft-Owning Subsidiary or Conduit
Company to, issue, deliver or sell any shares, interests, participations or
other equivalents. Any stock or other securities or interests issued in respect
of or in substitution for the Pledged Stock shall be issued to the Security
Trustee to be held as security on the terms set out in this Agreement or, in the
case of the AerCoUSA Shares, to the extent contemplated by the Voting Trust
Agreement to the Voting Trustee.
SECTION 2.13. Security Trustee Appointed Attorney-in-Fact .
Each Grantor hereby irrevocably appoints the Security Trustee such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, from time to time in the Security
Trustee's discretion, to take any action and to execute any instrument that the
Security Trustee may deem necessary or advisable to accomplish the purposes of
this Agreement, including, without limitation:
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(a) to ask for, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(b) to receive, indorse and collect any drafts or other
instruments and documents in connection with Section 2.12(a);
(c) to file any claims or take any action or institute any
proceedings that the Security Trustee may reasonably deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Security Trustee with respect to any of the
Collateral; and
(d) to execute and file any financing or continuation
statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, in order to perfect and
preserve the pledge, assignment and security interest granted hereby.
SECTION 2.14. Security Trustee May Perform . If any Grantor
fails to perform any agreement contained herein, the Security Trustee may (but
shall not be obligated to) itself perform, or cause performance of, such
agreement, and the expenses of the Security Trustee incurred in connection
therewith shall be payable by such Grantor.
SECTION 2.15. Covenant to Pay . Each Grantor covenants with
the Security Trustee for the benefit of the Secured Parties in respect of such
Grantor that it will pay or discharge any monies and liabilities whatsoever that
are now, or at any time hereafter may be, due, owing or payable by such Grantor
in any currency, actually or contingently, as principal or surety on any account
whatsoever pursuant to (i) in the case of the Issuer, the Service Provider
Documents, the Indenture, any Guarantor Indenture, the AerCo Group Notes, the
Secured Guarantee, the Secured Swap Agreements, the Secured Credit Facilities
and the Secured Tax-Related Disposition Agreements in accordance with their
terms, (ii) in the case of each Aircraft-Owning Subsidiary, its respective
Intercompany Loan Agreement and any other agreement under which its Intercompany
Obligations arise and (iii) in the case of each Conduit Company, the Leases and
any other agreement under which its Lease Obligations arise.
SECTION 2.16. As to Permitted Account Investments . (A) The
Cash Manager, acting on behalf of the Security Trustee, shall cause each
Permitted Account Investment made or acquired from or with the proceeds of any
Non-Trustee Account Collateral or Cash Collateral to be delivered to the
Security Trustee as follows (or shall take any and all other actions necessary
to create in favor of the Security Trustee a valid, perfected, first-priority
security interest in each Permitted Account Investment made or acquired in
accordance with this Agreement under laws and regulations (including without
limitation Articles 8 and 9 of the UCC and regulations of the U.S. Department of
the Treasury
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governing transfers of interests in Government Securities) in effect at the
time of such making or acquisition):
(i) in the case of each Certificated Security or Instrument,
by (A) causing the delivery of such Certificated Security or Instrument
to the Security Trustee in the State of New York, registered in the
name of the Security Trustee or duly endorsed by an appropriate person
to the Security Trustee or in blank and, in each case, held by the
Security Trustee in the State of New York, or (B) if such Certificated
Security or Instrument is registered in the name of a Securities
Intermediary on the books of the issuer thereof or on the books of any
securities intermediary of such Securities Intermediary, by requesting
such Securities Intermediary to continuously credit by book entry such
Certificated Security or Instrument to a Securities Account and
confirming that it has been credited;
(ii) in the case of each Uncertificated Security, by (A)
causing such Uncertificated Security to be continuously registered on
the books of the issuer thereof in the name of the Security Trustee or
(B) if such Uncertificated Security is registered in the name of such
Securities Intermediary on the books of the issuer thereof or on the
books of any securities intermediary of such Securities Intermediary,
by requesting such Securities Intermediary to continuously credit by
book entry such Uncertificated Security to a Securities Account and
confirming that it has been credited; and
(iii) in the case of each Government Security registered in
the name of such Securities Intermediary on the books of the Federal
Reserve Bank of New York or on the books of any securities intermediary
of such Securities Intermediary, by requesting the Securities
Intermediary to continuously credit by book entry such security to a
Securities Account and confirming that it has been credited.
(b) Each of the Issuer and Security Trustee hereby represents
that it has not entered into, and hereby agrees that it will not enter into, any
agreement (i) with any of the other parties hereto or any Securities
Intermediary specifying any jurisdiction other than the State of New York as the
Securities Intermediary's jurisdiction in connection with a Securities Account
with such Securities Intermediary referred to in Section 2.16(a) for purposes of
31 C.F.R. ss.357.11(b), Section 8-110(e) of the UCC or any similar state or
federal law, or (ii) with any other person relating to any Securities Account
pursuant to which it has agreed that a Securities Intermediary may comply with
entitlement orders made by such person. The Security Trustee represents that it
will, by express agreement with each Securities Intermediary, provide for each
item of property held in each Securities Account, other than cash, to be treated
as a "financial asset" within the meaning of Section 8-102(a)(9) of the UCC.
(c) Without limiting the foregoing, the Issuer and the Cash
Manager on behalf of the Security Trustee agree, and the Security Trustee shall
cause the Securities Intermediary, to take such different or additional action
as the Security Trustee may
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reasonably request in order to maintain the perfection and priority of the
security interest of the Security Trustee in the event of any change in
applicable law or regulation, including without limitation Articles 8 and 9 of
the UCC and regulations of the U.S. Department of the Treasury governing
transfers of interests in Government Securities.
SECTION 2.17. As to Irish Law . Notwithstanding anything to
the contrary contained in this Agreement and in addition to and without
prejudice to any other rights or power of the Security Trustee under this
Agreement or under general law in any relevant jurisdiction, at any time that
the Collateral shall become enforceable, the Security Trustee shall be entitled
to appoint a receiver under this Agreement or under the Conveyancing and Law of
Property Act, 1881 (as amended and as the same may be amended, modified or
replaced from time to time, the "1881 Act") and such receiver shall have all
such powers, rights and authority conferred under the 1881 Act, this Agreement
and otherwise under the laws of Ireland without any limitation or restriction
imposed by the 1881 Act or otherwise under the laws of Ireland which may be
excluded or removed. Sections 17 and 20 of the 1881 Act shall not apply to the
Collateral or any receiver appointed under this Agreement or under the 1881 Act
and section 24(b) of the Act shall not apply to the Collateral or to any
receiver appointed under this Agreement.
ARTICLE III
REMEDIES
SECTION 3.01. Remedies . Upon delivery of a Default Notice
pursuant to Section 4.02 of the Indenture or any Guarantor Indenture or if any
Acceleration Default under the Indenture or any Guarantor Indenture shall have
occurred and be continuing:
(a) The Security Trustee may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein, all the rights and remedies of a secured party upon default
under the UCC (whether or not the UCC applies to the affected
Collateral) and also may (i) require any Grantor to, and such Grantor
hereby agrees that it shall at its expense and upon request of the
Security Trustee forthwith, assemble all or part of the Collateral as
directed by the Security Trustee and make it available to the Security
Trustee at a place to be designated by the Security Trustee that is
reasonably convenient to both parties, (ii) without notice except as
specified below, sell or cause the sale of the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the
Security Trustee's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Security Trustee may
deem commercially reasonable and (iii) exercise all rights of the
Issuer under the Intercompany Loan Agreements or any other agreement in
respect of Intercompany Obligations or of any Aircraft-Owning
Subsidiary under any lease to a Conduit Company. Each Grantor agrees
that, to the extent notice of sale shall be required by law, at least
ten days' notice to such Grantor of the time and place of any public
sale or the time after which any private
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sale is to be made shall constitute reasonable notification. The
Security Trustee shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Security Trustee
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which
it was so adjourned.
(b) All cash proceeds received by the Security Trustee in
respect of any sale of, collection from, or other realization upon all
or any part of the Collateral may, in the discretion of the Security
Trustee, be held by the Security Trustee as collateral for, and/or then
or at any time thereafter applied in whole or in part by the Security
Trustee for the benefit of the relevant Secured Parties against, all or
any part of the Secured Obligations in accordance with Article VIII of
this Agreement and, in the case of the Secured Issuer Obligations,
Article III of the Indenture or any Guarantor Indenture. Any surplus of
such cash or cash proceeds held by the Security Trustee and remaining
after payment in full of all the Secured Obligations shall be paid over
to the relevant Grantors or whomsoever may be lawfully entitled to
receive such surplus. Any amount received for any sale or sales
conducted in accordance with the terms of this Section 3.01 shall be
deemed conclusive and binding on the Issuer, each Grantor and the
Secured Parties.
ARTICLE IV
REGISTRATION RIGHTS
SECTION 4.01. Registration Rights . If the Security Trustee
shall determine to exercise its right to sell all or any of the Pledged Stock
pursuant to Section 3.01, the Issuer agrees that, upon request of the Security
Trustee, the Issuer will, at its own expense:
(a) execute and deliver, and cause each issuer of the Pledged
Stock pledged by it, and the directors and officers thereof to execute
and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the
opinion of the Security Trustee, advisable to register such Pledged
Stock under the provisions of the Securities Act, to cause the
registration statement relating thereto to become effective and to
remain effective for such period as prospectuses are required by law to
be furnished and to make all amendments and supplements thereto and to
the related prospectus that, in the opinion of the Security Trustee,
are necessary or advisable, all in conformity with the requirements of
the Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto;
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(b) use its best efforts to qualify the Pledged Stock under
the state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Security Collateral, as
requested by the Security Trustee;
(c) cause each issuer to make available to its security
holders, as soon as practicable, an earnings statement that shall
satisfy the provisions of Section 11(a) of the Securities Act;
(d) provide the Security Trustee with such other information
and projections as may be necessary or, in the opinion of the Security
Trustee, advisable to enable the Security Trustee to effect the sale of
such Pledged Stock; and
(e) do or cause to be done all such other acts and things as
may be necessary to make such sale of the Pledged Stock or any part
thereof valid and binding and in compliance with applicable law.
The Security Trustee is authorized, in connection with any sale of the Pledged
Stock pursuant to Section 3.01, to deliver or otherwise disclose to any
prospective purchaser of the Pledged Stock (i) any registration statement or
prospectus, and all supplements and amendments thereto, prepared pursuant to
Section 4.01(a), (ii) any information and projections provided to it pursuant to
Section 4.01(d) and (iii) any other information in its possession relating to
the Pledged Stock.
ARTICLE V
SECURITY INTEREST ABSOLUTE
SECTION 5.01. Security Interest Absolute . The obligations of
each Grantor under this Agreement are independent of the Secured Obligations,
and a separate action or actions may be brought and prosecuted against such
Grantor to enforce this Agreement, irrespective of whether any action is brought
against any other Grantor or whether any other Grantor is joined in any such
action or actions. All rights of the Security Trustee and the pledge,
assignment, and security interest hereunder, and all obligations of each Grantor
hereunder, shall be absolute and unconditional, irrespective of:
(a) in the case of the Secured Issuer Obligations, any lack of
validity or enforceability of any Related Document, Service Provider
Document, Secured Credit Facility, Secured Guarantee or Secured Swap
Agreement or any other agreement or instrument relating thereto, in the
case of the Secured Intercompany Obligations, any lack of validity or
enforceability of the Intercompany Loan Agreements or any other
agreement or instrument relating thereto and in the case of the Secured
Lease Obligations, any lack of validity or enforceability of any Lease
or any other agreement or instrument relating thereto;
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(b) any change in the time, manner or place of payment of, the
security for, or in any other term of, all or any of the Secured
Obligations, or in the case of the Secured Issuer Obligations, any
other amendment or waiver of or any consent to any departure from any
Related Document, Service Provider Document, Secured Credit Facility,
Secured Guarantee or Secured Swap Agreement or any other agreement or
instrument relating thereto, in the case of the Secured Intercompany
Obligations, any other amendment or waiver of or any consent to any
departure from the Intercompany Loan Agreements or any other agreement
or instrument relating thereto or, in the case of the Secured Lease
Obligations, any other amendment or waiver of or any consent to any
departure from the Leases or any other agreement or instrument relating
thereto;
(c) any taking, exchange, release or non-perfection of the
Collateral or any other collateral or taking, release or amendment or
waiver of or consent to departure from any guaranty, for all or any of
the Secured Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Secured Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Secured Obligations or any other assets of the Grantors;
(e) any change, restructuring or termination of the
corporate structure or existence of any Grantor; or
(f) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Grantor or a third-party
grantor of a security interest.
ARTICLE VI
THE SECURITY TRUSTEE
SECTION 6.01. Authorization and Action . (a) Each Grantor
hereby appoints and authorizes Bankers Trust as the initial Security Trustee to
take such action as trustee on behalf of the Secured Parties with respect to
such Grantor and to exercise such powers and discretion under this Agreement and
the other Related Documents as are specifically delegated to the Security
Trustee by the terms hereof and thereof and no implied duties and covenants
shall be deemed to arise hereunder against the Security Trustee.
(b) The Security Trustee accepts such appointment and agrees
to perform the same but only upon the terms of this Agreement and agrees to
receive and disburse all moneys received by it in accordance with the terms
hereof. The Security Trustee in its individual capacity shall not be answerable
or accountable under any circumstances, except
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for its own willful misconduct or gross negligence (or simple negligence in the
handling of funds or breach of any of its representations or warranties set
forth herein) and the Security Trustee shall not be liable for any action or
inaction of any Grantor or any other parties to any of the Related Documents.
SECTION 6.02. Absence of Duties . The powers conferred on the
Security Trustee hereunder with respect to the Collateral are solely to protect
its interest herein and shall not impose any duty upon it to exercise any such
powers other than the obligation to release Collateral as set out herein. Except
for the safe custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Security Trustee shall have no
duty as to any Collateral, as to ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relative to
any Collateral, whether or not any Secured Party has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to
preserve or perfect rights against any parties or any other rights pertaining to
any Collateral. The Security Trustee shall have no duty to ascertain or inquire
as to the performance or observance of any covenants, conditions or agreements
on the part of any Grantor or Lessee.
SECTION 6.03. Representations or Warranties . The Security
Trustee does not make and shall not be deemed to have made any representation or
warranty as to the validity, legality or enforceability of this Agreement, any
other Related Document or any other document or instrument or as to the
correctness of any statement contained in any thereof, or as to the validity or
sufficiency of any of the pledge and security interests granted hereby, except
that the Security Trustee in its individual capacity hereby represents and
warrants (i) that each such specified document to which it is a party has been
or will be duly executed and delivered by one of its officers who is and will be
duly authorized to execute and deliver such document on its behalf, and (ii)
this Agreement is the legal, valid and binding obligation of Bankers Trust,
enforceable against Bankers Trust in accordance with its terms, subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally.
SECTION 6.04. Reliance; Agents; Advice of Counsel . (a) The
Security Trustee shall incur no liability to anyone as a result of acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Security Trustee may accept a copy of a resolution of the Board of any party to
this Agreement or any Related Document, certified by the Secretary or an
Assistant Secretary thereof or other duly authorized Person of such party as
duly adopted and in full force and effect, as conclusive evidence that such
resolution has been duly adopted by said Board and that the same is in full
force and effect. As to any fact or matter the manner of ascertainment of which
is not specifically described herein, the Security Trustee shall be entitled to
receive and may for all purposes hereof conclusively rely on a certificate,
signed by an officer of any duly authorized Person, as to such fact or matter,
and such certificate shall constitute full protection to the Security Trustee
for any action taken or omitted to be taken by it in good faith in reliance
thereon. The Security
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Trustee shall furnish to each Service Provider upon request such information and
copies of such documents as the Security Trustee may have and as are necessary
for such Service Provider to perform its duties under the applicable Related
Documents. The Security Trustee shall assume, and shall be fully protected in
assuming, that each other party hereto is authorized by its constitutional
documents to enter into this Agreement and to take all action permitted to be
taken by it pursuant to the provisions hereof, and shall not inquire into the
authorization of such party with respect thereto.
(b) The Security Trustee may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents, including without limitation, financial advisors, or attorneys or a
custodian or nominee, and the Security Trustee shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of, any such
agent, attorney, custodian or nominee appointed with due care by it hereunder.
(c) The Security Trustee may consult with counsel and any
opinion of counsel or any advice of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
opinion of counsel.
(d) The Security Trustee 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 hereunder or in relation hereto, at
the request, order or direction of any of the Secured Parties, pursuant to the
provisions of this Agreement, unless such Secured Party shall have offered to
the Security Trustee reasonable security or indemnity satisfactory to it against
the costs, expenses and liabilities which may be incurred therein or thereby.
(e) The Security Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Agreement shall in
any event require the Security Trustee to perform, or be responsible or liable
for the manner of performance of, any obligations of the Issuer or the Cash
Manager under any of the Related Documents.
(f) The Security Trustee shall not be liable for any Losses,
Taxes or the selection of Permitted Account Investments or for any investment
losses resulting from Permitted Account Investments.
(g) When the Security Trustee incurs expenses or renders
services in connection with an exercise of remedies specified in Section 3.01 or
during a proceeding described in Section 8.03(a), such expenses (including the
fees and expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law or
law relating to creditors' rights generally.
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(h) The Security Trustee shall not be charged with knowledge
of an Event of Default unless a Responsible Officer of the Security Trustee
obtains actual knowledge of such event or the Security Trustee receives written
notice of such event from any of the Secured Parties or the Cash Manager.
(i) The Security Trustee shall have no duty to monitor the
performance of the Issuer, the Cash Manager or any other party to the Related
Documents, nor shall it have any liability in connection with the malfeasance or
nonfeasance by such parties. The Security Trustee shall have no liability in
connection with compliance by the Issuer, any Guarantor, the Cash Manager or any
lessee under a Lease with statutory or regulatory requirements related to the
Collateral, any Aircraft or any Lease. The Security Trustee shall not make or be
deemed to have made any representations or warranties with respect to the
Collateral, any Aircraft or any Lease or the validity or sufficiency of any
assignment or other disposition of the Collateral, any Aircraft or any Lease.
SECTION 6.05. Not Acting in Individual Capacity . The Security
Trustee acts hereunder solely as trustee unless otherwise expressly provided;
and all Persons having any claim against the Security Trustee by reason of the
transactions contemplated hereby shall look, subject to the lien and priorities
of payment provided herein and in the Indenture, only to the property of the
Grantors for payment or satisfaction thereof.
ARTICLE VII
SUCCESSOR TRUSTEES
SECTION 7.01. Resignation and Removal of Security Trustee .
The Security Trustee may resign at any time without cause by giving at least 30
days' prior written notice to each Grantor, any Guarantor and the Senior
Representative. The Senior Representative may at any time remove the Security
Trustee without cause by an instrument in writing delivered to the Secured
Parties and the Security Trustee. No termination of this Agreement by the
Security Trustee or the Senior Representative pursuant to this Section 7.01
shall become effective prior to the date of appointment by the Senior
Representative of a successor Security Trustee and the acceptance of such
appointment by such successor Security Trustee.
SECTION 7.02. Appointment of Successor . (a) In the case of
the resignation or removal of the Security Trustee, the Senior Representative,
on behalf of the Secured Parties, shall promptly appoint a successor Security
Trustee. If a successor Security Trustee shall not have been appointed and
accepted its appointment hereunder within 60 days after the Security Trustee
gives notice of resignation as to such class or subclass, the retiring Security
Trustee or the Secured Parties may petition any court of competent jurisdiction
for the appointment of a successor Security Trustee. Any successor Security
Trustee so appointed by such court shall immediately and without further act be
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superseded by any successor Security Trustee appointed as provided in the first
sentence of this paragraph within one year from the date of the appointment by
such court.
(b) Any successor Security Trustee shall execute and deliver
to the Secured Parties an instrument accepting such appointment. Upon the
acceptance of any appointment as Security Trustee hereunder a successor Security
Trustee and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such amendments or supplements to this
Agreement, and such other instruments or notices, as may be necessary or
desirable, or as the Senior Trustee may request, in order to continue the
perfection of the liens granted or purported to be granted hereby, such Security
Trustee shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Security Trustee, and the
retiring Security Trustee shall be discharged from its duties and obligations
under this Agreement and the other Related Documents. After any retiring
Security Trustee's resignation or removal hereunder as to any actions taken or
omitted to be taken by it while it was Security Trustee, the provisions of all
of Article VIII shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Security Trustee under this Agreement.
(c) Each Security Trustee shall be an Eligible Institution, if
there be such an institution willing, able and legally qualified to perform the
duties of a Security Trustee hereunder.
(d) Any corporation into which the Security Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Security
Trustee shall be a party, or any corporation to which substantially all the
business of the Security Trustee may be transferred, shall be the Security
Trustee under this Agreement without further act.
ARTICLE VIII
AGREEMENT AMONG CERTAIN SECURED PARTIES
SECTION 8.01. Subordination and Priority . (a) Notwithstanding
the date, manner or order of attachment or perfection or the description of any
collateral or security interests, liens, claims or encumbrances covered or
granted by Section 2.01, each Subordinated Representative agrees that the
respective rights and interest of the Subordinated Creditors in any Collateral
for which they are Secured Parties are and shall be subordinate, to the extent
and in the manner hereinafter set forth, to all rights and interest of the
Senior Creditors in such Collateral, and that the Senior Creditors shall have at
all times interests prior and senior to that of the Subordinated Creditors in
such Collateral until the payment in full of all Senior Obligations owed to such
Senior Creditors.
(b) For the purposes of this Agreement, no Senior Obligations
shall be deemed to have been paid in full until and unless the Senior
Representative in respect of
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such Senior Obligations shall have received payment in full in cash of such
Senior Obligations.
(c) Notwithstanding anything contained herein to the contrary,
payments from any property (or the proceeds thereof) deposited in the
Defeasance/Redemption Account pursuant to Article XI of the Indenture and any
Guarantor Indenture shall not be subordinated to the prior payment of any Senior
Creditors in respect of any Senior Obligations or subject to any other
restrictions set forth in this Article VIII, and none of the Holders shall be
obligated to pay over any payments from any such property to the Security
Trustee or any other creditor of any of the relevant Grantors.
SECTION 8.02. Exercise of Remedies . (a) Until the date on
which all the Senior Obligations shall have been paid in full, the Senior
Representative, in its sole discretion and to the exclusion of the Subordinated
Representatives, shall have, whether or not any default under the Indenture or
any Guarantor Indenture shall have occurred and be continuing and both before
and after the commencement of any proceeding referred to in Section 8.03(a), the
sole and exclusive right (as between the Senior Representative, on the one hand,
and the Subordinated Representatives, on the other) to direct the Security
Trustee to take all action with respect to the Collateral, including, without
limitation, the right to exercise or direct voting or other consensual rights,
to foreclose or forebear from foreclosure in respect of the Collateral and to
accept the Collateral in full or partial satisfaction of any Senior Obligation,
all in accordance with the terms of this Agreement. The Subordinated
Representatives agree that, until the Senior Obligations have been paid in full,
the only right of the Subordinated Creditors under this Agreement is for the
Subordinated Obligations to be secured by the Collateral for the period and to
the extent provided for herein and to receive a share of the proceeds of the
Collateral, if any.
(b) The Subordinated Representatives agree that, so long as
any of the Senior Obligations shall remain unpaid, they and the Subordinated
Creditors will not commence, or join with any creditor other than the Security
Trustee and the Senior Creditors in commencing, any enforcement, collection,
execution, levy or foreclosure proceeding with respect to the Collateral or
proceeds of Collateral. Upon request by the Senior Representative, the
Subordinated Representatives and the Subordinated Creditors will, at the expense
of the Issuer, join in enforcement, collection, execution, levy or foreclosure
proceedings and otherwise cooperate fully in the maintenance of such proceedings
by the Security Trustee, including without limitation by executing and
delivering all such consents, pleadings, releases and other documents and
instruments as the Security Trustee may reasonably request in connection
therewith, it being understood that the conduct of such proceedings shall at all
times be under the exclusive control of the Security Trustee.
(c) The Subordinated Representatives agree, upon written
request by the Senior Representative, to release the liens and security
interests in favor of the Subordinated Creditors in any Collateral and to
execute and deliver all such directions, consents, pleadings, releases and other
documents and instruments as the Senior
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Representative may reasonably request in connection therewith, upon any sale,
lease, transfer or other disposition of such Collateral or part thereof in
accordance with, or for application of proceeds pursuant to, Section 8.01(a).
(d) The Subordinated Representatives agree that neither they
nor any Subordinated Creditors will contest, or bring (or join in) any action or
proceeding for the purpose of contesting, the validity, perfection or priority
of, or seeking to avoid, the rights of the Senior Representative or the Senior
Creditors in or with respect to the Collateral.
(e) Nothing in the foregoing affects any Collateral for which
neither the Senior Creditors nor the Subordinated Creditors are Secured Parties.
SECTION 8.03. Further Agreements of Subordination . The
Subordinated Representatives agree as follows:
(a) Upon any distribution of all or any of the Collateral or
proceeds of Collateral to creditors of any Grantor upon the
dissolution, winding-up, liquidation, arrangement, reorganization,
adjustment, protection, relief, or composition of such Grantor or its
debts, whether in any bankruptcy, insolvency, arrangement,
reorganization, receivership, relief or similar proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of such Grantor, or otherwise, any distribution
of any kind of Collateral or proceeds of Collateral that otherwise
would be deliverable upon or with respect to the Subordinated
Obligations shall be delivered directly to the Security Trustee for
application (in the case of cash) to or as collateral (in the case of
non-cash property or securities) for the payment or prepayment of the
Senior Obligations until the Senior Obligations shall have been paid in
full.
(b) If any proceeding referred to in Section 8.03(a) is
commenced by or against any Grantor,
(i) the Security Trustee is hereby irrevocably
authorized and empowered (in its own name or in the name of
the Senior Creditors or otherwise), but shall have no
obligation, to demand, xxx for, collect and receive every
distribution referred to in subsection (a) above and give
acquittance therefor and to file claims and proofs of claim
and take such other action (including without limitation
enforcing this Agreement) as it may deem necessary or
advisable, or as the Senior Representative may direct, for the
exercise or enforcement of any of the rights or interests of
the Senior Creditors hereunder; and
(ii) the Subordinated Representatives shall duly and
promptly take such action, at the expense of the Issuer, as
the Senior Representative may request (A) to collect
Collateral and proceeds of Collateral for the account of the
Senior Creditors and to file appropriate claims or proofs of
claim in
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respect of Collateral and proceeds of Collateral, (B)
to execute and deliver to the Security Trustee such powers of
attorney, assignments, or other instruments as the Senior
Representative may request in order to enable it to enforce
any and all claims with respect to the Collateral and proceeds
of Collateral and (C) to collect and receive any and all
payments or distributions that may be payable or deliverable
upon or with respect to the Collateral or proceeds of
Collateral.
(c) All payments or distributions upon or with respect to the
Collateral or proceeds of Collateral that are received by the
Subordinated Representatives or the Subordinated Creditors contrary to
the provisions of this Agreement shall be received for the benefit of
the Senior Creditors, shall be segregated from other funds and property
held by the Subordinated Representatives or the Subordinated Creditors
and shall be forthwith paid over to the Security Trustee in the same
form as so received (with any necessary indorsement) to be applied (in
the case of cash) to or held as collateral (in the case of non-cash
property or securities) for the payment or prepayment of the Senior
Obligations in accordance with the terms thereof.
(d) The Senior Representative is hereby authorized to demand
specific performance of this Agreement at any time when any of the
Subordinated Representatives or the Subordinated Creditors shall have
failed to comply with any of the provisions of this Agreement
applicable to them. The Subordinated Representatives hereby irrevocably
waive, on their own behalf and on behalf of the Subordinated Creditors,
any defense based on the adequacy of a remedy at law that might be
asserted as a bar to such remedy of specific performance.
SECTION 8.04. Possession of Collateral . The Security Trustee
agrees to hold any Collateral received by it, in or against which a security
interest or lien may be perfected by possession, as bailee on behalf of the
Secured Parties with respect to the Grantor of such Collateral.
SECTION 8.05. Rights of Subrogation . The Subordinated
Representatives agree that no payment or distributions to the Senior
Representative or the Senior Creditors pursuant to the provisions of this
Agreement shall entitle any Subordinated Representative or any Subordinated
Creditor to exercise any rights of subrogation in respect thereof until all
Obligations constituting Senior Obligations with respect to such Person shall
have been paid in full.
SECTION 8.06. Further Assurances of Subordinated
Representatives . Each of the Subordinated Representatives shall, at the expense
of the Issuer, at any time and from time to time promptly execute and deliver
all further instruments and documents, and take all further action, that the
Senior Representative or the Security Trustee may reasonably request, in order
to protect any right or interest granted or purported to be granted hereby
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or to enable the Senior Representative and the Security Trustee to exercise and
enforce their rights and remedies hereunder.
SECTION 8.07. No Change in Rights in Collateral . The
Subordinated Representatives and the Subordinated Creditors will not sell,
assign, pledge, encumber or otherwise dispose of any of their rights in the
Collateral as such or in proceeds of Collateral as such, without the prior
written consent of the Senior Representative. Nothing in this Section 8.07 shall
limit the right of any Subordinated Creditor to transfer any Subordinated
Obligation including, without limitation, any Note.
SECTION 8.08. Waiver of Marshalling and Similar Rights . Each
of the Subordinated Representatives waives, on its own behalf and on behalf of
the Subordinated Creditors, to the fullest extent permitted by applicable law,
any requirement regarding, and agrees not to demand, request, plead or otherwise
claim the benefit of, any marshalling, appraisement, valuation or other similar
right with respect to the Collateral that may otherwise be available under
applicable law or any other similar rights a junior creditor or junior secured
creditor may have under applicable law.
SECTION 8.09. Enforcement . Each of the Subordinated
Representatives agrees that this Agreement shall be enforceable against it and
the Subordinated Creditors under all circumstances, including without limitation
in any proceeding referred to in Section 8.03(a).
SECTION 8.10. Obligations Hereunder Not Affected . All rights
and interests of the Senior Representative, the Senior Creditors and the
Security Trustee hereunder, and all agreements and obligations of the
Subordinated Representatives under this Agreement, shall remain in full force
and effect irrespective of:
(i) any lack of validity or enforceability of this Agreement,
any Service Provider Document, AerCo Group Note, Secured Credit
Facility, Secured Guarantee, Secured Tax-Related Disposition Agreement
or Secured Swap Agreement or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of payment of,
the security for, or in any other term of, all or any of the Senior
Obligations, or any other amendment or waiver of or any consent to any
departure from this Agreement, any Service Provider Document, AerCo
Group Note, Secured Credit Facility, Secured Guarantee, Secured
Tax-Related Disposition Agreement or Secured Swap Agreement or any
other agreement or instrument relating thereto;
(iii) any taking, exchange, release or non-perfection of the
Collateral or any other collateral, or any release or amendment or
waiver of or consent to departure from any guaranty, for all or any of
the Senior Obligations; or
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(iv) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Subordinated
Representatives, the Subordinated Creditors, a subordinated creditor or
a secured subordinated creditor.
This Agreement shall continue to be effective or shall be revived or reinstated,
as the case may be, if at any time any payment of any of the Senior Obligations
is rescinded or must otherwise be returned by any Senior Creditor upon the
insolvency, bankruptcy or reorganization of any Grantor, or otherwise, all as
though such payment had not been made.
SECTION 8.11. Waiver . The Subordinated Representatives hereby
waive, on their own behalf and on behalf of the Subordinated Creditors, to the
fullest extent permitted by law, any right under Section 9-504(1)(c) of the
U.C.C. to application of the proceeds of disposition (other than as contemplated
by this Agreement), any right to notice and objection under Section 9-505(2) of
the U.C.C. and promptness, diligence, notice of acceptance and any other notice
with respect to any of the Senior Obligations and this Agreement and any
requirement that the Security Trustee protect, secure, perfect or insure any
security interest or lien hereunder or otherwise or any Collateral or any other
property subject thereto or exhaust any right or take any action against the
Grantors or any other person or entity or any Collateral or any other
collateral.
SECTION 8.12. Senior Obligations and Subordinated Obligations
Unimpaired . Nothing in this Agreement shall impair (i) as between the Issuer
and any party hereto, the obligations of the Issuer to such party, including
without limitation the Senior Obligations and the Subordinated Obligations, or
(ii) as between the Senior Creditors and the Subordinated Creditors, the
provisions relating to the priority of payments in the Indenture; provided that
it is understood that the enforcement of rights and remedies against the
Collateral shall be subject to the terms of this Agreement.
SECTION 8.13. Upon Discharge of Obligations . Upon the payment
in full of the Senior Obligations in respect of which it is acting as Senior
Representative, the Security Trustee shall, without any further action on its
part, be relieved of any obligation under this Agreement with respect to such
discharged Senior Obligations and this Agreement shall continue in effect as an
agreement among the remaining Secured Parties.
ARTICLE IX
INDEMNITY AND EXPENSES
SECTION 9.01. Indemnity . (a) The Issuer shall indemnify the
Security Trustee (and its officers, directors, employees and agents) for, and
hold it harmless against, any loss, liability or expense (including reasonable
legal fees and expenses) incurred by it without negligence or bad faith on its
part in connection with the acceptance or administration of this Agreement and
any other Related Documents as Security Trustee and
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its duties hereunder and thereunder, including the costs and expenses of
defending itself against any claim or liability and of complying with any
process served upon it or any of its officers in connection with the exercise or
performance of any of its powers or duties and hold it harmless against, any
loss, liability or reasonable expense incurred without negligence or bad faith
on its part. The Security Trustee shall notify the Issuer promptly of any claim
asserted against the Security Trustee for which it may seek indemnity; provided,
however, that failure to provide such notice shall not invalidate any right to
indemnity hereunder. The Issuer shall defend the claim and the Security Trustee
shall cooperate in the defense. The Security Trustee may have separate counsel
and the Issuer shall pay reasonable fees and expenses of such counsel. The
Issuer need not pay for any settlements made without its consent; provided that
such consent shall not be unreasonably withheld. The Issuer need not reimburse
any expense or indemnity against any loss or liability incurred by the Security
Trustee through negligence or bad faith.
(b) The Issuer shall upon demand pay to the Security Trustee
the amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, that the Security Trustee
may incur in connection with (i) the administration of this Agreement, (ii) the
custody, preservation, use or operation of, or the sale of, collection from or
other realization upon, any of the Collateral, (iii) the exercise or enforcement
of any of the rights of the Security Trustee or any other Secured Party against
any Grantor hereunder or (iv) the failure by any Grantor to perform or observe
any of the provisions hereof.
SECTION 9.02. Noteholders' Indemnity . The Security Trustee
shall be entitled, subject to such Security Trustee's duty during a default to
act with the required standard of care, to be indemnified by the Senior
Creditors to the sole satisfaction of the Security Trustee before proceeding to
exercise any right or power under this Agreement at the request or direction of
the Senior Representative.
The provisions of Section 9.01 and Section 9.02 shall survive
the termination of this Agreement or the earlier resignation or removal of the
Security Trustee.
SECTION 9.03. No Compensation from Secured Parties . The
Security Trustee agrees that it shall have no right against the Secured Parties
for any fee as compensation for its services hereunder.
SECTION 9.04. Security Trustee Fees . In consideration of the
Security Trustee's performance of the services provided for under this
Agreement, the Issuer shall pay to the Security Trustee an annual fee set forth
under a separate agreement between the Issuer and the Security Trustee.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments; Waivers; Etc . (a) No amendment or
waiver of any provision of this Agreement, and no consent to any departure by
any party herefrom, shall in any event be effective unless the same shall be in
writing and signed by each Grantor, each Service Provider, the Senior Trustee
and, in the event it is adversely affected thereby, the Subordinated
Representative, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No failure on
the part of the Security Trustee to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. In executing and delivering any
amendment or modification to this Agreement, the Security Trustee shall be
entitled to (i) an Opinion of Counsel stating that such amendment is authorized
and permitted pursuant to the Indenture and this Agreement and complies
therewith and herewith and (ii) an Officer's Certificate stating that all
conditions precedent to the execution, delivery and performance of such
amendment have been satisfied in full. The Security Trustee may, but shall have
no obligation to, execute and deliver any amendment or modification which would
affect its duties, powers, rights, immunities or indemnities hereunder.
(b) Upon the execution and delivery by any Person of a
Security Trust Agreement Supplement, (i) such Person shall be referred to as an
"Additional Grantor" and shall be and become a Grantor hereunder, and each
reference in this Agreement to "Grantor" shall also mean and be a reference to
such Additional Grantor, (ii) the annexes attached to each Security Trust
Agreement Supplement shall be incorporated into and become a part of and
supplement Schedule III and Schedule IV, and the Security Trustee may attach
such annexes as supplements to such Schedules; and each reference to such
Schedules shall mean and be a reference to such Schedules as supplemented
pursuant hereto and (iii) such Additional Grantor shall be a Grantor for all
purposes under this Agreement and shall be bound by the obligations of the
relevant Grantors hereunder.
SECTION 10.02. Addresses for Notices . All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed, telegraphed, telecopied,
telexed, cabled or delivered to the Issuer, the Administrative Agent, the Cash
Manager, the Servicer, the Trustee or the Security Trustee, as the case may be,
in each case addressed to it at its address specified in Section 13.05 of the
Indenture or, as to Lively, to the address of the Issuer or, as to each party,
at such other address as shall be designated by such party in a written notice
to each other party complying as to delivery with the terms of this Section
10.02. All such notices and other communications shall, when mailed, telecopied,
telegraphed, telexed or cabled, respectively, be effective when deposited in the
mails, telecopied, delivered to the telegraph company, confirmed by telex
answerback or delivered to the cable company, respectively, addressed as
aforesaid.
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SECTION 10.03. No Waiver; Remedies . No failure on the part of
the Security Trustee to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 10.04. Severability . If any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired.
SECTION 10.05. Continuing Security Interest; Assignments .
Subject to Section 10.06(c), this Agreement shall create a continuing security
interest in the Collateral and shall (a) remain in full force and effect with
respect to each Grantor until the earlier of the payment in full in cash of the
Secured Obligations with respect to such Grantor and the circumstances specified
in Section 10.06(c), (b) be binding upon each Grantor, its successors and
assigns and (c) inure, together with the rights and remedies of the Security
Trustee hereunder, to the benefit of the Secured Parties and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing subsection (c), any Secured Party may assign or otherwise transfer all
or any portion of its rights and obligations under any Related Document to which
it is a party in accordance with the terms thereof to any other Person or
entity, and such other Person or entity shall thereupon become vested with all
the rights in respect thereof granted to such Secured Party herein or otherwise.
SECTION 10.06. Release and Termination . (a) Upon any sale,
lease, transfer or other disposition of any item of Collateral in accordance
with the terms of the Indenture, the Security Trustee will, at the Issuer's
expense, execute and deliver to the Grantor of such item of Collateral such
documents as such Grantor shall reasonably request and provide to the Security
Trustee to evidence the release of such item of Collateral from the assignment
and security interest granted hereby.
(b) Except as otherwise provided in Section 10.06(c), upon the
payment in full in cash of the Secured Obligations with respect to such Grantor,
the pledge, assignment and security interest granted hereby by such Grantor
shall terminate and all rights to the Collateral granted by such Grantor shall
revert to such Grantor. Upon any such termination, the Security Trustee will, at
the Issuer's expense, execute and deliver to such Grantor such documents as such
Grantor shall prepare and reasonably request to evidence such termination.
(c) If at any time all Notes have been defeased pursuant to
Article XI of the Indenture, the pledge, assignment and security interest in the
Pledged Stock pledged by the Issuer shall be released and the certificates
representing such Pledged Stock shall be returned to the relevant Grantor and
the Security Trustee shall, at the expense of the Issuer, execute and deliver to
the Issuer such documents as the Issuer shall prepare and reasonably request to
evidence such termination.
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SECTION 10.07. Currency Conversion . If any amount is received
or recovered by the Security Trustee in respect of this Agreement or any part
thereof in a currency (the "Received Currency") other than the currency in which
such amount was expressed to be payable (the "Agreed Currency"), then the amount
in the Received Currency actually received or recovered by the Security Trustee,
to the extent permitted by law, shall only constitute a discharge of the
relevant Grantor to the extent of the amount of the Agreed Currency which the
Security Trustee was or would have been able in accordance with its or his
normal procedures to purchase on the date of actual receipt or recovery (or, if
that is not practicable, on the next date on which it is so practicable), and,
if the amount of the Agreed Currency which the Security Trustee is or would have
been so able to purchase is less than the amount of the Agreed Currency which
was originally payable by the relevant Grantor, such Grantor shall pay to the
Security Trustee such amount as it shall determine to be necessary to indemnify
the Security Trustee against any Loss sustained by it as a result (including the
cost of making any such purchase and any premiums, commissions or other charges
paid or incurred in connection therewith) and so that, to the extent permitted
by law, (i) such indemnity shall constitute a separate and independent
obligation of each Grantor distinct from its obligation to discharge the amount
which was originally payable by such Grantor and (ii) shall give rise to a
separate and independent cause of action and apply irrespective of any
indulgence granted by the Security Trustee and continue in full force and effect
notwithstanding any judgment, order, claim or proof for a liquidated amount in
respect of the amount originally payable by any Grantor or any judgment or order
and no proof or evidence of any actual loss shall be required.
SECTION 10.08. Governing Law . THIS AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTERESTS HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. UNLESS OTHERWISE DEFINED HEREIN OR IN THE INDENTURES, TERMS
USED IN ARTICLE 8 OR 9 OF THE UCC ARE USED HEREIN AS THEREIN DEFINED.
SECTION 10.09. Jurisdiction . (a) Each of the parties hereto
irrevocably agrees that the courts of New York shall have jurisdiction to hear
and determine any suit, action or proceeding, and to settle any disputes, which
may arise out of or in connection with this Agreement and, for such purposes,
irrevocably submits to the jurisdiction of such courts. Each of the parties
hereto irrevocably waives any objection which it might now or hereafter have to
the federal U.S. or New York State courts located in New York, New York being
nominated as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with this
Agreement and agrees not to claim that any such court is not a convenient or
appropriate forum. Each of the parties hereto 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
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New York, New York to the Person named as the process agent of such party
in Exhibit G to the Indenture at the address set out therein or at the
principal New York City office of such process agent, if not the same.
(b) Each of the parties hereto hereby consents generally in
respect of any legal action or proceeding arising out of or in connection with
this Agreement to the giving of any relief or the issue of any process in
connection with such action or proceeding, including the making, enforcement or
execution against any property whatsoever (irrespective of its use or intended
use) of any order or judgment which may be made or given in such action or
proceeding.
SECTION 10.10. Limitations on Liability of Lively .
Notwithstanding any other provision in this Agreement, the liability of Lively
hereunder shall be limited to the amount realized by the Security Trustee from
the sale or other disposal of any Pledged Stock held in its name. The Security
Trustee hereby undertakes and agrees on behalf of itself and the Secured Parties
that it shall have no recourse to Lively or its assets other than the Pledged
Stock held in its name in respect of the Secured Obligations hereunder.
SECTION 10.11. Letter of Quiet Enjoyment . The Security
Trustee shall, if any party other than any Grantor hereunder to any Assigned
Leases requests or is expected by such Grantor to request a letter of quiet
enjoyment, upon the notification thereof by such Grantor, execute and deliver a
letter in the form of Exhibit H hereto (or such other form as the relevant
Lessee may reasonably request, in substantially similar substance) to such
party.
SECTION 10.12. Counterparts . This Agreement may be executed
in two or more counterparts by the parties hereto, and each such counterpart
shall be considered an original and all such counterparts shall constitute one
and the same instrument.
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SECTION 10.13. Table of Contents, Headings, Etc. The Table of
Contents and headings of the Articles and Sections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by its representative or officer
thereunto duly authorized as of the date first above written.
AERCO LIMITED
By /s/ Xxxxxxxxx X. Xxxxxxx Xx.
_______________________________
Name: Xxxxxxxxx X. Xxxxxxx, Xx.
Title: Director
AIRCRAFT LEASE PORTFOLIO
SECURITIZATION 94-1 LIMITED
By /s/ Xxxxxx Xxxxxx Xxxxxxxx
_______________________________
Name: Xxxxxx Xxxxxx Xxxxxxxx
Title: Director
SIGNED, SEALED AND DELIVERED
for and on behalf of
AERCO IRELAND LIMITED
By /s/ Xxxxxxx X. Xxxxxx
_______________________________
its duly authorized attorney in
the presence of:-
/s/ Xxx X. Xxxxxx
_______________________________
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SIGNED, SEALED AND DELIVERED
for and on behalf of
AERCO IRELAND II LIMITED
By /s/ Xxxx Xxxxxxx
_______________________________
its duly authorized attorney in
the presence of:-
/s/ Xxx X. Xxxxxx
_______________________________,
AERCOUSA INC.
By /s/ Xxxxxxx X Xxxxxx
_______________________________
Name: Xxxxxxx X Xxxxxx
Title: Director
AERFI BELGIUM N.V.
By /s/ Xxxx Xxxxxxx
_______________________________
Name: Xxxx Xxxxxxx
Title: Director
ALPS 00-0 (XXXXXXX) N.V.
By /s/ Xxxxxx Xxxxxx Xxxxxxxx
_______________________________
Name: Xxxxxx Xxxxxx Xxxxxxxx
Title: Director
SIGNED, SEALED AND DELIVERED
for and on behalf of
53
SIGNED, SEALED AND DELIVERED
for and on behalf of
PERGOLA LIMITED
By /s/ Xxxxxxx Xxxxxx
_______________________________
its duly authorized attorney in
the presence of:-
/s/ Xxx X. Xxxxxx
_______________________________
MOURANT & CO. SECRETARIES LIMITED
By /s/ Xxxxxx Xxxxx-Xxxxx
_______________________________
Name: Xxxxxx Xxxxx-Xxxxx
Title:
SIGNED, SEALED AND DELIVERED
for and on behalf of
GPA ADMINISTRATIVE SERVICES
LIMITED, as Administrative Agent
By /s/ Xxxx Xxxxxxx
_______________________________
its duly authorized attorney in
the presence of:-
/s/ Xxx X. Xxxxxx
_______________________________
SIGNED, SEALED AND DELIVERED
for and on behalf of
GPA CASH MANAGER II LIMITED,
as Cash Manager
By /s/ Xxxx Xxxxxxx
_______________________________
Name: Xxxx Xxxxxxx
Title:
SIGNED, SEALED AND DELIVERED
for and on behalf of
XXXXXXX & XXXXX LIMITED, as Servicer
By /s/ Xxxxx Xxxxx
_______________________________
Name: Xxxxx Xxxxx
Title: Director
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as Trustee
By /s/ Xxxxx X. Xxxxxx
_______________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as Book-Entry
Depositary
By /s/ Xxxxx X. Xxxxxx
_______________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
54
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as
Reference Agent
By /s/ Xxxxx X. Xxxxxx
_______________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as
Security Trustee
By /s/ Xxxxx X. Xxxxxx
_______________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
SIGNED, SEALED AND DELIVERED
for and on behalf of
GPA GROUP PLC, as Class E Note
Representative
By /s/ Xxxxxxx X. Xxxxxx
_______________________________
Name: Xxxxxxx X. Xxxxxx
Title:
LIVELY LIMITED
By /s/ Xxxxxx Xxxxx-Xxxxx
_______________________________
Name: Xxxxxx Xxxxx-Xxxxx
Title:
55
SCHEDULE I
SECURITY TRUST AGREEMENT
PLEDGED STOCK
Percentage
of
Class of Certificate Number Outstanding
Grantor Stock Issuer Stock Par Value No(s). of Shares Shares
------- ------------ ---------- --------- ----------- --------- ------------
AerCo Limited Aircraft Lease Portfolio Ordinary U.S.$1.00 3 10 100%
Securitization 94-1 Shares
Limited
AerCo Limited AerCo Ireland Limited Ordinary U.S.$1.00 N/A 150,000 100%
Shares
AerCo Limited AerCo Ireland Limited Irish Pound IR(pound)1.00 N/A 1 100%
Shares
Lively Limited AerCo Ireland Limited Irish Pound IR(pound)1.00 N/A 1 100%
Shares
AerCo Limited AerCo Ireland II Limited Ordinary U.S.$1.00 N/A 150,000 100%
Shares
AerCo Limited AerCo Ireland II Limited Irish Pound IR(pound)1.00 N/A 1 100%
Shares
Lively Limited AerCo Ireland II Limited Irish Pound IR(pound)1.00 N/A 1 100%
Shares
AerCo Limited AerCoUSA Inc. Voting N/A 1 10,000 100%
Trust
Certificates
AerCo Ireland II Limited AerFi Belgium N.V. Ordinary N/A N/A 1249 100%
Shares
Lively Limited AerFi Belgium N.V. Ordinary N/A N/A 1 100%
Shares
Aircraft Lease Portfolio Pergola Limited Ordinary IR(pound)1.00 N/A 1 100%
Securitization 94-1 Shares
Limited
Lively Limited Pergola Limited Ordinary IR(pound)1.00 N/A 1 100%
Shares
Aircraft Lease Portfolio ALPS 00-0 (Xxxxxxx) N.V. Ordinary N/A N/A 1249 100%
Securitization 94-1 Shares
Limited
Lively Limited ALPS 00-0 (Xxxxxxx) N.V. Ordinary N/A N/A 1 100%
Shares
Aircraft Lease Portfolio ALPS 94-1 (France) Ordinary FRF 100 N/A 499 100%
Securitization 94-1 S.A.R.L. Shares
Limited
Lively Limited ALPS 94-1 (France) Ordinary FRF 100 N/A 1 100%
S.A.R.L. Shares
56
PLEDGED DEBT
Promissory Note from AerCoUSA to the Issuer dated as of July 15, 1998.
Loan Expenses Apportionment and Guarantee Agreement dated as of July 15,
1998 between the Issuer and ALPS 94-1.
Loan Expenses Apportionment and Guarantee Agreement dated as
of July 15, 1998 between the Issuer and AerCo Ireland.
Loan Expenses Apportionment and Guarantee Agreement dated as of July 15,
1998 between the Issuer and AerCo Ireland II.
57
SCHEDULE II
SECURITY TRUST AGREEMENT
NON-TRUSTEE ACCOUNT INFORMATION
Name and Address of
Name and Address of Bank Non-Trustee Account Holder Account Number
================================================== =============================
Xxxxxxxx xx Xxxx, Xxxxxxxx XXXX 0000-0 (Xxxxxxx) N.V. 000-0000000-00
================================================== =============================
Citibank Brussels AerFi Belgium N.V. 000-0000000-00
================================================== =============================
Citibank Brussels AerFi Belgium N.V. 000-0000000-00
================================================== =============================
58
SCHEDULE III
SECURITY TRUST AGREEMENT
TRADE NAMES
None.
59
SCHEDULE IV
SECURITY TRUST AGREEMENT
CHIEF PLACE OF BUSINESS
AND
CHIEF EXECUTIVE OR REGISTERED OFFICE
------------------------ -------------------- ------------------------
Name of Grantor Place of Business Chief Executive or
Registered Office
------------------------ -------------------- ------------------------
AerCo Limited Ireland Registered Office
00 Xxxxxxxxx Xxxxxx
Xx. Xxxxxx, Xxxxxx
XX0 0XX
Channel Islands
------------------------ -------------------- ------------------------
Aircraft Lease Portfolio 00 Xxxxxxxxx Xxxxxx Registered Office
Securitization 00-0 Xx. Xxxxxx, Xxxxxx 00 Xxxxxxxxx Xxxxxx
Xxxxxxx XX0 0XX St. Helier, Jersey
Xxxxxxx Xxxxxxx XX0 0XX
Xxxxxxx Xxxxxxx
------------------------ -------------------- ------------------------
AerCo Ireland Limited Ireland Registered Xxxxxx
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xxxx
Xxxxxx 0
Xxxxxxx
------------------------ ------------------------- ------------------------
AerCo Ireland II Limited Ireland Registered Xxxxxx
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xxxx
Xxxxxx 0
Xxxxxxx
------------------------ -------------------------- ------------------------
AerCoUSA Inc. c/o Nationwide Information c/o Nationwide Information
Services, Inc. Services, Inc.
00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000 Dover, Delaware 00000
X.X.X. X.X.X.
------------------------ --------------------- ------------------------
AerFi Belgium X.X. Xxxxxxxxxxxxxx 000-000, Xxxxxxxxxxxxxx 101-103,
Bus 3 1200 Bus 3 1200
Sint-Lambrechts-Woluwe Sint-Lambrechts-Woluwe
Brussels Brussels
Belgium Belgium
60
IV-2
Chief Executive or
Registered Office
------------------------ ----------------------- ------------------------
ALPS 00-0 (Xxxxxxx) X.X. Xxxxxxxxxxxxxx 000-000, Xxxxxxxxxxxxxx 101-103,
Bus 3 1200 Bus 3 1200
Sint-Lambrechts-Woluwe Sint-Lambrechts-Woluwe
Brussels Brussels
Belgium Belgium
------------------------ ----------------------- ------------------------
Pergola Limited 0 Xxxxxxxxx Xxxxxx 0 Xxxxxxxxx Xxxxxx
Xxxxx Street Hatch Street
Dublin Dublin
Ireland Ireland
------------------------ ------------------------ ------------------------
61
EXHIBIT A
SECURITY TRUST AGREEMENT
FORM OF CREDIT FACILITY PROVIDER SUPPLEMENT
Bankers Trust Company, as Security Trustee
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 [Date]
Attention: [ ]
Re: Security Trust Agreement, dated as of July 15, 1998
Reference is made to the Security Trust Agreement, dated as of
July 15, 1998 (the "Security Trust Agreement"), among AerCo Limited, a limited
liability company incorporated under the laws of Jersey, Channel Islands, the
Issuer Subsidiaries party thereto, Bankers Trust Company, a New York banking
corporation, not in its individual capacity (except as otherwise provided
pursuant to Sections 6.03(i) and 6.03(ii) of the Security Trust Agreement), but
solely as the initial Security Trustee (the "Security Trustee") and the other
parties thereto. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Security Trust Agreement.
The undersigned hereby:
1. confirms that attached hereto is a true and complete copy of the
_________ Agreement, between the Issuer and the undersigned, dated as of
____ (the "Credit Facility Agreement"), which Credit Facility Agreement
constitutes a [Primary] [Secondary] Eligible Credit Facility under the
Indenture;
2. confirms that it has received a copy of the Security Trust Agreement
and such other documents and information as it deems appropriate to make
a decision to enter into this Credit Facility Provider Supplement;
3. confirms that upon entering into this Credit Facility Provider
Supplement, the undersigned shall become a party to the Security Trust
Agreement, subject to the terms and provisions thereof, including
Section 8.03(c) thereof, and each reference in the Security Trust
Agreement to a "Secured Party" shall also mean and be a reference to the
undersigned;
4. appoints and authorizes the Senior Trustee to take any and all
actions in respect of the Collateral as are delegated to the Senior
Trustee by the terms of the
62
A-2
Related Documents, together with any such powers and discretion as are
reasonably incidental thereto;
5. confirms its agreement to the limitations and qualifications of the
Security Trustee's obligations set forth in Article VI of the Security
Trust Agreement;
6. confirms its agreement that it is entitled only to the priority of
repayment accorded to a [Primary] [Secondary] Eligible Credit Facility
Provider under Section 3.08 of the Indenture; and
7. confirms that this Credit Facility Provider Supplement shall be
governed by, and construed in accordance with, the laws of the State of
New York.
Very truly yours,
[SECURED CREDIT FACILITY
PROVIDER]
By __________________________
Name:
Title:
Acknowledged and Agreed to
as of the date first above written:
BANKERS TRUST COMPANY,
not in its individual capacity, but
solely as the Security Trustee
By ________________________________
Name:
Title:
63
EXHIBIT B
SECURITY TRUST AGREEMENT
FORM OF SWAP PROVIDER SUPPLEMENT
Bankers Trust Company, as Security Trustee
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 [Date]
Attention: [ ]
Re: Security Trust Agreement, dated as of July 15, 1998
Reference is made to the Security Trust Agreement, dated as of
July 15, 1998 (the "Security Trust Agreement"), among AerCo Limited, a limited
liability company incorporated under the laws of Jersey, Channel Islands, the
Issuer Subsidiaries party thereto, Bankers Trust Company, a New York banking
corporation, not in its individual capacity (except as otherwise provided
pursuant to Sections 6.02(i) and 6.03(ii) of the Security Trust Agreement), but
solely as the initial Security Trustee (the "Security Trustee") and the other
parties thereto. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Security Trust Agreement.
The undersigned hereby:
1. confirms that attached hereto is a true and complete copy of the
_________ Agreement, between the Issuer and the undersigned, dated as of
____ (the "Swap Agreement"), which Swap Agreement meets the requirements
of Section 9.05 of the Indenture;
2. confirms that it has received a copy of the Security Trust Agreement
and such other documents and information as it deems appropriate to make
a decision to enter into this Swap Provider Supplement;
3. confirms that upon entering into this Swap Provider Supplement, the
undersigned shall become a party to the Security Trust Agreement,
subject to the terms and provisions thereof, including Section 8.03(c)
thereof, and each reference in the Security Trust Agreement to a
"Secured Party" shall also mean and be a reference to the undersigned;
4. appoints and authorizes the Senior Trustee to take any and all
actions in respect of the Collateral as are delegated to the Senior
Trustee by the terms of the
64
B-2
Related Documents, together with any such powers and discretion as are
reasonably incidental thereto;
5. confirms its agreement to the limitations and qualifications of the
Security Trustee's obligations set forth in Article VI of the Security
Trust Agreement; and
6. confirms that this Swap Provider Supplement shall be governed by,
and construed in accordance with, the laws of the State of New York.
Very truly yours,
[SECURED SWAP PROVIDER]
By _____________________________
Name:
Title:
Acknowledged and Agreed to
as of the date first above written:
BANKERS TRUST COMPANY,
not in its individual capacity, but
solely as the Security Trustee
By _________________________________
Name:
Title:
65
EXHIBIT C
SECURITY TRUST AGREEMENT
[FORM OF SECURITY TRUST AGREEMENT SUPPLEMENT]
Bankers Trust Company, as Security Trustee
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 [Date]
Attention: [ ]
Re: Security Trust Agreement, dated as of July 15, 1998
Gentlemen/Women:
Reference is made to the Security Trust Agreement, dated as of
July 15, 1998 (the "Security Trust Agreement"), among AerCo Limited, a limited
liability company incorporated under the laws of Jersey, Channel Islands, the
Issuer Subsidiaries party thereto, Bankers Trust Company, a New York banking
corporation, not in its individual capacity (except as otherwise provided
pursuant to Sections 6.03(i) and 6.03(ii) of the Security Trust Agreement), but
solely as the initial Security Trustee (the "Security Trustee") and the other
parties thereto. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Security Trust Agreement.
The undersigned hereby agrees, as of the date first above
written, to become a Grantor under the Security Trust Agreement as if it were an
original party thereto and agrees that each reference in the Security Trust
Agreement to "Grantor" shall also mean and be a reference to the undersigned.
The undersigned hereby assigns and pledges to the Security
Trustee for its benefit and the benefit of the Secured Parties with respect to
the undersigned, and hereby grants to the Security Trustee for its benefit and
the benefit of the Secured Parties with respect to the undersigned a security
interest in, all of its right, title and interest in and to:
(a) all of the following (collectively, the "Non-Trustee Account
Collateral"):
(i) all of the Non-Trustee Accounts (to the extent permitted
by applicable law) in such Grantor's name, all funds held or
required by the terms of the Indenture and any Guarantor
Indenture to be held therein and all certificates and
instruments, if any, from time to time representing or
evidencing such Non-Trustee Accounts;
66
C-2
(ii) all notes, certificates of deposit, deposit accounts,
checks and other instruments from time to time hereafter
delivered to or otherwise possessed by the Security Trustee for
or on behalf of such Grantor in substitution for or in addition
to any or all of the then existing Non-Trustee Account
Collateral of such Grantor; and
(ii) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
then existing Non-Trustee Account Collateral of such Grantor;
(b) all of the following (collectively, the "Cash Collateral"):
(i) all funds of such Grantor held or required by the terms of
the Indenture to be held in the Accounts and all certificates
and instruments, if any, from time to time representing or
evidencing such funds;
(ii) all notes, certificates of deposit, deposit accounts,
checks and other instruments from time to time hereafter
delivered to or otherwise possessed by the Security Trustee for
or on behalf of such Grantor in substitution for or in addition
to any or all of the then existing Cash Collateral of such
Grantor; and
(iii) all interest, dividends, instruments and other property
from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of the then
existing Cash Collateral of such Grantor;
(c) all "investment property" (as defined in Section
9-115(1)(f) of the UCC) of such Grantor, and all of the
following (the "Investment Collateral"):
(i) all Permitted Account Investments made or acquired from or
with the proceeds of any Non-Trustee Account Collateral or Cash
Collateral of such Grantor from time to time and all
certificates and instruments, if any, from time to time
representing or evidencing such Permitted Account Investments;
(ii) all notes, certificates of deposit, deposit accounts,
checks and other instruments from time to time hereafter
delivered to or otherwise possessed by the Security Trustee for
or on behalf of such Grantor in substitution for or in addition
to any or all of the then existing Investment Collateral of
such Grantor; and
(iii) all interest, dividends, instruments and other property
from time to time received, receivable or otherwise distributed
in respect of or in
67
C-3
exchange for any or all of the then
existing Investment Collateral of such Grantor; and
(d) all of the following (the "Security Collateral"):
(i) [ENUMERATE THE STOCK OF THE SUBSIDIARIES PLEDGED BY SUCH
GRANTOR] (the "Pledged Stock") held by it or any nominee on its
behalf and the certificates representing such Pledged Stock,
and all dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such Pledged Stock;
(ii) [ENUMERATE THE DEBT OF THE SUBSIDIARIES PLEDGED BY SUCH
GRANTOR] (the "Pledged Debt") owed to it and the instruments
evidencing such Pledged Debt, and all interest, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in
exchange for any or all of such Pledged Debt;
(iii) all additional shares of Stock from time to time
acquired by such Grantor in any manner, and the certificates
representing such additional shares and all dividends, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in
exchange for any or all such additional shares; and
(iv) all additional indebtedness from time to time owed to
such Grantor by any AerCo Group Member and the instruments
evidencing such indebtedness, and all interest, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in
exchange for any or all of such indebtedness;
(e) all of such Grantor's right, title and interest in and to all
Leases to which Grantor is or may from time to time be party and in any
lease, conditional sale agreement, hire purchase agreement or other
similar agreement with another AerCo Group Member under which it is the
lessor or vendor with respect to such Leases (the "Assigned Leases"),
including without limitation, (A) all rights of such Grantor to receive
moneys due and to become due under or pursuant to such Assigned Leases,
(B) all rights of such Grantor to receive proceeds of any Insurance,
indemnity, warranty or guaranty with respect to such Assigned Leases,
(C) claims of such Grantor for damages arising out of or for breach or
default under such Assigned Leases and (D) the right of such Grantor to
terminate such Assigned Leases, to perform thereunder and to compel
performance and otherwise exercise all remedies thereunder, whether
arising under such leases or by statute or at law or in equity;
[(f) enumerate any other collateral granted by the Grantor]; and
68
C-4
(g) all proceeds of any and all of the foregoing collateral (including,
without limitation, proceeds that constitute property of the types
described in subsections (a), (b), and (c), above).
The undersigned hereby makes each representation and warranty
set forth in Section 2.07 of the Security Trust Agreement (as supplemented by
the attached Annexes) and hereby agrees to be bound as a Grantor by all of the
terms and provisions of the Security Trust Agreement. Each reference in the
Security Trust Agreement to the Pledged Stock, the Pledged Debt, the Security
Collateral and the Assigned Leases shall be construed to include a reference to
the corresponding Collateral hereunder.
The undersigned hereby agrees, together with the Issuer,
jointly and severally to indemnify the Security Trustee, its officers,
directors, employees and agents in the manner set forth in Section 9.01 of the
Security Trust Agreement.
Attached is (i) an Account Letter in substantially the form of
Exhibit D to the Security Trust Agreement from the Non-Trustee Account Bank at
which such Non-Trustee Account is located and (ii) duly completed copies of
Annex I and Annex II hereto.
69
C-5
This Security Trust Agreement Supplement shall be governed by,
and construed in accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF GRANTOR]
By _____________________________
Name:
Title:
Acknowledged and agreed to
as of the date first above written:
BANKERS TRUST COMPANY,
not in its individual capacity, but
solely as the initial Security Trustee
By _________________________________
Name:
Title:
70
ANNEX I
SECURITY AGREEMENT SUPPLEMENT
TRADE NAMES
71
ANNEX II
SECURITY AGREEMENT SUPPLEMENT
CHIEF PLACE OF BUSINESS
AND
CHIEF EXECUTIVE OR REGISTERED OFFICE
72
EXHIBIT D
SECURITY TRUST AGREEMENT
FORM OF NON-TRUSTEE ACCOUNT LETTER
_______________, 1998
[Name and address
of Account Bank]
[Name of the Grantor]
Gentlemen/women:
Reference is made to Account No. __________ into which certain
monies, instruments and other properties are deposited from time to time (the
"Pledged Account") maintained with you by ____________________ (the "Grantor").
Pursuant to the Security Trust Agreement, dated as of July 15, 1998 (the
"Security Trust Agreement"), among the Grantor, GPA Cash Manager II Limited, as
the Cash Manager (the "Cash Manager"), various other parties and Bankers Trust
Company, not in its individual capacity (except as otherwise provided pursuant
to Sections 6.03(i) and 6.03(ii) of the Security Trust Agreement), but solely as
the initial Security Trustee (the "Security Trustee"), the Grantor has granted
to the Security Trustee a security interest in certain property of the Grantor,
including, among other things, the following (the "Collateral"): the Pledged
Account, all funds held or required by the terms of the Indenture or any
Guarantor Indenture to be held therein and all certificates and instruments, if
any, from time to time representing or evidencing such Pledged Account, all
notes, certificates of deposit, deposit accounts, checks and other instruments
from time to time hereafter delivered to or otherwise possessed by the Security
Trustee for or on behalf of such Grantor in substitution for or in addition to
any or all of the then existing Collateral, and all interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the then
existing Collateral, and all proceeds of any and all of the foregoing
Collateral. It is a condition to the continued maintenance of the Pledged
Account with you that you agree to this letter agreement. Capitalized terms used
herein, unless otherwise defined herein, have the meanings assigned to them in
the Security Trust Agreement.
By signing this letter agreement, you acknowledge notice of,
and consent to the terms and provisions of, the Security Trust Agreement and
confirm to the Security Trustee that you have received no notice of any other
pledge or assignment of the Pledged Account. Further, you hereby agree with the
Security Trustee that:
(a) Notwithstanding anything to the contrary in any other agreement
relating to the Pledged Account, the Pledged Account is and will be
subject to the terms and conditions of the Security Trust Agreement, and
will be subject to written
73
D-2
instructions only from an officer of the Security Trustee or from
an officer of the Cash Manager.
(b) You will follow your usual operating procedures for the handling of
any remittance received in the Pledged Account, including any remittance
that contains restrictive endorsements, irregularities (such as a
variance between the written and numerical amounts), undated or
postdated items, missing signatures, incorrect payees, etc.
(c) You will transfer, in same day funds, on each of your business
days, an amount equal to the credit balance of the Pledged Account
(other than any amount required to be left on deposit for local tax or
other regulatory or legal purposes) on such day to the following account
(the "Collection Account"):
[Insert address of Operating Bank and
account number of the Collection Account]
Each such transfer of funds shall neither comprise only part of a
remittance nor reflect the rounding off of any funds so transferred.
(d) All service charges and fees with respect to the Pledged Account
shall be payable by the Grantor, and deposited checks returned for any
reason shall not be charged to such account.
(e) The Security Trustee and the Cash Manager shall be entitled to
exercise any and all rights of the Grantor in respect of the Pledged
Account in accordance with the terms of the Security Trust Agreement,
and the undersigned shall comply in all respects with such exercise.
This letter agreement shall be binding upon you and your
successors and assigns and shall inure to the benefit of the Security Trustee,
the Secured Parties and their successors, transferees and assigns. You may
terminate this letter agreement only upon 30 days' prior written notice to the
Grantor and the Security Trustee. Upon such termination you shall close the
Pledged Account and transfer all funds in the Pledged Account to the Collection
Account. After any such termination, you shall nonetheless remain obligated
promptly to transfer to the Collection Account all funds and other property
received in respect of the Pledged Account.
74
D-3
This letter agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
[NAME OF GRANTOR]
By ____________________________________
Name:
Title:
BANKERS TRUST COMPANY,
not in its individual capacity, but solely
as the initial Security Trustee
By ___________________________________
Name:
Title:
Acknowledged and agreed to as of
the date first above written:
[NAME OF PLEDGED ACCOUNT BANK]
By _____________________________
Name:
Title:
75
EXHIBIT E
SECURITY TRUST AGREEMENT
FORM OF CONSENT AND AGREEMENT
_______________, 1998
[Name of the Grantor]
Gentlemen/women:
Reference is made to the agreement between you and the Grantor
dated [(the "Assigned Agreement")] [(the "Assigned Lease")].
Pursuant to the Security Trust Agreement, dated July 15, 1998
(the "Security Trust Agreement"), among the Grantor, Bankers Trust Company, not
in its individual capacity (except as otherwise provided pursuant to Sections
6.03(i) and 6.03(ii) of the Security Trust Agreement), but solely as the initial
Security Trustee (the "Security Trustee"), and various parties thereto, the
Grantor has granted to the Security Trustee a security interest in certain
property of the Grantor, including, among other things, the following (the
"Collateral"): [all of such Grantor's right, title and interest in and to the
Assigned Agreement] [all of such Grantor's right, title and interest in and to
the Assigned Lease, including without limitation, all rights of such Grantor to
receive moneys due and to become due under or pursuant to the Assigned Lease,
all rights of such Grantor to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to the Assigned Lease, claims of such Grantor
for damages arising out of or for breach or default under the Assigned Lease and
the right of such Grantor to terminate the Assigned Lease, to perform thereunder
and to compel performance and otherwise exercise all remedies thereunder,
whether arising under the Assigned Lease or by statute or at law or in equity.]
Capitalized terms used herein, unless otherwise defined herein, have the
meanings assigned to them in the Security Trust Agreement.
By signing this Consent and Agreement, you acknowledge notice
of, and consent to the terms and provisions of, the Security Trust Agreement and
confirm to the Security Trustee that you have received no notice of any other
pledge or assignment of the [Assigned Agreement] [Assigned Lease]. Further, you
hereby agree with the Security Trustee that:
(a) You will make all payments to be made by you under or in
connection with the [Assigned Agreement] [Assigned Lease] directly to the
[Rental Account] [Collection Account] or otherwise in accordance with the
instructions of the Security Trustee.
(b) The Security Trustee shall be entitled to exercise any and
all rights and remedies of the Grantor under the [Assigned Agreement] [Assigned
Lease] in accordance
E-2
76
with the terms of the Security Trust Agreement, and you will comply in all
respects with such exercise.
(c) [ONLY WITH RESPECT TO ASSIGNED AGREEMENTS] You will not,
without the prior written consent of the Security Trustee, (i) cancel or
terminate the Assigned Agreement or consent to or accept any cancellation or
termination thereof or (ii) amend or otherwise modify the Assigned Agreement.
This Consent and Agreement shall be binding upon you and your
successors and assigns and shall inure to the benefit of the Security Trustee,
the Secured Parties and their successors, transferees and assigns.
This Consent and Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
Very truly yours,
[NAME OF GRANTOR]
By _________________________________
Name:
Title:
BANKERS TRUST COMPANY,
not in its individual capacity, but solely
as the initial Security Trustee
By ________________________________
Name:
Title:
Acknowledged and agreed to as of
the date first above written:
[NAME OF OBLIGOR/LESSEE]
By _______________________________
Name:
Title:
77
EXHIBIT F
SECURITY TRUST AGREEMENT
FORM OF SERVICE PROVIDER SUPPLEMENT
Bankers Trust Company, as Security Trustee
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 [Date]
Attention: [ ]
Re: Security Trust Agreement, dated as of July 15, 1998
Reference is made to the Security Trust Agreement, dated as of
July 15, 1998 (the "Security Trust Agreement"), among AerCo Limited, a limited
liability company incorporated under the laws of Jersey, Channel Islands, the
Issuer Subsidiaries party thereto, Bankers Trust Company, a New York banking
corporation, not in its individual capacity (except as otherwise provided
pursuant to Sections 6.02(i) and 6.03(ii) of the Security Trust Agreement), but
solely as the initial Security Trustee (the "Security Trustee"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to them in the Security Trust Agreement.
The undersigned hereby:
1. confirms that attached hereto is a true and complete copy of the
_________ Agreement, between the Issuer and the undersigned, dated as of
____ (the "Service Provider Agreement");
2. confirms that it has received a copy of the Security Trust Agreement
and such other documents and information as it deems appropriate to make
a decision to enter into this Service Provider Supplement;
3. confirms that upon entering into this Service Provider Supplement,
the undersigned shall become a party to the Security Trust Agreement,
subject to the terms and provisions thereof, including Section 8.03(c)
thereof, and each reference in the Security Trust Agreement to a
"Secured Party" shall also mean and be a reference to the undersigned;
4. appoints and authorizes the Senior Trustee to take any and all
actions in respect of the Collateral as are delegated to the Senior
Trustee by the terms of the
78
F-2
Related Documents, together with any such powers and discretion as are
reasonably incidental thereto;
5. confirms its agreement to the limitations and qualifications of the
Security Trustee's obligations set forth in Article VI of the Security
Trust Agreement; and
6. confirms that this Service Provider Supplement shall be governed by,
and construed in accordance with, the laws of the State of New York.
Very truly yours,
[SERVICE SWAP PROVIDER]
By ______________________________
Name:
Title:
Acknowledged and Agreed to
as of the date first above written:
BANKERS TRUST COMPANY,
not in its individual capacity, but
solely as the Security Trustee
By ____________________________________
Name:
Title:
79
EXHIBIT G
SECURITY TRUST AGREEMENT
FORM OF TAX-RELATED DISPOSITION SUPPLEMENT
Bankers Trust Company, as Security Trustee
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 [Date]
Attention: [ ]
Re: Security Trust Agreement, dated as of July 15, 1998
Reference is made to the Security Trust Agreement, dated as of
July 15, 1998 (the "Security Trust Agreement"), among AerCo Limited, a limited
liability company incorporated under the laws of Jersey, Channel Islands, the
Issuer Subsidiaries party thereto, Bankers Trust Company, a New York banking
corporation, not in its individual capacity (except as otherwise provided
pursuant to Sections 6.03(i) and 6.03(ii) of the Security Trust Agreement), but
solely as the initial Security Trustee (the "Security Trustee") and the other
parties thereto. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Security Trust Agreement.
The undersigned hereby:
1. confirms that attached hereto is a true and complete copy of the
_________ Agreement, between the Issuer and the undersigned, dated as of
____ (the "Tax-Related Disposition Agreement");
2. confirms that it has received a copy of the Security Trust Agreement
and such other documents and information as it deems appropriate to make
a decision to enter into this Tax-Related Disposition Supplement;
3. confirms that upon entering into this Tax-Related Disposition
Supplement, the undersigned shall become a party to the Security Trust
Agreement, subject to the terms and provisions thereof, including
Section 8.03(c) thereof, and each reference in the Security Trust
Agreement to a "Secured Party" shall also mean and be a reference to the
undersigned;
4. appoints and authorizes the Senior Trustee to take any and all
actions in respect of the Collateral as are delegated to the Senior
Trustee by the terms of the
80
G-2
Related Documents, together with any such powers and discretion as are
reasonably incidental thereto;
5. confirms its agreement to the limitations and qualifications of the
Security Trustee's obligations set forth in Article VI of the Security
Trust Agreement;
6. confirms its agreement that it is entitled only to the priority of
repayment accorded to Subordinated Tax-Related Disposition Payments
under Section 3.08 of the Indenture; and
7. confirms that this Tax-Related Disposition Supplement shall be
governed by, and construed in accordance with, the laws of the State of
New York.
Very truly yours,
[SECURED TAX-RELATED DISPOSITION PARTY]
By __________________________________
Name:
Title:
Acknowledged and Agreed to
as of the date first above written:
BANKERS TRUST COMPANY,
not in its individual capacity, but
solely as the Security Trustee
By __________________________________
Name:
Title:
81
EXHIBIT H
SECURITY TRUST AGREEMENT
FORM OF QUIET ENJOYMENT LETTER
[To come from XxXxxx Xxxxxxxxxx]
82
Quiet Enjoyment Letter
To: [Lessee]
From: Banker Trust Company
Date: July 1998
Dear Sirs
[ ] Aircraft
Manufacturer's Serial Number [ ] (the "Aircraft")
Aircraft Lease Agreement (as amended and novated) dated [ ] between
[ ] ("Existing Lessor") and [ ] ("Lessee") and Novation of Lease
dated [ ] between Existing Lessor. [ ] (the "New Lessor") and the
Lessee (the "Lease");
Security Trust Agreement (the "Security Agreement") dated 15 July 1998 between
AerCo Limited and its subsidiaries (of which the New Lessor is one) (the
"Assignors"), Bankers Trust Company (the "Security Trustee") and the other
parties named therein;
1. We hereby irrevocably confirm that we will not interfere with the quiet and
peaceful possession, enjoyment and use of the Aircraft by you throughout
the term of the Lease, so long as no Event of Default under the Lease has
occurred and is continuing.
2. The foregoing undertaking is not to be construed as restricting any rights
we may have under the Lease (including any rights in respect of the
Aircraft) arising pursuant to applicable provisions of the Security
Agreement. However, if we exercise such rights during the term of the Lease
and provided that no Event of Default has occurred and is continuing under
the Lease we will (subject to any requirements or restrictions imposed by
applicable law) exercise any rights subject to the terms of the Lease.
3. The rights conferred by this letter are granted only to you and do not
extend to any assignee, successor or sub-lessee.
________________________________________________
Bankers Trust Company
By:
Name:
Title:
