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Exhibit 4.1
EXECUTION COPY
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INDENTURE
dated as of July 15, 1998
by and between
AerCo LIMITED, a limited liability company incorporated
in Jersey, Channel Islands, as issuer of the Notes,
and
BANKERS TRUST COMPANY, as initial
trustee of the Notes
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Reconciliation and tie between the Indenture, dated as of July 15, 1998, and
the Trust Indenture Act of 1939, as amended. This reconciliation does not
constitute part of the Indenture.
Trust Indenture Act
of 1939 Section Indenture Section
------------------- -----------------
310(a)(1) 6.09
(a)(2) 6.09
(b) 6.08
311 6.08
312(a) 2.07
313(a) 6.10
313(c) 6.10/6.11(c)
314(a) 6.11(a) - (c)
(a)(4) 6.11(d)
(c)(1) 1.03
(c)(2) 1.03
(e) 1.03
315(b) 6.07
315(d) 6.01
316(a)(last sentence) 1.04(c)
(a)(1)(A) 4.12
(a)(1)(B) 4.05
(b) 4.09
(c) 1.04(d)
317(a)(1) 4.03; 13.04
(a)(2) 4.10
(b) 2.04
318(a) 13.13
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS PAGE
Section 1.01. Definitions........................................... 1
Section 1.02. Rules of Construction................................. 34
Section 1.03. Compliance Certificates and Opinions.................. 35
Section 1.04. Acts of Noteholders................................... 36
Section 1.05. Incorporation by Reference of Trust Indenture Act..... 37
ARTICLE II
THE NOTES
Section 2.01. Amount Not to Exceed the Initial Outstanding Principal
Balance; Terms; Form; Execution and Delivery....................... 38
Section 2.02. Restrictive Legends.................................... 41
Section 2.03. Registrar and Paying Agent............................. 42
Section 2.04. Paying Agent to Hold Money in Trust.................... 44
Section 2.05. Method of Payment...................................... 44
Section 2.06. Minimum Denomination................................... 45
Section 2.07. Transfer and Exchange; Cancellation.................... 45
Section 2.08. Mutilated, Destroyed, Lost or Stolen Notes............. 48
Section 2.09. Payments of Transfer Taxes............................. 48
Section 2.10. Refinancing of A-D Notes............................... 48
Section 2.11. Issuer Additional Notes................................ 50
Section 2.12. Remaining Subclass D-1 Notes and Remaining Subclass E-1
Notes................................................................. 51
Section 2.13. Special Transfer Provisions............................ 52
Section 2.14. Temporary Definitive Registered Notes.................. 54
Section 2.15. Statements to Noteholders.............................. 55
Section 2.16. CUSIP, CINS AND ISIN Numbers........................... 56
ARTICLE III
ACCOUNTS; PRIORITY OF PAYMENTS
Section 3.01. Establishment of Accounts.............................. 56
Section 3.02. Investments of Cash.................................... 61
Section 3.03. Closing Date Deposits, Withdrawals and Transfers....... 62
Section 3.04. Interim Deposits and Withdrawals....................... 62
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Section 3.05. Interim Deposits and Withdrawals for Modification
Payments or Dispositions of Aircraft.................... 64
Section 3.06. Calculation Date Calculations........................... 64
Section 3.07. Payment Date First Step Withdrawals and Transfers....... 66
Section 3.08. Payment Date Second Step Withdrawals.................... 67
Section 3.09. Allocations of Principal Payments Among Subclasses
of the Notes............................................ 72
Section 3.10. Certain Redemptions; Certain Premiums................... 73
Section 3.11. Adjustment of Class Percentages and Target
Principal Balances...................................... 75
ARTICLE IV
DEFAULT AND REMEDIES
Section 4.01. Events of Default....................................... 75
Section 4.02. Acceleration, Rescission and Annulment.................. 77
Section 4.03. Other Remedies.......................................... 78
Section 4.04. Limitation on Suits..................................... 78
Section 4.05. Waiver of Existing Defaults............................. 78
Section 4.06. Restoration of Rights and Remedies...................... 79
Section 4.07. Remedies Cumulative..................................... 79
Section 4.08. Authority of Courts Not Required........................ 79
Section 4.09. Rights of Noteholders to Receive Payment................ 79
Section 4.10. Trustee May File Proofs of Claim........................ 80
Section 4.11. Undertaking for Costs................................... 80
Section 4.12. Control by Noteholders.................................. 80
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.01. Representations and Warranties.......................... 80
Section 5.02. General Covenants....................................... 83
Section 5.03. Operating Covenants..................................... 95
ARTICLE VI
THE TRUSTEE
Section 6.01. Acceptance of Trusts and Duties......................... 100
Section 6.02. Absence of Duties....................................... 100
Section 6.03. Representations or Warranties........................... 100
Section 6.04. Reliance; Agents; Advice of Counsel..................... 100
Section 6.05. Not Acting in Individual Capacity....................... 102
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Section 6.06. No Compensation from Noteholders....................... 102
Section 6.07. Notice of Defaults..................................... 102
Section 6.08. May Hold Notes......................................... 103
Section 6.09. Corporate Trustee Required; Eligibility................ 103
Section 6.10. Reports by Trustee..................................... 103
Section 6.11. Reports by the Issuer.................................. 103
ARTICLE VII
SUCCESSOR TRUSTEES
Section 7.01. Resignation and Removal of Trustee..................... 104
Section 7.02. Appointment of Successor............................... 104
ARTICLE VIII
INDEMNITY
Section 8.01. Indemnity.............................................. 106
Section 8.02. Noteholders' Indemnity................................. 106
ARTICLE IX
MODIFICATION
Section 9.01. Modification with Consent of Holders................... 106
Section 9.02. Modification Without Consent of Holders................ 107
Section 9.03. Subordination and Priority of Payments................. 107
Section 9.04. Execution of Amendments by Trustee..................... 108
Section 9.05. Swap Providers......................................... 108
Section 9.06. Conformity with Trust Indenture Act.................... 108
ARTICLE X
SUBORDINATION
Section 10.01. Subordination of the Notes............................ 108
ARTICLE XI
DISCHARGE OF INDENTURE; DEFEASANCE
Section 11.01. Discharge of Liability on the Notes; Defeasance....... 110
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Section 11.02. Conditions to Defeasance.............................. 111
Section 11.03. Application of Trust Money............................ 113
Section 11.04. Repayment to Issuer................................... 113
Section 11.05. Indemnity for Government Obligations and Corporate
Obligations........................................... 113
Section 11.06. Reinstatement......................................... 113
ARTICLE XII
GUARANTEE
Section 12.01. Guarantee............................................. 114
Section 12.02. Conditions to Effectiveness of Guarantee.............. 116
Section 12.03. Ranking and Subordination of the Guarantees........... 116
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Right of Trustee to Perform........................... 117
Section 13.02. Waiver................................................ 117
Section 13.03. Severability.......................................... 118
Section 13.04. Restrictions on Exercise of Certain Rights............ 118
Section 13.05. Notices............................................... 118
Section 13.06. Assignments........................................... 121
Section 13.07. Currency Conversion................................... 121
Section 13.08. Application to Court.................................. 122
Section 13.09. Governing Law......................................... 122
Section 13.10. Jurisdiction.......................................... 122
Section 13.11. Counterparts.......................................... 123
Section 13.12. Table of Contents, Headings, Etc...................... 123
Section 13.13. Trust Indenture Act................................... 123
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Schedules
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Schedule A - Initial Appraised Value of the Initial Aircraft
Schedule B - Issuer Subsidiaries
Exhibits
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Exhibit A-1 - Form of Subclass A-1 Floating Rate Note
Exhibit A-2 - Form of Subclass A-2 Floating Rate Note
Exhibit B - Form of Subclass B-1 Floating Rate Note
Exhibit C - Form of Subclass C-1 Floating Rate Note
Exhibit D - Form of Subclass D-1 Fixed Rate Note
Exhibit E - Form of Subclass E-1 Fixed Rate Note
Exhibit F - Concentration Limits
Exhibit G - Agents for Service of Process
Exhibit H - Insurance Provisions
Exhibit I - Form of Monthly Report to the Issuer and Each Rating Agency
Exhibit J - Form of Certificate of Transfer
Exhibit K - Core Lease Provisions
Appendices
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Appendix A - Class Percentages
Appendix B - Target Principal Balances
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TRUST INDENTURE, dated as of July 15, 1998 (this "Indenture"), by
and among AerCo LIMITED, a limited liability company incorporated
in Jersey, Channel Islands ("AerCo"), as issuer of the Notes (the
"Issuer"), and BANKERS TRUST COMPANY, as trustee of each subclass
of Notes (the "Trustee").
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For purposes of this Indenture, the
following terms shall have the meanings indicated below:
"A-C Note Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Initial Closing Date, between the Issuer and Xxxxxx
Xxxxxxx & Co. Incorporated.
"A-D Notes" means the Class A Notes, the Class B Notes, the Class C Notes
and the Class D Notes.
"Acceleration Default" means any Event of Default of the type described in
Section 4.01(f) or 4.01(g) hereof.
"Accounts" means the Rental Accounts, the Collection Account, the
Defeasance/Redemption Account, the Expense Account, the Lessee Funded Account,
the Aircraft Purchase Account and the Refinancing Account and any ledger and
subledger accounts maintained therein in accordance with this Indenture.
"Acquisition Agreements" means the Share Purchase Agreement, the ALPS 94-1
Share Purchase Agreement and any agreements pursuant to which Remaining or
Substitute Aircraft or Issuer Additional Aircraft are acquired, the AerFi Share
Purchase Agreement and the Cash Flow Swap Agreement.
"Act", with respect to any Noteholder, has the meaning given to such term
in Section 1.04 hereof.
"Additional Aircraft" means the Issuer Additional Aircraft and the
Guarantor Additional Aircraft.
"Additional Issuance" has the meaning given to such term in Section 2.11
hereof.
"Additional Lease" means, with respect to each Additional Aircraft, each
aircraft lease agreement, conditional sale agreement, hire purchase agreement
or other similar arrangement with respect to such Additional Aircraft on the
relevant Closing Date.
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"Additional Servicer" means a servicer of any Issuer Additional Aircraft
pursuant to an Additional Servicing Agreement.
"Additional Servicing Agreement" means any servicing agreement entered
into to service any Issuer Additional Aircraft.
"Adjusted Base Value" means, with respect to any Aircraft on any
Calculation Date, the average of the Base Values of such Aircraft as determined
by the Appraisals of such Aircraft delivered in connection with the Relevant
Appraisal with respect to such Calculation Date.
"Adjusted Portfolio Value" means, in respect of any Payment Date, the sum
of the products of (i) the Adjusted Base Value of each Aircraft in the
Portfolio on the Calculation Date preceding such Payment Date and (ii) the
quotient obtained by dividing the applicable Depreciation Factor for such
Aircraft on such Calculation Date by the applicable Depreciation Factor for
such Aircraft as of the Relevant Appraisal with respect to such Calculation
Date.
"Administrative Agency Agreement" means the Administrative Agency
Agreement dated as of the Initial Closing Date among the Administrative Agent,
GPA Group, AerCo and the Issuer Subsidiaries parties thereto.
"Administrative Agent" means GPA Administrative Services Limited, a
company incorporated under the laws of Ireland, in its capacity as
administrative agent under the Administrative Agency Agreement, including its
successors in interest and permitted assigns, until a successor Person shall
have become the administrative agent under such agreement, and thereafter
"Administrative Agent" shall mean such successor Person.
"AerCo Group" means the Issuer, any Issuer Subsidiary, any Guarantor and
any Guarantor Subsidiary.
"AerCo Group A-D Notes" means the AerCo Group Class A Notes, the AerCo
Group Class B Notes, the AerCo Group Class C Notes and the AerCo Group Class D
Notes.
"AerCo Group Additional Notes" means the Issuer Additional Notes and the
Guarantor Additional Notes.
"AerCo Group Class A Notes" means the Class A Notes and the Guarantor
Class A Additional Notes.
"AerCo Group Class B Notes" means the Class B Notes and the Guarantor
Class B Additional Notes.
"AerCo Group Class C Notes" means the Class C Notes and the Guarantor
Class C Additional Notes.
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"AerCo Group Class D Notes" means the Class D Notes and the Guarantor
Class D Additional Notes.
"AerCo Group Class E Notes" means the Class E Notes and the Guarantor
Class E Additional Notes.
"AerCo Group Fixed Rate Notes" means the AerCo Group Notes issued with a
fixed rate of interest.
"AerCo Group Floating Rate Notes" means the AerCo Group Notes issued with
a floating or variable rate of interest.
"AerCo Group Member" means the Issuer, any Guarantor, any Issuer
Subsidiary or any Guarantor Subsidiary.
"AerCo Group Notes" means the Notes and the Guarantor Additional Notes.
"AerCo Group Refinancing Notes" means the Refinancing Notes and the
"Refinancing Notes" referred to in a Guarantor Indenture.
"AerCo Group Related Collateral Document" means any Related Collateral
Document or any "Related Collateral Document" referred to in a Guarantor
Indenture.
"AerCo Ireland" means AerCo Ireland Limited, an Irish limited liability
company with a registered number of 275814.
"AerCo Ireland II" means AerCo Ireland II Limited, an Irish limited
liability company with a registered number of 275810.
"AerCoUSA" means AerCoUSA Inc., a Delaware corporation wholly-owned by the
Issuer.
"AerFi" means AerFi Belgium N.V., a company incorporated under the laws of
Belgium with a registered number of 467.580.
"AerFi Share Purchase Agreement" means the Share Purchase Agreement dated
as of the date hereof between AerCo Ireland II and GPA Group.
"affiliate" has the meaning given to such term in Section 5.02(b) hereof.
"Agreed Currency" has the meaning given to such term in Section 13.07(a)
hereof.
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"Agreed Value Payment" means a payment to be made by or on behalf of a
Lessee under a Lease upon or following a Total Loss of an Aircraft with respect
to such Total Loss.
"Aircraft" means the Initial Aircraft and the Additional Aircraft.
"Aircraft Agreement" has the meaning given to such term in Section 5.02(g)
hereof.
"Aircraft Owning Subsidiaries" means initially, ALPS 94-1, AerCo Ireland,
AerCo Ireland II, AerCoUSA, any successor corporations and any other Issuer
Subsidiaries holding title to an Aircraft.
"Aircraft Purchase Account" has the meaning given to such term in Section
3.01(h) hereof.
"Aircraft Sale" means any sale or other disposition of any Aircraft,
including by reason of such Aircraft suffering a Total Loss.
"Allowed Restructuring" has the meaning given to such term in Section
5.02(e) hereof.
"ALPS 94-1" means Aircraft Lease Portfolio Securitization 94-1 Limited, a
company incorporated with limited liability under the laws of Jersey, Channel
Islands.
"ALPS 00-0 (Xxxxxxx)" xxxxx XXXX 00-0 (Xxxxxxx) N.V., a company
incorporated under the laws of Belgium with a registered number 392.073.
"ALPS 94-1 Share Purchase Agreement" means the Share Purchase Agreement
dated as of July 15, 1998, between Mourant & Co. Trustees Limited as trustees
of the ALPS 94-1 Trust and the Issuer for all the outstanding share capital of
ALPS 94-1.
"Applicable Aviation Authority" means, in relation to any Aircraft, each
governmental or regulatory authority that has responsibility for the
supervision of civil aviation and/or the registration and operations of civil
aircraft in the State of Registration of such Aircraft.
"Applicable Law" means, with respect to any Person, all laws, rules,
regulations and orders of governmental regulatory authorities applicable to
such Person, including, without limitation, the regulations of each Applicable
Aviation Authority applicable to such Person.
"Applicable Procedures" means, with respect to any transfer or exchange of
Book-Entry Interests, the rules and procedures of the Book-Entry Depositary,
the Depository,
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Euroclear and Cedel and any of their Participants and Indirect Participants
that apply to such transfer or exchange.
"Appraisal" means a desktop appraisal of the Base Value of an Aircraft
made pursuant to Section 5.03(c) hereof.
"Appraisers" has the meaning set forth in Section 5.03(c) hereof.
"Assumed Portfolio Value" means, in respect of any Payment Date, the sum
of the products of (i) the Initial Appraised Value of each Aircraft in the
Portfolio on the Calculation Date preceding such Payment Date and (ii) the
quotient obtained by dividing the Depreciation Factor applicable to such
Aircraft on such Calculation Date by the Depreciation Factor applicable to such
Aircraft on the relevant Closing Date.
"Authorized Agent" means, with respect to the Notes of any subclass, any
authorized Paying Agent or Registrar for the Notes of such subclass.
"Available Collections Amount" means, as of any Calculation Date, amounts
on deposit in the Collection Account less the Required Expense Amount
determined as of such date.
"Xxxxxxx & Xxxxx" means Xxxxxxx & Xxxxx Limited, a limited liability
company organized under the laws of Ireland.
"Bankers Trust" means Bankers Trust Company, a New York banking
corporation currently located at Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Base Value" means the value of an Aircraft in an open, unrestricted,
stable market environment with a reasonable balance of supply and demand, and
with full consideration of the Aircraft's "highest and best use", presuming an
arm's-length, cash transaction between willing, able and knowledgeable parties,
acting prudently, with an absence of duress and with a reasonable period of
time available for marketing, adjusted to account for the maintenance status of
such Aircraft (with certain assumptions as to use since the last reported
status).
"Basic Terms Modification" has the meaning given to such term in Section
9.01 hereof.
"Belgian Security Documents" means the Pledge Agreement by AerFi to AerCo
Ireland II, the Pledge Agreement from ALPS 00-0 (Xxxxxxx) to Pergola, the Share
Pledge in respect of the shares of ALPS 00-0 (Xxxxxxx) and the Share Pledge in
respect of the shares of AerFi, each dated as of the date hereof.
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"Board" means, with respect to the Issuer, the board of directors of the
Issuer and, with respect to any AerCo Group Member other than the Issuer, an
equivalent governing body.
"Board Resolution" means a copy of a resolution certified as having been
duly adopted by the Board of the Issuer and being in full force and effect on
the date of such certification.
"Book-Entry Depositary" means Bankers Trust in its capacity as book-entry
depositary pursuant to the terms of the Deposit Agreement, including its
successors in interest and permitted assigns.
"Book-Entry Interest" means an indirect beneficial interest in a Global
Note held through a corresponding Depositary Interest and shown on, and
transferred only through, records maintained in book-entry form by the
Depository (with respect to the Participants) and its Participants.
"Business Day" means a day on which U.S. dollar deposits may be dealt in
on the London inter-bank market and commercial banks and foreign exchange
markets are open in New York, New York and London, England and, with respect to
payments to or withdrawals from the Non-Trustee Accounts, a day on which the
financial institution at which such account is located is open for business.
"Calculation Date" means the fourth Business Day immediately preceding
each Payment Date.
"Cash Management Agreement" means the Cash Management Agreement dated as
of the Initial Closing Date among AerCo, the Issuer Subsidiaries parties
thereto, GPA Group, the Trustee, the Security Trustee and the Cash Manager.
"Cash Manager" means GPA Cash Manager II Limited, a limited company
organized under the laws of Ireland, in its capacity as cash manager under the
Cash Management Agreement, including its successors in interest, until a
successor Person shall have become the cash manager under that agreement, and
thereafter, "Cash Manager" shall mean such successor Person.
"Cedel" means Cedel Bank, societe anonyme.
"Charitable Trust" means the charitable trust established under the laws
of Jersey, Channel Islands, which beneficially owns 95% of the issued shares of
the Issuer.
"Charitable Trustee" means the trustee of the Charitable Trust.
"Class A Notes" means, collectively, the Subclass A-1 Notes and the
Subclass A-2 Notes, each substantially in the form attached as Exhibits A-1 and
A-2 hereto, any
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Refinancing Notes issued to refinance any subclass of the Class A Notes and any
Issuer Additional Notes of such class.
"Class B Notes" means the Subclass B-1 Notes, each substantially in the
form attached as Exhibit B-1 hereto, any Refinancing Notes issued to refinance
any subclass of the Class B Notes and any Issuer Additional Notes of such
class.
"Class C Notes" means the Subclass C-1 Notes, each substantially in the
form attached as Exhibit C-1 hereto, any Refinancing Notes issued to refinance
any subclass of the Class C Notes and any Issuer Additional Notes of such
class.
"Class D Notes" means the Subclass D-1 Notes, each substantially in the
form attached as Exhibit D-1 hereto, any Refinancing Notes issued to refinance
any subclass of the Class D Notes and any Issuer Additional Notes of such
class.
"Class E Note Accrued Interest Amount" means, on any Payment Date, the
aggregate interest accrued on the Outstanding Principal Balance of the AerCo
Group Class E Notes during the related Interest Accrual Period at the adjusted
interest rate per annum set forth on the face of such AerCo Group Class E Notes
(after giving effect to the Class E Note Primary Interest Amount paid on such
Payment Date) and the aggregate interest accrued and unpaid from any prior
Interest Accrual Period on the AerCo Group Class E Notes.
"Class E Note Primary Interest Amount" means, on any Payment Date, the
aggregate interest accrued on the Initial Outstanding Balance of the AerCo
Group Class E Notes during the related Interest Accrual Period at a rate of 15%
per annum.
"Class E Note Representative" means the representative of the Noteholders
of the Class E Notes selected by Holders of a majority of the Outstanding
Principal Balance of the Class E Notes, initially GPA Group.
"Class E Notes" means the Subclass E-1 Notes, each substantially in the
form attached as Exhibit E-1 hereto and any Issuer Additional Notes of such
class.
"Class Percentage" means each of the Minimum Class Percentage, Scheduled
Class Percentage and Supplemental Class Percentage.
"Closing Date" means in the case of (i) the Initial Notes and the Initial
Aircraft, the Initial Closing Date, (ii) any Remaining Subclass D-1 Notes,
Remaining Subclass E-1 Notes, Refinancing Notes or AerCo Group Additional
Notes, the relevant date of issuance of such Notes and (iii) any Additional
Aircraft, the date of issuance of the AerCo Group Additional Notes issued to
finance the acquisition of such Additional Aircraft.
"Collateral" has the meaning given to such term in the Security Trust
Agreement.
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"Collection Account" has the meaning given to such term in Section 3.01(b)
hereof.
"Collections" means, without duplication, (i) Rental Payments (other than
Segregated Funds) and all other amounts received by any AerCo Group Member
pursuant to any Lease or AerCo Group Related Collateral Document, (ii) the
amount on deposit in the Collection Account in respect of the Liquidity Reserve
Amount, (iii) amounts received in respect of claims for damages or in respect
of any breach of contract for nonpayment of any of the foregoing (including any
amounts received from any AerCo Group Member, whether by way of distribution,
dividend, repayment of a loan or otherwise, and any proceeds received in
connection with any Allowed Restructuring), (iv) the amount received by any
AerCo Group Member in connection with any Aircraft Sale or otherwise received
under any Aircraft Agreement, including sale proceeds, Total Loss Proceeds,
Agreed Value Payments, proceeds of PRI, Requisition Compensation and all
Partial Loss Proceeds, less, in each case, any expenses payable by such AerCo
Group Member to any Person that is not an AerCo Group Member in connection
therewith, (v) other amounts received by any AerCo Group Member from insurance
with respect to any Aircraft, (vi) any amounts transferred from the Lessee
Funded Account into the Collection Account in accordance with Section 3.07
hereof, (vii) any Swap Receipts, (viii) the proceeds of any investments of the
funds in the Accounts (except to the extent that any such proceeds are required
to be paid over to any Lessee under a Lease), (ix) any amounts transferred from
the Aircraft Purchase Account into the Collection Account in accordance with
Section 3.04 hereof, (x) any amounts transferred from the Tax Defeasance
Account into the Collection Account in accordance with Section 3.04 hereof,
(xi) prior to the delivery of the Remaining Aircraft or Substitute Aircraft,
(X) the amount of the rental and other payments received by GPA under the
Leases of such Remaining Aircraft less (Y) the amount of the Investments on the
funds on deposit in the Aircraft Purchase Account allocable to such Remaining
Aircraft in respect of the period commencing on the day next following the
preceding Calculation Date and ending on the Calculation Date of an Interest
Accrual Period; provided that if GPA does not receive payments in full of such
rental and other payments due during such period, the amount of Investments
deducted from (Y) above will be reduced by multiplying a ratio the numerator of
which is the amount of nonpayments in respect of such period and the
denominator of which is the amount of rental and other payments due in respect
of such period and (xii) any other amounts received by any AerCo Group Member
other than (A) Segregated Funds, (B) funds to be applied in connection with a
redemption under Section 3.10(a) or (b) under this Indenture or under any
Guarantor Indenture, which shall be deposited in the Defeasance/Redemption
Account, (C) funds received in connection with a Refinancing and (D) other
amounts required to be paid over to any third party pursuant to any Related
Document or Tax-Related Disposition Agreement, in each case subject to the
restrictions set forth in this Indenture and any Guarantor Indenture.
"Commission" means the U.S. Securities and Exchange Commission, as from
time to time constituted or created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
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"Company Secretary" means Mourant & Co. Secretaries Limited, including its
successors in interest and permitted assigns.
"Concentration Default" has the meaning given to such term in Section
5.02(g) hereof.
"Concentration Limits" has the meaning given to such term in Section
5.03(a) hereof.
"control" has the meaning given to such term in Section 5.02(b) hereof,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Core Lease Provisions" has the meaning given to such term in Section
5.03(f) hereof.
"Corporate Obligations" has the meaning given to such term in Section
11.02 hereof.
"Corporate Trust Office" means, with respect to the Trustee, the office of
such trustee in the city at which at any particular time its corporate trust
business shall be principally administered and, with respect to the Trustee on
the date hereof, shall be Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust and Agency Group--Structured Finance, Facsimile No:
x000-000-0000.
"covenant defeasance" has the meaning given to such term in Section 11.01
hereof.
"Credit Facility" means any letter of credit, guarantee or other credit
enhancement or liquidity enhancement facility in favor of the Issuer.
"D Note Registration Rights Agreement" means the Registration Rights
Agreement dated as of the date hereof between GPA Group and the Issuer.
"DCR" means Duff and Xxxxxx Credit Rating Co., and any successor thereto,
or, if such corporation or its successor shall for any reason no longer perform
the functions of a securities rating agency, "DCR" shall be deemed to refer to
any other nationally recognized rating agency designated by the Issuer.
"Default" means a condition, event or act which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"Default Notice" means a notice given to the Issuer by Holders
representing 25% of the aggregate Outstanding Principal Balance of the Senior
Class of Notes, with a copy to the Trustee of each subclass of Notes, the Cash
Manager and the Xxxxxxxxxxxxxx Xxxxx,
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declaring all Outstanding principal of and accrued and unpaid interest on the
Notes to be immediately due and payable.
"Defeasance/Redemption Account" has the meaning given to such term in
Section 3.01(g) hereof.
"Definitive Registered Notes" has the meaning given to such term in
Section 2.01(b) hereof.
"Deposit Agreement" means the Note Depositary Agreement, dated as of July
15, 1998, between the Issuer and Bankers Trust, as Book-Entry Depositary, with
respect to the Global Notes, as amended from time to time in accordance with
the terms thereof.
"Depositary Interest" means a certificateless depositary interest
representing a 100% beneficial interest in a Global Note.
"Depository" means The Depository Trust Company, its nominees and their
respective successors.
"Depreciation Factor" means, (i) with respect to each Initial Aircraft on
any date of determination, if positive, the product of (1-kn) and 1.02n ,
where "n" equals the age of such Aircraft in years from the date of its
manufacture and "k" equals a fraction, the numerator of which is 1 and the
denominator of which is the Expected Useful Life of such Initial Aircraft and
(ii) with respect to each Additional Aircraft, the Depreciation Factor
determined by the Board in connection with the issuance of the AerCo Group
Additional Notes funding the acquisition of such Additional Aircraft.
"Direction" has the meaning given to such term in Section 1.04(c) hereof.
"DTC" means The Depository Trust Company.
"Eligibility Requirements" has the meaning given to such term in Section
2.03(b) hereof.
"Eligible Account" means a segregated trust account with an Eligible
Institution.
"Eligible Credit Facility" means any Credit Facility provided by, or
supported with a further Credit Facility provided by, an Eligible Provider.
"Eligible Institution" means (a) Bankers Trust, so long as it has (A) a
long-term unsecured debt rating of A (or the equivalent) or better by each
Rating Agency or (B) a certificate of deposit rating of A-1 by Standard &
Poor's and P-1 by Moody's and is otherwise acceptable to DCR; and (b) any bank
organized under the laws of the United States of America or any state thereof,
or the District of Columbia (or any domestic branch of a foreign
18
11
bank), which at all times has either (A) a long-term unsecured debt rating of
AA (or the equivalent) or better by each Rating Agency or (B) a certificate of
deposit rating of A-l+ by Standard & Poor's, P-1 by Moody's and D-1 by DCR.
"Eligible Provider" means a Person whose short-term unsecured debt is
rated A-1+ by Standard & Poor's, P-1 by Moody's and D-1+ by DCR.
"Encumbrance" has the meaning given to such term in Section 5.02(b)
hereof.
"Engine" means each engine installed on any Aircraft, or, where any such
engine has been replaced under the terms of the relevant Lease, the engine
replacing such engine, and includes any and all Parts incorporated in,
installed on or attached to such engine.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
"Event of Default", with respect to a class of Notes, has the meaning
given to such term in Section 4.01 hereof.
"Excess Amortization Date" means, with respect to (i) the Subclass A-1
Notes, July 15, 2000, (ii) the Subclass A-2 Notes, the Subclass B-1 Notes and
the Subclass C-1 Notes, August 15, 1998, (iii) the Subclass D-1 Notes, July 15,
2010 and (iv) any Refinancing Notes or Issuer Additional Notes, the Excess
Amortization Date established by or pursuant to a Board Resolution or in any
indenture supplemental hereto providing for the issuance of such Notes or
specified in the form of such Notes.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Exchange Notes" means any securities of the Issuer containing terms
identical to the Notes (except that such Exchange Notes shall be registered
under the Securities Act) that are issued and exchanged for the Notes pursuant
to a Registration Rights Agreement and this Indenture.
"Exchange Offer" has the meaning given to such term in the A-C Note
Registration Rights Agreement.
"Expected Final Payment Date" means with respect to (i) the Subclass A-1
Notes, July 15, 2000, (ii) the Subclass A-2 Notes, December 15, 2005, (iii) the
Subclass B-1 Notes and the Subclass C-1 Notes, July 15, 2013, (iv) the Subclass
D-1 Notes, April 15, 2014 and (v) any Refinancing Notes or Issuer Additional
Notes, the Expected Final Payment Date established by or pursuant to a Board
Resolution or in any indenture supplemental hereto providing for the issuance
of such Notes or specified in the form of such Notes.
"Expected Useful Life" means, with respect to each Initial Aircraft, 25
years from the date of manufacture except that any Initial Aircraft converted
to freighter service
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12
shall have an Expected Useful Life of 15 years from the date of conversion and,
with respect to any Issuer Additional Aircraft, the "Useful Life" established
by or pursuant to a Board Resolution or in any indenture supplemental hereto
providing for the issuance of Issuer Additional Notes funding the acquisition
of such Additional Aircraft.
"Expense Account" has the meaning given to such term in Section 3.01(d)
hereof.
"Expenses" means, with respect to AerCo Group, collectively, any fees,
costs, expenses or Taxes incurred by any AerCo Group Member in the course of
the business activities permitted under Section 5.02(e) of this Indenture or
under any Guarantor Indenture, including, without limitation, the fees and
expenses of any Service Provider and the annual undertaking fee to the
Charitable Trustee; provided, however, that Expenses shall not include any
amount payable on the AerCo Group Notes, under any Swap Agreement or under any
Credit Facilities or any other amounts ranking pari passu with or junior to
interest payable on the AerCo Group Class A Notes in the priority of payments
set forth under Section 3.08 hereof.
"Extended Pool Factor" means, with respect to each subclass of AerCo Group
Notes, the "Extended Pool Factor" set forth in the appendix to such Notes.
"Extension Amount" has the meaning given to such term in Section 3.09
hereof.
"Final Maturity Date" means with respect to (i) the Subclass A-1 Notes,
the Subclass A-2 Notes, the Subclass B-1 Notes, the Subclass C-1 Notes, the
Subclass D-1 Notes and the Subclass E-1 Notes, July 15, 2023 and (ii) any
Refinancing Notes or Issuer Additional Notes, the date specified in the form of
such Notes.
"Fixed Rate Notes" means the Subclass D-1 Notes, the Subclass E-1 Notes
and any Refinancing Notes or Issuer Additional Notes issued with a fixed rate
of interest.
"Floating Rate Notes" means the Subclass A-1 Notes, the Subclass A-2
Notes, the Subclass B-1 Notes, the Subclass C-1 Notes and any Refinancing Notes
or Issuer Additional Notes issued with a floating or variable rate of interest.
"Future Lease" means, with respect to each Aircraft, any aircraft lease
agreement, conditional sale agreement, hire purchase agreement or other similar
arrangement for such Aircraft as may be in effect at any time after the
relevant Closing Date between the related AerCo Group Member (as lessor or
vendor) and a Person not an AerCo Group Member (as lessee or purchaser), as
such agreement or arrangement may be amended, modified, extended, supplemented,
assigned or novated from time to time, in each case other than any Initial
Lease.
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13
"Global Notes" means any Rule 144A Global Notes, Regulation S Global Notes
and any global Exchange Notes.
"GPA" means GPA Group and its subsidiaries and affiliates.
"GPA Group" means GPA Group plc, a public limited company incorporated in
Ireland.
"Guarantee" has the meaning given to such term in Section 5.02(f) hereof.
"guarantee" has the meaning given to such term in Section 5.02(f) hereof.
"Guarantor" means a special purpose vehicle, other than an Issuer
Subsidiary, organized to (i) issue Guarantor Additional Notes pursuant to an
indenture the terms of which are substantially identical to those of this
Indenture, the proceeds of which shall be used to acquire Guarantor Additional
Aircraft and (ii) guarantee the Notes.
"Guarantor Additional Aircraft" means any aircraft held or acquired by a
Guarantor or any Guarantor Subsidiary after the Initial Closing Date, excluding
any such aircraft sold or disposed of by way of a completed Aircraft Sale.
"Guarantor Additional Notes" has the meaning given to such term in Section
12.02 hereof.
"Guarantor Class A Additional Note Guarantee" has the meaning given to
such term in Section 12.03 hereof.
"Guarantor Class A Additional Notes" means the Guarantor Additional Notes
issued by a Guarantor ranking pari passu with the Class A Notes.
"Guarantor Class B Additional Note Guarantee" has the meaning given to
such term in Section 12.03 hereof.
"Guarantor Class B Additional Notes" means the Guarantor Additional Notes
issued by a Guarantor ranking pari passu with the Class B Notes.
"Guarantor Class C Additional Note Guarantee" has the meaning given to
such term in Section 12.03 hereof.
"Guarantor Class C Additional Notes" means the Guarantor Additional Notes
issued by a Guarantor ranking pari passu with the Class C Notes.
"Guarantor Class D Additional Note Guarantee" has the meaning given to
such term in Section 12.03 hereof.
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"Guarantor Class D Additional Notes" means the Guarantor Additional Notes
issued by a Guarantor ranking pari passu with the Class D Notes.
"Guarantor Class E Additional Note Guarantee" has the meaning given to
such term in Section 12.03 hereof.
"Guarantor Class E Additional Notes" means the Guarantor Additional Notes
issued by a Guarantor ranking pari passu with the Class E Notes.
"Guarantor Indenture" has the meaning given to such term in Section 12.02
hereof.
"Guarantor Subsidiary" means each subsidiary of a Guarantor.
"Guarantor Trustee" means a trustee or any successor trustee appointed in
accordance with a Guarantor Indenture.
"Holder" has the same meaning given to such term as the definition of
"Noteholder" hereunder.
"incur" has the meaning given to such term in Section 5.02(f) hereof.
"Indebtedness" has the meaning given to such term in Section 5.02(f)
hereof.
"Indenture" has the meaning set forth in the preamble hereof.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Initial Aircraft" means each of the aircraft (including any related
Engines) identified in Schedule A hereto, any Remaining Aircraft and Substitute
Aircraft delivered, excluding any such aircraft sold or disposed of by way of a
completed Aircraft Sale.
"Initial Appraised Value", in the case of each Initial Aircraft, means the
average of the appraisals by each of the Initial Appraisers of the Base Value
of such Aircraft as of March 1, 1998 and, in the case of any Additional
Aircraft, the average of the appraisals by each of the Appraisers of the Base
Value of such Aircraft as of a date not more than six months prior to the
Closing Date for the issuance of the relevant AerCo Group Additional Notes.
"Initial Appraisers" means Aircraft Information Services, Inc., BK
Associates, Inc. and Airclaims Limited.
"Initial Closing Date" means July 15, 1998.
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15
"Initial Lease" means, with respect to each Initial Aircraft, each
aircraft lease agreement, conditional sale agreement, hire purchase agreement
or other similar arrangement with respect to such Initial Aircraft in existence
on the date of this Agreement, as such agreement or arrangement may be amended,
modified, extended, supplemented, assigned or novated from time to time.
"Initial Notes" means the Subclass A-1 Notes, the Subclass A-2 Notes, the
Subclass B-1 Notes, the Subclass C-1 Notes, the Subclass D-1 Notes (other than
the Remaining Subclass D-1 Notes) and the Subclass E-1 Notes (other than the
Remaining Subclass E-1 Notes).
"Initial Outstanding Balance" means, with respect to any AerCo Group
Notes, the initial total principal amount on the date of issuance therefor of
such Notes unpaid and outstanding at any time.
"Intercompany Loan" has the meaning given to such term in Section 5.02(f)
hereof.
"Intercompany Loan Agreements" has the meaning given to such term in the
Security Trust Agreement.
"Interest Accrual Period" means, as to each subclass of AerCo Group Notes,
the period beginning on (and including) the relevant Closing Date with respect
to such subclass of AerCo Group Notes and ending on (but excluding) the first
Payment Date thereafter and each successive period beginning on (and including)
a Payment Date and ending on (but excluding) the next succeeding Payment Date;
provided that the final Interest Accrual Period with respect to any subclass of
AerCo Group Notes shall end on but exclude the Final Maturity Date with respect
to such subclass of AerCo Group Notes (or, if earlier, with respect to any
subclass of AerCo Group Notes repaid in full, the date such subclass of AerCo
Group Notes is repaid in full). Account balances with respect to each Interest
Accrual Period shall be determined by reference to the balances of funds on
deposit in the Accounts on the Calculation Date immediately preceding each
Payment Date.
"Interest Amount" means, with respect to each subclass of AerCo Group A-D
Notes, on any Payment Date, the amount of accrued and unpaid interest at the
Stated Rate of Interest with respect to such subclass of AerCo Group A-D Notes
on such Payment Date (including, to the fullest extent permitted by applicable
law, interest on accrued and unpaid interest (excluding any unpaid Step-Up
Interest) from any prior Interest Accrual Period at the Stated Rate of Interest
for such subclass), determined in accordance with the terms of such subclass of
AerCo Group A-D Notes. Any amount of Premium or interest on any subclass of
AerCo Group A-D Notes not paid when due shall, to the fullest extent permitted
by applicable law, bear interest at an interest rate per annum equal to the
Stated Rate of Interest for such AerCo Group A-D Notes from the date when due
until such amount is paid or duly provided for, payable on the next succeeding
Payment Date, subject to the availability of the
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Available Collections Amount therefor after making payments entitled to
priority under Section 3.08 hereof.
"investment" has the meaning given to such term in Section 5.02(c) hereof.
"Irish Conduit Share Mortgage" means the Mortgage of Shares in Pergola
Limited, dated as of the date hereof.
"Irish Share Mortgages" means the Irish Conduit Share Mortgage and the
Irish Subsidiary Share Mortgage.
"Irish Subsidiary Share Mortgage" means the Mortgage of Shares in AerCo
Ireland, AerCo Ireland II and Submortgage of Shares in Pergola Limited, dated
as of the date hereof.
"Issuer" has the meaning set forth in the preamble hereof.
"Issuer Additional Aircraft" means any aircraft acquired by the Issuer or
any Issuer Subsidiary after the Initial Closing Date (other than any Remaining
Aircraft or Substitute Aircraft), excluding any such aircraft sold or disposed
of by way of a completed Aircraft Sale.
"Issuer Additional Notes" means any notes issued pursuant to this
Indenture the proceeds of which are used to acquire Issuer Additional Aircraft.
"Issuer Subsidiary" means each subsidiary of the Issuer existing on the
Initial Closing Date and listed on Schedule B to this Indenture and any other
subsidiary of the Issuer.
"Jersey Debt Security Agreement" means the Debt Security Agreement between
the Issuer and ALPS 94-1, dated as of the date hereof.
"Jersey Share Security Agreement" means the Share Security Agreement in
respect of the shares of ALPS 94-1, dated as of the date hereof.
"Leases" means the Initial Leases, the Future Leases and the Additional
Leases; provided that if, under any sub-leasing arrangement with respect to an
Aircraft, the lessor thereof agrees to receive payments or collateral directly
from, or is to make payments directly to the sub-lessee, in any such case to
the exclusion of the related Lessee, then the relevant sub-lease shall
constitute the "Lease".
"legal defeasance" has the meaning given to such term in Section 11.01
hereof.
"Lessee" means each Person who is the lessee of an Aircraft from time to
time leased from any AerCo Group Member; provided that if, under any
sub-leasing arrangement
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with respect to an Aircraft, the lessor thereof agrees to receive payments or
collateral directly from, or is to make payments directly to, the sub-lessee,
in any such case to the exclusion of the related Lessee, then the sub-lessee
shall constitute the "Lessee".
"Lessee Funded Account" has the meaning given to such term in Section
3.01(c) hereof.
"LIBOR" means, unless otherwise specified, the London interbank offered
rate for one month U.S. dollar deposits, determined pursuant to the Reference
Agency Agreement.
"Liquidity Reserve Amount" means an amount, initially approximately $56
million, and may be comprised of cash and/or Eligible Credit Facilities, which
may be increased or decreased from time to time by the Board of the Issuer for
any reason; provided that any such reduction, other than any reduction
attributable solely to a decrease in the Security Deposit Reserve Amount as a
result of AerCo entering into Future Leases requiring lower security deposits
than expired Leases, shall be subject to Rating Agency Confirmation.
"Listing Agent" means Banque Internationale a Luxembourg S.A.
"Losses" means any loss, cost, charge, expense, interest, fee, payment,
demand, liability, claim, action, proceeding, penalty, fine, damages, judgment,
order or other sanction other than Taxes.
"Minimum Class Percentage" means, with respect to the AerCo Group Class A
Notes and the AerCo Group Class B Notes on any Payment Date, the "Minimum Class
Percentage" set forth in Appendix A to this Indenture for such Payment Date, as
such percentage shall be adjusted from time to time in accordance with Section
3.11 hereof.
"Minimum Liquidity Reserve Amount" means an amount, initially equal to $15
million, which may be increased or decreased from time to time by the Board of
the Issuer for any reason; provided that any such reduction shall be subject to
Rating Agency Confirmation.
"Minimum Principal Payment Amount" means, with respect to each class of
AerCo Group A-D Notes on any Payment Date, the difference, if positive, between
the aggregate Outstanding Principal Balance of such class of AerCo Group Notes
and the Minimum Target Principal Balance of such class of AerCo Group Notes on
such Payment Date.
"Minimum Target Principal Balance" means, with respect to (i) the AerCo
Group Class A Notes and the AerCo Group Class B Notes on any Payment Date, the
product of (x) the Minimum Class Percentage for such class of AerCo Group Notes
on such Payment Date and (y) the Assumed Portfolio Value in respect of such
Payment Date; provided that, if on any Payment Date the Outstanding Principal
Balance of AerCo Group Class A Notes is greater than the Adjusted Portfolio
Value in respect of such Payment Date, then the
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"Minimum Target Principal Balance" of AerCo Group Class A Notes shall be equal
to the Scheduled Target Principal Balance of AerCo Group Class A Notes and (ii)
the AerCo Group Class C Notes and the AerCo Group Class D Notes on any Payment
Date, the "Minimum Target Principal Balance" set forth in Appendix A to this
Indenture for such Payment Date, as such amount shall be adjusted from time to
time in accordance with Section 3.11 hereof.
"Modification Payment" has the meaning given to such term in Section
5.02(i) hereof.
"Monthly Report" has the meaning given to such term in Section 2.15(a)
hereof.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Net Sale Proceeds" has the meaning given to such term in Section 5.02(g)
hereof.
"Non-Trustee Accounts" has the meaning given to such term in Section
3.01(e) hereof.
"Non-U.S. Person" means a person who is not a U.S. person, as defined in
Regulation S.
"Note Account" has the meaning given to such term in Section 3.01(i)
hereof.
"Noteholder" or "Holder" means (a) in the case of any Global Note, the
bearer thereof, which shall initially be the Book-Entry Depositary and (b) in
the case of any Definitive Registered Note, the Person in whose name such Note
is registered from time to time.
"Notes" means the Initial Notes, the Remaining Subclass D-1 Notes, the
Remaining Subclass E-1 Notes, the Issuer Additional Notes and any Exchange
Notes.
"Note Target Price" has the meaning given to such term in Section 5.02(g)
hereof.
"Notices" has the meaning given to such term in Section 13.05 hereof.
"Officer's Certificate" means a certificate signed by, with respect to the
Issuer, any director and, with respect to a Guarantor or any other Person, any
officer, director, trustee or equivalent representative.
"Operating Bank" means Bankers Trust or any other Eligible Institution at
which the Accounts are held; provided that (i) upon the resignation or removal
and the replacement of the Senior Trustee pursuant to the terms of this
Indenture, the successor
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trustee appointed hereunder shall be the Operating Bank; and (ii) if at any
time the Operating Bank ceases to be an Eligible Institution, a successor
operating bank shall be appointed by the Administrative Agent on behalf of the
Security Trustee and all Accounts (other than the Non-Trustee Accounts) shall
thereafter be transferred to and be maintained at such successor operating bank
in the name of the Security Trustee and such successor operating bank shall
thereafter be the "Operating Bank".
"Opinion of Counsel" means a written opinion signed by legal counsel, who
may be an employee of or counsel to the Issuer, that meets the requirements of
Section 1.03 hereof.
"Outstanding" means (a) with respect to the Notes of any class or subclass
at any time, all Notes of such class or subclass theretofore authenticated and
delivered by the Trustee except (i) any such Notes cancelled by, or delivered
for cancellation to, the Trustee; (ii) any such Notes, or portions thereof, for
the payment of principal of and accrued and unpaid interest on which moneys
have been deposited in the applicable Note Account or distributed to
Noteholders by the Trustee and any such Notes, or portions thereof, for the
payment or redemption of which moneys in the necessary amount have been
deposited in the Defeasance/Redemption Account; provided that if such Notes are
to be redeemed prior to the maturity thereof in accordance with the
requirements of Section 3.10(a) or 3.10(b) hereof, notice of such redemption
shall have been given as provided in Section 3.10(c) hereof, or provision
satisfactory to the Trustee shall have been made for giving such notice; and
(iii) any such Notes in exchange or substitution for which other Notes, as the
case may be, have been authenticated and delivered, or which have been paid
pursuant to the terms of this Indenture (unless proof satisfactory to the
Trustee is presented that any of such Notes is held by a Person in whose hands
such Note is a legal, valid and binding obligation of the Issuer); and (b) when
used with respect to any other evidence of indebtedness shall mean, at any
time, any principal amount thereof then unpaid and outstanding (whether or not
due or payable).
"Outstanding Principal Balance" means, with respect to any AerCo Group
Note or other evidence of indebtedness Outstanding, the total principal amount
of such evidence of indebtedness unpaid and outstanding at any time as
determined in the report to be delivered pursuant to Section 3.06 hereof.
"Partial Loss" means, with respect to any Aircraft or related asset, any
event or occurrence of loss, damage, destruction or the like which is not a
Total Loss.
"Partial Loss Proceeds" means, with respect to any Aircraft or related
asset, the total proceeds of the insurance or reinsurance (other than in
respect of liability insurance) paid in respect of any Partial Loss to any
AerCo Group Member.
"Participant" means, with respect to DTC, Euroclear or Cedel, a Person who
has an account with DTC, Euroclear or Cedel, respectively (and, with respect to
DTC, shall include Euroclear and Cedel).
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"Parts" means any part, component, appliance, accessory, instrument or
other item of equipment (other than any Engine) installed in or attached to any
Aircraft (or part thereof).
"Paying Agent" has the meaning given to such term in Section 2.03 hereof.
The term "Paying Agent" includes any additional Paying Agent.
"Payment Date" means the 15th day of each month, commencing on August 17,
1998; provided that if any Payment Date would otherwise fall on a day which is
not a Business Day, such Payment Date shall be the first following day which is
a Business Day.
"Permitted Account Investments" means, in each case, book-entry
securities, negotiable instruments or securities represented by instruments in
bearer or registered form which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America (having original
maturities of no more than 365 days, or such lesser time as is required
for the distribution of funds);
(b) demand deposits, time deposits or certificates of deposit of the
Operating Bank or of depository institutions or trust companies organized
under the laws of the United States of America or any state thereof, or
the District of Columbia (or any domestic branch of a foreign bank) (i)
having original maturities of no more than 365 days, or such lesser time
as is required for the distribution of funds; provided that at the time
of investment or contractual commitment to invest therein, the short-term
debt rating of such depository institution or trust company shall be at
least "A-1+" by Standard & Poor's and "P-1" by Moody's and shall be
acceptable to DCR or (ii) having maturities of more than 365 days and, at
the time of the investment or contractual commitment to invest therein, a
rating of "AA" from Standard & Poor's and "Aa2" from Moody's and a
confirmation that they are acceptable to DCR;
(c) corporate or municipal debt obligations (i) having remaining
maturities of no more than 365 days, or such lesser time as is required
for the distribution of funds, having, at the time of the investment or
contractual commitment to invest therein, a rating of at least "A-1+" or
"AA" by Standard & Poor's and "P-1" or "Aa2" by Moody's and a
confirmation that they are acceptable to DCR or (ii) having maturities of
more than 365 days and, at the time of the investment or contractual
commitment to invest therein, a rating of "AA" from Standard & Poor's and
"Aa2" from Moody's and a confirmation that they are acceptable to DCR;
(d) investments in money market funds (including funds in respect of
which the Trustee or any of its affiliates is investment manager or
advisor) having a rating of at least "AA" by Standard & Poor's and "Aa2"
by Moody's and a confirmation that they are acceptable to DCR;
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(e) notes or bankers' acceptances (having original maturities of no
more than 365 days, or such lesser time as is required for the
distribution of funds) issued by any depository institution or trust
company referred to in (b) above; or
(f) any other investments approved pursuant to a Rating Agency
Confirmation;
provided, however, that no investment shall be made in any obligations of any
depository institution or trust company which has a contractual right to set
off and apply any deposits held, and other indebtedness owing, by any AerCo
Group Member to or for the credit or the account of such bank.
"Permitted Accruals" has the meaning given to such term in Section 3.01(d)
hereof.
"Permitted Additional Aircraft Acquisition" has the meaning given to such
term in Section 5.02(h) hereof.
"Permitted Encumbrance" has the meaning given to such term in Section
5.02(b) hereof.
"Permitted Tax-Related Disposition" has the meaning given to such term in
Section 5.02(g) hereof.
"Person" means any natural person, firm, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any political subdivision thereof or any other legal entity,
including public bodies.
"Pledged Debt" has the meaning given to such term in the Security Trust
Agreement.
"Pledged Stock" has the meaning given to such term in the Security Trust
Agreement.
"Pool Factor" means, with respect to each subclass of AerCo Group Notes on
any Payment Date, the "Pool Factor" for such Payment Date set forth in the
appendix to such Notes.
"Portfolio" means, at any time, all Aircraft owned by AerCo Group.
"Precedent Lease" has the meaning given to such term in Section 5.03(f)
hereof.
"PRI" has the meaning given to such term in Section 5.03(h) hereof.
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"PRI Guidelines" has the meaning given to such term in Section 5.03(a)
hereof.
"Primary Eligible Credit Facility" means any Eligible Credit Facility,
other than a Secondary Eligible Credit Facility, which provides by its terms
that it is entitled only to the priority of repayment accorded to Primary
Eligible Credit Facilities under Section 3.08 hereof.
"Prior Ranking Amounts" has the meaning assigned to such term in Section
3.08 hereof.
"Private Placement Legend" has the meaning given to such term in Section
2.02 hereof.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Quarterly Report" has the meaning given to such term in Section 2.15(a)
hereof.
"Rating Agency" means each of DCR, Moody's and Standard & Poor's and any
other nationally recognized rating agency designated by the Issuer and any
Guarantor; provided that such organizations shall only be deemed to be a Rating
Agency for purposes of the Indenture with respect to AerCo Group Notes that
they are then rating.
"Rating Agency Confirmation" means a prior written confirmation from each
Rating Agency that a specified action or event shall not result in the
downgrade or withdrawal of such Rating Agency's then current credit rating, if
any, of any subclass of AerCo Group Notes.
"Received Currency" has the meaning given to such term in Section 13.07(a)
hereof.
"Receiver" means any Person or Persons appointed as (and any additional
Person or Persons appointed or substituted as) administrative receiver,
receiver, manager or receiver and manager.
"Record Date" means with respect to each Payment Date, the close of
business on the day that is 15 days prior to such Payment Date, whether or not
such day is a Business Day.
"Redemption" has the meaning given to such term in Section 3.10(c) hereof.
"Redemption Date" means the date, which shall in each case be a Payment
Date, on which Notes of any subclass are redeemed.
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"Redemption Premium" means (i) in respect of any Initial Note on any date,
the Redemption Premium indicated in the table below:
REDEMPTION DATE REDEMPTION PREMIUM
--------------- -----------------------------------------------------
SUBCLASS SUBCLASS SUBCLASS SUBCLASS SUBCLASS
A-1 NOTES A-2 NOTES B-1 NOTES C-1 NOTES D-1 NOTES
--------- --------- --------- --------- ---------
On or after the Closing Date 100.50% 101.00% 101.50% 102.50%
On or after July 15, 1999... 100.25% 100.75% 101.25% 102.25%
On or after July 15, 2000... 100.00% 100.50% 101.00% 102.00%
On or after July 15, 2001... - 100.25% 100.75% 101.75%
On or after July 15, 2002... - 100.25% 100.50% 101.50%
On or after July 15, 2003... - 100.25% 100.25% 101.25% 105.25%
On or after July 15, 2004... - 100.25% 100.25% 101.00% 104.50%
On or after July 15, 2005... - 100.00% 100.25% 100.75% 103.75%
On or after July 15, 2006... - - 100.25% 100.50% 103.00%
On or after July 15, 2007... - - 100.25% 100.25% 102.25%
On or after July 15, 2008... - - 100.25% 100.25% 101.50%
On or after July 15, 2009... - - 100.00% 100.25% 100.75%
On or after July 15, 2010... - - - 100.25% 100.00%
On or after July 15, 2011... - - - 100.00% -
and (ii) in respect of any subclass of Refinancing Notes or Issuer Additional
Notes, the Redemption Premium established by or pursuant to a Board Resolution
or in any indenture supplemental hereto providing for the issuance of such
Notes or designated as such in the form of such Notes.
"Redemption Price" means with respect to (i) the Subclass A-1 Notes, the
Subclass A-2 Notes, the Subclass B-1 Notes and the Subclass C-1 Notes, (A) to
the extent that the redemption is funded other than out of the Available
Collections Amount (including proceeds from Refinancing Notes and proceeds from
third parties), the product of the applicable Redemption Premium and the
Outstanding Principal Balance of the portion of such subclass of Notes being
redeemed and (B) to the extent that the redemption is funded out of the
Available Collections Amount, the Outstanding Principal Balance of the portion
of such subclass of Notes being redeemed, without Redemption Premium, (ii) any
portion of the Subclass D-1 Notes being redeemed, (x) to the extent that the
redemption is funded other than out of the Available Collections Amount
(including proceeds from Refinancing Notes and proceeds from third parties),
(a) if such redemption occurs prior to July 15, 2003, the higher of (1) the
discounted present value of the Scheduled Principal Payment Amounts allocable
in accordance with Section 3.09 hereof in respect of, and interest on, such
portion from the Redemption Date to, but not including, July 15, 2003, plus the
product of the applicable
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Redemption Premium and the assumed Outstanding Principal Balance for July 15,
2003 of such portion, discounted at a rate equal to the Treasury Yield plus
1.00% and (2) the Outstanding Principal Balance of such portion and (b) if such
redemption occurs on or after July 15, 2003, the product of the applicable
Redemption Premium and the Outstanding Principal Balance of such portion and
(y) to the extent that the redemption is funded out of the Available
Collections Amount, the Outstanding Principal Balance of the portion of such
subclass of Notes being redeemed, without Redemption Premium and (iii) any
Refinancing Notes or Issuer Additional Notes, the Redemption Price established
by or pursuant to a Board Resolution or in any indenture supplemental hereto
providing for the issuance of such Notes or designated as such in the form of
such Notes.
"Reference Agency Agreement" means the Reference Agency Agreement dated as
of the Initial Closing Date, among the Issuer, the Trustee, the Reference Agent
and the Cash Manager pursuant to which LIBOR is established from time to time.
"Reference Agent" means Bankers Trust in its capacity as reference agent
under the Reference Agency Agreement, including its successors in interest,
until another Person shall have become the reference agent under that
agreement, and thereafter "Reference Agent" shall mean such successor Person.
"Reference Date" means, with respect to each Interest Accrual Period, the
day that is two Business Days prior to the Payment Date on which such Interest
Accrual Period commences; provided, however, that the Reference Date with
respect to the initial Interest Accrual Period means the date that is two
Business Days before the Initial Closing Date.
"Refinancing" has the meaning given to such term in Section 2.10 hereof.
"Refinancing Account" has the meaning given to such term in Section
3.01(f) hereof.
"Refinancing Expenses" means all out-of-pocket costs and expenses incurred
in connection with an offering and issuance of Refinancing Notes.
"Refinancing Notes" means any subclass of Notes issued by the Issuer under
this Indenture at any time and from time to time after the date hereof, the
proceeds of which are used to repay all or any part of the Outstanding
Principal Balance of a subclass of Notes and ranking pari passu with such
Notes.
"Register" has the meaning given to such term in Section 2.03 hereof.
"Registrar" has the meaning given to such term in Section 2.03 hereof and
includes any additional Registrar.
"Registration Rights Agreement" means the A-C Note Registration Rights
Agreement, the D Note Registration Rights Agreement and any other agreement
entered into
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between the Issuer and a purchaser of Notes providing for the registration of
the transfer of such Notes under the Securities Act.
"Registration Statement" means the Registration Statement as defined and
described in a Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" has the meaning given to such term in Section
2.01 hereof.
"Related Collateral Document" means any letter of credit, third-party or
bank guarantee or cash collateral provided by or on behalf of a Lessee to
secure such Lessee's obligations under a Lease.
"Related Collateral Provider" means a provider of a Related Collateral
Document.
"Related Documents" means the Administrative Agency Agreement, the Cash
Management Agreement, each Credit Facility, this Indenture, the Notes, the
Deposit Agreement, the Reference Agency Agreement, the Security Documents, the
Intercompany Loan Agreements, the Servicing Agreement, the Acquisition
Agreements, the Registration Rights Agreement, the Secretarial Services
Agreement, the Voting Trust Agreement, any Additional Servicing Agreements, any
Swap Agreements and any Swap Guarantees.
"Relevant Appraisal" means, with respect to any date of determination, the
most recent Appraisal preceding such date of determination.
"Relevant Information" means any information provided to the
Administrative Agent by any Service Provider or any other service provider
retained from time to time by AerCo Group pursuant to the Related Documents.
"Remaining Aircraft" means those Initial Aircraft title to which has not
been transferred to an Aircraft Owning Subsidiary by the Initial Closing Date.
"Remaining Subclass D-1 Notes" has the meaning given to such term in
Section 2.12 hereof.
"Remaining Subclass E-1 Notes" has the meaning given to such term in
Section 2.12 hereof.
"Renewal Lease" has the meaning given to such term in Section 5.03(f)
hereof.
"Rental Account" has the meaning given to such term in Section 3.01(e)
hereof.
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"Rental Payments" means all rental payments and other amounts payable by
or on behalf of a Lessee under a Lease.
"Required Expense Amount" means, with respect to AerCo Group on each
Payment Date, (i) the amount of Expenses of AerCo Group due and payable on the
Calculation Date relating to such Payment Date or reasonably anticipated to
become due and payable before the end of the six-month period beginning on such
date, (ii) at the discretion of the Administrative Agent, an amount necessary
to provide for Permitted Accruals (other than accruals in respect of
Modification Payments) and (iii) an amount determined by the Administrative
Agent to be necessary to maintain in the Expense Account after payment of the
Expenses (on such Payment Date and during the next succeeding Interest Accrual
Period) and provision for the Permitted Accruals.
"Requisition Compensation" means all monies or other compensation
receivable by any AerCo Group Member from any government, whether civil,
military or de facto, or public or local authority in relation to an Aircraft
in the event of its requisition for title, confiscation, restraint, detention,
forfeiture or compulsory acquisition or seizure or requisition for hire by or
under the order of any government or public or local authority.
"Responsible Officer" means, (i) with respect to the Trustee, any officer
within the Corporate Trust Office, including any Principal, Vice President,
Managing Director, Assistant Vice President, Assistant Secretary, Assistant
Treasurer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge and familiarity with the
particular subject and (ii) with respect to the Issuer, any director.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Note" has the meaning given to such term in Section 2.01
hereof.
"Scheduled Class Percentage" means, with respect to the AerCo Group Class
A Notes and the AerCo Group Class B Notes on any Payment Date, the "Scheduled
Class Percentage" set forth in Appendix A to this Indenture for such Payment
Date, as such percentage shall be adjusted from time to time in accordance with
Section 3.11 hereof.
"Scheduled Expiration Date" with respect to any Lease, means the date upon
which such lease is scheduled to expire under the terms thereof.
"Scheduled Principal Payment Amount" means, with respect to each class of
AerCo Group A-D Notes on any Payment Date, the difference, if positive, between
the aggregate Outstanding Principal Balance of such class of AerCo Group Notes
(after giving effect to any payment of the Minimum Principal Payment Amount for
such class of AerCo
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Group Notes) and the Scheduled Target Principal Balance of such class of AerCo
Group Notes on such Payment Date.
"Scheduled Target Principal Balance" means with respect to (i) the AerCo
Group Class A Notes on any Payment Date, the product of (A) the Scheduled Class
Percentage for the AerCo Group Class A Notes on such Payment Date and (B) the
lesser of (x) the Assumed Portfolio Value in respect of such Payment Date and
(y) 105% of the Adjusted Portfolio Value in respect of such Payment Date, (ii)
the AerCo Group Class B Notes on any Payment Date, the product of the Scheduled
Class Percentage for such AerCo Group Notes on such Payment Date and the
Assumed Portfolio Value in respect of such Payment Date and (iii) the AerCo
Group Class C Notes and the AerCo Group Class D Notes on any Payment Date, the
"Scheduled Target Principal Balance" for such Payment Date set forth in
Appendix B to this Indenture, in each case as such amount shall be adjusted
from time to time in accordance with Section 3.11 hereof.
"Secondary Eligible Credit Facility" means any Eligible Credit Facility
designated as a "Secondary Eligible Credit Facility" by the Board of the Issuer
and which provides by its terms that it is entitled only to the priority of
repayment accorded to Secondary Eligible Credit Facilities under Section 3.08
hereof.
"Secretarial Services Agreement" means the Secretarial Services Agreement
dated as of July 15, 1998 between the Issuer and the Company Secretary.
"Secured Parties" has the meaning given to such term in the Security Trust
Agreement.
"Securities Act" means the Securities Act of 1933.
"Security Documents" means the Security Trust Agreement, the Irish Share
Mortgages, the Jersey Share Security Agreement, the Jersey Debt Security
Agreement and the Belgian Security Documents.
"Security Interests" means the security interests granted or expressed to
be granted in the Collateral pursuant to the Security Documents.
"Security Trust Agreement" means the Security Trust Agreement dated as of
the Initial Closing Date, among the Issuer, each other party thereto and the
Security Trustee, for the benefit of the Secured Parties.
"Security Trustee" means the trustee appointed pursuant to Section 6.01 of
the Security Trust Agreement, initially Bankers Trust, including its successors
in interest and permitted assigns.
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"Segregated Funds" means all of the funds, including any maintenance
reserves and security deposits, received from Lessees and not permitted to be
commingled with the funds of the AerCo Group pursuant to the terms of the
related Leases.
"Seller" means GPA Group and each subsidiary of GPA Group that is a direct
or indirect seller of a Transferring Company having direct or indirect title to
an Aircraft under the Stock Purchase Agreement and any other seller under any
other Acquisition Agreement.
"Senior Claim" has the meaning given to such term in Section 10.01 hereof.
"Senior Class" means, (i) so long as any Class A Notes are Outstanding,
the Class A Notes, (ii) after the Class A Notes have been repaid in full and so
long as any Class B Notes are Outstanding, the Class B Notes, (iii) after the
Class A Notes and Class B Notes have been repaid in full and so long as any
Class C Notes are Outstanding, the Class C Notes, (iv) after the Class A Notes,
Class B Notes and Class C Notes have been paid in full and so long as any Class
D Notes are Outstanding, the Class D Notes and (v) after the Class A Notes,
Class B Notes, Class C Notes and Class D Notes have been paid in full and so
long as any Class E Notes are Outstanding, the Class E Notes.
"Senior Trustee" means the Trustee of the Senior Class of the Notes or, if
the Senior Notes shall be the Class E Notes, the Class E Note Representative;
provided that if more than one Person shall otherwise be the Trustee of various
subclasses of the Senior Class of Notes, then the Senior Trustee shall be the
Trustee of the subclass of such Notes with the lowest numerical designation
then Outstanding.
"Service Provider" means each of the Cash Manager, the Servicer, the
Trustee, the Book-Entry Depositary, the Security Trustee, the Administrative
Agent, the Company Secretary, the Reference Agent, the Charitable Trustee and
any Additional Servicer.
"Servicer" means Xxxxxxx & Xxxxx in its capacity as servicer under the
Servicing Agreement, including its successors in interest, until a successor
Person shall have become the servicer pursuant to such agreement or any
replacement servicing agreement, and thereafter "Servicer" shall mean such
successor Person.
"Servicer's Pro Forma Lease" has the meaning given to such term in Section
5.03(f) hereof.
"Servicing Agreement" means the Servicing Agreement, dated as of July 15,
1998, among the Servicer, the Issuer and the entities listed in Appendix A
thereto.
"Share Purchase Agreement" means the Share Purchase Agreement dated as of
July 15, 1998, between GPA Group, Skyscape Limited and the Issuer in respect of
all the outstanding shares of the Transferring Companies.
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"Shelf Registration Statement" has the meaning given to such term in the
applicable Registration Rights Agreement.
"Significant Subsidiary" means at any time and from time to time any
subsidiary of the Issuer or any Guarantor which owns or leases Aircraft having
an aggregate Base Value of more than 2% of the Adjusted Portfolio Value at such
time.
"Standard & Poor's" means Standard & Poor's Ratings Group, a division of
The XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"Stated Rate of Interest" means, with respect to each subclass of AerCo
Group Notes, the interest rate set forth in such AerCo Group Notes; provided,
however, if an exchange offer registered under the Securities Act is not
consummated or a Shelf Registration Statement under the Securities Act with
respect to resales of (i) the Initial Notes other than the Subclass D-1 Notes
or the Subclass E-1 Notes is not declared effective by the Commission on or
prior to the date that is 270 days after the Initial Closing Date provided that
if such day is not a Business Day, then the next succeeding Business Day, the
Stated Rate of Interest for such AerCo Group Notes shall increase by 0.5% per
annum until (A) such exchange offer is consummated or (B) the Shelf
Registration Statement is declared effective or (ii) any AerCo Group Additional
Notes is not declared effective by the Commission on or prior to the date
specified in the Registration Rights Agreement relating to such AerCo Group
Notes, the Stated Rate of Interest shall increase by the rate specified in such
Registration Rights Agreement until such time as is specified therein.
"State of Registration" means, in relation to an Aircraft at any time, the
country or state on whose national register such Aircraft is registered at that
time under the laws of such country or state in accordance with the applicable
provisions of any Lease relating to such Aircraft.
"Step-Up Interest" means with respect to (i) any Subclass A-1 Notes not
repaid on or before the Expected Final Payment Date thereof, interest, at a
rate of 0.5% per annum, and (ii) any Refinancing Notes or AerCo Group
Additional Notes that by their terms provide that they are entitled to Step-Up
Interest at any time, interest, at a rate established by or pursuant to a Board
Resolution or in any indenture supplemental hereto providing for the issuance
of such Notes or specified in the form of such Notes, which shall accrue in
addition to the Stated Rate of Interest on the Outstanding Principal Balance of
such AerCo Group Notes.
"Stock" has the meaning given to such term in Section 5.02(b) hereof.
"Subclass A-1 Notes" means the Subclass A-1 Notes, due July 15, 2023, of
the Issuer in the initial aggregate principal amount of $340,000,000,
substantially in the form of Exhibit A-1 hereto, including any notes issued in
replacement or substitution therefor, any Exchange Note issued in exchange for
such Note pursuant to a Registration Rights Agreement and this Indenture and
any Refinancing Notes designated in the form of such
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Refinancing Notes as being entitled to the rights and benefits of the Subclass
A-1 Notes under this Indenture, in each case ranking pari passu in order of
payment priority to the Subclass A-1 Notes.
"Subclass A-2 Notes" means the Subclass A-2 Notes, due July 15, 2023, of
the Issuer in the initial aggregate principal amount of $290,000,000,
substantially in the form of Exhibit A-2 hereto, including any notes issued in
replacement or substitution therefor, any Exchange Note issued in exchange for
such Note pursuant to a Registration Rights Agreement and this Indenture and
any Refinancing Notes designated in the form of such Refinancing Notes as being
entitled to the rights and benefits of the Subclass A-2 Notes under this
Indenture, in each case ranking pari passu in order of payment priority to the
Subclass A-2 Notes.
"Subclass B-1 Notes" means the Subclass B-1 Notes, due July 15, 2023, of
the Issuer in the initial aggregate principal amount of $85,000,000,
substantially in the form of Exhibit B-1 hereto, including any notes issued in
replacement or substitution therefor, any Exchange Note issued in exchange for
such Note pursuant to a Registration Rights Agreement and this Indenture and
any Refinancing Notes designated in the form of such Refinancing Notes as being
entitled to the rights and benefits of the Subclass B-1 Notes under this
Indenture, in each case ranking pari passu in order of payment priority to the
Subclass B-1 Notes.
"Subclass C-1 Notes" means the Subclass C-1 Notes, due July 15, 2023, of
the Issuer in the initial aggregate principal amount of $85,000,000,
substantially in the form of Exhibit C-1 hereto, including any notes issued in
replacement or substitution therefor, any Exchange Note issued in exchange for
such Note pursuant to a Registration Rights Agreement and this Indenture and
any Refinancing Notes designated in the form of such Refinancing Notes as being
entitled to the rights and benefits of the Subclass C-1 Notes under this
Indenture, in each case ranking pari passu in order of payment priority to the
Subclass C-1 Notes.
"Subclass D-1 Notes" means the Subclass D-1 Notes, due July 15, 2023, of
the Issuer in the initial aggregate principal amount of $80,000,000 and the
Remaining Subclass D-1 Notes, substantially in the form of Exhibit D-1 hereto,
including any notes issued in replacement or substitution therefor and any
Refinancing Notes designated in the form of such Refinancing Notes as being
entitled to the rights and benefits of the Subclass D-1 Notes under this
Indenture, in each case ranking pari passu in order of payment priority to the
Subclass D-1 Notes.
"Subclass E-1 Notes" means the Subclass E-1 Notes, due July 15, 2023, of
the Issuer in the initial aggregate principal amount of $111,973,000 and the
Remaining Subclass E-1 Notes, substantially in the form of Exhibit E-1 hereto,
including any notes issued in replacement or substitution therefor, in each
case ranking pari passu in order of payment priority to the Subclass E-1 Notes.
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"Subordinated Claim" has the meaning given to such term in Section 10.01
hereof.
"Subordinated Swap Payments" has the meaning given to such term in Section
3.08 hereof.
"Subordinated Tax-Related Disposition Payments" has the meaning given to
such term in Section 3.08(a) hereof.
"Substitute Aircraft" means an aircraft identified to replace a Remaining
Aircraft that has failed to be delivered to the AerCo Group; provided, that
such aircraft (i) is no more than seven years old as of July 15, 1998 (ii) is
subject to an operating lease contract, or letter of intent therefor, that will
become effective within 90 days of the signing of such letter of intent, (iii)
is of the same type as such undelivered Remaining Aircraft and (iv) does not
result in a Concentration Default.
"Supplemental Class Percentage" means, with respect to the AerCo Group
Class A Notes and the AerCo Group Class B Notes on each Payment Date, the
"Supplemental Class Percentage" on such Payment Date set forth in Appendix A to
this Indenture, as such percentage shall be adjusted from time to time in
accordance with Section 3.11 hereof.
"Supplemental Principal Payment Amount" means, with respect to the AerCo
Group Class A Notes and the AerCo Group Class B Notes on any Payment Date, the
difference, if positive, between the Outstanding Principal Balance of such
class of AerCo Group Notes (after giving effect to any payment of the Minimum
Principal Payment Amount and Scheduled Principal Payment Amount for such class
of AerCo Group Notes) and the Supplemental Target Principal Balance of such
class of AerCo Group Notes on such Payment Date.
"Supplemental Target Principal Balance" means, with respect to the AerCo
Group Class A Notes and the AerCo Group Class B Notes on any Payment Date, the
product of (i) the Supplemental Class Percentage for such class of AerCo Group
Notes on such Payment Date and (ii) the Assumed Portfolio Value in respect of
such Payment Date.
"Swap Agreement" means any interest rate swap, cap, floor, Swaption, or
other interest rate hedging agreement among the Issuer and any Swap Provider
existing on the Initial Closing Date or entered into in accordance with
Sections 5.02(e)(iv) and 9.05 of this Indenture.
"Swap Breakage Costs" means any amounts payable by any AerCo Group Member
to a Swap Provider as a result of any early termination (however described or
defined therein) of any Swap Agreement.
"Swap Guarantee" has the meaning given to such term in Section 9.05
hereof.
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"Swap Payment" means, on any Payment Date, a net payment to a Swap
Provider by any AerCo Group Member, other than any Subordinated Swap Payment.
"Swap Provider" means the counterparty of any AerCo Group Member under any
Swap Agreement which has agreed that it is entitled to the relevant priority of
repayment under Section 3.08 hereof.
"Swap Receipt" means a net payment to be made by a Swap Provider into the
Collection Account under a Swap Agreement and includes any such payment made by
a guarantor under any related Swap Guarantee or any termination payment
received from any counterparty to a Swap Agreement.
"Swaption" means any option agreement with respect to a Swap Agreement.
"Target Principal Balance" means, with respect to the AerCo Group Class C
Notes and the AerCo Group Class D Notes on any Payment Date, each of the
Minimum Target Principal Balance and the Scheduled Target Principal Balance on
such Payment Date.
"Tax" and "Taxes" mean any and all taxes, fees, levies, duties, tariffs,
imposts, and other charges of any kind (together with any and all interest,
penalties, loss, damage, liability, expense, additions to tax and additional
amounts or costs incurred or imposed with respect thereto) imposed or otherwise
assessed by the United States or by any state, local or foreign government (or
any subdivision or agency thereof) or other taxing authority, including,
without limitation: taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, sales, use,
capital stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth and similar charges; taxes or other
charges in the nature of excise, withholding, ad valorem, stamp, transfer,
value added, taxes on goods and services, gains taxes, license, registration
and documentation fees, customs duties, tariffs, and similar charges.
"Tax Defeasance Account" means one or more accounts established to hold
proceeds of Permitted Tax-Related Dispositions.
"Third Party Event" has the meaning given to such term in Section 5.03(b)
hereof.
"Total Loss" means, with respect to any Aircraft (a) if the same is
subject to a Lease, a Casualty Occurrence or Event of Loss (each as defined in
such Lease) or the like (however so defined); or (b) if the same is not subject
to a Lease, (i) its actual, constructive, compromised, arranged or agreed total
loss, (ii) its destruction, damage beyond repair or being rendered permanently
unfit for normal use for any reason whatsoever, (iii) its requisition for
title, confiscation, restraint, detention, forfeiture or any compulsory
acquisition or seizure or requisition for hire (other than a requisition for
hire for a temporary period not exceeding 180 days) by or under the order of
any government (whether civil, military or de facto) or public or local
authority or (iv) its hijacking, theft or disappearance, resulting in loss
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of possession by the owner or operator thereof for a period of 30 consecutive
days or longer. A Total Loss with respect to any Aircraft shall be deemed to
occur on the date on which such Total Loss is deemed pursuant to the relevant
Lease to have occurred or, if such Lease does not so deem or the relevant
Aircraft is not subject to a Lease, (A) in the case of an actual total loss or
destruction, damage beyond repair or being rendered permanently unfit, the date
on which such loss, destruction, damage or rendering occurs (or, if the date of
loss or destruction is not known, the date on which the relevant Aircraft was
last heard of); (B) in the case of a constructive, compromised, arranged or
agreed total loss, the earlier of (1) the date 30 days after the date on which
notice claiming such total loss is issued to the insurers or brokers and (2)
the date on which such loss is agreed or compromised by the insurers; (C) in
the case of requisition for title, confiscation, restraint, detention,
forfeiture, compulsory acquisition or seizure, the date on which the same takes
effect; (D) in the case of a requisition for hire, the expiration of a period
of 180 days from the date on which such requisition commenced (or, if earlier,
the date upon which insurers make payment on the basis of a Total Loss); or (E)
in the case of clause (iv) above, the final day of the period of 30 consecutive
days referred to therein.
"Total Loss Proceeds" means, in relation to an Aircraft, the total net
proceeds of the insurance and reinsurance paid in respect of a Total Loss
thereof and includes, in the case of a Total Loss of an airframe which does not
involve the Total Loss of all Engines or parts installed thereon at the time
when such Total Loss occurred, the net sale proceeds of any such surviving
Engines or parts.
"Transferring Company" means each of AerCo Ireland, AerCo Ireland II and
AerCoUSA.
"Treasury Yield" means, with respect to any Redemption of the Subclass D-1
Notes on any Payment Date, a per annum rate (expressed as a monthly equivalent
yield) determined to be the per annum rate equal to the semiannual yield to
maturity of the 5 3/4% United States Treasury Notes maturing on August 15, 2003
and any Redemption of any Refinancing Notes or Issuer Additional Notes on any
Payment Date, the Treasury Yield for such Payment Date, if any, established by
or pursuant to a Board Resolution or in any indenture supplemental hereto
providing for the issuance of such Notes or designated as such in the form of
such Notes.
"Trustee" has the meaning given to such term in the preamble hereof and
any successor Trustee appointed in accordance with the terms hereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, (15
U.S. Code Section Section 77aaa-77bbbb), as in effect on the date this
Indenture was executed, except as provided in Section 9.06 hereof.
"Undelivered Related Collateral Documents" has the meaning given to such
term in Section 3.04(b) hereof.
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"U.S. GAAP" means generally accepted accounting principles in the United
States.
"U.S. Government Obligations" has the meaning given to such term in
Section 11.02 hereof.
"Voting Trust Agreement" means the Voting Trust Agreement dated as of the
date hereof between the Issuer and First Security Bank, National Association.
Section 1.02. Rules of Construction. Unless the context otherwise
requires:
(a) A term has the meaning assigned to it and an accounting term not
otherwise defined has the meaning assigned to it in accordance with U.S.
GAAP.
(b) The terms "herein", "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
(c) Unless otherwise indicated in context, all references to
Articles, Sections, Appendices, Exhibits or Annexes refer to an Article
or Section of, or an Appendix, Exhibit or Annex to, this Indenture.
(d) Words of the masculine, feminine or neuter gender shall mean and
include the correlative words of other genders, and words in the singular
shall include the plural, and vice versa.
(e) The terms "include", "including" and similar terms shall be
construed as if followed by the phrase "without limitation".
(f) Unless otherwise indicated, references to a subclass of Notes
shall be to the Subclass A-1 Notes, the Subclass A-2 Notes, the Subclass
B-1 Notes, the Subclass C-1 Notes, the Subclass D-1 Notes and the
Subclass E-1 Notes or to a subclass of Refinancing Notes or Issuer
Additional Notes, as applicable; and references to a class of Notes shall
be to the Class A Notes, Class B Notes, Class C Notes, Class D Notes and
Class E Notes or to a class of Refinancing Notes or Issuer Additional
Notes, as applicable.
(g) References in this Indenture to an agreement or other document
(including this Indenture) include references to such agreement or
document as amended, replaced or otherwise modified in accordance with
the provisions of this Indenture, and the provisions of this Indenture
apply to successive events and transactions.
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(h) References in this Indenture to any statute or other legislative
provision shall include any statutory or legislative modification or
re-enactment thereof, or any substitution therefor.
(i) References in this Indenture to the Notes of any class or
subclass include the conditions applicable to the Notes of such class or
subclass; and any reference to any amount of money due or payable by
reference to the Notes of any class or subclass shall include any sum
covenanted to be paid by the Issuer under this Indenture in respect of
the Notes of such class or subclass.
(j) References in this Indenture to any action, remedy or method of
judicial proceeding for the enforcement of the rights of creditors or of
security shall be deemed to include, in respect of any jurisdiction other
than the State of New York, references to such action, remedy or method
of judicial proceeding for the enforcement of the rights of creditors or
of security available or appropriate in such jurisdiction as shall most
nearly approximate such action, remedy or method of judicial proceeding
described or referred to in this Indenture.
(k) Where any payment is to be made, funds applied or any
calculation is to be made hereunder on a day which is not a Business Day,
unless any Related Document otherwise provides, such payment shall be
made, funds applied and calculation made on the next succeeding Business
Day, and payments shall be adjusted accordingly.
(l) Where both the Servicer and any Additional Servicer or any
replacement servicer are performing or may perform lease management
and/or remarketing services pursuant to a Related Document in relation to
one or more Aircraft at the same time, a reference in this Indenture to
the "Servicer" shall be construed as a reference to each of the Servicer
and such Additional Servicer or such replacement servicer and the rights
and obligations of the parties hereto shall be construed accordingly.
(m) Any provision in this Indenture providing for a transfer to or
among, or a withdrawal from, an Account or any other bank account by the
Cash Manager shall be construed to be a transfer to or among, or a
withdrawal from, as the case may be, such Account or other bank account
by the Operating Bank or other Eligible Institution at which the
applicable account or accounts are located at the written, electronic or
other automated funds transfer direction of the Cash Manager. Such
direction may be made by the Cash Manager unless and until a Default
Notice shall have been delivered to AerCo or the Cash Manager, or the
Cash Manager shall have defaulted under the Cash Management Agreement,
and any such direction shall be in writing and (i) give full details of
the amount to be transferred or withdrawn, the Account or other bank
account to be debited, the Account or other bank account to be credited
and the date of the relevant payment and (ii) certify that such request
is made pursuant to and in accordance with the terms of this Indenture.
The Operating Bank
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and the Trustee shall be entitled to act in accordance with such a
request, without further question or inquiry, and shall have no
obligation to give any direction to any other Eligible Institution at
which an account or accounts are located unless and until it receives
such a request from the Cash Manager; provided that the Cash Manager
shall at all times comply with the relevant provisions of the Cash
Management Agreement with respect to any such direction.
Section 1.03. Compliance Certificates and Opinions. Upon any application
or request by the Issuer to the Trustee to take any action under any provision
of this Indenture, the Issuer shall furnish to the Trustee an Officer's
Certificate stating that, in the opinion of the signers thereof, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to Section 6.11 hereof) or any indenture supplemental hereto shall
include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Indenture relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.04. Acts of Noteholders. (a) Any direction, consent, waiver or
other action provided by this Indenture in respect of the Notes of any subclass
to be given or taken by Noteholders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Noteholders in
person or by an agent or proxy duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee, to each Rating Agency
where it is hereby expressly required pursuant to this Indenture or to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such
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instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose under
this Indenture and conclusive in favor of the Trustee or the Issuer, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by an officer of a corporation or association, trustee of a trust or member
of a partnership, on behalf of such corporation, association, trust or
partnership, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other reasonable manner which the Trustee deems
sufficient.
(c) In determining whether the Holders of Notes have given any direction,
consent, request, demand, authorization, notice, waiver or other Act (a
"Direction"), under this Indenture, Notes owned by the Issuer or any affiliate
of any such Person shall be disregarded and deemed not to be Outstanding for
purposes of any such determination. In determining whether the Trustee shall
be protected in relying upon any such Direction, only Notes which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Notwithstanding the foregoing, (i) if any such Person owns 100% of the Notes of
any subclass Outstanding, such Notes shall not be so disregarded as aforesaid,
and (ii) if any amount of Notes of such subclass so owned by any such Person
have been pledged in good faith, such Notes shall not be disregarded as
aforesaid if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is
not the Issuer or any affiliate of any such Person.
(d) The Issuer may at its option, by delivery of Officers' Certificates to
the Trustee, set a record date other than the Record Date to determine the
Noteholders in respect of the Notes of any subclass entitled to give any
Direction in respect of such Notes. Notwithstanding Section 316(c) of the
Trust Indenture Act, such record date shall be the record date specified in
such Officer's Certificate which shall be a date not more than 30 days prior to
the first solicitation of Noteholders in connection therewith. If such a
record date is fixed, such Direction may be given before or after such record
date, but only the Noteholders of record of the applicable subclass at the
close of business on such record date shall be deemed to be Noteholders for the
purposes of determining whether Noteholders of the requisite proportion of
Outstanding Notes of such subclass have authorized or agreed or consented to
such Direction, and for that purpose the Outstanding Notes of such subclass
shall be computed as of such record date; provided that no such Direction by
the Noteholders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
one year after the record date.
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(e) Any Direction or other action by the Holder of any Note shall bind the
Holder of every Note issued upon the transfer thereof or in exchange therefor
or in lieu thereof, whether or not notation of such action is made upon such
Note.
Section 1.05. Incorporation by Reference of Trust Indenture ActSection
1.05. Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
ARTICLE II
THE NOTES
Section 2.01. Amount Not to Exceed the Initial Outstanding Principal
Balance; Terms; Form; Execution and Delivery. (a) The Outstanding Principal
Balance of any subclass of Notes which may be authenticated and delivered from
time to time under this Indenture shall not exceed the initial Outstanding
Principal Balance set forth for such subclass of Notes in the definition thereof
or, with respect to any Remaining Subclass D-1 Notes, Remaining Subclass E-1
Notes, any subclass of Refinancing Notes or Issuer Additional Notes, authorized
in a Board Resolution; provided that at no time may the Outstanding Principal
Balance of any such subclass of Refinancing Notes exceed the Outstanding
Principal Balance of the subclass of Notes being refinanced thereby immediately
prior to such Refinancing plus any Redemption Premium and transaction expenses
relating thereto; and provided, further, that any Issuer Additional Notes shall
be issued in accordance with Section 2.11 hereof.
(b) There shall be issued and delivered and authenticated on the relevant
Closing Date to each of the Noteholders Notes in the principal amounts and
maturities and bearing the interest rates, in each case in substantially the
form set forth in the applicable exhibit to this Indenture or in any indenture
supplemental hereto, with such appropriate
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insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements printed, lithographed or
engraved thereon, as may be required to comply with the rules of any securities
exchange on which such Notes may be listed or to conform to any usage in
respect thereof, or as may, consistently herewith, be prescribed by the Trustee
or by the Responsible Officer executing such Notes, such determination by said
Responsible Officer to be evidenced by his execution of the Notes.
Definitive Registered Notes of each subclass shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Notes may be listed, all as determined by the Responsible
Officer executing such Notes, as evidenced by his execution of such Notes.
Each subclass of Notes or portion thereof offered and sold in reliance on
Rule 144A shall be issued initially in the form of one or more permanent global
Notes in bearer form without interest coupons, substantially in the form set
forth in the applicable exhibit to this Indenture or in any indenture
supplemental hereto (each, a "Rule 144A Global Note"), deposited on behalf of
the purchasers of the Notes represented thereby with the Book-Entry Depositary
at its New York corporate trust office, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of each Rule 144A Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee as hereinafter
provided.
Each subclass of Notes or portion thereof offered and sold in offshore
transactions in reliance on Regulation S shall be issued initially in the form
of one or more permanent global Notes in bearer form without interest coupons,
substantially in the form set forth in the applicable exhibit to this Indenture
or in any indenture supplemental hereto (each, a "Regulation S Global Note"),
deposited on behalf of the purchasers of the Notes represented thereby with the
Book-Entry Depositary at its New York corporate trust office, duly executed by
the Issuer and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of each Regulation S Global Note may from time to
time be increased or decreased by adjustments made on the records of the
Trustee as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect
transfers of interests therein in accordance with the terms of this Indenture.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the principal amount of outstanding Notes represented thereby shall
be made or caused to be made by the Trustee as required by Section 2.07 hereof.
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Each subclass of the Class E Notes and, until global bearer Exchange Notes
are issued in exchange for a subclass of the Class D Notes, such subclass of
the Class D Notes, shall be issued in the form of a Definitive Registered Note.
The Initial Notes issuable hereunder on the Initial Closing Date shall be
issued in six subclasses. The Initial Notes shall be designated the "Subclass
A-1 Notes", the "Subclass A-2 Notes", the "Subclass B-1 Notes", the "Subclass
C-1 Notes", the "Subclass D-1 Notes" and the "Subclass E-1 Notes".
Interest shall accrue on any subclass of the Floating Rate Notes from the
relevant Closing Date and shall be computed for each Interest Accrual Period on
the basis of a 360-day year and the actual number of days elapsed in such
Interest Accrual Period on the Outstanding Principal Balance of such Note.
Interest shall accrue on any subclass of the Fixed Rate Notes from the relevant
Closing Date and shall be computed for each Interest Accrual Period on the
basis of a 360-day year and one-twelfth of an annual interest payment on the
Outstanding Principal Balance and, in the case of an incomplete Interest
Accrual Period, on the basis of a 360-day year consisting of twelve 30-day
months and the actual number of days elapsed in such Interest Accrual Period.
(c) On the date of any Refinancing, the Issuer shall issue and deliver as
provided in Section 2.10 hereof an aggregate principal amount of Refinancing
Notes having the maturities and bearing the interest rates and such other terms
authorized by one or more Board Resolutions or in any indenture supplemental
hereto providing for the issuance of such Notes or specified in the form of
such Notes, in each case in accordance with such Section 2.10.
(d) On the date of the issuance, if any, of any Issuer Additional Notes,
the Issuer shall issue and deliver, as provided in Sections 2.11 and 5.02(f)
hereof, an aggregate principal amount of Issuer Additional Notes having the
maturities and bearing the interest rates and such other terms authorized by
one or more Board Resolutions or in any indenture supplemental hereto providing
for the issuance of such Notes or specified in the form of such Notes, in each
case in accordance with such Section 2.11.
(e) On the date of the issuance of any Remaining Subclass D-1 Notes or
Remaining Subclass E-1 Notes, the Issuer shall issue and deliver, as provided
in Sections 2.12 and 5.02(f) hereof, an aggregate principal amount of such
Notes equal to the pro rata portion of such subclass of Notes allocable to the
Remaining Aircraft or Substitute Aircraft theretofore delivered and having the
same terms as the Subclass D-1 Notes and the Subclass E-1 Notes issued on the
Initial Closing Date.
(f) The Notes shall be executed on behalf of the Issuer by the manual or
facsimile signature of a Responsible Officer of the Issuer.
(g) Each Note bearing the manual or facsimile signatures of any individual
who was at the time such Note was executed a Responsible Officer of the Issuer
shall bind the
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Issuer, notwithstanding that any such individual has ceased to hold such office
prior to the authentication and delivery of such Notes or any payment thereon.
(h) At any time and from time to time after the execution of any Notes,
the Issuer may deliver such Notes to the Trustee for authentication and,
subject to the provisions of clause (i) below, the Trustee shall authenticate
such Notes by manual or facsimile signature upon receipt by it of written
orders of the Issuer. The Notes shall be authenticated on behalf of the
Trustee by any Responsible Officer of the Trustee.
(i) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless it shall have been executed on
behalf of the Issuer as provided in clause (f) above and authenticated by or on
behalf of the Trustee as provided in clause (h) above. Such signatures shall
be conclusive evidence that such Note has been duly executed and authenticated
under this Indenture. Each Note shall be dated the date of its authentication.
(j) The Issuer shall execute and the Trustee shall, in accordance with
this Section 2.01, authenticate the Global Notes and deliver the Global Notes
to the Book-Entry Depositary.
Upon receipt by the Book-Entry Depositary of each Global Note
authenticated and delivered by the Trustee, the Issuer shall, in accordance
with the terms of the Deposit Agreement, cause the Book-Entry Depositary to
issue to the Depository a Depositary Interest in such Global Note by recording
such Depositary Interest in the register of the Book-Entry Depositary in the
name of Cede & Co., as nominee of the Depository, or such other nominee as the
Depository shall specify.
Neither the Depository nor its Participants shall have any rights either
under this Indenture or under any Global Note held on their behalf by the
Book-Entry Depositary. The Holder of any Global Note may be treated by the
Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of
the Issuer or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Book-Entry Depositary, as a
Holder, or impair, as between the Book-Entry Depositary, as a Holder, and the
Depository and its Participants, the operation of customary practices of such
Depository governing the exercise of the rights of an owner of a beneficial
interest in any Global Note.
(k) The Issuer shall execute and the Trustee shall, in accordance with
this Section 2.01, authenticate the Subclass D-1 Notes and the Subclass E-1
Notes and deliver the same as instructed in writing by the Issuer.
Section 2.02. Restrictive Legends. Unless and until a Note is exchanged
for an Exchange Note in connection with an effective registration under the
Securities Act
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pursuant to the relevant Registration Rights Agreement, each Definitive
Registered Note shall bear the following legend (the "Private Placement
Legend") on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY
AUTHORITY IN ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT(A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE
144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) IF APPLICABLE)
UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS
NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO AERCO LIMITED
OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (D)
PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE (A)
THROUGH (E) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE IN THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED
TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
TRANSFER NOTICE ATTACHED HERETO AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION
OF THE FOREGOING RESTRICTIONS.
Section 2.03. Registrar and Paying Agent. (a) With respect to each
subclass of Notes, there shall at all times be maintained (i) an office or
agency in the location set forth
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in Section 13.05 hereof where Definitive Registered Notes of such subclass may
be presented or surrendered for registration of transfer or for exchange (each,
a "Registrar"), (ii) an office or agency in the location set forth in Section
13.05 hereof other than Ireland where Notes of any subclass may, to the extent
required hereunder, be presented for payment (each, a "Paying Agent") and (iii)
an office or agency where notices and demands to or upon the Issuer in respect
of the Notes may be served which shall include the office or agency of its
agent for service of process set forth in Exhibit G hereto and the office or
agency of the Issuer as provided in Section 13.05 hereof. For so long as any
Notes are listed on the Luxembourg Stock Exchange, the Issuer shall appoint and
maintain, or cause the Trustee to appoint and maintain a Paying Agent and a
Registrar in Luxembourg. The Issuer shall cause each Registrar to keep a
register containing the names and addresses of all Holders of such subclass of
Definitive Registered Notes for which it is acting as Registrar and of their
transfer and exchange (the "Register"). Written notice of the location of each
such other office or agency and of any change of location thereof shall be
given by the Trustee to the Issuer and the Holders of such subclass. In the
event that no other such office or agency shall be maintained or no other such
notice of location or of change of location shall be given, presentations and
demands may be made and notices may be served at the Corporate Trust Office of
the Trustee.
(b) Each Authorized Agent shall be a bank or trust company, shall be a
corporation organized and doing business under the laws of the United States or
any state or territory thereof or of the District of Columbia, with a combined
capital and surplus of at least $75,000,000 (or having a combined capital and
surplus in excess of $5,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any state or territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000) and shall be authorized
under the laws of the United States or any state or territory thereof to
exercise corporate trust powers, subject to supervision by Federal or state
authorities (such requirements, the "Eligibility Requirements"). The Trustee
shall initially be a Paying Agent and Registrar hereunder. Each Registrar
other than the Trustee shall furnish to the Trustee, at stated intervals of not
more than six months, and at such other times as the Trustee may request in
writing, a copy of the Register maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authorized Agent, shall be the successor of such Authorized Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving written notice
of resignation to the Trustee and the Issuer. The Issuer may, and at the
request of the Trustee shall, at any time terminate the agency of any
Authorized Agent by giving written notice of
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termination to such Authorized Agent and to the Trustee. Upon the resignation
or termination of an Authorized Agent or if at any time any such Authorized
Agent shall cease to be eligible under this Section (when, in either case, no
other Authorized Agent performing the functions of such Authorized Agent shall
have been appointed by the Trustee), the Issuer shall promptly appoint one or
more qualified successor Authorized Agents, reasonably satisfactory to the
Trustee, to perform the functions of the Authorized Agent which has resigned or
whose agency has been terminated or who shall have ceased to be eligible under
this Section. The Issuer shall give written notice of any such appointment
made by it to the Trustee, and in each case the Trustee shall provide notice of
such appointment to all Holders of the related subclass in accordance with the
provisions of Section 13.05 hereof.
(e) The Issuer agrees to pay, or cause to be paid, from time to time to
each Authorized Agent reasonable compensation for its services and to reimburse
it for its reasonable expenses to be agreed to pursuant to separate agreements
with each such Authorized Agent.
Section 2.04. Paying Agent to Hold Money in Trust. The Trustee shall
require each Paying Agent other than the Trustee to agree in writing that all
moneys deposited with any Paying Agent for the purpose of any payment on the
Notes shall be deposited and held in trust for the benefit of the Holders
entitled to such payment, subject to the provisions of this Section. Moneys so
deposited and held in trust shall constitute a separate trust fund for the
benefit of the Holders of such subclass of Notes with respect to which such
money was deposited.
The Trustee may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, direct any Paying
Agent to pay to the Trustee all sums held in trust by such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to such money.
Section 2.05. Method of Payment. (a) On each Payment Date, the Trustee
shall, or shall instruct a Paying Agent to, pay, to the extent of the Available
Collections Amount therefor after the withdrawals, transfers provided for in
Section 3.07 and the payments ranking in priority thereto under Section 3.08
hereof have been made, to the Noteholders all interest, principal and premium,
if any, on the Notes of each subclass; provided, that in the event and to the
extent receipt of any payment is not confirmed by the Trustee or Paying Agent by
1:00 p.m. (New York time) on such Payment Date or any Business Day thereafter,
distribution thereof shall be made on the Business Day following the Business
Day such payment is received.
(b) Payments on a Payment Date with respect to (i) any Notes in the form
of Global Notes shall be made by check or wire transfer to or as instructed by
the Book-Entry Depositary at least five business days before the applicable
Payment Date so long as it is the Holder thereof, and otherwise to the Holder
of a Global Note upon presentation of such Global Note at the Corporate Trust
Office or agency of the Trustee or Paying Agent, and (ii)
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Notes in the form of Definitive Registered Notes shall be made by check mailed
to each Holder of a Definitive Registered Note determined on the applicable
Record Date, at its address appearing in the Register maintained with respect
to such subclass. Alternatively, upon application in writing to the Trustee,
not later than the applicable Record Date, by a Noteholder of one or more
Definitive Registered Notes of any subclass having an aggregate principal
amount of not less than $1,000,000, any such payments shall be made by wire
transfer to an account designated by such Noteholder at a financial institution
in New York, New York; provided that the final payment for each subclass of
Notes shall be made only upon presentation and surrender of the Global Notes or
Definitive Registered Notes of such subclass by the Noteholder or its agent at
the Corporate Trust Office or agency of the Trustee or Paying Agent specified
in the notice of such final payment given by the Trustee or Paying Agent. The
Trustee or Paying Agent shall mail such notice of the final payment of such
subclass to each of the Noteholders of such subclass, specifying the date and
amount of such final payment.
Section 2.06. Minimum Denomination. Each subclass of Notes shall be issued
in minimum denominations of $100,000 and integral multiples of $1,000 in excess
thereof.
Section 2.07. Transfer and Exchange; Cancellation. (a) Transfer and
Exchange of Global Notes. Transfer of any Global Note shall be by delivery.
The Issuer represents that it has agreed with the Book-Entry Depositary that a
Global Note and the corresponding Depositary Interests therein shall only be
transferred in the circumstances described in the Deposit Agreement. All Global
Notes will be exchanged by the Issuer for Notes in definitive registered form
substantially as set forth in the applicable exhibit to this Indenture (each, a
"Definitive Registered Note") if (i) the Depository notifies the Book-Entry
Depositary in writing that it is no longer willing or able to properly discharge
its responsibilities as depository with respect to the Depositary Interests and
a successor depositary is not appointed in accordance with the terms of the
Deposit Agreement by the Book-Entry Depositary at the request of the Issuer
within 90 days of such notice, (ii) the Issuer or the Book-Entry Depositary
advises the Trustee in writing that the Book-Entry Depositary is no longer
willing or able to properly discharge its responsibilities as book-entry
depositary and the Issuer is unable to appoint a successor book-entry depositary
acceptable to the Trustee within 90 days of such notice or (iii) after the
occurrence of an Event of Default with respect to any class of Notes, owners of
Book-Entry Interests of a subclass within such class representing an aggregate
of not less than 51% of the aggregate Outstanding Principal Balance of Notes of
such subclass advise the Issuer, the Trustee, the Book-Entry Depositary and the
Depository through the Participants in writing that the continuation of a
book-entry system through the Depository (or a successor thereto) is no longer
in the best interests of such owners. Upon the occurrence of any Event of
Default, the Trustee shall notify all Holders of each affected subclass of the
occurrence of such event and of the availability of Definitive Registered Notes
of such subclass. Upon surrender to the Trustee of the Global Notes of any
subclass, accompanied by registration instructions from the Holder of such
Global Note as provided in the Deposit Agreement, the Issuer shall issue and the
Trustee shall
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authenticate and deliver the Definitive Registered Notes of such subclass to
the registered owners thereof.
None of the Issuer, the Paying Agent or the Trustee shall be liable for
any delay in delivery of such registration instructions and may conclusively
rely on, and shall be fully protected in relying on, such instructions as
provided in accordance with the terms of the Deposit Agreement. Upon the
issuance of Definitive Registered Notes of any subclass, the Trustee shall
recognize the Persons in whose name the Definitive Registered Notes are
registered in the Register as Noteholders of such subclass hereunder. Neither
the Issuer nor the Trustee shall be liable if the Trustee or the Issuer is
unable to appoint a successor Depository or Book-Entry Depositary.
The transfer and exchange of Book-Entry Interests shall be effected
through the Depository, in accordance with this Indenture, the Deposit
Agreement and the Applicable Procedures of the Depository therefor. Book-Entry
Interests corresponding to Global Notes shall be subject to restrictions on
transfer comparable to those set forth in Section 2.13 hereof and elsewhere
herein to the extent required by the Securities Act. The Trustee shall have no
obligation to ascertain the Depository's compliance with any such restrictions
on transfer.
Any Book-Entry Interest corresponding to one of the Global Notes of any
subclass that is transferred to a Person who will hold such Book-Entry Interest
in the form of an interest in the other Global Note of such subclass will, upon
transfer, cease to be an interest in such first Global Note and become an
interest in such other Global Note and, accordingly, will thereafter be subject
to all transfer restrictions, if any, and other procedures applicable to
Book-Entry Interests in such other Global Note for as long as it remains such
an interest.
Global Notes may also be exchanged or replaced, in whole or in part, as
provided in Sections 2.08 and 2.14 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof
pursuant to Section 2.08 or 2.14 hereof shall be authenticated and delivered in
the form of, and shall be, a Global Note in bearer form. A Global Note may not
be exchanged for another Note other than as provided in Sections 2.07(a), 2.08
and 2.14.
(b) Transfer and Exchange of Definitive Registered Notes. A Holder may
transfer a Definitive Registered Note only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until,
and such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Register.
Prior to the due presentment for registration of transfer of a Definitive
Registered Note, the Issuer and the Trustee may deem and treat the applicable
registered Noteholder as the absolute owner and Holder of such Definitive
Registered Note for the purpose of receiving payment of all amounts payable with
respect to such Definitive
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Registered Note and for all other purposes and shall not be affected by any
written notice to the contrary. The Registrar (if different from the Trustee)
shall promptly notify the Trustee and the Trustee shall promptly notify the
Issuer of each request for a registration of transfer of a Definitive Registered
Note.
When Definitive Registered Notes are presented to the Registrar with a
request to register their transfer or to exchange them for an equal principal
amount of Definitive Registered Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met (including, in the case of a
transfer, that such Definitive Registered Notes are duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and Registrar duly executed by the Holder thereof or by an attorney who
is authorized in writing to act on behalf of the Holder). To permit
registrations of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Definitive Registered Notes at the Registrar's
request. Except as set forth in Sections 2.08 and 2.09 hereof, no service
charge shall be made for any registration of transfer or exchange of any
Definitive Registered Notes.
The Issuer shall not be required to exchange or register the transfer of
any Definitive Registered Notes as above provided during the 15-day period
preceding the Final Maturity Date of any such Notes or during the period after
the first mailing of any notice of Redemption or Refinancing of Notes to be
redeemed or refinanced. The Issuer shall not be required to exchange or
register the transfer of any Definitive Registered Notes that have been
selected, called or are being called for Redemption or Refinancing except, in
the case of any Definitive Registered Notes where notice has been given that
such Definitive Registered Notes are to be redeemed in part, the portion
thereof not so to be redeemed.
(c) Exchange Offer; Registration of Subclass D-1 Notes. Upon the
occurrence of an Exchange Offer in accordance with the relevant Registration
Rights Agreement, the Issuer shall, upon cancellation by the Trustee of the
Notes surrendered for exchange, issue and the Trustee shall authenticate, for
each subclass of Notes, one or more global Exchange Notes in bearer form in an
aggregate principal amount equal to the principal amount of the Book-Entry
Interests tendered for acceptance by persons that are not (x) broker-dealers,
(y) Persons participating in the distribution of the Exchange Notes or (z)
Persons who are affiliates (as defined in Rule 144 under the Securities Act) of
the Issuer and accepted for exchange in the Exchange Offer. Upon a registered
sale of the Subclass D-1 Notes pursuant to the D Note Registration Rights
Agreement, the Issuer shall, upon cancellation by the Trustee of the Subclass
D-1 Notes surrendered, issue and the Trustee shall authenticate one or more
global notes in bearer form in an aggregate principal amount equal to the
principal amount of the Class D Notes for such subclass exchanged therefor.
Concurrently with the issuance of such Exchange Notes, the Trustee shall cause
the aggregate principal amount of the applicable Global Notes to be reduced
accordingly and shall direct the Book-Entry Depositary to make a corresponding
reduction in its books and records of the corresponding Depositary Interests.
Book-Entry Interests and Depositary Interests corresponding to a Global Note so
exchanged for an Exchange Note shall be in turn exchanged for Book-Entry
Interests and Depositary Interests in such Exchange Note.
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(d) Cancellation. The Issuer at any time may deliver Notes to the Trustee
for cancellation. Each Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange, payment or purchase. The
Trustee and no one else shall cancel and destroy in accordance with its
customary practices in effect from time to time (subject to the record
retention requirements of the Exchange Act) any such Notes, together with any
other Notes surrendered to it for registration of transfer, exchange or
payment. The Issuer may not issue new Notes (other than Refinancing Notes
issued in connection with any Refinancing) to replace Notes it has redeemed,
paid or delivered to the Trustee for cancellation.
Section 2.08. Mutilated, Destroyed, Lost or Stolen Notes. If any Note
shall become mutilated, destroyed, lost or stolen, the Issuer shall, upon the
written request of the Holder thereof and presentation of the Note or
satisfactory evidence of destruction, loss or theft thereof to the Trustee or
Registrar, issue, and the Trustee shall authenticate and the Trustee or
Registrar shall deliver in exchange therefor or in replacement thereof, a new
Note of the same subclass, payable to such Holder in the same principal amount,
of the same maturity, with the same payment schedule, bearing the same interest
rate and dated the date of its authentication. If the Note being replaced has
become mutilated, such Note shall be surrendered to the Trustee or a Registrar
and forwarded to the Issuer by the Trustee or such Registrar. If the Note being
replaced has been destroyed, lost or stolen, the Holder thereof shall furnish to
the Issuer, the Trustee or a Registrar (i) such security or indemnity as may be
required by them to save the Issuer, the Trustee and such Registrar harmless and
(ii) evidence satisfactory to the Issuer, the Trustee and such Registrar of the
destruction, loss or theft of such Note and of the ownership thereof. The
Noteholders will be required to pay any tax or other governmental charge imposed
in connection with such exchange or replacement and any other expenses
(including the fees and expenses of the Trustee and any Registrar) connected
therewith.
Section 2.09. Payments of Transfer Taxes. Upon the transfer of any Note
or Notes pursuant to Section 2.07 hereof, the Issuer or the Trustee may require
from the party requesting such new Note or Notes payment of a sum to reimburse
the Issuer or the Trustee for, or to provide funds for the payment of, any
transfer tax or similar governmental charge payable in connection therewith.
Section 2.10. Refinancing of A-D Notes. (a) Subject to paragraphs (b)
and (c) below and Section 5.02(f)(ii) hereof, the Issuer may issue Refinancing
Notes pursuant to this Indenture for the purpose of refinancing the Outstanding
Principal Balance of any subclass of A-D Notes (including refinancings of
Refinancing Notes). Each refinancing of any subclass of A-D Notes with the
proceeds of an offering of Refinancing Notes (a "Refinancing") shall be
authorized pursuant to one or more Board Resolutions. Each Refinancing Note
shall be designated generally as a "Note" for all purposes under this Indenture,
with such further designations added or incorporated in such title as specified
in the related Board Resolutions or in any indenture supplemental hereto
providing for the issuance of such Notes or specified in the form of such Notes,
as the case may be.
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(b) A Refinancing of any subclass of A-D Notes in whole or in part may
occur on any Payment Date after the Initial Closing Date; provided that notice
of such Refinancing shall be given by the Issuer to the Trustee and each Holder
and, for so long as any A-D Notes are listed on the Luxembourg Stock Exchange,
to the Listing Agent and the Luxembourg Stock Exchange, not less than five days
and not more than thirty days prior to the date of such Refinancing in the
manner provided in Section 2.15 hereof; provided, further, that an amount equal
to the Redemption Price plus accrued and unpaid interest will be payable with
respect to any subclass of A-D Notes so refinanced. Each notice in respect of
a Refinancing shall state (i) the date of such Refinancing, (ii) the Redemption
Price of the A-D Notes to be refinanced and the amount of accrued but unpaid
interest thereon, (iii) that the A-D Notes of the subclass to be refinanced
must be surrendered and (iv) that, unless the Issuer defaults in the payment of
the Redemption Price and any accrued and unpaid interest, interest on such
subclass of A-D Notes to be refinanced will cease to accrue on and after the
date of such Refinancing. On the date of any Refinancing, the Issuer shall
issue and sell an aggregate principal amount of Refinancing Notes not to exceed
the Outstanding Principal Balance of the subclass of A-D Notes being refinanced
thereby plus any Redemption Premium and transaction expenses relating thereto.
The proceeds of each sale of Refinancing Notes shall be used to repay the
Outstanding Principal Balance, any Redemption Premium and expenses of the
subclass of A-D Notes being refinanced thereby. Once a Notice of Refinancing
in respect of any Refinancing is published, each subclass of A-D Notes to which
such Notice of Refinancing applies shall become due and payable on the
Refinancing Date stated in such Notice of Refinancing at their Redemption
Price, together with accrued and unpaid interest.
(c) Each Refinancing Note shall contain such terms as may be established
in or pursuant to the related Board Resolutions (subject to Section 2.01
hereof) or in any indenture supplemental hereto providing for the issuance of
such Notes or specified in the form of such Notes to the extent permitted
below, and shall have the same ranking pursuant to Section 3.08 with respect to
all other Outstanding Notes as the subclass of A-D Notes being refinanced
thereby. Prior to any Refinancing, any or all of the following, as applicable,
with respect to the related issue of Refinancing Notes shall have been
determined by the Issuer and set forth in such Board Resolutions or in any
indenture supplemental hereto providing for the issuance of such Notes or
specified in the form of such Notes, as the case may be:
(1) the subclass of A-D Notes to be refinanced by such Refinancing
Notes;
(2) the aggregate principal amount of each subclass of such
Refinancing Notes which may be issued in respect of such Refinancing;
(3) the proposed date of such Refinancing;
(4) the Expected Final Payment Date and the Final Maturity Date of
each subclass of such Refinancing Notes;
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(5) the rate at which such Refinancing Notes shall bear interest or
the method by which such rate shall be determined;
(6) if other than denominations of $100,000 and any integral
multiple of $1,000 in excess thereof, the denomination or denominations
in which any subclass of such Refinancing Notes shall be issuable;
(7) whether any such Refinancing Notes are to be issuable initially
in registered or bearer form, temporary or permanent global form and, if
so, whether beneficial owners of interests in any such permanent global
Refinancing Note may exchange such interests for Refinancing Notes of
such subclass and of like tenor of any other authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 2.07 hereof, and
the circumstances under which and the place or places where any such
exchanges may be made and the identity of any initial depository
therefor; and
(8) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the subclass of
Refinancing Notes (which terms shall comply with Applicable Law and not
be inconsistent with the requirements or restrictions of this Indenture,
including Section 5.02(f)(ii) hereof).
If any of the terms of any issue of Refinancing Notes are established by
action taken pursuant to one or more Board Resolutions, a certified copy of
such Board Resolutions shall be delivered to the Trustee setting forth the
terms of such Refinancing Notes.
Section 2.11. Issuer Additional Notes. (a) Subject to paragraph (b) below
and Section 5.02(f)(iv) hereof, the Issuer may issue Issuer Additional Notes
pursuant to this Indenture the proceeds of which shall be used to acquire Issuer
Additional Aircraft (each, an "Additional Issuance"). Each issuance of any
subclass of Issuer Additional Notes shall be authorized pursuant to one or more
Board Resolutions. Each Issuer Additional Note shall be designated generally as
a "Note" for all purposes under this Indenture, with such further designations
added or incorporated in such title as specified in the related Board
Resolutions or in any indenture supplemental hereto providing for the issuance
of such Notes or specified in the form of such Notes, as the case may be.
(b) Each Issuer Additional Note shall contain such terms as may be
established in or pursuant to the related Board Resolutions (subject to Section
2.01 hereof) or in any indenture supplemental hereto providing for the issuance
of such Notes or specified in the form of such Notes to the extent permitted
below, and shall have the same ranking pursuant to Section 3.08 with respect to
all other Outstanding AerCo Group Notes of the same class. Prior to any
issuance, any or all of the following, as applicable, with respect to the
related Additional Issuance shall have been determined by the Issuer and set
forth in such Board Resolutions or in any indenture supplemental hereto or
specified in the form of such Notes, as the case may be:
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(1) the subclass of Notes to be issued;
(2) the aggregate principal amount of each subclass of such Issuer
Additional Notes which may be issued;
(3) the proposed date of such Additional Issuance;
(4) the Expected Final Payment Date and the Final Maturity Date of
each subclass of such Issuer Additional Notes;
(5) the rate at which such Issuer Additional Notes shall bear
interest or the method by which such rate shall be determined;
(6) if other than denominations of $100,000 and any integral
multiple of $1,000 in excess thereof, the denomination or denominations
in which each subclass of any such Issuer Additional Notes shall be
issuable;
(7) whether any such Issuer Additional Notes are to be issuable
initially in registered or bearer form, temporary or permanent global
form and, if so, whether beneficial owners of interests in any such
permanent global Issuer Additional Note may exchange such interests for
Issuer Additional Notes of the same subclass and of like tenor and of any
other authorized form and denomination and the circumstances under which
any such exchanges may occur, if other than in the manner provided in
Section 2.07 hereof, and the circumstances under which and the place or
places where any such exchanges may be made and the identity of any
initial depository therefor; and
(8) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to each subclass of
Issuer Additional Notes (which terms shall comply with Applicable Law and
not be inconsistent with the requirements or restrictions of this
Indenture, including Sections 5.02(f) and 13.13 hereof).
If any of the terms of any issue of Issuer Additional Notes are
established by action taken pursuant to one or more Board Resolutions, a
certified copy of such Board Resolutions shall be delivered to the Trustee
setting forth the terms of such Issuer Additional Notes.
Section 2.12. Remaining Subclass D-1 Notes and Remaining Subclass E-1
Notes. (a) Subject to paragraphs (a) and (b) of this Section 2.12, the Issuer
may issue to GPA Group or its subsidiaries additional Subclass D-1 Notes (the
"Remaining Subclass D-1 Notes") and Subclass E-1 Notes (the "Remaining Subclass
E-1 Notes") pursuant to this Indenture the proceeds of which shall be used to
acquire the Remaining Aircraft or Substitute Aircraft in an amount equal to the
pro rata portion of the Subclass D-1 Notes or the Subclass E-1 Notes, as the
case may be, allocable to the Remaining Aircraft or Substitute Aircraft
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delivered. The issuance of Remaining Subclass D-1 and Subclass E-1 Notes shall
be authorized pursuant to one or more Board Resolutions. Each Remaining
Subclass D-1 and Subclass E-1 Note shall be designated generally as a "Note".
(b) Each Remaining Subclass D-1 Note and each Remaining Subclass E-1 Note
shall contain terms identical to those of the Subclass D-1 Notes or Subclass
E-1 Notes, as the case may be, issued on the Initial Closing Date, except as to
denomination, date of issuance and principal amount, and shall have the same
ranking with respect to all other Notes as the Subclass D-1 Notes or Subclass
E-1 Notes, as the case may be.
Section 2.13. Special Transfer Provisions. Unless and until a Note is
exchanged for an Exchange Note under an effective registration statement under
the Securities Act pursuant to the relevant Registration Rights Agreement, the
following provisions shall apply:
(a) All Transfers and Exchanges of Book-Entry Interests. In connection
with all transfers and exchanges of Book-Entry Interests, other than transfers
of Book-Entry Interests corresponding to a Global Note to Persons who will hold
such Book-Entry Interest in the form of a Book-Entry Interest corresponding to
the same Global Note, the transferor of such Book-Entry Interest must deliver
to the Trustee either (i) (A) instructions given in accordance with the
Applicable Procedures from a Participant directing the Depository to credit or
cause to be credited a Book-Entry Interest corresponding to the specified
Global Note in an amount equal to the Book-Entry Interest to be transferred or
exchanged, (B) a written order given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase and (C) instructions given by the Holder of the
Global Note to effect the transfer referred to in (A) and (B) above or (ii) (A)
instructions given in accordance with the Applicable Procedures from a
Participant directing the Depository to cause to be issued a Definitive
Registered Note in an amount equal to the Book-Entry Interest to be transferred
or exchanged and (B) instructions given by the Holder of the Global Note to
effect the transfer referred to in (A) above.
(b) Transfer of Book-Entry Interests in the Same Global Note. Book-Entry
Interests corresponding to any Global Note may be transferred to Persons who
will hold such Book-Entry Interest in the form of a Book-Entry Interest
corresponding to the same Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend.
(c) Transfer of Book-Entry Interests to Another Global Note. Book-Entry
Interests corresponding to one of the Global Notes of any subclass may be
transferred to Persons who will hold such Book-Entry Interest in the form of a
Book-Entry Interest corresponding to the other Global Note of such subclass if
the Trustee receives the following:
(i) if the transferee will hold such interests in the form of a
Book-Entry Interest corresponding to a Rule 144A Global Note, then the
transferor must deliver a
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certificate in the form of Exhibit J hereto, including the certifications
in item (1) thereof; and
(ii) if the transferee will hold such interests in the form of a
Book-Entry Interest corresponding to a Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit J hereto,
including the certifications in item (2) thereof.
(d) Notation by the Trustee of Transfer of Book-Entry Interests Among
Global Notes. Upon satisfaction of the requirements for transfer of Book-Entry
Interests pursuant to paragraph (c) above, the Trustee shall reduce or cause to
be reduced the aggregate principal amount of the relevant Global Note from
which the Book-Entry Interest is being transferred, and increase or cause to be
increased the aggregate principal amount of the Global Note to which the
Book-Entry Interest is being transferred, in each case, by the principal amount
of the Book-Entry Interest being transferred and shall direct the Book-Entry
Depositary to make corresponding endorsements on the schedules attached to such
Global Notes and adjustments in its book-entry system of the corresponding
Depositary Interests.
(e) Exchange of Book-Entry Interests for Definitive Registered Notes. Any
Definitive Registered Note delivered in exchange for a Book-Entry Interest
corresponding to a Rule 144A Global Note or Regulation S Global Note, as the
case may be, pursuant to the Deposit Agreement and Section 2.07(a) hereof
shall, except as otherwise provided by paragraph (f) of this Section 2.13, bear
the Private Placement Legend set forth in Section 2.02 hereof.
(f) Private Placement Legend. Upon the transfer, exchange or replacement
of Definitive Registered Notes not bearing the Private Placement Legend, the
Registrar shall deliver Definitive Registered Notes that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of
Definitive Registered Notes bearing the Private Placement Legend, the Registrar
shall deliver only Definitive Registered Notes that bear the Private Placement
Legend unless either (i) the Private Placement Legend is no longer required
under Section 2.02 hereof or (ii) there is delivered to the Registrar an
Opinion of Counsel reasonably satisfactory to the Issuer and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(g) General. By its acceptance of any Note bearing the Private Placement
Legend, each Holder of such Note acknowledges the restrictions on transfer of
such Note set forth in this Indenture and in the Private Placement Legend and
agrees that it will transfer such Note only as provided in this Indenture. By
its acceptance of a Depositary Interest or Book-Entry Interest corresponding to
any Note, each such owner acknowledges the restrictions on transfer of such
Depositary Interest or Book-Entry Interest set forth in this Indenture and the
Deposit Agreement and agrees that it will transfer such Depositary Interest or
Book-Entry Interest only as set forth in this Indenture and the Deposit
Agreement. The Registrar shall not register a transfer of any Definitive
Registered Note unless such transfer
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complies with the restrictions on transfer of such Definitive Registered Note
set forth in this Indenture. In connection with any transfer of Notes or
Book-Entry Interests corresponding thereto, each Holder or owner thereof agrees
by its acceptance of such Notes or such Book-Entry Interests to furnish the
Trustee the certifications and legal opinions described herein to confirm that
such transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided that
the Trustee shall not be required to determine (but may rely on a determination
made by the Issuer with respect to) the sufficiency of any such legal opinions.
The Trustee shall retain copies of all letters, notices and other written
communications received pursuant to this Section 2.13. The Issuer shall have
the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Trustee.
Section 2.14. Temporary Definitive Registered Notes. Pending the
preparation of Definitive Registered Notes of any subclass, the Issuer may
execute and the Trustee may authenticate and deliver temporary Definitive
Registered Notes of such subclass which are printed, lithographed, typewritten
or otherwise produced, in any denomination, containing substantially the same
terms and provisions as are set forth in the applicable exhibit hereto or in any
indenture supplemental hereto, except for such appropriate insertions,
omissions, substitutions and other variations relating to their temporary nature
as the Responsible Officer of the Issuer executing such temporary Definitive
Registered Notes may determine, as evidenced by his execution of such temporary
Definitive Registered Notes.
If temporary Definitive Registered Notes of any subclass are issued, the
Issuer will cause Definitive Registered Notes of such subclass to be prepared
without unreasonable delay. After the preparation of Definitive Registered
Notes of such subclass, the temporary Definitive Registered Notes shall be
exchangeable for Definitive Registered Notes upon surrender of such temporary
Definitive Registered Notes at the Corporate Trust Office of the Trustee,
without charge to the Holder thereof. Upon surrender for cancellation of any
one or more temporary Definitive Registered Notes, the Issuer shall execute and
the Trustee shall authenticate and deliver in exchange therefor Definitive
Registered Notes of like subclass, in authorized denominations and in the same
aggregate principal amounts. Until so exchanged, such temporary Definitive
Registered Notes shall in all respects be entitled to the same benefits under
this Indenture as Definitive Registered Notes.
Section 2.15. Statements to Noteholders. (a) On the second Business Day
before each Payment Date and any other date for distribution of any payments
with respect to any subclass of Notes then Outstanding, the Trustee will
distribute to each Noteholder with each Payment to Noteholders of such subclass
a report, substantially in the form attached as Exhibit I hereto and setting
forth the information described therein after giving effect to such Payment
(each, a "Monthly Report") provided that such report is delivered to the Trustee
in a timely manner. A statement setting forth an analysis of the Collection
Account activity for each fiscal quarter will also be distributed to each
Noteholder within 45 days of the preceding quarter end, provided that such
information is delivered to the Trustee in a timely manner.
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(b) After the end of each calendar year but not later than the latest date
permitted by law, the Trustee in its capacity as Paying Agent shall or, if the
Paying Agent is another Person other than the Trustee, the Trustee shall
instruct such Paying Agent to, furnish to each Person who at any time during
such calendar year was a Noteholder of record of any subclass a statement
containing the sum of the amounts determined pursuant to clause (D) of Exhibit
H hereto (or in accordance with Internal Revenue Service Form 1099) with
respect to the subclass for such calendar year or, in the event such Person was
a Noteholder of record of any subclass during only a portion of such calendar
year, for the applicable portion of such calendar year.
(c) On each Payment Date and any other date specified herein for
distribution of any Payments with respect to the Notes of any subclass, the
Trustee shall provide to the Listing Agent, on behalf of the Luxembourg Stock
Exchange, a copy of the report to Noteholders of such subclass described in
this Section 2.15.
(d) Following each Payment Date and any other date specified herein for
distribution of any Payments with respect to the Notes and prior to a
Refinancing or Redemption, the Trustee shall cause notice of such Payment,
Refinancing or Redemption (including the information specified therefor in
Sections 2.10, 3.06(f) and 3.10, respectively) to be given (i) by publication
in the Luxemburger Wort or, if such newspaper shall cease to be published or
timely publication therein shall not be practicable, in such English language
newspaper or newspapers as the Trustee shall approve having a general
circulation in Europe, (ii) by either of (a) the information contained in such
notice appearing on the relevant page of the Reuters Screen or such other
medium for the electronic display of data as may be approved by the Trustee and
notified to Noteholders or (b) publication in the Financial Times and The Wall
Street Journal (National Edition) or, if either newspaper shall cease to be
published or timely publication therein shall not be practicable, in such
English language newspaper or newspapers as the Trustee shall approve having a
general circulation in Europe and the United States and (iii) until such time
as any Definitive Registered Notes are issued and, so long as Book-Entry
Interests are owned through the facilities of DTC, Euroclear and/or Cedel,
delivery of the relevant notice to DTC, Euroclear and/or Cedel for
communication by them to owners of Book-Entry Interests of such subclass.
(e) The Trustee shall be at liberty to sanction some other method of
giving notice to the Noteholders of any subclass if, in its opinion, such other
method is reasonable, having regard to the number and identity of the
Noteholders of such subclass and/or to market practice then prevailing, is in
the best interests of the Noteholders of such subclass and will comply with the
rules of the Luxembourg Stock Exchange as confirmed by the Listing Agent or
such other stock exchange (if any) on which the Notes of such subclass are then
listed, and any such notice shall be deemed to have been given on such date as
the Trustee may approve; provided that notice of such method is given to the
Noteholders of such subclass in such manner as the Trustee shall require.
(f) Notice specifying the interest rate and amount of any repayment of
principal pursuant to Section 3.10(a) or (b) hereof on any Notes shall, for so
long as such
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Notes are listed on the Luxembourg Stock Exchange and so long as the rules of
the Luxembourg Stock Exchange so require, be given to the Listing Agent. Any
such notice shall be deemed to have been given on the first day on which
requirements for such notification shall have been met.
Section 2.16. CUSIP, CINS AND ISIN Numbers. The Issuer in issuing the
Notes may use "CUSIP", "CINS", "ISIN" or other identification numbers (if then
generally in use), and if so, the Trustee shall use CUSIP numbers, CINS numbers,
ISIN numbers or other identification numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice shall state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of
redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Notes; provided further, that failure to
use "CUSIP", "CINS", "ISIN" or other identification numbers in any notice of
redemption or exchange shall not affect the validity or sufficiency of such
notice.
ARTICLE III
ACCOUNTS; PRIORITY OF PAYMENTS
Section 3.01. Establishment of Accounts. (a) The Cash Manager, acting on
behalf of the Security Trustee, shall establish and maintain the Accounts set
forth on Schedule I to the Cash Management Agreement and any additional accounts
established from time to time in the manner described in this Section 3.01. To
the greatest extent possible, the Security Trustee shall be granted a security
interest in the Issuer's and the Issuer Subsidiaries' interests in the cash
balances from time to time deposited in all of the Accounts pursuant to the
terms of Section 2.01 of the Security Trust Agreement. The Security Trustee
shall have sole dominion and control over the Accounts (including, inter alia,
the sole power to direct withdrawals or transfers from the Accounts), which
dominion and control is delegated to the Cash Manager pursuant to Section
2.01(a) of the Cash Management Agreement.
(i) The Cash Manager shall make withdrawals and transfers from the
Accounts in accordance with the terms of the Cash Management Agreement
and this Indenture based on the Relevant Information and as calculated by
it pursuant to this Indenture and the Cash Management Agreement.
(ii) If the Operating Bank should change at any time, then the Cash
Manager, acting on behalf of the Security Trustee, shall thereupon
promptly establish replacement accounts as necessary at the successor
Operating Bank and transfer the balance of funds in each Account then
maintained at the former Operating Bank pursuant to the terms of the Cash
Management Agreement to such successor Operating Bank.
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(b) Collection Account. The Cash Manager, acting on behalf of the
Security Trustee, shall establish and maintain at the Operating Bank in the
name of the Security Trustee (or in the name of an Eligible Institution
designated in writing by the Security Trustee to the Operating Bank), a trust
account (the "Collection Account"). The Collection Account shall bear a
designation clearly indicating that the funds deposited therein are held for
the benefit of the Secured Parties. All Collections received by the Issuer
and the Issuer Subsidiaries shall be deposited in the Collection Account and
transferred therefrom in accordance with the terms of this Indenture.
If the balance of funds on deposit in the Collection Account, together
with the amount available for drawing under any Eligible Credit Facilities,
falls below the Liquidity Reserve Amount at any time (including as a result of
any increase in the Liquidity Reserve Amount), the Issuer may continue to make
all payments, including required payments on the AerCo Group Notes and any
Guarantees, which rank prior to, or pari passu with, payments of Minimum
Principal Payment Amounts on the AerCo Group Class D Notes pursuant to Section
3.08(a) hereof and any Permitted Accruals other than in respect of Modification
Payments; provided that the balance of funds in the Collection Account,
together with the amount available for drawing under any Eligible Credit
Facilities does not fall below the Minimum Liquidity Reserve Amount at its then
current level; provided further, however, that the balance of funds in the
Collection Account, together with the amount available for drawing under any
Eligible Credit Facilities, may fall below the Minimum Liquidity Reserve Amount
at its then current level, and the Issuer may continue to make all payments,
including required payments on AerCo Group Notes and any Guarantees, in order
to pay accrued and unpaid interest on, and, on the applicable Final Maturity
Date thereof, principal of, the Senior Class then Outstanding to avoid an Event
of Default, in each case subject to the order of priorities under Section 3.08
hereof.
The Security Trustee shall have sole dominion and control over the
Collection Account and all investments made through and/or maintained in the
Collection Account, including authority to direct withdrawals from or transfers
among the Collection Account and each other Account. Amounts may be withdrawn
or transferred from the Collection Account only in accordance with the
provisions of this Indenture, any Guarantor Indenture and the Cash Management
Agreement by authorized officers or employees of the Security Trustee or agents
authorized by the Security Trustee in writing (including the Cash Manager and
any authorized agent thereof pursuant to the Cash Management Agreement). If,
at any time, the Collection Account ceases to be an Eligible Account, the Cash
Manager or an agent thereof shall, within 10 Business Days, establish a new
collection account meeting the conditions set forth in this Section 3.01(b) and
transfer any cash or investments in the existing Collection Account to such new
collection account; and from the date such new collection account is
established, it shall be the "Collection Account".
(c) Lessee Funded Account. The Cash Manager, acting on behalf of the
Security Trustee, shall establish and maintain at the Operating Bank in the
name of the Security Trustee (or in the name of an Eligible Institution
designated in writing by the Security Trustee to the Operating Bank) one or
more trust accounts (collectively, the "Lessee
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Funded Account"). The Lessee Funded Account shall bear a designation
indicating that the Segregated Funds deposited therein are held for the benefit
of the relevant Lessee pursuant to the terms of any Lease which requires that
such funds be segregated from the other funds of the AerCo Group, and that such
Segregated Funds are to be held in accordance with such Lease. Any Segregated
Funds received from time to time from such Lessees shall be transferred by the
Cash Manager directly into the Lessee Funded Account. All funds on deposit in
the Lessee Funded Account shall be accounted for and, if required by any Lease,
segregated on a per lease basis as set forth below and may not be used to make
payments, other than as permitted under Section 3.07 hereof, in respect of the
Notes at any time, including after the delivery of a Default Notice. Any
Segregated Funds relating to an expired Lease that remain in the Lessee Funded
Account after expiration of such lease and that are not due and owing to the
relevant Lessee under such expired Lease shall be credited in the Lessee Funded
Account to the next Lessee of the relevant Aircraft to the extent, if any,
required under the terms of the next Lease relating to such Aircraft.
The Security Trustee shall have sole dominion and control over the Lessee
Funded Account and all investments made through and/or maintained in the Lessee
Funded Account, including sole authority to direct withdrawals or transfers
therefrom. Amounts may be withdrawn from the Lessee Funded Account only in
accordance with the provisions of this Indenture, any Guarantor Indenture and
the Cash Management Agreement and only by officers, employees or agents
authorized by the Security Trustee in writing (including the Cash Manager and
any authorized agent thereof pursuant to the Cash Management Agreement). If,
at any time, any Lessee Funded Account ceases to be an Eligible Account, the
Cash Manager or an agent thereof shall establish, within 10 Business Days, a
new lessee funded account to replace such Lessee Funded Account meeting the
conditions set forth in this Section 3.01(c) and transfer any cash or
investments in the existing Lessee Funded Account to such new lessee funded
account; and from the date any such new lessee funded account is established,
it shall be the "Lessee Funded Account" with respect to the relevant Lease.
(d) Expense Account. The Cash Manager, acting on behalf of the Security
Trustee, shall establish and maintain at the Operating Bank, in the name of the
Security Trustee (or in the name of an Eligible Institution designated in
writing by the Security Trustee to the Operating Bank), a trust account (the
"Expense Account") bearing a designation indicating that the funds deposited
therein are held for the benefit of the Secured Parties. On each Payment Date,
the Required Expense Amount (other than the part of the Required Expense Amount
paid directly to certain Expense payees on such Payment Date pursuant to
Section 3.08(a)(i) hereof) shall be deposited into the Expense Account from the
Collection Account. The Cash Manager may, but shall not be required to,
maintain in the Expense Account a balance containing accruals in respect of
Expenses that are not regular, monthly recurring Expenses, including
Modification Payments and Refinancing Expenses, if any, of AerCo Group
anticipated to become due and payable in any future Interest Accrual Period
(the "Permitted Accruals").
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The Security Trustee shall have sole dominion and control over the Expense
Account, including sole authority to direct withdrawals from or transfers among
the Accounts. Amounts may be withdrawn or transferred from the Expense Account
only in accordance with the provisions of this Indenture, any Guarantor
Indenture and the Cash Management Agreement by authorized officers or employees
of the Security Trustee or by agents authorized by the Security Trustee in
writing (including the Cash Manager and any authorized agents thereof pursuant
to the Cash Management Agreement). If, at any time, the Expense Account ceases
to be an Eligible Account, the Cash Manager or an agent thereof shall
establish, within 10 Business Days, a new expense account meeting the
conditions set forth in this Section 3.01(d) and transfer any cash or
investments in the existing Expense Account to such new expense account; and
from the date such new expense account is established, it shall be the "Expense
Account".
(e) Rental Accounts. The Cash Manager, acting on behalf of the Security
Trustee, shall establish and maintain, on or prior to the applicable Closing
Date and from time to time thereafter, one or more rental accounts (each, a
"Rental Account") for the deposit of Rental Payments and any amounts received
pursuant to any Related Collateral Documents; provided that all funds on
deposit in each Rental Account (other than certain limited amounts, if any,
required to be left on deposit for local tax or other regulatory or legal
reasons) shall be transferred by the Cash Manager or its agent from such Rental
Account into the Collection Account within one Business Day of receipt thereof.
Each Rental Account (other than the Non-Trustee Accounts) shall be established
and maintained at the Operating Bank (in which case such Rental Account shall
be a trust account), another Eligible Institution or a responsible and
reputable bank in accordance with Section 2.03 of the Cash Management Agreement
in the name of the Security Trustee on behalf of the Secured Parties.
In each case in which, for tax or other regulatory or legal reasons, any
Rental Account cannot be established in the name of the Security Trustee, then,
upon written notice from the Cash Manager to the Security Trustee and each
Rating Agency, the Issuer and any related Issuer Subsidiary shall open such
Rental Account (each, a "Non-Trustee Account") in the name of the Issuer or
relevant Lessor or such other Person as may be specified by the terms of the
relevant Lease, at an Eligible Institution or other reputable and responsible
bank; provided that no Non-Trustee Account may be opened unless the relevant
Lessor is or becomes a party to the Security Trust Agreement.
(f) Refinancing Account. The Cash Manager, acting on behalf of the
Trustee, shall establish and maintain at the Operating Bank in the name of the
Trustee, a trust account (the "Refinancing Account") for the benefit of the
Holders of AerCo Group A-D Notes of any subclass being refinanced for the
purpose of receiving the cash proceeds of any such Refinancing and holding such
proceeds on behalf of the Holders of such AerCo Group A-D Notes until such time
as the Outstanding Principal Balance and all accrued and unpaid interest and
Premium, if any, on such AerCo Group A-D Notes are repaid in full using such
proceeds and such AerCo Group A-D Notes are cancelled by the Trustee.
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(g) Defeasance/Redemption Account. The Cash Manager, acting on behalf of
the Trustee, shall establish and maintain at the Operating Bank in the name of
the Trustee, a trust account (the "Defeasance/Redemption Account") for the
benefit of the Holders of AerCo Group Notes of any subclass being redeemed or
defeased at the Operating Bank or such other Eligible Institution as may be
required for the purpose of receiving funds or securities to be used to redeem
or defease AerCo Group Notes pursuant to Section 3.10 or Article XI hereof or
pursuant to any Guarantor Indenture and holding such funds on behalf of the
Holders of the subclass of AerCo Group Notes to be redeemed or defeased, as the
case may be, until such time as the Outstanding Principal Balance and all
accrued and unpaid interest and Premium, if any, on such AerCo Group Notes are
repaid in full using such funds and such AerCo Group Notes are cancelled by the
Trustee.
(h) Aircraft Purchase Account. The Cash Manager, acting on behalf of the
Security Trustee, shall establish and maintain at the Operating Bank in the
name of the Security Trustee, a trust account (the "Aircraft Purchase Account")
for the purpose of (i) holding proceeds of the issuance of the Initial Notes on
behalf of the Holders until such time as the Remaining Aircraft or Substitute
Aircraft are delivered or such other time as the funds held therein are
transferred to the Collection Account in accordance with Section 3.04 hereof
and (ii) holding proceeds of any Additional Issuance pending application of
such proceeds for the acquisition of Additional Aircraft.
The Security Trustee shall have sole dominion and control over the
Aircraft Purchase Account and all investments made through and/or maintained in
the Aircraft Purchase Account, including authority to direct withdrawals from
or transfers among the Aircraft Purchase Account and each other Account. Any
amounts may be withdrawn or transferred from the Aircraft Purchase Account only
in accordance with the provisions of this Indenture and the Cash Management
Agreement by authorized officers or employees of the Security Trustee or agents
authorized by the Security Trustee in writing (including the Cash Manager and
any authorized agent thereof pursuant to the Cash Management Agreement). If,
at any time such account is required to be maintained by the Issuer, the
Aircraft Purchase Account ceases to be an Eligible Account, the Cash Manager or
an agent thereof shall, within 10 Business Days, establish a new deposit
account meeting the conditions set forth in this Section 3.01(h) and transfer
any cash or investments in the existing Aircraft Purchase Account to such new
deposit account; and from the date such new deposit account is established, it
shall be the "Aircraft Purchase Account".
(i) Note Account. The Cash Manager, acting on behalf of the Trustee,
shall establish and maintain at the Operating Bank in the name of the Trustee a
trust account for the benefit of the Noteholders of each subclass (each, a
"Note Account") as a non-interest-bearing account. The Trustee shall hold each
Note Account in trust for the benefit of the Noteholders of the relevant Note
Account, and shall make or permit withdrawals therefrom only as provided in
this Indenture. On each day when a payment is required to be made under this
Indenture in respect of any subclass of Notes, such amount shall be transferred
from the Collection Account to the relevant Note Account for application to the
payment of such Notes in accordance with the terms of this Indenture.
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Section 3.02. Investments of Cash. For so long as any AerCo Group Notes
remain Outstanding, the Cash Manager, on behalf of the Security Trustee, shall,
at the written direction of AerCo, invest and reinvest the funds on deposit in
the Accounts in Permitted Account Investments; provided, however, that following
the giving of a Default Notice or during the continuance of an Acceleration
Default, the Cash Manager shall invest such amount at the written direction of
the Security Trustee in Permitted Account Investments described in clause (d) of
the definition thereof (but in each case only to the extent such investment is
permitted by the Leases pursuant to which such funds were received) from the
time of receipt thereof until such time as such amounts are required to be
distributed pursuant to the terms of this Indenture. Pursuant to the Cash
Management Agreement, the Cash Manager shall make such investments and
reinvestments in accordance with the terms of the following provisions:
(i) the Permitted Account Investments shall have maturities and
other terms such that sufficient funds shall be available to make
required payments pursuant to this Indenture and any Guarantor Indenture
(A) on or before the first Payment Date after which such investment is
made, in the case of investments of funds on deposit in the Collection
Account and the Expense Account, or (B) in accordance with the
requirements of the relevant Leases or Aircraft Agreements, in the case
of investments of funds on deposit in the Lessee Funded Accounts;
provided that an investment maturing within one year of the date of
investment shall nevertheless be a Permitted Account Investment if it has
been acquired with funds which are not reasonably anticipated, at the
discretion of the Administrative Agent, to be required to be paid to any
other Person or otherwise transferred from the applicable Account prior
to such maturity;
(ii) if any funds to be invested are not received in the Accounts by
1:00 p.m., New York City time, on any Business Day, such funds shall, if
possible, be invested in overnight Permitted Account Investments; and
(iii) if required by the terms of a Lease, any investments of funds
on deposit in a Lessee Funded Account or the Collection Account shall be
made on behalf of the relevant Lessee in such investments as may be
required thereunder.
Section 3.03. Closing Date Deposits, Withdrawals and Transfers. On each
Closing Date, the Cash Manager shall make the following transfers to the
Accounts:
(i) deposit into the relevant Lessee Funded Account the amount of
the initial Segregated Funds, if any, received or deemed to have been
received from the Sellers pursuant to the terms of the relevant
Acquisition Agreements;
(ii) deposit into the Collection Account, in the case of the Initial
Closing Date, an amount equal to (x) the initial Liquidity Reserve Amount
and, in the case of any other Closing Dates, any amount necessary to
reflect the cash portion of the
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required Liquidity Reserve Amount at such date and (y) the available
amount in respect of Undelivered Related Collateral Documents;
(iii) transfer from the Collection Account to the Expense Account an
amount equal to the Required Expense Amount for the relevant initial
Interest Accrual Period; and
(iv) deposit into the Aircraft Purchase Account, (A) in the case of
the Initial Closing Date, an amount equal to the Initial Outstanding
Balance of the Initial Notes raised with respect to the Remaining
Aircraft, other than the Subclass D-1 and Subclass E-1 Notes, and (B) in
the case of any other Closing Dates, if applicable, an amount equal to
the proceeds of any AerCo Group Additional Notes issued to acquire the
Additional Aircraft.
Section 3.04. Interim Deposits and Withdrawals. (a) Interim Withdrawals
and Transfers for Expenses, Certain Lease Obligations and Other Obligations. On
any Business Day, the Cash Manager, on behalf of the Security Trustee, may make,
without duplication, the following withdrawals for the following purposes, in
each case after written notice from the Servicer or the Administrative Agent to
the Trustee, which notice shall identify the basis for such withdrawal or
transfer in reasonable detail:
(i) withdraw from the Expense Account or the Lessee Funded Account
or draw under the applicable Related Collateral Documents to the extent
that funds on deposit therein or available thereunder may be withdrawn or
drawn pursuant to the terms of the related Lease or Related Collateral
Document, to discharge any Expense or Permitted Accruals then due and
payable;
(ii) transfer from the Collection Account from time to time (but in
no event on less than one Business Day's prior written notice to the
Trustee, such notice to be given by the delivery of a notice in the form
of Exhibit B to the Cash Management Agreement, from the Cash Manager
(unless such one Business Day's notice requirement is waived by the
Trustee)), other amounts, including amounts constituting the Liquidity
Reserve Amount, from the Collection Account into the Expense Account, in
each case only to the extent that such funds are to be applied to
unanticipated Expenses which become due and payable during such Interest
Accrual Period; provided that no such transfer from the Collection
Account in respect of Expenses shall be made prior to the next succeeding
Payment Date if, in the reasonable judgment of the Cash Manager such
transfer would have a material adverse effect on the ability of AerCo
Group to make payments of accrued and unpaid interest on the Senior Class
of AerCo Group Notes then Outstanding on the next Payment Date therefor
in accordance with Section 3.08 hereof;
(iii) withdraw Segregated Funds from the Lessee Funded Account or
draw under any applicable Related Collateral, in any case to the extent
required by or necessary in connection with a Lease, any documents
related thereto and the Related
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Collateral Documents, for deposit in the Collection Account to satisfy
any default in Rental Payments under any related Lease;
(iv) transfer any Segregated Funds from the Collection Account to
the Lessee Funded Account in accordance with the terms of any Lease;
(v) withdraw from the Aircraft Purchase Account an amount equal to
the purchase price of any Remaining Aircraft, Substitute Aircraft or
Additional Aircraft, to the extent necessary to effect payment therefor;
and
(vi) (A) in the case of the Initial Notes, on January 15, 2000 and
(B) in the case of any AerCo Group Additional Notes, on such date as
shall be set forth in a Board Resolution, transfer any balance in the
Aircraft Purchase Account to the Collection Account for application in
accordance with Section 3.08(a) hereof.
(b) Interim Withdrawals and Transfers in respect of Undelivered Related
Collateral. On any Business Day, the Cash Manager, on behalf of the Security
Trustee, shall if, during any Interest Accrual Period, any Related Collateral
Document not delivered on or before the relevant Closing Date (the "Undelivered
Related Collateral Documents") is transferred to, reissued in the name of, or
amended with the consent of the Related Collateral Provider so that the
beneficiary becomes the Issuer or any Issuer Subsidiary, as the case may be,
after written notice to the Security Trustee, transfer to the relevant Seller
the amount due in respect thereof under the relevant section of an Acquisition
Agreement; provided that any reissued Related Collateral Document must be on
substantially the same or better terms as the Related Collateral Document in
place prior to the relevant Closing Date, and the Issuer or any Issuer
Subsidiary, as the case may be, must receive substantially the same rights to
enforce such Related Collateral Document as the prior beneficiary had prior to
such transfer or reissuance. Any payment made pursuant to this Section 3.04(b)
shall be made from the Collection Account promptly upon the transfer or reissue
of the applicable Related Collateral Documents in the name of the Issuer or
relevant Issuer Subsidiary, as the case may be.
Section 3.05. Interim Deposits and Withdrawals for Modification Payments
or Dispositions of Aircraft. On any Business Day, the Cash Manager, on behalf
of the Security Trustee, shall withdraw from time to time from the Permitted
Accruals on deposit in the Expense Account and, to the extent permitted under
Section 3.08(a) hereof, such other amounts as may be necessary from the
Collection Account to pay amounts due and owing in respect of a Modification
Payment and shall transfer such amounts to the appropriate payees. Upon the
sale or other disposition of any Aircraft, Engine or other asset, the Cash
Manager shall deposit any and all proceeds received in respect thereof by any
AerCo Group Member in the Collection Account (other than in connection with any
sale of all or substantially all of the assets of AerCo Group, in which case the
Cash Manager shall deposit any and all proceeds thereof into the
Defeasance/Redemption Account in connection with the redemption of each subclass
of the AerCo Group Notes). Any funds then on deposit in the Lessee Funded
Account related to the Aircraft subject to such sale or other disposition shall
be applied on a
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basis consistent with the terms of the Lease related to such Aircraft, if any,
or as otherwise provided by the relevant agreements related to such sale or
other disposition.
Section 3.06. Calculation Date Calculations. (a) Calculation of Required
Amounts. As soon as practicable after each Calculation Date, but in no event
later than two Business Days preceding the immediately succeeding Payment Date,
the Cash Manager shall, based on information known to it or Relevant Information
provided to it, determine the Collections received during the period commencing
on the day next following the preceding Calculation Date and ending on such
Calculation Date and calculate the following amounts:
(A) the balance of funds on deposit in the Accounts on the
Calculation Date and the required Liquidity Reserve Amount on such
Calculation Date;
(B) the Required Expense Amount as of such Calculation Date;
(C) the Available Collections Amount on such Calculation Date
(separately listing any Swap Payments and Swap Breakage Costs and amounts
to be retained in the Collection Account pursuant to Section 3.08(a)(iii)
and (xi));
(D) the net Segregated Funds available to be transferred into the
Collection Account on such Calculation Date;
(E) with respect to each Remaining Aircraft, the amount of earnings
(net of losses and investment expenses), if any, on investments of funds
on deposit allocable to such Remaining Aircraft in the Aircraft Purchase
Account during the Period since the immediately preceding Calculation
Date; and
(F) any other information, determinations and calculations
reasonably required in order to give effect to the terms of this
Indenture and the Related Documents.
(b) Calculation of Interest Amounts. Not later than five Business Days
prior to each Payment Date, the following calculations or determinations with
respect to Interest Amounts due on such Payment Date shall be performed or made
and, if calculated or determined by a Person other than the Cash Manager,
provided to the Cash Manager:
(i) the Reference Agent shall calculate the applicable interest rate
on each subclass of AerCo Group Floating Rate Notes based on LIBOR
determined on the Reference Date for the relevant Interest Accrual
Period;
(ii) the Cash Manager shall calculate the Interest Amount in respect
of each subclass of AerCo Group Floating Rate Notes on such Payment Date;
(iii) the Cash Manager shall calculate the amount of Step-Up
Interest (including Step-Up Interest on any accrued and unpaid Step-Up
Interest), if any, in
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respect of each subclass of AerCo Group Notes entitled to such Step-Up
Interest on such Payment Date;
(iv) the Cash Manager shall calculate the Interest Amount in respect
of each subclass of AerCo Group Fixed Rate Notes on such Payment Date;
and
(v) the Cash Manager shall calculate the Class E Note Primary
Interest Amount and the Class E Note Accrued Interest Amount.
(c) Calculation of Principal Payment Amounts. Not later than five
Business Days prior to each Payment Date, the Cash Manager shall calculate or
determine the following with respect to principal payments due on such Payment
Date:
(i) the Outstanding Principal Balance of each class and subclass of
the AerCo Group Notes on such Payment Date immediately prior to any
principal payment on such date;
(ii) the Adjusted Portfolio Value and the Assumed Portfolio Value on
such Payment Date;
(iii) the Minimum Target Principal Balance for each applicable class
of AerCo Group Notes Outstanding and Minimum Principal Payment Amount on
such Payment Date with respect to each class of AerCo Group Notes;
(iv) the Scheduled Target Principal Balance for each applicable
class of AerCo Group Notes Outstanding and Scheduled Principal Payment
Amount on such Payment Date with respect to each class of AerCo Group
Notes; and
(v) the Supplemental Principal Balance for each applicable class of
AerCo Group Notes Outstanding and Supplemental Principal Payment Amount
on such Payment Date with respect to each class of AerCo Group Notes.
(d) Calculation of Refinancing Amounts. Not later than two Business Days
prior to the date on which a Refinancing of any subclass of AerCo Group Notes
is scheduled to occur, the Cash Manager shall perform the calculations
necessary to determine, with respect to each such subclass of AerCo Group Notes
to be repaid on such date, the Redemption Price of such subclass and the
accrued and unpaid interest on such subclass.
(e) Application of the Available Collections Amount. Not later than 1:00
p.m., New York City time, on the second Business Day prior to each Payment
Date, the Cash Manager shall determine the amounts to be applied on such
Payment Date to make each of the payments contemplated by Section 3.08(a) or
3.08(b), as applicable, setting forth separately, in the case of payments in
respect of AerCo Group Notes, the amount to be applied on such Payment Date to
pay interest, principal and Premium, if any, on each subclass of AerCo Group
Notes in accordance with Sections 3.08 and 3.09.
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(f) Reports. (i) The Cash Manager shall provide all of the information
required to be provided in the report set forth as Exhibit I hereto setting
forth the information described in Sections 3.06(a), (b), (c), (d) and (e) and
such other information as is required to be set forth therein, together with as
many copies of such reports as the Trustee may reasonably request, to the
Issuer, each Rating Agency, the Administrative Agent, the Servicer, any
Additional Servicer, the Listing Agent and the Trustee, no later than 1:00
p.m., New York City time, two Business Days immediately preceding each Payment
Date.
(ii) The Cash Manager will provide to the Trustee, on the first Payment
Date following the filing by AerCo Group of any Report on Form 6-K or Annual
Report on Form 20-F under the Exchange Act with the Commission, a copy of
Schedule A hereto, updated and revised to reflect the then current composition
of the Portfolio.
(iii) The Cash Manager will provide to the Trustee, not later than 90 days
after the end of each calendar year, a statement containing (A) the cumulative
amount of each type of payment reported in clauses (B), (D), (E) and (F) of
Section 3.06(a) during the preceding calendar year (or any portion thereof) for
each subclass of Notes Outstanding at any time during such year and (B) such
other items as are readily ascertainable and that the Trustee or any Noteholder
shall reasonably request as necessary for the purpose of such Noteholder's
preparation of its U.S. federal income tax returns.
Section 3.07. Payment Date First Step Withdrawals and Transfers. On each
Payment Date, the Cash Manager, on behalf of the Security Trustee, shall make
the following withdrawals from and transfers among the Accounts:
(a) transfer the proceeds of any Refinancing of any subclass of
Notes from the Refinancing Account to the applicable Note Account in each
case in accordance with Section 2.10(b) and Section 5.02(f) hereof and
Section 2.04(d) of the Cash Management Agreement;
(b) subject to the applicable Leases, transfer from the Lessee
Funded Account to the Collection Account any available Segregated Funds;
(c) transfer from the Collection Account to the Lessee Funded
Account the amount of any Segregated Funds then on deposit in the
Collection Account;
(d) transfer from any Account (other than the Collection Account) to
the Collection Account the amount of earnings (net of losses and
investment expenses), if any, on investments of funds on deposit therein
during the preceding Interest Accrual Period, except that earnings on any
portion of the funds on deposit in any Account required under the terms
of the related Lease to be repaid to the related Lessee shall be retained
therein; and
(e) after the giving of a Default Notice or following the Interest
Accrual Period in which an Aircraft Sale occurs with respect to the last
remaining Aircraft,
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transfer any amounts remaining in the Lessee Funded Account (other than
amounts required to be maintained in such account pursuant to the terms
of the related Lease or Aircraft Agreement) into the Collection Account.
Section 3.08. Payment Date Second Step Withdrawals. (a) On each Payment
Date, after the withdrawals and transfers provided for in Section 3.07 hereof
have been made, the Cash Manager, on behalf of the Security Trustee, shall
distribute the amounts set forth below in the order of priority set forth below
but, in each case, only to the extent that all amounts then required to be paid
ranking prior thereto "Prior Ranking Amounts" have been paid in full. All
payments of Available Collections Amount to be made to a Note Account for
Holders of any subclass of Notes pursuant to this Section 3.08 shall be made
through a direct transfer of funds to the applicable Note Account with respect
to such subclass of Notes. To the extent that any amounts are retained in the
Collection Account on any Payment Date pursuant to this Section 3.08(a), such
amounts shall not be distributed thereafter on such Payment Date out of the
Collection Account as Available Collections Amount pursuant to any succeeding
payment required to be made under this Section 3.08(a) other than pursuant to
the second paragraph of Section 3.01(b) hereof.
(i) First, to the Expense Account or directly to the relevant
Expense payees in accordance with the Cash Management Agreement, an
amount equal to the Required Expense Amount and then to the relevant
Expense payees;
(ii) Second, in no order of priority inter se, but pro rata (A)
among the Note Accounts for each subclass of AerCo Group Class A Notes,
the Interest Amount on such subclass of AerCo Group Class A Notes in no
order of priority inter se, but pro rata according to the amount of
accrued and unpaid interest on such subclass of AerCo Group Class A Notes
and (B) pro rata, to any Swap Provider, an amount equal to any Swap
Payment due pursuant to any Swap Agreement (other than any Subordinated
Swap Payments);
(iii) Third, first, to any Persons providing any Primary Eligible
Credit Facilities, any amounts then payable to such Persons under the
terms of their respective Primary Eligible Credit Facilities and then,
after giving effect to the transfers made in respect of all Prior Ranking
Amounts, retain in the Collection Account an amount, if positive, equal
to the Minimum Liquidity Reserve Amount less the amounts available for
drawing under any Primary Eligible Credit Facilities;
(iv) Fourth, to the Note Accounts for each subclass of AerCo Group
Class A Notes, in the order of priority by subclass set forth in Section
3.09 hereof, an amount equal to the Minimum Principal Payment Amount of
the AerCo Group Class A Notes;
(v) Fifth, among the Note Accounts for each subclass of AerCo Group
Class B Notes, the Interest Amount on such subclass of AerCo Group Class
B Notes
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in no order of priority inter se, but pro rata according to the amount of
accrued and unpaid interest on such subclass of AerCo Group Class B
Notes;
(vi) Sixth, to the Note Accounts for each subclass of AerCo Group
Class B Notes, in the order of priority by subclass set forth in Section
3.09 hereof, an amount equal to the Minimum Principal Payment Amount of
the AerCo Group Class B Notes;
(vii) Seventh, among the Note Accounts for each subclass of AerCo
Group Class C Notes, the Interest Amount on such subclass of AerCo Group
Class C Notes in no order of priority inter se, but pro rata according to
the amount of accrued and unpaid interest on such subclass of AerCo Group
Class C Notes;
(viii) Eighth, to the Note Accounts for each subclass of AerCo Group
Class C Notes, in the order of priority by subclass set forth in Section
3.09 hereof, an amount equal to the Minimum Principal Payment Amount of
the AerCo Group Class C Notes;
(ix) Ninth, among the Note Accounts for each subclass of AerCo Group
Class D Notes, the Interest Amount on such subclass of AerCo Group Class
D Notes in no order of priority inter se, but pro rata according to the
amount of accrued and unpaid interest on such subclass of AerCo Group
Class D Notes;
(x) Tenth, to the Note Accounts for each subclass of AerCo Group
Class D Notes in the order of priority by subclass set forth in Section
3.09 hereof, an amount equal to the Minimum Principal Payment Amount of
the AerCo Group Class D Notes;
(xi) Eleventh, first, to any Persons providing any Credit Facilities
that are not Primary Eligible Credit Facilities, any amounts then payable
to such Persons under the terms of their respective Credit Facilities and
then, after giving effect to the transfers made in respect of all Prior
Ranking Amounts, retain in the Collection Account an amount equal to the
difference, if positive, between the Liquidity Reserve Amount and the sum
of (x) the amount of cash reserved under (iii) above and (y) the amount
available for drawing under any Eligible Credit Facilities;
(xii) Twelfth, to the Note Accounts for each subclass of AerCo Group
Class A Notes, in the order of priority by subclass set forth in Section
3.09 hereof, an amount equal to the Scheduled Principal Payment Amount of
the AerCo Group Class A Notes;
(xiii) Thirteenth, to the Note Accounts for each subclass of AerCo
Group Class B Notes, in the order of priority by subclass set forth in
Section 3.09 hereof, an amount equal to the Scheduled Principal Payment
Amount of the AerCo Group Class B Notes;
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(xiv) Fourteenth, to the Note Accounts for each subclass of AerCo
Group Class C Notes, in the order of priority by subclass set forth in
Section 3.09 hereof, an amount equal to the Scheduled Principal Payment
Amount of the AerCo Group Class C Notes;
(xv) Fifteenth, to the Note Accounts for each subclass of AerCo
Group Class D Notes, in the order of priority by subclass set forth in
Section 3.09 hereof, an amount equal to the Scheduled Principal Payment
Amount of the AerCo Group Class D Notes;
(xvi) Sixteenth, to the Permitted Accruals balance in the Expense
Account, an amount equal to Permitted Accruals in respect of Modification
Payments (or any part thereof);
(xvii) Seventeenth, among the Note Accounts for each subclass of
AerCo Group Notes entitled thereto, an amount equal to all accrued and
unpaid Step-Up Interest, if any, in no order of priority inter se, but
pro rata according to the amount of such accrued and unpaid Step-Up
Interest;
(xviii) Eighteenth, to the Note Accounts for each subclass of AerCo
Group Class A Notes, in the order of priority by subclass set forth in
Section 3.09 hereof, an amount equal to the Supplemental Principal
Payment Amount of the AerCo Group Class A Notes;
(xix) Nineteenth, among the Note Accounts for each subclass of AerCo
Group Class E Notes, the Class E Note Primary Interest Amount for the
current Interest Accrual Period, in no order of priority inter se, but
pro rata according to the amount due on each subclass of AerCo Group
Class E Notes;
(xx) Twentieth, to the Note Accounts for each subclass of AerCo
Group Class B Notes, in the order of priority by subclass set forth in
Section 3.09 hereof, an amount equal to the Supplemental Principal
Payment Amount of the AerCo Group Class B Notes;
(xxi) Twenty-first, to the Note Accounts for each subclass of AerCo
Group Class A Notes, in the order of priority by subclass set forth in
Section 3.09 hereof, an amount equal to the Redemption Price of the
Outstanding Principal Balance of each such subclass;
(xxii) Twenty-second, to the Note Accounts for each subclass of
AerCo Group Class B Notes, in the order of priority by subclass set forth
in Section 3.09 hereof, an amount equal to the Redemption Price of the
Outstanding Principal Balance of each such subclass;
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(xxiii) Twenty-third, to the Note Accounts for each subclass of
AerCo Group Class C Notes, in the order of priority by subclass set forth
in Section 3.09 hereof, an amount equal to the Redemption Price of the
Outstanding Principal Balance of each such subclass;
(xxiv) Twenty-fourth, to the Note Accounts for each subclass of
AerCo Group Class D Notes, in the order of priority by subclass set forth
in Section 3.09 hereof, an amount equal to the Redemption Price of the
Outstanding Principal Balance of each such subclass;
(xxv) Twenty-fifth, in no order of priority inter se, but pro rata,
to the Swap Providers, an amount equal to any amounts then payable under
the relevant Swap Agreements which are subordinated in accordance with
the terms thereof ("Subordinated Swap Payments");
(xxvi) Twenty-sixth, in no order of priority inter se, but pro rata,
to investors or other persons in respect of obligations incurred in
connection with Permitted Tax-Related Dispositions, if any, which are
subordinated in accordance with the terms of the relevant Permitted
Tax-Related Disposition ("Subordinated Tax-Related Disposition Payments")
an amount equal to the amount of such Subordinated Tax-Related
Disposition Payments then payable;
(xxvii) Twenty-seventh, to the Note Accounts for each subclass of
AerCo Group Class E Notes, the Class E Note Accrued Interest Amount and
an amount equal to the cash portion of the Liquidity Reserve Amount then
on deposit in the Collection Account, in no order of priority inter se,
but pro rata according to the amount due on each subclass of AerCo Group
Class E Notes;
(xxviii) Twenty-eighth, to the Note Account for each subclass of
AerCo Group Class E Notes, in the order of priority by subclass set forth
in Section 3.09 hereof, an amount equal to the Redemption Price of the
Outstanding Principal Balance of each such subclass; and
(xxix) Twenty-ninth, to the Charitable Trustee for the Charitable
Trust, all remaining amounts.
(b) Anything to the contrary contained in Section 3.08(a) hereof
notwithstanding, following delivery to the Issuer, any Guarantor or the Cash
Manager of a Default Notice or during the continuance of an Acceleration
Default, the allocation of payments described in such Section 3.08(a) shall not
apply and all amounts on deposit in the Collection Account and the Expense
Account shall be applied by the Cash Manager in the following order of
priority:
(i) First, to the Expense Account for distribution by the Cash
Manager or, in accordance with the Cash Management Agreement, directly to
the relevant
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Expense payees, an amount equal to the Required Expense Amount and then
to the relevant Expense payees;
(ii) Second, in no order of priority inter se, but pro rata to the
providers of any Primary Eligible Credit Facilities, such amounts as are
required to make any payments due to such providers pursuant to the terms
of their respective Primary Eligible Credit Facilities;
(iii) Third, in no order of priority inter se, but pro rata in
respect of amounts outstanding or payable on such date, (A) pro rata
among the Note Accounts for each subclass of AerCo Group Class A Notes,
all accrued and unpaid interest (including any Step-Up Interest) on, and
the Outstanding Principal Balance of such subclass of AerCo Group Class A
Notes and (B) pro rata to any Swap Provider, such amounts as are required
to pay any Swap Payments (other than Subordinated Swap Payments) due
pursuant to any Swap Agreement;
(iv) Fourth, in no order of priority inter se, but pro rata in
respect of amounts outstanding or payable on such date, pro rata among
the Note Accounts for each subclass of AerCo Group Class B Notes, all
accrued and unpaid interest (including any Step-Up Interest) on, and the
Outstanding Principal Balance of such subclass of AerCo Group Class B
Notes;
(v) Fifth, in no order of priority inter se, but pro rata in respect
of amounts outstanding or payable on such date, pro rata among the Note
Accounts for each subclass of AerCo Group Class C Notes, all accrued and
unpaid interest (including any Step-Up Interest) on, and the Outstanding
Principal Balance of such subclass of AerCo Group Class C Notes;
(vi) Sixth, in no order of priority inter se, but pro rata in
respect of amounts outstanding or payable on such date, pro rata among
the Note Accounts for each subclass of AerCo Group Class D Notes, all
accrued and unpaid interest (including any Step-Up Interest) on, and the
Outstanding Principal Balance of such subclass of AerCo Group Class D
Notes;
(vii) Seventh, in no order of priority inter se, but pro rata to the
providers of Credit Facilities other than Primary Eligible Credit
Facilities, such amounts as are required to make payments due to such
providers pursuant to the terms of their respective Credit Facilities;
(viii) Eighth, in no order of priority inter se, but pro rata, to
any Swap Provider, such amounts as are required to make any Subordinated
Swap Payments due pursuant to any Swap Agreement;
(ix) Ninth, in no order of priority inter se, but pro rata, to any
investor or other person in respect of obligations incurred in connection
with any Permitted Tax-
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Related Disposition, such amounts as are required to make any
Subordinated Tax-Related Disposition Payments;
(x) Tenth, in no order of priority inter se, but pro rata in respect
of amounts outstanding or payable on such date, pro rata among the Note
Accounts for each subclass of AerCo Group Class E Notes, all accrued and
unpaid interest on, and the Outstanding Principal Balance of such
subclass of AerCo Group Class E Notes; and
(xi) Eleventh, to the Charitable Trustee for the Charitable Trust,
all remaining amounts.
Section 3.09. Allocations of Principal Payments Among Subclasses of the
Notes. To the extent that any payment of principal pursuant to Section 3.08(a)
hereof is allocable to any class of AerCo Group Notes on any Payment Date, the
Available Collections Amount will be applied to repay all AerCo Group Notes in
such class in the following order of priority: (i) First, to each subclass, in
order of the earliest issued subclass, the difference, if positive, between the
Outstanding Principal Balance of each such subclass and the product of the
applicable Extended Pool Factor on such Payment Date and the Initial Outstanding
Balance of each such subclass (any such difference, the "Extension Amount");
provided that in the case of two or more subclasses issued on the same date, the
Available Collections Amount will be applied to each such subclass pro rata
according to the amount of, but not to exceed, the Extension Amount of such
subclass; (ii) Second, to each subclass, in no order of priority inter se, but
pro rata according to the amount of, but not to exceed, the difference, if
positive, between the Outstanding Principal Balance of each such subclass (after
giving effect to any payment under clause (i) above) and the product of the
applicable Pool Factor on such Payment Date and the Initial Outstanding Balance
of each such subclass; (iii) Third, to each subclass with an Expected Final
Payment Date on or before such Payment Date, in order of the earliest issued
subclass; provided that in the case of two or more subclasses issued on the same
date, the Available Collections Amount will be applied to such subclasses in
order of the subclass with the earliest Expected Final Payment Date and, with
respect to any two or more subclasses having the same Expected Final Payment
Date, the Available Collections Amount will be applied to such subclasses pro
rata according to the Outstanding Principal Balance of each such subclass (after
giving effect to any payment under clauses (i) and (ii) above) on such Payment
Date; (iv) Fourth, to each subclass with an Excess Amortization Date on or
before such Payment Date, in no order of priority inter se, but pro rata
according to the Outstanding Principal Balance of each such subclass (after
giving effect to any payment under clauses (i), (ii) and (iii) above) on such
Payment Date; and (v) Fifth, to each subclass in order of the earliest Expected
Final Payment Date, provided, in the case of two or more subclasses having the
same Expected Final Payment Date, in no order of priority inter se, but pro
rata, according to the Outstanding Principal Balance of each such subclass
(after giving effect to any payment under clauses (i), (ii), (iii) and (iv)
above) on such Payment Date.
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Section 3.10. Certain Redemptions; Certain Premiums. (a) Optional
Redemption. Subject to the provisions of Section 3.10(c) hereof, on any Payment
Date the Issuer may elect to redeem any subclass of the A-D Notes in whole or in
part, out of amounts available for such purpose, if any, other than Collections,
at the Redemption Price plus any accrued and unpaid interest thereon to the
Redemption Date; provided that written notice of any such redemption shall be
given to the Trustee not less than 30 days prior to such Redemption Date; and
provided further, the provisions of this Section 3.10(a) shall not apply to any
Refinancing pursuant to Section 3.10 hereof.
(b) Redemption for Taxation Reasons. Subject to the provisions of Section
3.10(c) hereof, if, at any time,
(i) the Issuer is, or on the next succeeding Payment Date will be,
required to make any withholding or deduction under the laws or
regulations of any applicable tax authority with respect to any payment
on any subclass of AerCo Group A-D Notes; or
(ii) the Issuer is or will be subject to any circumstance (whether
by reason of any law, regulation, regulatory requirement or
double-taxation convention, or the interpretation or application thereof,
or otherwise) leading to the imposition of a tax (whether by direct
assessment or by withholding at source) or other similar imposition by
any jurisdiction which would (A) materially increase the cost to the
Issuer of making payments in respect of any subclass of AerCo Group A-D
Notes or of complying with its obligations under or in connection with
the AerCo Group A-D Notes; (B) materially increase the operating or
administrative expenses of the Issuer; or (C) otherwise obligate the
Issuer or any of its subsidiaries to make any material payment on, or
calculated by reference to, the amount of any sum received or receivable
by the Issuer, or by the Cash Manager on behalf of AerCo Group as
contemplated by the Cash Management Agreement;
then the Issuer shall inform the Trustee in writing at such time of any such
requirement or imposition and shall use its best efforts to avoid the effect of
the same; provided that no actions shall be taken by the Issuer to avoid such
effects without Rating Agency Confirmation. If, after using its reasonable
best efforts to avoid the adverse effects described above, the Issuer or any of
its subsidiaries has not avoided such effects, the Issuer may, at its election,
redeem the AerCo Group A-D Notes in whole, without Redemption Premium, on any
Payment Date; provided, however, that any such redemptions may not occur more
than 30 days prior to such time as the requirement or imposition described in
(i) or (ii) above is to become effective; and provided further that notice of
any such redemption shall be given to the Trustee not less than 30 days prior
to such Redemption Date.
(c) Method of Redemption. The Trustee (or the Administrative Agent acting
as its agent (or any authorized agent of the Administrative Agent)) shall give
notice in the manner set forth in Section 2.15(e) in respect of any redemption
of any subclass of AerCo Group A-D Notes under Section 3.10(a) or 3.10(b)
hereof (a "Redemption") to each Holder of
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AerCo Group A-D Notes and, for so long as the Notes are listed on the
Luxembourg Stock Exchange, the Listing Agent, at least 20 days but not more
than 60 days before such Redemption Date. The Trustee shall not be permitted
to deliver any notice under this Section 3.10(c) unless and until it shall have
received evidence satisfactory to it that amounts sufficient to (A) redeem such
subclass(es) of AerCo Group A-D Notes and (B) pay all accrued and unpaid
interest in respect of each subclass of AerCo Group A-D Notes ranking pari
passu therewith or prior thereto are, or will on or before the Redemption Date
be, deposited in the Defeasance/Redemption Account. Each notice in respect of
a Redemption given pursuant to this Section 3.10(c) shall state (i) the
applicable Redemption Date, (ii) the Trustee's arrangements for making payments
in respect of such Redemption, (iii) the Redemption Price of the AerCo Group
A-D Notes to be redeemed, (iv) in the case of Redemption in whole, that AerCo
Group A-D Notes of the subclass to be redeemed must be surrendered to the
Trustee to collect the Redemption Price plus accrued and unpaid interest on
such AerCo Group A-D Notes and (v) in the case of Redemption in whole, that,
unless the Issuer defaults in the payment of the Redemption Price and any
accrued and unpaid interest thereon, interest on the subclass of AerCo Group
A-D Notes called for Redemption shall cease to accrue on and after the
Redemption Date.
(d) Deposit of Redemption Amount. On or before any Redemption Date in
respect of a Redemption under Section 3.10(a) or 3.10(b), the Issuer shall, to
the extent an amount equal to the Redemption Price of the AerCo Group A-D Notes
to be redeemed and all accrued and unpaid interest in respect of such
subclass(es) of AerCo Group A-D Notes to be redeemed and each subclass of AerCo
Group A-D Notes ranking pari passu therewith or prior thereto as of the
Redemption Date is not then held by the Issuer, deposit or cause such amounts
in immediately available funds to be deposited in the Defeasance/Redemption
Account.
(e) AerCo Group A-D Notes Payable on Redemption Date. After notice has
been given under Section 3.10(c) hereof, the Outstanding Principal Balance of
the AerCo Group A-D Notes to be redeemed on such Redemption Date shall become
due and payable at the Corporate Trust Office of the Trustee, and the
Redemption Price of such AerCo Group A-D Note, together with accrued and unpaid
interest thereon shall be paid as provided for in this Article III. From and
after such Redemption Date (unless there shall be a default in the payment of
the applicable amount to be redeemed) such principal amount shall cease to bear
interest. If any AerCo Group A-D Note to be redeemed shall not be so paid upon
surrender thereof for redemption, the Outstanding Principal Balance thereof
shall continue to bear interest until paid from the Redemption Date at the
interest rate applicable to such AerCo Group A-D Note.
Section 3.11. Adjustment of Class Percentages and Target Principal
Balances. Upon each acquisition of any Additional Aircraft, subject to Sections
5.02(f)(iv) and 5.02(h) hereof, each of the Class Percentages for the AerCo
Group Class A Notes and the AerCo Group Class B Notes and each of the Target
Principal Balances for the AerCo Group Class C Notes and the AerCo Group Class D
Notes shall be adjusted to take into account such Permitted Additional Aircraft
Acquisition in the manner determined by the Board; provided,
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that no Pool Factor or Extended Pool Factor for any subclass of AerCo Group
Notes may be adjusted. The Administrative Agent shall include such adjusted
Class Percentages and Target Principal Balances in each Quarterly Report.
ARTICLE IV
DEFAULT AND REMEDIES
Section 4.01. Events of Default. Each of the following events shall
constitute an "Event of Default" hereunder with respect to any class of Notes,
and each such Event of Default shall be deemed to exist and continue so long as,
but only so long as, it shall not have been remedied:
(a) failure to pay when due interest (other than any Step-Up
Interest) on any Note of such class or subclass thereof, and the
continuance of such default unremedied for a period of five Business Days
or more after the same shall have become due and payable;
(b) failure to pay when due principal of any Note of such class or
subclass thereof on or prior to the applicable Final Maturity Date;
(c) failure to pay any amount (other than interest) when due and
payable in connection with any Note of such class or subclass thereof, to
the extent that there are, at such time, funds available for such payment
in the Collection Account, and the continuance of such default for a
period of five Business Days or more;
(d) failure by the Issuer to comply with any of the covenants,
obligations, conditions or provisions binding on it under this Indenture
or any of the Notes (other than a payment default for which provision is
made in clause (a), (b) or (c) of this Section 4.01), if such failure or
such breach materially adversely affects the Holders of such class of
Notes and continues for a period of 30 days or more after written notice
thereof has been given to the Issuer by the Senior Trustee or by the
Holders of at least 25% of the aggregate Outstanding Principal Balance of
the Notes of the Senior Class;
(e) an "Event of Default" under and as defined in any Guarantor
Indenture;
(f) a court having jurisdiction in the premises enters a decree or
order for (i) relief in respect of the Issuer or any Significant
Subsidiary of the Issuer under any Applicable Law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization,
examination, relief of debtors or other similar law now or hereafter in
effect; (ii) appointment of a receiver, liquidator, examiner, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or any
Significant
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Subsidiary of the Issuer; or (iii) the winding up or liquidation of the
affairs of the Issuer or any Significant Subsidiary of the Issuer and, in
each case, such decree or order shall remain unstayed or such writ or
other process shall not have been stayed or dismissed within 90 days from
entry thereof;
(g) the Issuer or any Significant Subsidiary of the Issuer (i)
commences a voluntary case under any Applicable Law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization, examination, relief of debtors or other similar law now
or hereafter in effect, or consents to the entry of an order for relief
in any involuntary case under any such law; (ii) consents to the
appointment of or taking possession by a receiver, liquidator, examiner,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or any Significant Subsidiary of the Issuer or for all or
substantially all of the property and assets of the Issuer or any
Significant Subsidiary of the Issuer; or (iii) effects any general
assignment for the benefit of creditors;
(h) any judgment or order for the payment of money in excess of 5%
of the aggregate Adjusted Portfolio Value shall be rendered against the
Issuer or any Issuer Subsidiary or any other member of the AerCo Group
and either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period of
10 consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be in
effect; provided, however, that any such judgment or order shall not be
an Event of Default under this Section 4.01(h) if and for so long as (i)
the amount of such judgment or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering
payment thereof and (ii) such insurer, which shall be rated at least "A"
by A.M. Best Company or any similar successor entity, has been notified
of, and has not disputed the claim made for payment of, the amount of
such judgment or order; or
(i) the constitutional documents creating the Issuer cease to be in
full force and effect without replacement documents having the same terms
being in full force and effect.
Section 4.02. Acceleration, Rescission and Annulment. (a) If an Event of
Default with respect to the Senior Class of Notes then Outstanding (other than
an Event of Default under clause (f) or (g) of Section 4.01) occurs and is
continuing, the Senior Trustee may, and, upon the direction of Holders of at
least 25% of the aggregate Outstanding Principal Balance of the Senior Class of
Notes, shall, give a Default Notice to the Issuer, the Cash Manager, the
Administrative Agent and the Trustee declaring the Outstanding Principal Balance
of the Notes and all accrued and unpaid interest thereon to be due and payable.
Upon delivery of a Default Notice, such Outstanding Principal Balance and all
accrued and unpaid interest thereon shall be due and payable. At any time after
the Senior Trustee has declared the Outstanding Principal Balance of the Notes
to be due and payable and prior to the exercise of any other remedies pursuant
to this Article IV, Holders of a majority of the
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aggregate Outstanding Principal Balance of the Senior Class of Notes, by
written notice to the Issuer, the Senior Trustee and the Cash Manager, may,
subject to Section 4.05(a), rescind and annul such declaration and thereby
annul its consequences if: (i) there has been paid to or deposited with the
Senior Trustee an amount sufficient to pay all overdue installments of interest
on the AerCo Group Notes, and the principal of and Premium, if any, on the
AerCo Group Notes that would have become due otherwise than by such declaration
of acceleration, (ii) the rescission would not conflict with any judgment or
decree and (iii) all other Defaults and Events of Default, other than
nonpayment of interest and principal on the AerCo Group Notes that have become
due solely because of such acceleration, have been cured or waived. If an
Event of Default under clause (f) or (g) of Section 4.01 occurs, the
Outstanding Principal Balance of the Notes and all accrued and unpaid interest
thereon shall automatically become due and payable without any further action
by any party.
(b) Notwithstanding Sections 4.02 and 4.03 hereof, after the occurrence
and during the continuation of an Event of Default, (i) the Class B Noteholders
shall not be permitted to give or direct the giving of a Default Notice or to
exercise any remedy in respect of such Event of Default until all interest and
principal on the Class A Notes have been paid in full, (ii) the Class C
Noteholders shall not be permitted to give a Default Notice or to exercise any
remedy in respect of such Event of Default until all interest and principal on
the Class A Notes and the Class B Notes have been paid in full, (iii) the Class
D Noteholders shall not be permitted to give a Default Notice or to exercise
any remedy in respect of such Event of Default until all interest and principal
on the Class A Notes, the Class B Notes and the Class C Notes have been paid in
full and (iv) the Class E Noteholders shall not be permitted to give a Default
Notice or to exercise any remedy in respect of such Event of Default until all
interest and principal on the Class A Notes, the Class B Notes, the Class C
Notes and the Class D Notes have been paid in full.
(c) The Trustee shall provide each Rating Agency with a copy of any
Default Notice it receives pursuant to this Indenture.
Section 4.03. Other Remedies. If an Event of Default occurs and is
continuing, the Senior Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of principal of, Premium, if any, or
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Senior Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding.
Section 4.04. Limitation on Suits. Without limiting the provisions of
Section 4.09 and the final sentence of Section 13.04, no Holder shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, the Security Trust Agreement or the Notes, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
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(a) such Holder holds Notes of the Senior Class and has previously
given written notice to the Senior Trustee of a continuing Event of
Default;
(b) the Holders of at least 25% of the aggregate Outstanding
Principal Balance of the Senior Class of Notes make a written request to
the Senior Trustee to pursue a remedy hereunder;
(c) such Holder or Holders offer to the Senior Trustee an indemnity
reasonably satisfactory to the Senior Trustee against any costs, expenses
and liabilities to be incurred in complying with such request;
(d) the Senior Trustee does not comply with such request within 60
days after receipt of the request and the offer of indemnity; and
(e) during such 60-day period, Holders of a majority of the
Outstanding Principal Balance of the Senior Class of Notes do not give
the Senior Trustee a direction inconsistent with such request.
No one or more Noteholders may use this Indenture to affect, disturb or
prejudice the rights of another Holder or to obtain or seek to obtain any
preference or priority not otherwise created by this Indenture and the terms of
the Notes over any other Holder or to enforce any right under this Indenture,
except in the manner herein provided.
Section 4.05. Waiver of Existing Defaults. (a) The Senior Trustee or a
majority of the Outstanding Principal Balance of the Senior Class of Notes by
notice to the Senior Trustee may waive any existing Default hereunder and its
consequences, except a Default: (i) in the deposit or distribution of any
payment required to be made on any Notes, (ii) in the payment of the interest
on, principal of or Premium, if any, on any Note or (iii) in respect of a
covenant or provision hereof which under Article IX hereof cannot be modified or
amended without the consent of the Holder of each Note affected thereby. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture, but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon. Each such notice of waiver shall also be
notified to each Rating Agency.
(b) Any written waiver of a Default or an Event of Default given by
Holders of the Notes to the Trustee and the Issuer in accordance with the terms
of this Indenture shall be binding upon the Trustee and the other parties
hereto. Unless such writing expressly provides to the contrary, any waiver so
granted shall extend only to the specific event or occurrence which gave rise
to the Default or Event of Default so waived and not to any other similar event
or occurrence which occurs subsequent to the date of such waiver.
Section 4.06. Restoration of Rights and Remedies. If the Trustee or any
Holder of Notes of the Senior Class has instituted any proceeding to enforce any
right or remedy under this Indenture, and such proceeding has been discontinued
or abandoned for
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any reason, or has been determined adversely to the Trustee or such Holder,
then in every such case the Issuer, the Trustee and the Noteholders shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Noteholders shall continue as though no such
proceeding has been instituted.
Section 4.07. Remedies Cumulative. Each and every right, power and remedy
herein given to the Trustee specifically or otherwise in this Indenture shall be
cumulative and shall be in addition to every other right, power and remedy
herein specifically given or now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy whether specifically herein
given or otherwise existing may be exercised from time to time and as often and
in such order as may be deemed expedient by the Trustee, and the exercise or the
beginning of the exercise of any power or remedy shall not be construed to be a
waiver of the right to exercise at the same time or thereafter any other right,
power or remedy. No delay or omission by the Trustee in the exercise of any
right, remedy or power or in the pursuance of any remedy shall impair any such
right, power or remedy or be construed to be a waiver of any Default on the part
of the Issuer or to be an acquiescence therein.
Section 4.08. Authority of Courts Not Required. The parties hereto agree
that, to the greatest extent permitted by law, the Trustee shall not be obliged
or required to seek or obtain the authority of, or any judgment or order of, the
courts of any jurisdiction in order to exercise any of its rights, powers and
remedies under this Indenture, and the parties hereby waive any such requirement
to the greatest extent permitted by law.
Section 4.09. Rights of Noteholders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Noteholder to receive
payment of interest on, principal of and Redemption Premium, if any, on its Note
on or after the respective due dates therefor expressed in such Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Noteholder.
Section 4.10. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and of any Noteholder allowed in any
judicial proceedings relating to any obligor on the Notes, its creditors or its
property.
Section 4.11. Undertaking for Costs. All parties to this Indenture agree,
and each Noteholder by its acceptance thereof shall be deemed to have agreed,
that in any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defense made by the party litigant. This
Section 4.11 does not apply to a suit instituted by the Trustee, a suit
instituted by any Noteholder for the enforcement of the payment of interest,
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principal or Premium, if any, on his Note on or after the respective due dates
expressed in such Note, or a suit by a Noteholder or Noteholders of more than
10% of the Outstanding Principal Balance of any class or subclass of the Notes.
Section 4.12. Control by Noteholders. Subject to Section 4.04 hereof, the
Noteholders holding Notes of any class or subclass of not less than 25% of the
Outstanding Principal Balance of Notes of such class or subclass shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee under this Indenture; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture and would not involve the Trustee in personal
liability or expense;
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Noteholders of such class or
subclass not taking part in such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.01. Representations and Warranties. The Issuer represents and
warrants to the Trustee as follows:
(i) Due Organization. Each of the Issuer and Issuer Subsidiaries is
a corporation duly incorporated in its respective jurisdiction of
incorporation, in each case with full power and authority to conduct its
business; and none of the Issuer or any Issuer Subsidiary is in
liquidation, bankruptcy or suspension of payments.
(ii) Special Purpose Status. The Issuer has not engaged in any
activities since its incorporation (other than those incidental to its
incorporation and other appropriate steps and arrangements for the
payment of fees to, and director's and officer's insurance for, the
members of the Board of the Issuer, the issue of shares, the purchase of
the Transferring Companies and ALPS 94-1, the authorization and the
issuance of the Initial Notes, the granting of certain guarantees in
connection with the Initial Leases, the execution of the Related
Documents and the documents and the activities referred to in or
contemplated by such agreements), and the Issuer has not paid any
dividends or other distributions since its incorporation.
(iii) Non-Contravention. The purchase of the Transferring Companies
and ALPS 94-1 pursuant to the Acquisition Agreements, the creation of the
Initial Notes
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and the issuance, execution and delivery of, and the compliance by the
Issuer and each Issuer Subsidiary with the terms of each of the Related
Documents and the Initial Notes:
(A) do not and will not at the Initial Closing Date or any
Payment Date conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, the
constitutional documents of the Issuer or the constituent documents
of any Issuer Subsidiary or with any existing law, rule or
regulation applying to or affecting the Issuer or any Issuer
Subsidiary or any judgment, order or decree of any government,
governmental body or court having jurisdiction over the Issuer or
any Issuer Subsidiary; and
(B) do not and will not at the Initial Closing Date or any
Payment Date infringe the terms of, or constitute a default under,
any deed, indenture, agreement or other instrument or obligation to
which the Issuer or any Issuer Subsidiary is a party or by which
any of them or any part of their undertaking, assets, property or
revenues are bound.
(iv) Due Authorization. The purchase of the Transferring Companies
and ALPS 94-1, the creation, execution and issuance of the Initial Notes,
the execution and issue or delivery by the Issuer and each Issuer
Subsidiary of the Related Documents executed by it and the performance by
each of them of their obligations to be assumed hereunder and thereunder
and the arrangements contemplated hereby and thereby to be performed by
each of them have been duly authorized by each of them.
(v) Validity and Enforceability. This Indenture constitutes, and
the Related Documents, when executed and delivered and, in the case of
the Initial Notes, when issued and authenticated, will constitute valid,
legally binding and (subject to general equitable principles, insolvency,
liquidation, reorganization and other laws of general application
relating to creditors' rights or claims or to laws of prescription or the
concepts of materiality, reasonableness, good faith and fair dealing)
enforceable obligations of the Issuer and each Issuer Subsidiary
executing the same.
(vi) No Defaults. There exists no Event of Default or any event
which, had the Initial Notes already been issued, would constitute a
Default or an Event of Default.
(vii) No Encumbrances. Subject to the Security Interests created in
favor of the Security Trustee, the Issuer, ALPS 94-1 and AerCo Ireland II
and except for Permitted Encumbrances, there exists no Encumbrance over
the assets or undertaking of the Issuer or any Issuer Subsidiary which
ranks prior to or pari passu with the obligation to make payments on the
Initial Notes.
(viii) No Consents. All consents, approvals, authorizations or
other orders of all regulatory authorities required (excluding any
required by the other parties to
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the Related Documents) for or in connection with the execution and
performance of the Related Documents by the Issuer and each Issuer
Subsidiary and the issue and performance of the Initial Notes and the
offering of the Initial Notes by the Issuer have been obtained and are in
full force and effect and not contingent upon fulfillment of any
condition.
(ix) No Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of the Issuer, threatened
against or affecting, the Issuer or any Issuer Subsidiary before any
court or arbitrator or any governmental body, agency or official which in
any manner challenges or seeks to prevent, enjoin, alter or materially
delay the transactions contemplated by this Indenture (including the
Exhibits and Schedules attached hereto) and the Related Documents.
(x) Employees, Subsidiaries. The Issuer and each Issuer Subsidiary
have no employees. Set forth in Schedule B hereto is a true and complete
list, as of the date hereof, of all Issuer Subsidiaries, together with
their jurisdictions of organization.
(xi) Ownership. The Issuer or an Issuer Subsidiary is the
beneficial owner of the Pledged Stock, the Pledged Debt and the
Non-Trustee Accounts, free from all Encumbrances and claims whatsoever
other than Permitted Encumbrances.
(xii) No Filings. Under the laws of Jersey and New York (including
U.S. federal law) in force at the date hereof, it is not necessary or
desirable that this Indenture or any Related Document to which an Issuer
Subsidiary is a party (other than evidences of the Security Interests) be
filed, recorded or enrolled (other than the filing of the Memorandum and
Articles of Association of the Issuer and this Indenture in Jersey) with
any court or other authority in any such jurisdictions or that any stamp,
registration or similar tax be paid on or in relation to this Indenture
or any of the other Related Documents.
(xiii) Other Representations. The representations and warranties
made by the Issuer and each Issuer Subsidiary in any of the other Related
Documents are true and accurate.
Section 5.02. General Covenants. The Issuer covenants with the Trustee as
follows:
(a) No Release of Obligations. The Issuer shall not take, or
knowingly permit any Issuer Subsidiary to take, any action which would
amend, terminate (other than any termination in connection with the
replacement of such agreement with an agreement on terms substantially no
less favorable to AerCo Group than the agreement being terminated) or
discharge or prejudice the validity or effectiveness of this Indenture
(other than as permitted herein), the Security Documents, the
Intercompany Loan Agreements, the Cash Management Agreement, the
Administrative Agency Agreement, the Deposit Agreement, the Servicing
Agreement
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or any Additional Servicing Agreement or permit any party to any such
document to be released from such obligations, except, in each case, as
permitted or contemplated by the terms of such document, and provided
that such actions may be taken or permitted, and such releases may be
permitted, if the Issuer shall have first obtained an authorizing
resolution of the Board of the Issuer determining that such action,
permitted action or release does not materially adversely affect the
interests of the Noteholders and having given notice thereof to the
Rating Agencies; and provided further that, in any case (i) the Issuer
shall not take any action which would result in any amendment or
modification to the conflicts standard or duty of care in such agreements
and (ii) there must be at all times an administrative agent, a cash
manager and a servicer (provided that, if the Servicer or any Additional
Servicer resigns prior to the appointment of a replacement servicer as a
result of any failure to pay amounts due and owing to it, this Section
5.02(a) shall not be violated; provided, however, that notice of such
termination shall have been given to the Rating Agencies).
(b) Limitation on Encumbrances. The Issuer shall not, and shall not
permit any Issuer Subsidiary to, create, incur, assume or suffer to exist
any mortgage, pledge, lien, encumbrance, charge or security interest (in
each case, an "Encumbrance"), including, without limitation, any
conditional sale, any sale with recourse against the seller or any
affiliate of the seller, or any agreement to give any security interest
over or with respect to any of the Issuer's or any Issuer Subsidiary's
assets (other than the segregation of the Segregated Funds) including,
without limitation, all shares of capital stock, all beneficial interests
in trusts, all ordinary shares and preferred shares and any options,
warrants and other rights to acquire such shares or interests ("Stock")
and any Indebtedness of any Issuer Subsidiary held by the Issuer or any
Issuer Subsidiary.
Notwithstanding the foregoing, the Issuer may create, incur, assume
or suffer to exist (i) any Permitted Encumbrance, (ii) any security
interest created or required to be created under the Security Documents,
(iii) Encumbrances over rights in or derived from Leases, upon Rating
Agency Confirmation (provided that any transaction or series of
transactions resulting in such Encumbrance, taken as a whole, does not
materially adversely affect the amount of Collections that would have
been received by any AerCo Group Member from such Lease had such
Encumbrance not been created), (iv) Encumbrances over Aircraft, Leases or
funds on deposit in the Tax Defeasance Account or investments in respect
thereof pursuant to any Permitted Tax-Related Disposition or (v) any
other Encumbrance the validity or applicability of which is being
contested in good faith in appropriate proceedings by the Issuer or any
Issuer Subsidiary.
For the purposes of this Indenture, "affiliate" means, with respect
to any Person, any other Person that, directly or indirectly, controls,
is controlled by or is under common control with, such Person or is a
director or officer of such Person; "control" of a Person means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through
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the ownership of voting Stock, by contract or otherwise. For the
purposes of this Indenture, "Permitted Encumbrance" means (i) any lien
for taxes, assessments and governmental charges or levies not yet due and
payable or which are being contested in good faith by appropriate
proceedings; (ii) in respect of any Aircraft, any lien of a repairer,
carrier or hangar keeper arising in the ordinary course of business by
operation of law or any engine or parts-pooling arrangements or other
similar lien; (iii) any permitted lien or encumbrances on any Aircraft,
Engines or Parts as defined under any Lease thereof (other than liens or
encumbrances created by the relevant lessor); (iv) any lien created by or
through or arising from debt or liabilities or any act or omission of any
Lessee in each case either in contravention of the relevant Lease
(whether or not such Lease has been terminated) or without the consent of
the relevant lessor (provided that if such lessor becomes aware of any
such lien, it shall use commercially reasonable efforts to have any such
lien lifted); (v) any head lease, lease or any Conditional Sale Agreement
(as defined in the Servicing Agreement) or Purchase Option (as defined in
the Servicing Agreement) existing on the relevant Closing Date or any
Aircraft Agreement meeting the requirements of clause (iii), (v) or (vi)
of the second paragraph of Section 5.02(g) hereof; (vi) any lien for air
navigation authority, airport tending, gate or handling (or similar)
charges or levies; (vii) any lien created in favor of the Issuer, any
Issuer Subsidiary or the Security Trustee and (viii) any other lien not
referred to in clauses (i) through (vii) of this paragraph which would
not adversely affect the owner's rights and does not exceed the greater
of 1% of the aggregate Initial Appraised Value of the Portfolio and
$250,000 per Aircraft.
(c) Limitation on Restricted Payments. The Issuer shall not, and
shall not permit any Issuer Subsidiary to (i) declare or pay any dividend
or make any distribution on its Stock held by Persons other than the
Issuer or any Issuer Subsidiary; (ii) purchase, redeem, retire or
otherwise acquire for value any shares of Stock of the Issuer or any
Issuer Subsidiary held by or on behalf of Persons other than the Issuer,
any Issuer Subsidiary and other Persons permitted under Section
5.02(l)(ii)(B) hereof; (iii) make any payment of principal, interest or
Redemption Premium, if any, on the Notes or make any voluntary or
optional repurchase, defeasance or other acquisition or retirement for
value of Indebtedness of the Issuer or such Issuer Subsidiary that is not
owed to the Issuer or such Issuer Subsidiary other than in accordance
with Section 3.10 hereof or (iv) make any investments (other than
Permitted Account Investments, Allowed Restructurings, investments
permitted under Section 5.02(e) hereof and investments in any Aircraft
Owning Subsidiaries pursuant to a Permitted Aircraft Acquisition;
provided that written notification of the organization or acquisition of
each such Aircraft Owning Subsidiary shall have been given to each Rating
Agency).
The term "investment" for purposes of the above restriction shall
mean any loan or advance to a Person, any purchase or other acquisition
of any beneficial interest, capital stock, warrants, rights, options,
obligations or other securities of such Person, any capital contribution
to such Person or any other investment in such
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Person. For the avoidance of doubt, "investment" shall not include any
obligation of a purchaser of an Aircraft to make deferred or installment
payments pursuant to any Aircraft Agreement specified in (iii), (v) or
(vi) of the second paragraph of Section 5.02(g) hereof so long as AerCo
Group retains a security interest in the relevant Aircraft until all such
obligations are discharged.
(d) Limitation on Dividends and Other Payment Restrictions. The
Issuer shall not, and shall not permit any Issuer Subsidiary to, create
or otherwise suffer to exist any consensual encumbrance or restriction of
any kind on the ability of any Issuer Subsidiary to (i) declare or pay
dividends or make any other distributions permitted by applicable law, or
purchase, redeem or otherwise acquire for value, the Stock of the Issuer
or such Issuer Subsidiary, as the case may be; (ii) pay any Indebtedness
owed to the Issuer or such Issuer Subsidiary; (iii) make loans or
advances to the Issuer or such Issuer Subsidiary; or (iv) transfer any of
its property or assets to the Issuer or any other Issuer Subsidiary.
The foregoing provisions shall not restrict any consensual
encumbrances or other restrictions: (i) existing on the Initial Closing
Date or, in the case of any Issuer Additional Aircraft, the date of
acquisition of such Aircraft, under any Related Document, and any
amendments, extensions, refinancings, renewals or replacements of such
documents; provided that such consensual encumbrances and restrictions in
any such amendments, extensions, refinancings, renewals or replacements
are no less favorable in any material respect to the Holders of the AerCo
Group Notes than those previously in effect and being amended, extended,
refinanced, renewed or replaced; or (ii) in the case of clause (iv) of
the preceding paragraph, (A) that restrict in a customary manner the
subletting, assignment or transfer of any property or asset that is a
lease, license, conveyance or contract or similar property or asset or
(B) existing by virtue of any transfer of, agreement to transfer, option
or right with respect to, or consensual encumbrance on, any property or
assets of the Issuer or any Issuer Subsidiary not otherwise prohibited by
this Indenture. Nothing contained in this covenant shall prevent the
Issuer or any Issuer Subsidiary from creating, incurring, assuming or
suffering to exist any Encumbrances not otherwise prohibited under this
Indenture.
(e) Limitation on Engaging in Business Activities. The Issuer shall
not, and shall not permit any Issuer Subsidiary to, engage in any
business or activity other than:
(i) (A) purchasing or otherwise acquiring aircraft assets both
directly and indirectly through the acquisition of aircraft-owning
entities (subject to Section 5.02(h) hereof), (B) owning
(including, subject to Section 5.02(h) hereof, acquiring Additional
Aircraft), holding, converting, maintaining, modifying, managing,
operating, leasing, re-leasing and, subject to the limitations set
forth in Section 5.02(g) hereof, selling or otherwise disposing of
the Aircraft (including Permitted Tax-Related Dispositions) and
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(C) in the case of AerCo Ireland II, entering into the AerFi Share
Purchase Agreement and entering into all contracts and engaging in
all related activities incidental thereto, including from time to
time accepting, exchanging, holding or permitting any Issuer
Subsidiary to accept, exchange or hold (an "Allowed Restructuring")
promissory notes, contingent payment obligations or equity
interests, of Lessees or their affiliates issued in connection with
the bankruptcy, reorganization or other similar process, or in
settlement of delinquent obligations or obligations anticipated to
be delinquent, of such Lessees or their respective affiliates in
the ordinary course of business;
(ii) providing loans to, guaranteeing or otherwise supporting
the obligations and liabilities of any AerCo Group Member, in each
case on such terms and in such manner as the Board of the Issuer
or, in the case of any Issuer Subsidiary, the relevant Board, sees
fit and (whether or not the Issuer or any Issuer Subsidiary derives
a benefit therefrom) so long as such loans, guarantees or other
supports are provided in connection with the purposes set forth in
clause (i) of this Section 5.02(e);
(iii) financing or refinancing the business activities
described in clause (i) of this Section 5.02(e) through the offer,
sale and issuance of any securities of the Issuer or any Guarantor,
upon such terms and conditions as the Board of the Issuer sees fit,
for cash or in payment or in partial payment for any property
purchased or otherwise acquired by any AerCo Group Member;
(iv) engaging in currency and interest rate exchange
transactions for the purposes of avoiding, reducing, minimizing,
hedging against or otherwise managing the risk of any loss, cost,
expense or liability arising, or which may arise, directly or
indirectly, from any change or changes in any interest rate or
currency exchange rate or in the price or value of any of the
Issuer's or any Issuer Subsidiary's property or assets, within
limits determined by the Board of the Issuer from time to time and
submitted to the Rating Agencies, including but not limited to
dealings, whether involving purchases, sales or otherwise, in
foreign currency, spot and forward interest rate exchange
contracts, forward interest rate agreements, caps, floors and
collars, futures, options, swaps and any other currency, interest
rate and other similar hedging arrangements and such other
instruments as are similar to, or derivatives of, any of the
foregoing provided however that the Issuer shall not, and shall not
permit any Issuer Subsidiary to, enter into any such hedging
arrangements or other instruments (x) that are primarily entered
into for speculative purposes or (y) that are not U.S.
dollar-denominated interest rate swaps, swaptions, caps or floors
without Rating Agency Confirmation;
(v) (A) establishing, promoting and aiding in promoting,
constituting, forming or organizing companies, syndicates or
partnerships of all kinds in any part of the world for the purposes
set forth in clause (i) above;
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provided that written notification shall have been given to each
Rating Agency that such company, trust, syndicate or partnership is
set up in compliance with this Indenture, (B) acquiring, holding
and disposing of shares, securities and other interests in any such
company, syndicate or partnership and (C) disposing of shares,
securities and other interests in, or causing the dissolution of,
any existing subsidiary; provided that any such disposition which
results in the disposition of an Aircraft meets the requirements
set forth in Section 5.02(g) hereof; and
(vi) taking out, acquiring, surrendering and assigning
policies of insurance and assurances with any insurance company or
companies which the Issuer or any Issuer Subsidiary may think fit
and to pay the premiums thereon.
(f) Limitation on Indebtedness. The Issuer shall not, and shall
not permit any Issuer Subsidiary to, incur, create, issue, assume,
guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, whether
present or future (in any such case, to "incur"), Indebtedness.
For the purposes of this Indenture, "Indebtedness" means, with
respect to any Person at any date of determination (without duplication),
(i) all indebtedness of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person in respect of
letters of credit or other similar instruments (including reimbursement
obligations with respect thereto), (iv) all the obligations of such
Person to pay the deferred and unpaid purchase price of property or
services, which purchase price is due more than six months after the date
of purchasing such property or service or taking delivery and title
thereto or the completion of such services, and payment deferrals
arranged primarily as a method of raising finance or financing the
acquisition of such property or service, (v) all obligations of such
Person under a lease of (or other agreement conveying the right to use)
any property (whether real, personal or mixed) that is required to be
classified and accounted for as a capital lease obligation under U.S.
GAAP, (vi) all Indebtedness (as defined in clauses (i) through (v) of
this paragraph) of other Persons secured by a lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person, and
(vii) all Indebtedness (as defined in clauses (i) through (v) of this
paragraph) of other Persons guaranteed by such Person.
Notwithstanding the foregoing, the Issuer and any Issuer Subsidiary
may incur each and all of the following:
(i) Indebtedness in respect of any Initial Notes issued on the
Initial Closing Date and Indebtedness in respect of any Remaining
Subclass D-1 and Remaining Subclass E-1 Notes issued to finance the
purchase of the Remaining Aircraft or Substitute Aircraft;
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(ii) Indebtedness in respect of any Refinancing Notes or other
Indebtedness issued in connection with the repurchase, acquisition,
defeasance or retirement for value of AerCo Notes other than the
Class E Notes; provided that (A) such Refinancing Notes or other
Indebtedness receive ratings from the Rating Agencies at the close
of such Refinancing or issuance equal to or higher than those of
the subclass being refinanced or repurchased, acquired, defeased or
retired (determined at the date of incurrence), (B) taking into
account such Refinancing or repurchase, the Issuer receives Rating
Agency Confirmation prior to such Refinancing or issuance with
respect to each subclass of AerCo Group Notes Outstanding at such
time and (C) the net proceeds of any such Refinancing or other
issuance shall be used only to repay the Outstanding Principal
Balance of the subclass of Notes being so refinanced or
repurchased, acquired, defeased or retired plus any Redemption
Premium and transaction expenses relating thereto;
(iii) Indebtedness in respect of guarantees by the Issuer or
any Issuer Subsidiary of any other AerCo Group Member (other than
the Guarantee described in (v) below), provided that no such
Indebtedness in respect of any AerCo Group Member other than AerCo
or any subsidiary of AerCo shall be incurred if it would materially
adversely affect the Noteholders;
(iv) Indebtedness in respect of any Issuer Additional Notes
the proceeds of which are applied to finance a Permitted Additional
Aircraft Acquisition; provided that (A) the Issuer receives Rating
Agency Confirmation prior to the incurrence of such Indebtedness
with respect to all of the AerCo Group Notes Outstanding at such
time and (B) the net proceeds of such Indebtedness shall be used
only to finance such Permitted Additional Aircraft Acquisition and
(c) such Issuer Additional Notes will be cross-collateralized with
all Outstanding Notes by the Collateral under the Security Trust
Agreement;
(v) Indebtedness in respect of the Guarantee set forth in
Article XII of this Indenture (the "Guarantee"); provided that (A)
the Indebtedness guaranteed thereby is incurred by a Guarantor that
has guaranteed the Notes, (B) the Indebtedness being guaranteed
would be permitted pursuant to clause (ii) or (iv) if such
Indebtedness were incurred directly by the Issuer and (C) the
Indebtedness being guaranteed was issued by the Guarantor under an
indenture the terms of which (including the covenants and other
obligations of the Guarantor thereunder) are substantially
identical to those of this Indenture;
(vi) obligations to each Seller under each Acquisition
Agreement and any related lease assignment and assumption
agreements and the documents related thereto;
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(vii) Indebtedness under the Intercompany Loan Agreements and
any other Indebtedness under any agreements between the Issuer or
any Issuer Subsidiary and any other AerCo Group Members (each, an
"Intercompany Loan"); provided that the agreements or promissory
notes evidencing such Indebtedness shall be pledged to the Security
Trustee and written notification shall have been given to each
Rating Agency of the incurrence of such Indebtedness;
(viii) Indebtedness of AerCo Group under any Credit Facility,
provided that the Issuer shall receive Rating Agency Confirmation
prior to entering into any Primary Eligible Credit Facility; and
(ix) obligations to each investor or other person in respect
of the funds on deposit in the Tax Defeasance Account and any
Subordinated Tax-Related Disposition Payments pursuant to the
related Permitted Tax-Related Disposition and any related
assignment and assumption agreements and documents.
For the purposes of this Indenture, "guarantee" means any
obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness or other obligation of any
other Person and, without limiting the generality of the foregoing,
any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation
of such other Person or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); provided
that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term
"guarantee" when used as a verb has a corresponding meaning.
(g) Limitation on Aircraft Sales. The Issuer shall not, and shall
not permit any Issuer Subsidiary to, sell, transfer or otherwise dispose
of any Aircraft or any interest therein.
Notwithstanding the foregoing, the Issuer and any Issuer Subsidiary
shall be permitted to sell, transfer or otherwise dispose of, directly or
indirectly, (a) any Engine or Part owned on the Initial Closing Date or,
with respect to any Remaining Aircraft, Substitute Aircraft or Issuer
Additional Aircraft, on the date such Aircraft is acquired or any
replacement thereof or (b) one or more Aircraft or an interest therein
(i) pursuant to a Purchase Option or other agreements of a similar
character existing on the Initial Closing Date or, with respect to any
Remaining Aircraft, Substitute Aircraft or Issuer Additional Aircraft, on
the Closing Date therefor, (ii) within or among the Issuer and the Issuer
Subsidiaries without limitation, and among the Issuer and/or any Issuer
Subsidiary and any other AerCo Group Member; provided that no
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such sale, transfer or disposition shall be made other than to the Issuer
or any Issuer Subsidiary if such sale, transfer or other disposition
would materially adversely affect the Noteholders; provided, further,
that written notification shall have been given to each Rating Agency of
such sale, transfer or disposition, (iii) pursuant to any Aircraft
Agreement; provided that such sale does not result in a Concentration
Default and the net present value of the cash Net Sale Proceeds is not
less than the Note Target Price; (iv) pursuant to receipt of insurance
proceeds in connection with an event of loss, (v) pursuant to an Aircraft
Agreement that is designed to allow a person unrelated to the Issuer or
any Issuer Subsidiary to realize tax benefits associated with the
Aircraft or other assets being sold (any such sale, transfer or other
disposition, a "Permitted Tax-Related Disposition"); provided that (A)
the Issuer receives Rating Agency Confirmation and (B) any obligations of
AerCo Group (other than any obligation to transfer the proceeds out of
the Tax Defeasance Account to such person pursuant to such Permitted
Tax-Related Disposition) under such Aircraft Agreement or to any person
providing credit support for such obligations under such Aircraft
Agreement are limited to payments under the priority of repayment under
Subordinated Tax-Related Disposition Amounts under Section 3.08 hereof or
the funds on deposit in the Tax Defeasance Account or (vi) pursuant to an
Aircraft Agreement and, in any one calendar year, not exceeding 10% of
the Adjusted Portfolio Value as determined by the most recent Appraisal
obtained for such calendar year; provided that the Board of the Issuer
unanimously confirms that each such sale would not materially adversely
affect the Issuer and the Noteholders and such sale does not result in a
Concentration Default.
For the purpose of this Section 5.02(g), the net present value of
the cash Net Sale Proceeds of any sale, transfer or other disposition of
any Aircraft shall mean the present value of all payments received or to
be received by the Issuer or any Issuer Subsidiary in respect of such
Aircraft from the date of execution or option granting date, as the case
may be, of the relevant Aircraft Agreement through and including the date
of transfer of title to such Aircraft, discounted back to the date of
execution or option granting date, as the case may be, of such Aircraft
Agreement at the weighted average cost of funds of the AerCo Group (based
on the cost of funds on the Payment Date immediately preceding such date
(excluding for such purpose any interest paid or accrued on the Class E
Notes but taking into account any Swap Agreements).
The "Note Target Price" means, in respect of any Aircraft, an amount
equal to 103% of the aggregate Outstanding Principal Balance of the AerCo
Group A-D Notes, together with any accrued but unpaid interest thereon
and any related Swap Breakage Costs, allocable to such Aircraft on the
date of the sale agreement or purchase option granting date, as the case
may be. On any date, the Outstanding Principal Balance of AerCo Group
A-D Notes allocable to an Aircraft shall equal the product of (i) (A) the
Adjusted Base Value of such Aircraft divided by (B) the Adjusted
Portfolio Value and (ii) the aggregate Outstanding Principal Balance of
AerCo Group A-D Notes, in each case on the most recent Payment Date.
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"Aircraft Agreement" means any lease, sublease, conditional sale
agreement, finance lease, hire purchase agreement or other agreement
(other than an agreement relating to maintenance, modification or
repairs) or any purchase option granted to a Person other than any AerCo
Group Member to purchase an Aircraft pursuant to a purchase option
agreement, in each case pursuant to which any Person acquires or is
entitled to acquire legal title, or the economic benefits of ownership
of, such Aircraft.
"Net Sale Proceeds" means, with respect to any sale or other
disposition of any assets, the aggregate amount of cash received or to be
received from time to time (whether as initial or deferred consideration)
by or on behalf of the seller in connection with such transaction after
deducting therefrom (without duplication) (a) reasonable and customary
brokerage commissions and other similar fees and commissions (including
fees received by the Servicer under the Servicing Agreement) and (b) the
amount of taxes payable in connection with or as a result of such
transaction, in each case to the extent, but only to the extent, that the
amounts so deducted are, at the time of receipt of such cash, actually
paid to a Person that is not an affiliate of the seller and are properly
attributable to such transaction or to the asset that is the subject
thereof.
"Concentration Default" means an Event of Default under Section
5.03(a), as such covenant may be adjusted from time to time upon approval
from the Rating Agencies, which would arise if effect were given to any
sale, transfer or other disposition or any purchase or other acquisition
pursuant to an Aircraft Agreement as of the date of such Aircraft
Agreement regardless of whether such sale, transfer or other disposition
or purchase or other acquisition is scheduled or expected to occur after
the date of such Aircraft Agreement.
(h) Limitation on Aircraft Acquisitions. The Issuer shall not, and
shall not permit any Issuer Subsidiary to, purchase or otherwise acquire
any Aircraft other than the Initial Aircraft or any interest therein.
Notwithstanding the foregoing, the Issuer may, and may permit any
Issuer Subsidiary to, (A) purchase or otherwise acquire, directly or
indirectly, Additional Aircraft from time to time (a "Permitted
Additional Aircraft Acquisition"); provided that (i) no Event of Default
shall have occurred and be continuing, (ii) all Scheduled Principal
Payment Amounts have been paid, (iii) the acquisition does not result in
a Concentration Default and (iv) after giving effect to such acquisition,
no more than 90% by appraised Base Value of the Portfolio consists of
Stage 3 narrowbody aircraft and regional jets, no more than 50% by
appraised Base Value of the Portfolio consists of Stage 3 widebody
aircraft and no more than 15% by appraised Base Value of the Portfolio
consists of Stage 2 aircraft and turboprop aircraft without the Board of
the Issuer having obtained Rating Agency Confirmation, (B) act as sponsor
of a Guarantor that would fund an acquisition of aircraft assets with
Indebtedness guaranteed by the Issuer pursuant to Section 12.01 hereof;
provided that, if such acquisition of aircraft assets had been
consummated indirectly by the Issuer, such
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acquisition would have been permitted pursuant to the preceding clause
(A), and (C) purchase or otherwise acquire, directly or indirectly,
Remaining Aircraft or Substitute Aircraft pursuant to the Acquisition
Agreements.
(i) Limitation on Modification Payments and Capital Expenditures.
The Issuer shall not, and shall not permit any Issuer Subsidiary to, make
any capital expenditures for the purpose of effecting any optional
improvement or modification of any Aircraft, for the optional conversion
of any Aircraft from a passenger aircraft to a freighter or mixed-use
aircraft, or for the purpose of purchasing or otherwise acquiring any
Engines or Parts outside of the ordinary course of business (each such
expenditure, a "Modification Payment").
Notwithstanding the foregoing, the Issuer may, and may permit any
Issuer Subsidiary to, make Modification Payments; provided that (i) each
Modification Payment, together with all other Modification Payments made
after the Initial Closing Date pursuant to this Section 5.02(i) with
respect to any single Aircraft, do not exceed the aggregate amount of
funds that would be necessary to perform one incidence of heavy
maintenance (as described in the applicable Servicing Agreement or
Additional Servicing Agreement) on such Aircraft, including the airframe
and the related Engines thereof; (ii) such Modification Payment is
included in the annual operating budget of the AerCo Group and approved
by the Board of the Issuer; (iii) the amount of funds necessary to make
such Modification Payment shall have been accrued in advance as a
Permitted Accrual in the Expense Account through transfers into the
Expense Account pursuant to Section 3.08(a)(xvi) hereof or otherwise
allowed to be paid under Section 5.02(f) hereof; and (iv) the aggregate
amount of all Modification Payments made by all AerCo Group Members,
taken as a whole, pursuant to this Section 5.02(i) and pursuant to any
Guarantor Indenture after the Initial Closing Date, including such
Modification Payment, shall not exceed 5% of the aggregate Initial
Appraised Value of all Aircraft acquired by AerCo Group.
(j) Limitation on Consolidation, Merger and Transfer of Assets. The
Issuer shall not, and shall not permit any Issuer Subsidiary to,
consolidate with, merge with or into, or sell, convey, transfer, lease
(other than in accordance with the Servicing Agreement) or otherwise
dispose of its property and assets (as an entirety or substantially an
entirety in one transaction or in a series of related transactions) to,
any other Person, or permit any other Person to merge with or into the
Issuer or any Issuer Subsidiary, unless (i) the resulting entity is a
special purpose corporation, the charter of which is substantially
similar to the Memorandum and Articles of Association of the Issuer or
the equivalent charter document of such Issuer Subsidiary, as the case
may be, and, after such consolidation, merger, sale, conveyance,
transfer, lease or other disposition, payments from such resulting entity
to the Noteholders do not give rise to any withholding tax payments less
favorable to the Noteholders than the amount of any withholding tax
payments which would have been required had such event not occurred, (ii)
in the case of any consolidation, merger or transfer by the Issuer, the
surviving successor or transferee entity shall expressly assume all of
the
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obligations of the Issuer under this Indenture, the Notes and each other
Related Document to which the Issuer is then a party, (iii) the Board of
the Issuer shall have obtained Rating Agency Confirmation with respect to
such merger, sale, conveyance, transfer, lease or disposition, (iv)
immediately after giving effect to such transaction, no Event of Default
shall have occurred and be continuing and (v) the Issuer delivers to the
Trustee an Officer's Certificate and an opinion of counsel, in each case
stating that such consolidation, merger or transfer and such supplemental
indenture comply with the above criteria and, if applicable, Section
5.02(g) hereof and that all conditions precedent provided for herein
relating to such transaction have been complied with; provided that this
covenant shall not apply to any such consolidation, merger, sale,
conveyance, transfer, lease or disposition (a) within and among the
Issuer and any Issuer Subsidiary and any other AerCo Group Member if such
consolidation, merger, sale, conveyance, transfer, lease or disposition,
as the case may be, would not materially adversely affect the Noteholders
and notification is given to the Rating Agencies, (b) complying with the
terms of Section 5.02(g) hereof or (c) effected as part of a single
transaction providing for the redemption or defeasance of all AerCo Group
Notes in accordance with Section 3.10 or Article XI, respectively,
hereof.
(k) Limitation on Transactions with GPA and Affiliates. The Issuer
shall not, and shall not permit any Issuer Subsidiary, directly or
indirectly, to enter into, renew or extend any transaction (including,
without limitation, the purchase, sale, lease or exchange of property or
assets, or the rendering of any service) with GPA or its affiliates or
any affiliate of the Issuer or any Issuer Subsidiary, except upon fair
and reasonable terms no less favorable to the Issuer or such Issuer
Subsidiary than could be obtained, at the time of such transaction or at
the time of the execution of the agreement providing therefor, in a
comparable arm's-length transaction with a Person that is not such an
affiliate.
The foregoing limitation does not limit, and shall not apply to:
(i) any transaction in connection with the establishment of AerCo Group,
its acquisition of the Initial Aircraft or the Issuer Subsidiaries set
forth on Schedule B hereto or pursuant to the terms of the Related
Documents; (ii) any transaction within and among the Issuer or any Issuer
Subsidiary and any other AerCo Group Member; provided that no such
transaction, other than among the Issuer and any Issuer Subsidiary, shall
be consummated if such transaction would materially adversely affect any
Noteholders; (iii) the payment of reasonable and customary regular fees
to, and the provision of reasonable and customary liability insurance in
respect of, the Board of the Issuer; (iv) any Permitted Additional
Aircraft Acquisition or any transaction complying with Section 5.02(g)
hereof; (v) any payments of the types referred to in clause (i) or (ii)
of Section 5.02(c) hereof and not prohibited thereunder or (vi) sale of
Aircraft or any Issuer Subsidiaries as part of a single transaction
providing for the redemption or defeasance of all AerCo Group Notes in
accordance with Section 3.10 or Article XI, respectively, hereof.
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(l) Limitation on the Issuance, Delivery and Sale of Capital Stock.
The Issuer shall not (i) issue, deliver or sell any shares, interests,
participations or other equivalents (however designated, whether voting
or non-voting, other than such shares, interests, participations or other
equivalents existing on the Closing Date) in equity, or (ii) sell, or
permit any Issuer Subsidiary, directly or indirectly, to issue, deliver
or sell, any shares, interests, participations or other equivalents in
equity (however designated, whether voting or non-voting in equity, other
than such shares, interests, participations or other equivalents existing
on the Closing Date), except (A) to the Charitable Trustee (or its
nominees), (B) issuances or sales of shares of Stock of foreign Issuer
Subsidiaries to nationals in the jurisdiction of incorporation or
organization of such Issuer Subsidiary, as the case may be, to the extent
required by applicable law or necessary in the determination of the Board
of the Issuer to avoid adverse tax consequences in any such jurisdiction,
(C) the pledge of the Pledged Stock pursuant to the Security Documents,
(D) the sale, delivery or transfer of any Stock of any AerCo Group Member
as part of a single transaction providing for the redemption or
defeasance of all the AerCo Group Notes in accordance with Section 3.10
or Article XI, respectively, hereof and pursuant to a Guarantor
Indenture, (E) the sale of any Stock of an Issuer Subsidiary in order to
effect the sale of all Aircraft owned by such Issuer Subsidiary in
compliance with Section 5.02(g) hereof and (F) the issue, sale, delivery,
transfer, mortgage or pledge of any stock of any AerCo Group Member to or
for the benefit of any other AerCo Group Member; provided that
notification is given to the Rating Agencies.
(m) Bankruptcy and Insolvency; Corporate Governance. The Issuer (i)
shall promptly provide the Trustee and the Rating Agencies with notice of
the institution of any proceeding by or against the Issuer or any Issuer
Subsidiary, as the case may be, seeking to adjudicate any of them a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of their debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee or other
similar official for either or for any substantial part of their property
and (ii) shall not, without an affirmative unanimous written resolution
of the Board of the Issuer, take any action to waive, repeal, amend,
vary, supplement or otherwise modify the provisions of its charter
documents.
(n) Payment of Principal, Redemption Premium, if any, and Interest.
The Issuer shall duly and punctually pay the principal, Redemption
Premium, if any, and interest on the Notes in accordance with the terms
of this Indenture and the Notes.
(o) Limitation on Employees. The Issuer shall not, and shall not
permit any Issuer Subsidiary to, employ or maintain any employees;
provided that trustees and directors shall not be deemed to be employees
for purposes of this Section 5.02(o).
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Section 5.03. Operating Covenants. The Issuer covenants with the Trustee
as follows:
(a) Concentration Limits; Prohibited Countries. Unless the Board of
the Issuer obtains Rating Agency Confirmation, the Issuer shall not
permit any Issuer Subsidiary to lease or re-lease any Aircraft if
entering into such proposed Lease would cause the Portfolio (excluding
any Aircraft then subject to an Aircraft Agreement and expected to be
disposed of within one year from the date of effectiveness of such Lease
pursuant to Section 5.02(g)(iii) and (vi) but as to which the Issuer or
any Issuer Subsidiary retains an interest including a right to lease
rentals or other payments, finance lease payments, instalment purchase
agreements or any other payments with respect to such Aircraft, but
including any Aircraft with respect to which AerCo Group has entered into
a binding agreement to acquire and which the Board of the Issuer
reasonably expects to acquire within 180 days from the date of such
agreement) to exceed any of the Concentration Limits set forth in Exhibit
F hereto (as such limits may be adjusted by the Issuer from time to time,
subject to Rating Agency Confirmation, the "Concentration Limits");
provided that the Issuer and any Issuer Subsidiary shall be entitled to
renew or extend any Lease to the existing Lessee thereunder irrespective
of the effect of such renewal or extension on the Concentration Limits.
The Issuer shall not permit any Issuer Subsidiary to lease or re-lease
any Aircraft operated or to be operated by a Lessee domiciled in a
jurisdiction set forth in clause (a) of the PRI Guidelines as set forth
on Exhibit F hereto and as amended from time to time upon the approval of
the Rating Agencies (the "PRI Guidelines") as "Prohibited Countries".
On each Payment Date commencing on the first quarter from the date
hereof; the Issuer shall certify to the Rating Agencies its compliance of
this Section 5.03(a).
(b) Compliance with Law, Maintenance of Permits. The Issuer shall
(i) comply, and cause each Issuer Subsidiary to comply, in all material
respects with all Applicable Laws, (ii) obtain, and cause each Issuer
Subsidiary to obtain, all material governmental (including regulatory)
registrations, certificates, licenses, permits and authorizations
required for the use and operation of the Aircraft owned by it,
including, without limitation, a current certificate of airworthiness for
each such Aircraft (issued by the Applicable Aviation Authority and in
the appropriate category for the nature of the operations of such
Aircraft), except that (A) no certificate of airworthiness shall be
required for any Aircraft (x) during any period when such Aircraft is
undergoing maintenance, modification or repair, (y) following the
withdrawal or suspension by such Applicable Aviation Authority of
certificates of airworthiness in respect of all aircraft of the same
model or period of manufacture as such Aircraft (in which case the Issuer
shall comply, and cause each Issuer Subsidiary to comply, with all
directions of such Applicable Aviation Authority in connection with such
withdrawal or suspension), (B) no registrations, certificates, licenses,
permits or authorizations required for the use or operation of any
Aircraft need be obtained with respect to any period when such Aircraft
is not being operated and (C)
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no such registrations, certificates, licenses, permits or authorizations
shall be required to be maintained for any Aircraft that is not the
subject of a Lease, except to the extent required under Applicable Laws,
(iii) not cause or knowingly permit, directly or indirectly, through any
Issuer Subsidiary, any Lessee to operate any Aircraft under any Lease in
any material respect contrary to any Applicable Law and (iv) not
knowingly permit, directly or indirectly, through any Issuer Subsidiary,
any Lessee not to obtain all material governmental (including regulatory)
registrations, certificates, licenses, permits and authorizations
required for such Lessee's use and operation of any Aircraft under any
operating Lease except as provided, mutatis mutandis, in clauses (ii)(A)
and (ii)(B) above.
Notwithstanding the foregoing, no breach of this Section 5.03(b)
shall be deemed to have occurred by virtue of any act or omission of a
Lessee or sub-lessee, or of any Person which has possession of the
Aircraft or any Engine for the purpose of repairs, maintenance,
modification or storage, or by virtue of any requisition, seizure, or
confiscation of the Aircraft (other than seizure or confiscation arising
from a breach by the Issuer or an Issuer Subsidiary of this Section
5.03(b)) (each, a "Third Party Event"); provided that (i) neither the
Issuer nor any Issuer Subsidiary consents or has consented to such Third
Party Event; and (ii) the Issuer or Issuer Subsidiary which is the lessor
or owner of such Aircraft promptly and diligently takes such commercially
reasonable actions as a leading international aircraft operating lessor
would reasonably take in respect of such Third Party Event, including, as
deemed appropriate (taking into account, inter alia, the laws of the
jurisdictions in which the Aircraft are located), seeking to compel such
Lessee or other relevant Person to remedy such Third Party Event or
seeking to repossess the relevant Aircraft or Engine.
(c) Appraisal of Aircraft. The Issuer shall, at least once each
year and in any case no earlier than 90 nor later than 30 days prior to
March 31 of each year, commencing in 1999, deliver to the Trustee and
each Rating Agency appraisals of the Base Value of each of the Initial
Aircraft and Issuer Additional Aircraft then owned from at least three
independent appraisers that are members of the International Society of
Transport Aircraft Trading or any similar organization (each, an
"Appraiser"), each such appraisal to be dated within 30 days prior to its
delivery to the Trustee.
(d) Maintenance of Assets. The Issuer shall (i) with respect to
each Initial Aircraft or Issuer Additional Aircraft, as the case may be,
and Engine that is subject to a Lease, require, directly or indirectly,
through any Issuer Subsidiary, in such Lease that such Aircraft and
Engine be maintained in accordance with provisions for maintenance
consistent with the reasonable commercial practice of leading
international aircraft operating lessors with respect to similar aircraft
under lease, taking into consideration, among other things, the identity
of the relevant Lessee (including the credit standing and operating
experience thereof), the age and condition of the Aircraft and the
jurisdiction in which such Aircraft will be operated or
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registered under such Lease and (ii) with respect to each Aircraft that
is not subject to a Lease, maintain, and cause each Issuer Subsidiary to
maintain, such Aircraft in a state of repair and condition consistent
with the reasonable commercial practice of leading international aircraft
operating lessors with respect to aircraft not under lease.
Notwithstanding the foregoing, no breach of this Section 5.03(d) shall be
deemed to have occurred by virtue of any Third Party Event; provided that
(i) neither the Issuer nor any Issuer Subsidiary consents or has
consented to such Third Party Event; and (ii) the Issuer or such Issuer
Subsidiary which is the lessor or owner of such Aircraft promptly and
diligently takes such commercially reasonable actions as a leading
international aircraft operating lessor would reasonably take in respect
of such Third Party Event, including as deemed appropriate, seeking to
compel such Lessee or other relevant Person to remedy such Third Party
Event or seeking to repossess the relevant Aircraft or Engine.
(e) Notification of Trustee, Cash Manager and Administrative Agent.
The Issuer shall notify the Trustee, Cash Manager and Administrative
Agent in writing as soon as the Issuer or any Issuer Subsidiary becomes
aware of any loss, theft, damage or destruction to any Initial Aircraft,
Issuer Additional Aircraft or Engine if the potential cost of repair or
replacement of such asset (without regard to any insurance claim related
thereto) may exceed $2,000,000 and the Issuer shall notify the Trustee of
any breach of the Share Purchase Agreement by GPA Group.
(f) Leases. The Issuer shall adopt and shall cause the Servicer and
any Additional Servicer to utilize the pro forma lease agreement or
agreements then used by the Servicer or such Additional Servicer in
connection with its aircraft operating leasing services business
generally, as such pro forma lease agreement or agreements may be revised
for purposes of AerCo Group specifically or generally from time to time
by the Servicer or the Additional Servicer, as the case may be (the
"Servicer's Pro Forma Lease"), for use by the Servicer or such Additional
Servicer, as the case may be, on behalf of the Issuer or any Issuer
Subsidiary as a starting point in the negotiation of Future Leases with
Persons who are not AerCo Group Members; provided, however, that with
respect to any Future Lease entered into in connection with (x) the
renewal or extension of a Lease, (y) the leasing of an Aircraft to a
Person that is or was a Lessee under an Initial Lease or (z) the leasing
of an Aircraft to a Person that is or was the lessee under an operating
lease of an aircraft that is being managed or serviced by the Servicer or
the Additional Servicer, as the case may be (such Future Lease, a
"Renewal Lease"), a form of lease substantially similar to such Initial
Lease or operating lease (a "Precedent Lease"), as the case may be, may
be used by the Servicer or the Additional Servicer, as the case may be,
in lieu of the Servicer's Pro Forma Lease on behalf of the Issuer or any
Issuer Subsidiary as a starting point in the negotiation of such Future
Lease with Persons who are not AerCo Group Members and provided further,
however, that if the Board of the Issuer determines, in an annual review
of the Servicer's Pro Forma Lease on or before each anniversary of the
relevant Closing Date, that any revision to the Servicer's Pro Forma
Lease made from time to time since the preceding review by the Board of
the Issuer (or, with
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respect to the first anniversary of the Initial Closing Date, since the
Initial Closing Date) is substantially inconsistent with the core lease
provisions of the Issuer set forth in Exhibit K to this Indenture (as
such provisions may be amended from time to time, the "Core Lease
Provisions") in a manner and to such a degree as to have a material
adverse effect on the Noteholders, taking into consideration, inter alia,
such revision and any risk that the Aircraft might not be able to be
leased on terms inconsistent with the provisions of the Servicer's Pro
Forma Lease, then the Board of the Issuer shall direct the Servicer not
to include such revision in the Servicer's Pro Forma Lease to be used
thereafter as the starting point in the negotiation of any Future Lease
with respect to the Aircraft. If the Board of the Issuer determines that
any such revision to the Servicer's Pro Forma Lease will not have a
material adverse effect on the Noteholders, then the Board of the Issuer
shall amend the applicable Core Lease Provisions and notify the Rating
Agencies of any Future Lease entered into the terms of which are
materially less favorable from the point of view of the lessor than any
of the Leases to Lessees with similar credit ratings then in effect,
including without limitation, such changes to the Core Lease Provisions.
The Issuer shall not enter into, and shall not permit any Issuer
Subsidiary to enter into, any Future Lease the rental payments under
which are denominated in a currency other than U.S. dollars without
Rating Agency Confirmation.
(g) Opinions. The Issuer shall not enter into, and shall not permit
any Issuer Subsidiary to enter into, any Future Lease with any Person
that is not an AerCo Group Member or change the jurisdiction of
registration of any Aircraft that is subject to a Lease, unless, upon
entering into such Future Lease or changing the jurisdiction of
registration of such Aircraft (or within a commercially reasonable period
thereafter), the Servicer or Additional Servicer, as the case may be,
obtains such legal opinions, if any, with regard to compliance with the
registration requirements of the relevant jurisdiction, enforceability of
the Future Lease and such other matters customary for such transactions
to the extent that receiving such legal opinions is consistent with the
reasonable commercial practice of leading international aircraft
operating lessors.
(h) Insurance. The Issuer shall maintain or cause, directly or
indirectly through the Issuer Subsidiaries, to be maintained with
reputable and responsible insurers or with insurers that maintain
relevant reinsurance with reputable and responsible reinsurers (i)
airline hull insurance for each Initial Aircraft and Issuer Additional
Aircraft in an amount at least equal to the Note Target Price for such
Aircraft (or the equivalent thereof from time to time if such insurance
is denominated in a currency other than U.S. dollars) and (ii) airline
liability insurance for each Aircraft and occurrence in an amount at
least equal to the relevant amount set forth on Exhibit H hereto for each
model of aircraft and as amended from time to time with the approval of
the Rating Agencies and (iii) airline political risk insurance ("PRI")
for each Aircraft subject to a Lease and habitually based in a
jurisdiction determined in accordance with clause (b) of the PRI
Guidelines, which may be amended from time to time only with the approval
of the Rating Agencies, in an amount at least equal to
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the Note Target Price (or the equivalent thereof from time to time if
such insurance is denominated in a currency other than U.S. dollars) for
such Aircraft; provided further that for a period commencing sixty days
after the Initial Closing Date to one year from the Initial Closing Date
(any period may be extended for up to one year if so requested in writing
by any Rating Agency), the Issuer shall, upon request from any Rating
Agency, obtain PRI with respect to Aircraft leased to Lessees habitually
based in certain countries other than Developed Markets specified by each
such Rating Agency; provided, however, that with respect to any such
insurance for any Aircraft subject to a Lease, such insurance may be
subject to commercially reasonable deductible and self-insurance
arrangements (taking into account, inter alia, the creditworthiness and
experience of the Lessee, if any, the type of aircraft and market
practices in the aircraft insurance industry generally). The coverage
and terms (including endorsements, deductibles and self-insurance
arrangements) of any insurance maintained with respect to any Aircraft
not subject to a Lease shall be substantially consistent with the
commercial practices of leading international aircraft operating lessors
regarding similar aircraft.
In determining the amount of insurance required to be maintained by
this Section 5.03(h), the Issuer may take into account any
indemnification from, or insurance provided by, any governmental,
supranational or inter-governmental authority or agency (other than, with
respect to PRI, any governmental authority or agency of any jurisdiction
for which PRI must be obtained, the sovereign foreign currency debt of
which is rated AA, or the equivalent, by at least one of the Rating
Agencies, against any risk with respect to an Aircraft at least in an
amount which, when added to the amount of insurance against such risk
maintained by the Issuer (or which the Issuer has caused to be
maintained), shall be at least equal to the amount of insurance against
such risk otherwise required by this Section 5.03(h) (taking into account
self-insurance permitted by this Section 5.03(h)). Any such
indemnification or insurance provided by such government shall provide
substantially similar protection as the insurance required by this
Section 5.03(h). The Issuer shall not be required to maintain (or to
cause to be maintained) any insurance otherwise required hereunder to the
extent that such insurance is not generally available in the relevant
insurance market at commercially reasonable rates from time to time.
(i) Indemnity. The Issuer shall, and shall cause each Issuer
Subsidiary to, include in each Lease between the Issuer or such Issuer
Subsidiary and a Person who is not an AerCo Group Member an indemnity
from such Person in respect of any losses or liabilities arising from the
use or operation of the Aircraft during the term of such Lease, subject
to such exceptions, limitations and qualifications as are consistent with
the reasonable commercial practice of leading international aircraft
operating lessors.
(j) Independent Directors. The Issuer shall notify the Trustee and
the Rating Agencies of any appointment of an independent director of the
Issuer after the date hereof.
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ARTICLE VI
THE TRUSTEE
Section 6.01. Acceptance of Trusts and Duties. The duties and
responsibilities of the Trustee shall be as provided by the TIA and as set forth
herein. The Trustee accepts the trusts hereby created and applicable to it and
agrees to perform the same but only upon the terms of this Indenture and the TIA
and agrees to receive and disburse all moneys received by it in accordance with
the terms hereof. The Trustee in its individual capacity shall not be
answerable or accountable under any circumstances, except for its own willful
misconduct or negligence or breach of any of its representations or warranties
set forth herein and the Trustee shall not be liable for any action or inaction
of the Issuer or any other parties to any of the Related Documents. Any amounts
received by the Trustee under this Indenture, including, without limitation, the
fees and out-of-pocket expenses of the Trustee shall be Expenses of the Issuer.
Section 6.02. Absence of Duties. Except in accordance with written
instructions or requests furnished pursuant to Sections 5.02 and 5.03 hereof,
the 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 Lessee.
Notwithstanding the foregoing, the Trustee, upon written request, shall furnish
to any Noteholder, promptly upon receipt thereof, duplicates or copies of all
reports, Notices, requests, demands, certificates, financial statements and
other instruments furnished to the Trustee under this Indenture.
Section 6.03. Representations or Warranties. The 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 Indenture, the Notes or any other
document or instrument or as to the correctness of any statement contained in
any thereof, except that the 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) the Indenture 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. The Trustee shall
incur no liability to anyone 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 Trustee may accept a copy of a resolution
of, in the case of the Issuer, the Board and, in the case of any other party to
any Related Document, the governing body of such Person, certified in an
accompanying Officer's Certificate as duly adopted and in full force and effect,
as conclusive evidence that such resolution has been duly adopted 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 Trustee shall
be entitled to receive and may for all purposes hereof
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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 Trustee for any action taken or omitted to be taken by it in
good faith in reliance thereon. The Trustee shall furnish to the Cash Manager
or the Administrative Agent upon written request such information and copies of
such documents as the Trustee may have and as are necessary for the Cash
Manager or the Administrative Agent to perform its duties under Article II
hereof. The Trustee shall assume, and shall be fully protected in assuming,
that the Issuer is authorized by its constitutional documents to enter into
this Indenture and to take all action permitted to be taken by it pursuant to
the provisions hereof, and shall not inquire into the authorization of the
Issuer with respect thereto.
The Trustee shall not be liable for any action it takes or omits to take
in good faith that it believes to be authorized or within its rights or powers
or for any action it takes or omits to take in accordance with the direction of
the Holders in accordance with Section 4.12 hereof relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
The Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys or a
custodian or nominee, and the 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.
The Trustee may consult with counsel as to any matter relating to this
Indenture 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.
The Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order or direction
of any of the Holders, pursuant to the provisions of this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby.
The 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 Indenture shall in any event require
the Trustee to perform, or be responsible or liable for the manner of
performance of, any obligations of the Issuer or the Cash Manager under this
Indenture or any of the Related Documents.
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The Trustee shall not be liable for any Losses or Taxes (except for Taxes
relating to any compensation, fees or commissions of any entity acting in its
capacity as Trustee hereunder) or in connection with the selection of Permitted
Account Investments or for any investment losses resulting from Permitted
Account Investments.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 4.01(f) or 4.01(g) hereof, 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.
The Trustee shall not be charged with knowledge of an Event of Default
unless a Responsible Officer of the Trustee obtains actual knowledge of such
event or the Trustee receives written notice of such event from the Issuer, the
Cash Manager or Noteholders owning Notes aggregating not less than 10% of the
outstanding principal amount of the Notes.
The 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 Trustee shall have no liability in connection with compliance by
the Issuer, the Cash Manager or any lessee under a Lease with statutory or
regulatory requirements related to any Aircraft or any Lease. The Trustee
shall not make or be deemed to have made any representations or warranties with
respect to any Aircraft or any Lease or the validity or sufficiency of any
assignment or other disposition of any Aircraft or any Lease.
Section 6.05. Not Acting in Individual Capacity. The Trustee acts
hereunder solely as trustee unless otherwise expressly provided; and all
Persons, other than the Noteholders to the extent expressly provided in this
Indenture, having any claim against the Trustee by reason of the transactions
contemplated hereby shall look, subject to the lien and priorities of payment as
herein provided, only to the property of the Issuer for payment or satisfaction
thereof.
Section 6.06. No Compensation from Noteholders. The Trustee agrees that
it shall have no right against the Noteholders or, except as provided in Article
III hereof, the property of the Issuer, for any fee as compensation for its
services hereunder.
Section 6.07. Notice of Defaults. As promptly as practicable after, and
in any event within 30 days after, the occurrence of any Default hereunder, the
Trustee shall transmit by mail to the Issuer and the Noteholders holding Notes
of the related subclass in accordance with Section 313(c) of the TIA, notice of
such Default hereunder actually known to a Responsible Officer of the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default on the payment of the interest, principal, or
Premium, if any, on any Note, the Trustee shall be fully protected in
withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good
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faith determines that the withholding of such notice is in the interests of the
Noteholders of the related class.
Section 6.08. May Hold Notes. The Trustee, any Paying Agent, the
Registrar or any of their affiliates or any other agent in their respective
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise
deal with the Issuer with the same rights it would have if it were not Trustee,
Paying Agent, Registrar or such other agent.
Section 6.09. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee which shall be eligible to act as a trustee under Section
310(a) of the Trust Indenture Act and shall meet the Eligibility Requirements.
If such corporation publishes reports of conditions at least annually, pursuant
to law or to the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section 6.09, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of conditions so published.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 6.09 to act as Trustee, the Trustee shall
resign immediately as Trustee in the manner and with the effect specified in
Section 7.01 hereof.
Section 6.10. Reports by Trustee. Within 60 days after February 28 of each
year commencing with the first full year following the issuance of any subclass
of Notes, the Trustee shall transmit to the Noteholders of each subclass, as
provided in Section 313(c) of the TIA, a brief report describing, among other
things, any changes in eligibility and qualifications of the Trustee and any
issuance of Additional Notes, if required by Section 313(a) of the TIA.
Section 6.11. Reports by the Issuer. The Issuer shall:
(a) file with the Trustee, within 30 days after the Issuer is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Issuer is required to
file with the Commission pursuant to section 13 or section 15(d) of the
Exchange Act; or, if the Issuer is not required to file information,
documents or reports pursuant to either of such sections, then to file
with the Trustee all Monthly Reports;
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed by the Commission, such additional
information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants provided for in this Indenture,
as may be required by such rules and
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regulations, including, in the case of annual reports, if required by such
rules and regulations, certificates or opinions of independent public
accountants;
(c) transmit to all Noteholders, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act such summaries of
any information, documents and reports required to be filed by the Issuer
pursuant to subsections (a) and (b) of this Section 6.11 as may be
required by rules and regulations prescribed by the Commission; and
(d) furnish to the Trustee, within 120 days after the end of each
fiscal year of the Issuer, a brief certificate from the principal
executive officer, principal accounting officer or principal financial
officer of the Issuer, as applicable, as to his or her knowledge of the
Issuer's compliance with all conditions and covenants under this
Indenture (it being understood that for purposes of this paragraph (d),
such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture).
ARTICLE VII
SUCCESSOR TRUSTEES
Section 7.01. Resignation and Removal of Trustee. The Trustee may resign
as to all or any of the subclasses of the Notes at any time without cause by
giving at least 90 days' prior written notice to the Issuer, the Cash Manager,
the Administrative Agent and the Holders. Holders of a majority of the
Outstanding Principal Balance of any subclass of the Notes may at any time
remove the Trustee as to such subclass without cause by an instrument in writing
delivered to the Issuer, the Cash Manager, the Administrative Agent, the
Security Trustee, the Senior Trustee and the Trustee being removed. In
addition, the Issuer may remove the Trustee as to any of the subclasses of the
Notes if: (i) such Trustee fails to comply with Section 310 of the TIA after
written request therefor by the Issuer or the Noteholder of the related subclass
who has been a bona fide Noteholder for at least six months, (ii) such Trustee
fails to comply with Section 7.02(c) hereof, (iii) such Trustee is adjudged a
bankrupt or an insolvent, (iv) a receiver or public officer takes charge of such
Trustee or its property or (v) such Trustee becomes incapable of acting.
References to the Trustee in this Indenture include any successor Trustee as to
all or any of the subclasses of the Notes appointed in accordance with this
Article VII.
Section 7.02. Appointment of Successor. (a) In the case of the
resignation or removal of the Trustee as to any subclass of the Notes under
Section 7.01 hereof, the Issuer shall promptly appoint a successor Trustee as to
such subclass; provided that a majority of the Outstanding Principal Balance of
such subclass of the Notes may appoint, within one year after such resignation
or removal, a successor Trustee as to such subclass which may be other than the
successor Trustee appointed by the Issuer, and such successor Trustee appointed
by the Issuer shall be superseded by the successor Trustee so appointed by the
Noteholders. If a
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successor Trustee as to any subclass of the Notes shall not have been appointed
and accepted its appointment hereunder within 60 days after the Trustee gives
notice of resignation as to such subclass, the retiring Trustee, the Issuer,
the Administrative Agent, the Cash Manager or a majority of the Outstanding
Principal Balance of such subclass of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee as to such
subclass. Any successor Trustee so appointed by such court shall immediately
and without further act be superseded by any successor 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 Trustee as to any subclass of the Notes, however
appointed, shall execute and deliver to the Issuer, the Cash Manager, the
Administrative Agent and the predecessor Trustee as to such subclass an
instrument accepting such appointment, and thereupon such successor Trustee,
without further act, shall become vested with all the estates, properties,
rights, powers, duties and trusts of such predecessor Trustee hereunder in the
trusts hereunder applicable to it with like effect as if originally named the
Trustee as to such subclass herein; provided that, upon the written request of
such successor Trustee, such predecessor Trustee shall, upon payment of all
amounts due and owing to it, execute and deliver an instrument transferring to
such successor Trustee, upon the trusts herein expressed applicable to it, all
the estates, properties, rights, powers and trusts of such predecessor Trustee,
and such predecessor Trustee shall duly assign, transfer, deliver and pay over
to such successor Trustee all moneys or other property then held by such
predecessor Trustee hereunder solely for the benefit of such subclass of the
Notes.
(c) If a successor Trustee is appointed with respect to one or more (but
not all) subclasses of the Notes, the Issuer, the predecessor Trustee and each
successor Trustee with respect to each subclass of Notes shall execute and
deliver an indenture supplemental hereto which shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the predecessor Trustee with respect to the subclasses of
Notes as to which the predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the Notes hereunder by more than one Trustee.
(d) Each Trustee shall be an Eligible Institution and shall meet the
Eligibility Requirements, if there be such an institution willing, able and
legally qualified to perform the duties of a Trustee hereunder; provided that
the Rating Agencies shall receive notice of any replacement Trustee.
(e) Any corporation into which the 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 Trustee shall be a party, or
any corporation to which substantially all the business of the Trustee may be
transferred, shall, subject to the terms of paragraph (c) of this Section, be
the Trustee under this Indenture without further act.
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ARTICLE VIII
INDEMNITY
Section 8.01. Indemnity. The Issuer shall indemnify the Trustee (and its
officers, directors, employees and agents) for, and hold it harmless against,
any loss, liability or expense incurred by it without negligence or bad faith on
its part in connection with the acceptance or administration of this Indenture
and the Related Documents and its duties under this Indenture and the Related
Documents and the Notes as Trustee, 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, arising out of or in connection with actions taken or omitted to be
taken in reliance on any Officer's Certificate furnished hereunder, or the
failure to furnish any such Officers' Certificate required to be furnished
hereunder. The Trustee shall notify the Issuer and the Rating Agencies promptly
of any claim asserted against the 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 Trustee
shall cooperate in the defense. The 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 Trustee through
negligence or bad faith.
Section 8.02. Noteholders' Indemnity. The Trustee shall be entitled,
subject to such Trustee's duty during a default to act with the required
standard of care, to be indemnified by the Holders of any subclass of the Notes
before proceeding to exercise any right or power under this Indenture or the
Cash Management Agreement at the request or direction of such Holders.
The provisions of Sections 8.01 and 8.02 hereof shall survive the
termination of this Indenture or the earlier resignation or removal of the
Trustee.
ARTICLE IX
MODIFICATION
Section 9.01. Modification with Consent of Holders. With the consent of
Holders of a majority of the Outstanding Principal Balance of the Notes on the
date of any vote of such Holders (voting as a single class), the Issuer, when
authorized by resolution of the Board, may amend or modify this Indenture or the
Notes; provided that, without the consent of each Swap Provider and each Holder
of any Notes affected thereby, no such amendment may modify the provisions of
this Indenture or the Notes setting forth the frequency or the currency of
payment of, the maturity of, or the method of calculation of the
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amount of, any interest, principal and Premium, if any, payable in respect of
any subclass of Notes, or reduce the percentage of the aggregate Outstanding
Principal Balance of any subclass of Notes required to approve any amendment or
waiver of this Section 9.01 or alter the manner or priority of payment of such
subclass of Notes (each, a "Basic Terms Modification").
It shall not be necessary for the consent of the Holders under this
Section 9.01 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof. Any such modification approved by the required Holders of any class
or subclass of Notes will be binding on the Holders of the relevant class or
subclass of Notes and each party to the Indenture.
The Issuer shall give each Rating Agency prior notice of any amendment
under this Section 9.01 and any amendments of its constitutive documents by the
Issuer or any Issuer Subsidiaries, and, after an amendment under this Section
9.01 becomes effective, the Issuer shall mail to the Holders and the Rating
Agencies a notice briefly describing such amendment. Any failure of the Issuer
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amendment.
After an amendment under this Section 9.01 becomes effective, it shall
bind every Holder, whether or not notation thereof is made on any Note held by
such Holder.
Section 9.02. Modification Without Consent of Holders. Subject to Section
9.01 hereof, the Trustee may agree, without the consent of any Noteholder, (a)
to any modification (other than a Basic Terms Modification) of, or the waiver or
authorization of any breach or prospective breach of, any provision of any
Related Document or of the relevant Notes to correct a manifest error or an
error which is of a formal, minor or technical nature, (b) to modify the
provisions of this Indenture or the Cash Management Agreement relating to the
timing of movement of Rental Payments or other monies received or Expenses
incurred among the Accounts by the Cash Manager or (c) to comply with the
requirements of the Commission in connection with the qualification of this
Indenture under the TIA. Any such modification shall be notified to the Holders
as soon as practicable thereafter and shall be binding on all the Holders.
Section 9.03. Subordination and Priority of Payments. The subordination
provisions contained in Section 3.08, Section 3.09 and Article X hereof may not
be amended or modified without the consent of each Swap Provider, each provider
of a Credit Facility, each Noteholder of the subclass affected thereby and each
Noteholder of any subclass of Notes ranking senior thereto. In no event shall
the provisions set forth in Section 3.08 relating to the priority of the
Expenses, Swap Payments and payments under all Credit Facilities be amended or
modified.
Section 9.04. Execution of Amendments by Trustee. In executing, or
accepting the additional trusts created by, any amendment or modification to
this Indenture permitted by this Article or the modifications thereby of the
trusts created by this Indenture,
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the Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Officer's Certificate and an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 9.05. Swap Providers. (a) The Issuer may enter into one or more
Swap Agreements from time to time; provided, that counterparties to all Swap
Agreements shall be subject to the prior approval of the Board and the Rating
Agencies and shall have credit ratings or provide collateralization arrangements
consistent with maintaining the ratings of the Notes.
(b) Notification to Trustee. The Issuer shall promptly notify the Trustee
in writing of the execution of any Swap Agreement or Swap Guarantee.
(c) Third Party Beneficiary. Each Swap Provider and each provider of a
Credit Facility shall be a third party beneficiary of Sections 3.08 and 9.03
hereof.
Section 9.06. Conformity with Trust Indenture Act. Every indenture
supplemental hereto pursuant to this Article IX shall conform to the
requirements of the TIA as then in effect.
ARTICLE X
SUBORDINATION
Section 10.01. Subordination of the Notes. (a) Each of the Issuer and
the Trustee (on behalf of the Holders of each class of Notes) covenants and
agrees, and each Holder, by its acceptance of a Note, covenants and agrees, that
the Notes of each class will be issued subject to the provisions of this Article
X; and each Holder, by its acceptance of a Note, agrees that all amounts payable
on any Note will, to the extent and in the manner set forth in this Article X,
Section 3.08 and, if applicable, Section 3.09 hereof, be subordinated in right
of payment to the prior payment in full of all Expenses payable to the Service
Providers pursuant to this Indenture and the Related Documents. In addition,
each Holder, by its acceptance of a Note, agrees that (i) all amounts payable on
any Class A Note will, to the extent and in the manner set forth in this Article
X and Section 3.08 hereof, be subordinated in right of payment to all payments
under any Primary Eligible Credit Facilities; (ii) all amounts payable on any
Class B Note will, to the extent and in the manner set forth in this Article X
and Section 3.08 hereof, be subordinated in right of payment to all payments
under any Primary Eligible Credit Facilities, the payment in full of the Class A
Notes and all Swap Payments (other than Subordinated Swap Payments) payable to
any Swap Provider pursuant to any Swap Agreement; (iii) all amounts payable on
any Class C Note will, to the extent and in the manner set forth in this Article
X and Section 3.08 hereof, be subordinated in right of payment to all payments
under any Primary Eligible Credit Facilities, the payment in full of
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the Class A Notes, all Swap Payments (other than Subordinated Swap Payments)
payable to any Swap Provider pursuant to any Swap Agreement and the Class B
Notes, (iv) all amounts payable on any Class D Note will, to the extent and in
the manner set forth in this Article X and Section 3.08, be subordinated in
right of payment to the payment in full of all payments under any Primary
Eligible Credit Facilities, the payment in full of the Class A Notes, all Swap
Payments (other than Subordinated Swap Payments) payable to any Swap Provider
pursuant to any Swap Agreement, the Class B Notes and the Class C Notes and
(v) all amounts payable on any Class E Note will, to the extent and in the
manner set forth in this Article X and Section 3.08, be subordinated in right
of payment to the payment in full of all payments under any Primary Eligible
Credit Facilities, the payment in full of the Class A Notes, all Swap Payments
(other than Subordinated Swap Payments) payable to any Swap Provider pursuant
to any Swap Agreement, the Class B Notes, the Class C Notes and the Class D
Notes, all payments under any other Eligible Credit Facilities, all
Subordinated Swap Payments and all Subordinated Tax-Related Disposition
Payments. Any claim to payment so stated to be subordinated is referred to as
a "Subordinated Claim"; each claim to payment to which another claim to payment
is a Subordinated Claim is referred to as a "Senior Claim" with respect to such
Subordinated Claim.
(b) If prior to the payment in full of all Senior Claims then due and
payable, the Trustee or any Holder of a Subordinated Claim shall have received
any payment or distribution in respect of such Subordinated Claim in excess of
the amount to which such Holder was then entitled under Section 3.08 hereof,
then such payment or distribution shall be received and held in trust by such
Person and paid over or delivered to the Trustee for application as provided in
such Section 3.08.
(c) If any Service Provider, the Trustee or Holder of any Senior Claim
receives any payment in respect of any Senior Claim which is subsequently
invalidated, declared preferential, set aside and/or required to be repaid to a
trustee, receiver or other party, then, to the extent such payment is so
invalidated, declared preferential, set aside and/or required to be repaid,
such Senior Claim shall be revived and continue in full force and effect, and
shall be entitled to the benefits of this Article X, all as if such payment had
not been received.
(d) Subject to Section 10.01(i) below, the Trustee (on its own behalf and
on behalf of the Holders) and the Issuer each confirm that the payment
priorities specified in Section 3.08 hereof shall apply in all circumstances.
(e) Each Holder, by its acceptance of a Note, authorizes and expressly
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article X, and
appoints the Trustee its attorney-in-fact for such purposes, including, in the
event of any dissolution, winding up, liquidation or reorganization of the
Issuer (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of creditors or
otherwise) any actions tending towards liquidation of the property and assets
of the Issuer or
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the filing of a claim for the unpaid balance of its Notes in the form required
in those proceedings.
(f) If payment on the AerCo Group Notes is accelerated as a result of an
Event of Default, the Issuer shall promptly notify the holders of the Senior
Claims of such acceleration.
(g) After all Senior Claims are paid in full and until the Subordinated
Claims are paid in full, the holders of Subordinated Claims shall be subrogated
to the rights of holders of Senior Claims to receive payments applicable to
Senior Claims. A payment made under this Article X to holders of Senior Claims
which otherwise would have been made to the holders of Subordinated Claims is
not, as between the Issuer and the holders of Subordinated Claims, a payment by
the Issuer.
(h) No right of any holder of any Senior Claim to enforce the
subordination of any Subordinated Claim shall be impaired by an act or failure
to act by the Issuer or the Trustee or by any failure by either the Issuer or
the Trustee to comply with this Indenture.
(i) Notwithstanding anything contained herein to the contrary, payments
from property (or proceeds thereof) deposited in the Defeasance/Redemption
Account pursuant to Article XI, which property shall be for the benefit of the
applicable Holders, shall not be subordinated to the prior payment of any
Senior Claims or subject to the restrictions set forth in this Article X,
Section 3.08 and Section 3.09 hereof, and none of the Holders shall be
obligated to pay over any payments from any such property to the Trustee or any
holder of Senior Claims or any other creditor of the Issuer or any Issuer
Subsidiary.
(j) Each Holder by accepting a Note acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Claim, whether such Senior
Claim was created or acquired before or after the issuance of such Holder's
claim, to acquire and continue to hold such Senior Claim and such holder of any
Senior Claim shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold such Senior Claim.
ARTICLE XI
DISCHARGE OF INDENTURE; DEFEASANCE
Section 11.01. Discharge of Liability on the Notes; Defeasance. (a) When
(i) the Issuer delivers to the Trustee all Outstanding Notes (other than Notes
replaced pursuant to Section 2.08 hereof) for cancellation or (ii) all
Outstanding Notes have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to Section 3.10(c)
hereof and the Issuer irrevocably deposits in the
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Defeasance/Redemption Account funds sufficient to pay at maturity or upon
redemption all Outstanding Notes, including interest thereon to maturity or the
Redemption Date (other than Notes replaced pursuant to Section 2.08), and if in
either case the Issuer pays all other sums payable hereunder by the Issuer,
then this Indenture shall, subject to Section 11.01(c), cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Issuer accompanied by an Officers' Certificate and
an Opinion of counsel, at the cost and expense of the Issuer, to the effect
that any conditions precedent to a discharge of this Indenture have been met.
(b) Subject to Sections 11.01(c) and 11.02, the Issuer at any time may
terminate (i) all its obligations under the Notes or any class or subclass of
Notes and this Indenture ("legal defeasance" option) or (ii) its obligations
under Sections 5.02, 5.03 and 4.01 (other than with respect to a failure to
comply with Sections 4.01(a)), 4.01(b), 4.01(c), 4.01(f) (only with respect to
the Issuer) and 4.01(g) (only with respect to the Issuer) ("covenant
defeasance" option); provided that no "legal defeasance" option or "covenant
defeasance" option may be exercised unless such option is exercised
contemporaneously by a Guarantor with respect to all Outstanding Guarantor
Additional Notes. The Issuer may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the Issuer exercises its legal defeasance option, payment of any Notes
subject to such legal defeasance may not be accelerated because of an Event of
Default. If the Issuer exercises its covenant defeasance option, payment of
the Notes may not be accelerated because of an Event of Default (other than
with respect to a failure to comply with Section 5.02(n)), 4.01(a), 4.01(b),
4.01(c), 4.01(f) (other than with respect to the Issuer) and 4.01(g) (other
than with respect to the Issuer).
Upon satisfaction of the conditions set forth herein and upon request of
the Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's obligations in
Sections 2.01, 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 5.02(n), Article
VI, Sections 8.01, 11.04, 11.05 and 11.06 shall survive until all the Notes
have been paid in full. Thereafter, the Issuer's obligations in Sections 8.01,
11.04 and 11.05 shall survive.
Section 11.02. Conditions to Defeasance. The Issuer may exercise its legal
defeasance option or its covenant defeasance option only if:
(1) the Issuer irrevocably deposits in trust in the
Defeasance/Redemption Account any one or any combination of (A) money,
(B) obligations of, and supported by the full faith and credit of, the
U.S. Government ("U.S. Government Obligations") or (C) obligations of
corporate issuers ("Corporate Obligations") (provided that any such
Corporate Obligations are rated AA+, or the equivalent, or higher, by the
Rating Agencies at such time and shall not have a maturity of longer than
three years from the date of defeasance) for the payment of all
principal, Premium, if any, and interest
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(i) on the Notes or any class or subclass of Notes being defeased, in the
case of legal defeasance, or (ii) on all of the Notes in the case of
covenant defeasance, in either case, to maturity or redemption, as the
case may be;
(2) the Issuer delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations or the
Corporate Obligations plus any deposited money without investment will
provide cash at such times and in such amounts as will be sufficient to
pay principal and interest when due (i) on the Notes or any class or
subclass of Notes being defeased, in the case of legal defeasance, or
(ii) on all of the Notes in the case of covenant defeasance, in either
case, to maturity or redemption, as the case may be;
(3) 91 days pass after the deposit described in clause (1) above is
made and during the 91-day period no Event of Default specified in
Section 4.01(f) or (g) with respect to the Issuer occurs which is
continuing at the end of the period;
(4) the deposit described in clause (1) above does not constitute a
default under any other agreement binding on the Issuer;
(5) the Issuer delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit described in clause (1)
does not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940, as amended;
(6) in the case of the legal defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from, or there has been published by, the U.S.
Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion of
counsel shall confirm that, the Noteholders will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such
legal defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such legal defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Noteholders will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant
defeasance had not occurred;
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(8) if the related Notes are then listed on any securities exchange,
the Issuer delivers to the Trustee an Opinion of Counsel to the effect
that such deposit, defeasance and discharge will not cause such Notes to
be delisted;
(9) the Issuer has obtained a Rating Agency Confirmation relating to
the defeasance contemplated by this Section 11.02; and
(10) the Issuer delivers to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes as contemplated by this Article XI
have been complied with.
Section 11.03. Application of Trust Money. The Trustee shall hold in
trust in the Defeasance/Redemption Account money, U.S. Government Obligations or
Corporate Obligations deposited with it pursuant to this Article XI. It shall
apply the deposited money and the money from U.S. Government Obligations or
Corporate Obligations in accordance with this Indenture to the payment of
principal, Premium, if any, and interest on the class or subclass of Notes.
Money and securities so held in trust are not subject to Article X hereof.
Section 11.04. Repayment to Issuer. The Trustee shall promptly turn over
to the Issuer upon request any excess money or securities held by it at any
time.
Subject to any applicable abandoned property law, the Trustee shall pay to
the Issuer upon request any money held by it for the payment of principal or
interest that remains unclaimed for two years and, thereafter, Noteholders
entitled to the money must look to the Issuer for payment as general creditors.
Section 11.05. Indemnity for Government Obligations and Corporate
Obligations. The Issuer shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or Corporate Obligations, or the principal and interest
received on such U.S. Government Obligations or Corporate Obligations.
Section 11.06. Reinstatement. If the Trustee is unable to apply any money
or U.S. Government Obligations or Corporate Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article XI until such time as the Trustee is permitted
to apply all such money, U.S. Government Obligations or Corporate Obligations in
accordance with this Article XI; provided, however, that, if the Issuer has made
any payment of interest on or principal of any Notes because of the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money, U.S.
Government Obligations or Corporate Obligations held by the Trustee.
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ARTICLE XII
GUARANTEE
Section 12.01. Guarantee. Subject to Section 12.02 hereof,
(a) the Issuer hereby fully and unconditionally guarantees to each holder
of any Guarantor Additional Notes and to each Guarantor Trustee on behalf of
any such holder, in each case: (A) the due and punctual payment of principal,
accrued and unpaid interest and Premium (as defined in the Guarantor Indenture
pursuant to which such Guarantor Additional Notes have been issued), if any, on
such Guarantor Additional Notes, when and as the same shall become due and
payable, whether at the applicable Final Maturity Date (as defined in such
Guarantor Indenture) of such Guarantor Additional Notes, by acceleration or
otherwise, the due and punctual payment of interest on any overdue principal,
to the extent lawful, and the due and punctual performance of all other
obligations of the Guarantor to the holders of such Guarantor Additional Notes
or under such Guarantor Indenture, and (B) in the case of any extension of time
of payment or renewal of such Guarantor Additional Notes or any of such other
obligations, that the same shall be promptly paid in full when due or
otherwise. The liability of the Issuer under this Guarantee is limited to the
maximum amount that will result in the obligations of the Issuer not
constituting a fraudulent conveyance or fraudulent transfer under applicable
law;
(b) the Issuer hereby waives diligence, presentment, filing of claims with
a court in the event of merger or bankruptcy of the Guarantor, any right to
acquire a proceeding first against the Guarantor, the benefit of discussion,
protest or notice with respect to any Guarantor Additional Note of any subclass
or the debt evidenced thereby and all demands whatsoever (except as specified
above), and covenants that this Guarantee shall not be discharged as to any
such Guarantor Additional Note except by payment in full of the principal,
accrued and unpaid interest and Premium, if any, thereon. The maturity of the
obligations guaranteed hereby may be accelerated as provided in Article IV of
the Guarantor Indenture for the purposes of this Guarantee. In the event of
any declaration of acceleration of such obligations as provided in Article IV
of such Guarantor Indenture, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Issuer for the purpose of this
Guarantee. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article IV of such Guarantor Indenture,
the Guarantor Trustee shall be entitled to make a demand for payment on such
Guarantor Additional Notes under this Guarantee;
(c) the Issuer hereby waives any claim or other rights which it may now or
hereafter acquire against the Guarantor that arise from the existence, payment,
performance or enforcement of the Issuer's obligations under such Guarantor
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, any right to
participate in any claim or remedy of the holder of any Guarantor Additional
Note against the Guarantor, whether or not such claim, remedy or right arises
in equity, or under contract, statute or common law, including, without
limitation, the
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right to take or receive from the Guarantor, directly or indirectly, in cash or
other property or in any other manner, payment or security on account of such
claim or other rights, until all of the Issuer's obligations under the
Guarantor Indenture have been satisfied. If any payment shall be paid to the
Issuer in violation of the preceding sentence and the principal, accrued
interest and Premium, if any, on any Guarantor Additional Notes shall not have
been paid in full, such amount shall be deemed to have been paid to the Issuer
for the benefit of, and held in trust for the benefit of, the holders of such
Guarantor Additional Notes, and shall forthwith be paid to the Guarantor
Trustee for the benefit of such holders to be credited and applied upon the
principal, accrued interest and Premium, if any, on such Guarantor Additional
Notes;
(d) the Issuer hereby agrees that this Guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time, payment, or any
part thereof, of any obligations guaranteed or interest thereon is rescinded or
must otherwise be restored by a holder to the Guarantor upon the bankruptcy or
insolvency of the Guarantor or the Issuer or otherwise;
(e) Any right which at any time the Issuer has under the existing or
future laws of Jersey, whether by virtue of the droit de discussion or
otherwise to require that recourse be had to the assets of the Guarantor before
any claim is enforced against the Issuer in respect of the obligations hereby
assumed by the Issuer, is hereby abandoned and waived and the Issuer undertakes
that if at any time the Trustee or the Noteholders xxx the Issuer in respect of
any such obligations and the Guarantor is not sued also, the Issuer shall not
claim that the Guarantor be made a party to the proceedings and the Issuer
agrees to be bound by this Guarantee whether or not the Issuer is made party to
legal proceedings for the recovery of the amount due or owing to the
Noteholders as aforesaid by the Guarantor and whether the formalities required
by any law of Jersey whether existing or future in regard to the rights or
obligations of sureties shall or shall not have been observed.
(f) Any right which the Issuer may have under the existing or future laws
of Jersey, whether by virtue of the droit de division or otherwise, to require
that any liability under this Indenture be divided or apportioned with any
other person or reduced in any manner whatsoever is hereby abandoned and
waived.
(g) the Issuer hereby agrees that its obligations under this Guarantee
shall be irrevocable and unconditional, irrespective of the validity,
regularity or enforceability of the Guarantor Additional Notes against the
Guarantor, the absence of any action to enforce the Guarantor's obligations
under the Guarantor Additional Notes, any waiver or consent by a holder with
respect to any provisions thereof, any amendment to the terms under which the
Guarantor Additional Notes are issued, any release of collateral related to the
Guarantor Additional Notes, the bankruptcy of the Guarantor or any circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor; provided, however, that the Issuer shall be entitled to exercise any
right that the Guarantor could have exercised under the Guarantor Indenture to
cure any default in respect of its obligations under the Guarantor Indenture or
the Guarantor Additional Notes, if any, but only to the extent such
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right, if any, is provided to the Guarantor under such Guarantor Indenture or
the Guarantor Additional Notes.
Section 12.02. Conditions to Effectiveness of Guarantee. The Guarantee
set forth in Section 12.01 shall become valid and effective only upon the
fulfillment of each of the following conditions:
(i) the Guarantor shall have entered into an indenture, the terms of
which (including the covenants and other obligations of such Guarantor
thereunder) are substantially identical to those of this Indenture (the
"Guarantor Indenture" and the notes issued thereunder, the "Guarantor
Additional Notes");
(ii) the Guarantor shall have entered into all related documents,
the terms of which are substantially similar to those of the
corresponding Related Documents (including cross-collateralizing the
Notes by naming the Noteholders as secured parties to any security
agreements);
(iii) all amounts received by such Guarantor or any Guarantor
Subsidiary pursuant to any Lease or AerCo Group Related Collateral
Document shall have been deposited into the Collection Account;
(iv) the certificate of authentication on the Guarantor Additional
Notes shall have been signed by or on behalf of the Guarantor Trustee;
and
(v) the Issuer shall have received Rating Agency Confirmation prior
to the issuance of the Guarantor Additional Notes.
Section 12.03. Ranking and Subordination of the Guarantees. The Guarantee
of the Guarantor Class A Additional Notes (the "Guarantor Class A Additional
Note Guarantee") shall rank pari passu with the Issuer's obligation to make
payments on or otherwise perform in accordance with the terms of the Class A
Notes and shall rank senior to its obligation to make payments on or otherwise
perform in accordance with the terms of the Class B Notes, its Guarantee of the
Guarantor Class B Additional Notes (the "Guarantor Class B Additional Note
Guarantee"), the Class C Notes, its Guarantee of the Guarantor Class C
Additional Notes (the "Guarantor Class C Additional Note Guarantee"), the Class
D Notes, its Guarantee of the Guarantor Class D Additional Notes (the "Guarantor
Class D Additional Note Guarantee"), the Class E Notes and its Guarantee of the
Guarantor Class E Additional Notes (the "Guarantor Class E Additional Note
Guarantee"). The Guarantor Class B Additional Note Guarantee shall rank junior
to the Issuer's obligation to make payments on or otherwise perform in
accordance with the terms of the Class A Notes and the Guarantor Class A
Additional Note Guarantee, shall rank pari passu with its obligation to make
payments on or otherwise perform in accordance with the terms of the Class B
Notes and shall rank senior to its obligation to make payments on or otherwise
perform in accordance with the terms of the Class C Notes, the Guarantor Class C
Additional Note Guarantee, the Class D Notes, the Guarantor Class D Additional
Note Guarantee, the Class E Notes and the Guarantor Class E
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Additional Note Guarantee. The Guarantor Class C Additional Note Guarantee
shall rank junior to the Issuer's obligation to make payments on or otherwise
perform in accordance with the terms of the Class A Notes, the Guarantor Class
A Additional Note Guarantee, the Class B Notes and the Guarantor Class B
Additional Note Guarantee, shall rank pari passu with its obligation to make
payments on or otherwise perform in accordance with the terms of the Class C
Notes and shall rank senior to its obligation to make payments on or otherwise
perform in accordance with the terms of the Class D Notes, the Guarantor Class
D Additional Note Guarantee, the Class E Notes and the Guarantor Class E
Additional Note Guarantee. The Guarantor Class D Additional Note Guarantee
shall rank junior to the Issuer's obligation to make payments on or otherwise
perform in accordance with the terms of the Class A Notes, the Guarantor Class
A Additional Note Guarantee, the Class B Notes, the Guarantor Class B
Additional Note Guarantee, the Class C Notes and the Guarantor Class C
Additional Note Guarantee shall rank pari passu with its obligation to make
payments on or otherwise perform in accordance with the terms of the Class D
Notes and shall rank senior to its obligation to make payments on or otherwise
perform in accordance with the terms of the Class E Notes and the Guarantor
Class E Additional Note Guarantee. The Guarantor Class E Additional Note
Guarantee shall rank junior to the Issuer's obligation to make payments on or
otherwise perform in accordance with the terms of the Class A Notes, the
Guarantor Class A Additional Note Guarantee, the Class B Notes, the Guarantor
Class B Additional Note Guarantee, the Class C Notes, the Guarantor Class C
Additional Note Guarantee, the Class D Notes and the Guarantor Class D
Additional Note Guarantee and shall rank pari passu with its obligation to make
payments on or otherwise perform in accordance with the terms of the Class E
Notes.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Right of Trustee to Perform. If the Issuer for any reason
fails to observe or punctually to perform any of its obligations to the Trustee,
whether under this Indenture or any of the other Related Documents or otherwise,
the Trustee shall have power (but shall have no obligation), on behalf of or in
the name of the Issuer or otherwise, to perform such obligations and to take any
steps which the Trustee may, in its absolute discretion, consider appropriate
with a view to remedying, or mitigating the consequences of, such failure by the
Issuer; provided that no exercise or failure to exercise this power by the
Trustee shall in any way prejudice the Trustee's other rights under this
Indenture or any of the other Related Documents.
Section 13.02. Waiver. Any waiver by any party of any provision of this
Indenture or any right, remedy or option hereunder shall only prevent and estop
such party from thereafter enforcing such provision, right, remedy or option if
such waiver is given in writing and only as to the specific instance and for the
specific purpose for which such waiver was given. The failure or refusal of any
party hereto to insist in any one or more instances, or in a course of dealing,
upon the strict performance of any of the terms or provisions of this
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Indenture by any party hereto or the partial exercise of any right, remedy or
option hereunder shall not be construed as a waiver or relinquishment of any
such term or provision, but the same shall continue in full force and effect.
No failure on the part of the Trustee to exercise, and no delay on its part in
exercising, any right or remedy under this Indenture will operate as a waiver
thereof, nor will any single or partial exercise of any right or remedy
preclude any other or further exercise thereof or the exercise of any other
right or remedy. The rights and remedies provided in this Indenture are
cumulative and not exclusive of any rights or remedies provided by law.
Section 13.03. Severability. In the event that any provision of this
Indenture or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Indenture shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Indenture, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of this Indenture. The parties hereto further agree
that the holding by any court of competent jurisdiction that any remedy pursued
by the Trustee hereunder is unavailable or unenforceable shall not affect in any
way the ability of the Trustee to pursue any other remedy available to it.
Section 13.04. Restrictions on Exercise of Certain Rights. The Trustee
and, during the continuance of a payment Default with respect to the Senior
Class of Notes, the Senior Trustee, in its capacity as trustee of such class and
except as otherwise provided in Section 4.04, may xxx for recovery or take any
other steps for the purpose of recovering any of the obligations hereunder or
any other debts or liabilities whatsoever owing to it by the Issuer. Each of
the Noteholders shall at all times be deemed to have agreed by virtue of the
acceptance of the Notes that only the Trustee and, during the continuance of a
payment Default with respect to the Senior Class of Notes, the Senior Trustee,
in its capacity as trustee of such class and except as provided in Section 4.04,
may take any steps for the purpose of procuring the appointment of an
administrative receiver, examiner, receiver or similar officer or the making of
an administration order or for instituting any bankruptcy, reorganization,
arrangement, insolvency, winding up, liquidation, composition, examination or
any like proceedings under the laws of Jersey.
Section 13.05. Notices. All notices, demands, certificates, requests,
directions, instructions and communications hereunder ("Notices") shall be in
writing and shall be effective (a) upon receipt when sent through the mails,
registered or certified mail, return receipt requested, postage prepaid, with
such receipt to be effective the date of delivery indicated on the return
receipt, or (b) one Business Day after delivery to an overnight courier, or (c)
on the date personally delivered to an authorized officer of the party to which
sent, or (d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
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if to the Issuer, to:
AerCo Limited
00 Xxxxxxxxx Xxxxxx
Xx. Xxxxxx
Xxxxxx, XX0 0XX
Channel Islands
Facsimile: (+44 1534) 609333
Attention: Mourant & Co. Secretaries Limited - Company Secretary
and
GPA Administrative Services Limited
GPA House
Shannon, County Clare
Ireland
Attention: Company Secretary
Facsimile: (+353-61) 360503
with copies to:
Xxxxx Xxxx & Xxxxxxxx
0 Xxxxxxxxx'x Xxxxx
Xxxxxx
XX0X 0XX
Attention: Mr. Xxx Xxxx
Facsimile: (x00-000) 000-0000
for so long as Bankers Trust Company shall act as Book-Entry Depositary pursuant
to the Deposit Agreement, if to any Holder of a Global Note, to:
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group,
Structured Finance Team
Facsimile: (x000) 000-0000
Telephone: (x000) 000-0000
if to any Holder of a Definitive Registered Note, to such Holder at its address
set forth in the Register as of the applicable Record Date;
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if to the Administrative Agent, to:
GPA Administrative Services Limited
GPA House
Shannon, County Clare
Ireland
Attention: Company Secretary
Facsimile: (+353-61) 360503
if to the Trustee or the Registrar, to:
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group,
Structured Finance Team
Facsimile: (x000) 000-0000
Telephone: (x000) 000-0000
if to the Cash Manager, to:
GPA Cash Manager II Limited
GPA House
Shannon, County Clare
Ireland
Attention: Company Secretary
Facsimile: (+353-61) 360 503
for so long as the Notes are listed on the Luxembourg Stock Exchange, if to the
Listing Agent, Luxembourg Paying Agent and Registrar, to:
Banque Internationale a Luxembourg S.A.
00, xxxxx x'Xxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx: Xxxxxxx Deisges
Facsimile: (x000) 0000-0000
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if to the Servicer, to:
Xxxxxxx & Xxxxx Limited
Xxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Attention: Managing Director
Facsimile: (x000-0) 000-0000
with a copy to:
Xxxxxxx & Xxxxx Inc.
0 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx
Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (x000) 000-0000
A copy of each notice given hereunder to any party hereto shall also be given
to each of the other parties hereto. Each party hereto may, by notice given in
accordance herewith to each of the other parties hereto, designate any further
or different address to which subsequent Notices shall be sent.
Section 13.06. Assignments. This Indenture shall be a continuing
obligation of the Issuer and shall (i) be binding upon the Issuer and its
successors and assigns and (ii) inure to the benefit of and be enforceable by
the Trustee, and by its successors, transferees and assigns. The Issuer may not
assign any of its obligations under the Indenture, or delegate any of its duties
hereunder.
Section 13.07. Currency Conversion. (a) If any amount is received or
recovered by the Cash Manager or the Trustee in respect of this Indenture or any
part thereof (whether as a result of the enforcement of the security created
under the Security Trust Agreement or pursuant to this Indenture or any judgment
or order of any court or in the liquidation or dissolution of the Issuer or by
way of damages for any breach of any obligation to make any payment under or in
respect of the Issuer's obligations hereunder or any part thereof or otherwise)
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 Trustee shall, to
the fullest extent permitted by Applicable Law, only constitute a discharge to
the Issuer to the extent of the amount of the Agreed Currency which the Cash
Manager or the Trustee was or would have been able in accordance with its 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 Cash Manager or Trustee is or would have
been so able to purchase is less than the amount of the Agreed Currency which
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was originally payable by the Issuer, the Issuer shall pay to the Cash Manager
such amount as the Cash Manager shall determine to be necessary to indemnify
the 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 such indemnity, to the fullest
extent permitted by Applicable Law, (i) shall constitute a separate and
independent obligation of the Issuer distinct from its obligation to discharge
the amount which was originally payable by the Issuer and (ii) shall give rise
to a separate and independent cause of action and apply irrespective of any
indulgence granted by the Cash Manager or the 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 the Issuer or
any judgment or order and no proof or evidence of any actual loss shall be
required.
(b) For the purpose of or pending the discharge of any of the moneys and
liabilities hereby secured the Cash Manager may convert any moneys received,
recovered or realized by the Cash Manager under this Indenture (including the
proceeds of any previous conversion under this Section 13.07) from their
existing currency of denomination into the currency of denomination (if
different) of such moneys and liabilities and any conversion from one currency
to another for the purposes of any of the foregoing shall be made at the
Trustee's then prevailing spot selling rate at its office by which such
conversion is made. If not otherwise required to be applied in the Received
Currency, the Cash Manager, acting on behalf of the Security Trustee, shall
promptly convert any moneys in such Received Currency other than U.S. dollars
into U.S. dollars. Each previous reference in this section to a currency
extends to funds of that currency and funds of one currency may be converted
into different funds of the same currency.
Section 13.08. Application to Court. The Security Trustee may at any time
after the service of a Default Notice apply to any court of competent
jurisdiction for an order that the terms of this Indenture be carried into
execution under the direction of such court and for the appointment of a
Receiver of the Collateral or any part thereof and for any other order in
relation to the administration of this Indenture as the Senior Trustee shall
deem fit and it may assent to or approve any application to any court of
competent jurisdiction made at the instigation of any of the Noteholders and
shall be indemnified by the Issuer against all costs, charges and expenses
incurred by it in relation to any such application or proceedings.
Section 13.09. Governing Law. THIS INDENTURE SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
Section 13.10. Jurisdiction. (a) Each of the parties hereto agrees that
the United States federal and New York State courts located in The City 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 Indenture and, for such purposes, submits to the jurisdiction of such
courts. Each of the parties hereto waives any objection which it might
130
123
now or hereafter have to the United States federal or New York State courts
located in The City of 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 Indenture 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 The City of New York to the Person named as the process agent of
such party in Exhibit G at the address set out therein or at the principal New
York City office of such process agent, if not the same.
(b) The submission to the jurisdiction of the courts referred to in
Section 13.10(a) shall not (and shall not be construed so as to) limit the
right of the Trustee to take proceedings against the Issuer in any other court
of competent jurisdiction nor shall the taking of proceedings in any one or
more jurisdictions preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not.
(c) Each of the parties hereto hereby consents generally in respect of any
legal action or proceeding arising out of or in connection with this Indenture
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 13.11. Counterparts. This Indenture 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.
Section 13.12. Table of Contents, Headings, Etc. The Table of Contents
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of
131
124
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.
Section 13.13. Trust Indenture Act. Prior to the effectiveness of the
Registration Statement, this Indenture shall be incorporated and be governed by
the provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act. After the
effectiveness of the Registration Statement, this Indenture shall be subject to
the provisions of the Trust Indenture Act that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
AERCO LIMITED, as Issuer
By /s/ XXXXXXXXX X. XXXXXXX
________________________________
Name: Xxxxxxxxx X. Xxxxxxx, Xx.
Title: Director
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By ________________________________
Name:
Title:
132
124
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.
Section 13.13. Trust Indenture Act. Prior to the effectiveness of the
Registration Statement, this Indenture shall be incorporated and be governed by
the provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act. After the
effectiveness of the Registration Statement, this Indenture shall be subject to
the provisions of the Trust Indenture Act that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
AERCO LIMITED, as Issuer
By ________________________________
Name:
Title:
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By /s/ XXXXX X. XXXXXX
________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
133
SCHEDULE A
INITIAL APPRAISED VALUE OF THE INITIAL AIRCRAFT
INITIAL APPRAISAL VALUE AT
MARCH 1, 1998
SERIAL NUMBER ($000'S)
------------- --------------------------
26153 42.373
26068 25.683
240 13.317
24465 21.953
24677 21.943
25764 27.353
25765 27.500
49952 22.920
85 26.777
24685 25.710
11258 14.207
11342 16.343
24999 63.130
49627 21.283
49790 20.820
26158 43.097
299 31.290
362 31.527
23868 24.214
391 32.883
24909 24.157
23979 24.667
24908 24.367
24904 26.430
26066 28.143
11341 16.163
11350 16.710
11351 16.313
24947 62.470
26152 41.680
403 32.083
46064 16.020
46040 15.997
22496 31.270
26067 21.180
134
SCHEDULE B
ISSUER SUBSIDIARIES
Jurisdiction of Incorporation
Aircraft Lease Portfolio
Securitization 94-1 Limited Jersey
AerCo Ireland Limited Ireland
AerCo Ireland II Limited Ireland
AerCoUSA Inc. Delaware
AerFi Belgium N.V. Belgium
Pergola Limited Ireland
ALPS 00-0 (Xxxxxxx) X.X. Xxxxxxx
XXXX 00-0 (Xxxxxx) S.A.R.L. France
135
EXHIBIT A-1
FORM OF SUBCLASS A-1 FLOATING RATE NOTE
AERCO LIMITED
SUBCLASS A-1 NOTE, due July 15, 2023
No.____ [CUSIP][ISIN][CCN]
$ ______
BEARER GLOBAL NOTE
AERCO LIMITED, a limited liability company organized under the laws of
Jersey, Channel Islands (herein referred to as the "Issuer"), for value
received, hereby promises to pay to the BEARER, upon surrender hereof, the
principal sum set forth on the grid schedule attached hereto and made a part
hereof (provided, however that the aggregate principal amount hereof and of all
other Subclass A-1 Notes outstanding, collectively, shall not exceed THREE
HUNDRED AND FORTY MILLION DOLLARS ($340,000,000)) on July 15, 2023 (the "Final
Maturity Date") and to pay interest monthly in arrears on the Outstanding
Principal Balance hereof at a fluctuating interest rate per annum equal to the
sum of LIBOR plus 0.19% per annum (the "Stated Interest Rate") from the date
hereof until the Outstanding Principal Balance hereof is paid or duly provided
for, payable on each Payment Date. Interest on this Subclass A-1 Note in each
Interest Accrual Period shall be calculated on the basis of a 360-day year and
the actual number of days elapsed in such Interest Accrual period.
This Subclass A-1 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its "Subclass A-1 Notes, due July 15, 2023", issued under
the Trust Indenture dated as of July 15, 1998 (as amended or supplemented from
time to time, the "Indenture"), between the Issuer and Bankers Trust Company, as
trustee (the "Trustee"). This Subclass A-1 Note is freely negotiable and
transfer of this Subclass A-1 Note shall be by delivery hereof. The Indenture
also provides for the issuance of Subclass A-2 Notes, Subclass B-1 Notes,
Subclass C-1 Notes, Subclass D-1 Notes and Subclass E-1 Notes (collectively, the
"Initial Notes"). All capitalized terms used in this Subclass A-1 Note and not
defined herein shall have the respective meanings assigned to such terms in the
Indenture. Reference is made to the Indenture and all indentures supplemental
thereto for a statement for the respective rights and obligations thereunder of
the Issuer, the Trustee and the Subclass A-1 Noteholders. This Subclass A-1 Note
is subject to all terms of the Indenture.
The Issuer will pay or redeem the Outstanding Principal Balance of this
Subclass A-1 Note prior to the Final Maturity Date on the Payment dates and in
the amounts specified in the Indenture, subject to the availability of the
Available Collections Amount therefor after making payments entitled to priority
under Sections 3.08 and 3.09 of the Indenture.
136
A-1-2
The Issuer may redeem all or part of the Outstanding Principal Balance of
this Subclass A-1 Note prior to the Final Maturity Date on the Payment Dates, in
the amounts and under the circumstances specified in the Indenture.
Other than in the case of a redemption for taxation reasons specified in
the Indenture, upon any redemption of any amount of the Outstanding Principal
Balance of this Subclass A-1 Note (i) with the application of funds other than
the Available Collections Amount (including proceeds from Refinancing Notes and
proceeds from third parties), such amount shall be redeemed at a Redemption
Price equal to the product of the applicable Redemption Premium applicable
thereto and the Outstanding Principal Balance thereof and (ii) with the
application of the Available Collections Amount, such amount shall be redeemed
at a Redemption Price equal to the Outstanding Principal Balance thereof.
Following the Expected Final Payment Date of this Subclass A-1 Note and
until the Outstanding Principal Balance hereof is paid or duly provided for, the
Outstanding Principal Balance hereof shall bear additional interest ("Step-Up
Interest") at the rate of 0.5% per annum, payable on each Payment Date, subject
to the availability of the Available Collections Amount therefor after making
payments entitled to priority under Sections 3.08 and 3.09 of the Indenture.
Any amount of Redemption Premium or interest (including Step-Up Interest)
on this Subclass A-1 Note that is not paid when due shall, to the fullest extent
permitted by applicable law, bear interest at a fluctuating rate per annum equal
to the Stated Interest Rate plus, following the Expected Final Payment date of
this Subclass A-1 Note, 0.5% per annum from the date when due until such amount
is paid or duly provided for, payable on the next succeeding Payment Date,
subject, in the case of Step-Up Interest, to the availability of the Available
Collections Amount therefor after making payments entitled to priority under
Sections 3.08 and 3.09 of the Indenture.
If an exchange offer (the "Exchange Offer") registered under the Securities
Act is not consummated and a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of the
Initial Notes other than the Subclass D-1 and Subclass E-1 Notes is not declared
effective by the Commission, on or before April 12, 1999 in accordance with the
terms of the Registration Rights Agreement dated as of July 15, 1998 between the
Issuer and Xxxxxx Xxxxxxx & Co. International Limited, thereafter an additional
incremental interest amount will accrue on each subclass of Notes other than the
Subclass D-1 and Subclass E-1 Notes, at an annual rate of 0.5%. Such additional
incremental interest amounts on the Notes other than the Subclass D-1 and
Subclass E-1 Notes will be payable in cash on each Payment Date until the
Exchange Offer is consummated or the Shelf Registration Statement is declared
effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
The indebtedness evidenced by the Subclass A-1 Notes is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims, and this Subclass A-1
Note is issued subject to such
137
A-1-3
provisions. Each Holder of this Subclass A-1 Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee his attorney-in-fact for such purpose.
The maturity of this Subclass A-1 Note is subject to acceleration upon the
occurrence and during the continuance of the Events of Default specified in the
Indenture.
This Subclass A-1 Note is and will be secured, on a subordinate basis, by
the collateral pledged as security therefor as provided in the Security
Documents.
Subject to and in accordance with the terms of the Indenture, there will be
distributed monthly on each Payment Date commencing on August 17, 1998, to the
Holder hereof, in the manner specified in Section 3.08 of the Indenture, such
Holder's pro rata share (based on the aggregate percentage of the Outstanding
Principal Balance of the Subclass A-1 Notes held by such Holder) of the
aggregate amount distributable to all Holders of Subclass A-1 Notes on such
Payment Date.
All amounts payable in respect of this Subclass A-1 Note shall be payable
in U.S. dollars in immediately available funds in the manner provided in the
Indenture to the Holder hereof. The final payment with respect to this Subclass
A-1 Note, however, shall be made only upon presentation and surrender of this
Note by the Noteholder or its agent at the Corporate Trust office or agency of
the Trustee or Paying Agent specified in the notice given by the Trustee or
Paying Agent with respect to such final payment. At such time, if any, as this
Subclass A-1 Note is issued in the form of one or more Definitive Registered
Notes, payments on a Payment Date shall be made by check mailed to each
Noteholder of such a Definitive Registered Note on the applicable Record Date at
its address appearing on the Register maintained with respect to Subclass A-1
Notes. Alternatively, upon application in writing to the Trustee, not later than
the applicable Record Date, by a Noteholder of one of more Definitive Registered
Notes of Subclass A-1 having an aggregate principal amount of not less than
$1,000,000, any such payments shall be made by wire transfer to an account
designated by such Noteholder at a financial institution in New York, New York.
The final payment with respect to any such Definitive Registered Note, however,
shall be made only upon presentation and surrender of such Definitive Registered
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice of such final payment given
by the Trustee or Paying Agent. Any reduction in the principal amount of this
Subclass A-1 Note (or any one or more predecessor Subclass A-1 Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Subclass A-1 Note and of any Subclass A-1 Note issued upon the
exchange or in lieu of or upon the refinancing of this Subclass A-1 Note,
whether or not noted hereon.
The Holder of this Subclass A-1 Note agrees, by acceptance hereof, to pay
over to the Cash Manager any money (including principal, Redemption Premium and
interest) paid to it in respect of this Subclass A-1 Note in the event that the
Cash Manager, acting in good faith, determines subsequently that such monies
were not paid in accordance with the priority
138
A-1-4
of payment provisions of the Indenture or as a result of any other mistake of
fact or law on the part of the Cash Manager in making such payment.
The Indenture permits the amendment or modification of the Indenture and
the Subclass A-1 Notes by the Issuer with the consent of the Holders of a
majority of the Outstanding Principal Balance of all Notes on the date of any
vote of such Holders (voting as a single class); provided that, without the
consent of each Swap Provider and each Holder of any Notes affected thereby, no
such amendment may (i) modify the provisions of the Indenture or the Notes
setting forth the frequency or the currency of payment of, the maturity of, or
the method of calculation of the amount of, any interest, principal and
Redemption Premium, if any, payable in respect of any subclass of Notes, (ii)
reduce the percentage of the aggregate Outstanding Principal Balance of such
subclass of Notes required to approve any amendment or waiver of Section 9.01
of the Indenture or (iii) alter the manner or priority of payment of such
subclass of Notes (each, a "Basic Terms Modification"). Any such amendment or
modification shall be binding on every Holder hereof, whether or not notation
thereof is made upon this Subclass A-1 Note. The Indenture also permits the
Trustee to agree, without the consent of any Noteholder, (a) to any modification
(other than a Basic Terms Modification) of, or the waiver or authorization of
any breach or prospective breach of, any provision of any Related Document or of
the relevant Notes to correct a manifest error or an error which is of a formal,
minor or technical nature or (b) to modify the provisions of the Indenture or
the Cash Management Agreement relating to the timing of movement of Rental
Payments or other monies received or Expenses incurred among the Accounts by the
Cash Manager.
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent of
each Swap Provider, each provider of a Credit Facility, each Noteholder of the
subclass affected thereby and each Noteholder of any subclass of Notes ranking
senior thereto. In no event shall the provisions set forth in Section 3.08 of
the Indenture relating to the priority of the Expenses, Swap Payments and
payments under all Credit Facilities be amended or modified.
The Indenture also contains provisions permitting the Holders of Notes
representing a majority of the Outstanding Principal Balance of the Senior
Class of Notes, on behalf of the Holders of all of the Subclass A-1 Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver shall be conclusive and binding upon all present and future
Holders of this Subclass A-1 Note and of any Subclass A-1 Note issued upon the
exchange or in lieu of or upon the refinancing of this Subclass A-1 Note,
whether or not notation of such consent or waiver is made upon this Subclass A-1
Note.
The term "Issuer" as used in this Subclass A-1 Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Trustee and the Holders of
Subclass A-1 Notes under the Indenture.
139
A-1-5
The Subclass A-1 Notes are issuable only in bearer form in denominations
as provided in the Indenture, subject to certain limitations therein set forth.
This Subclass A-1 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, including all matters of
construction, validity and performance.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual or facsimile signature, this
Subclass A-1 Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Subclass A-1 Note to be
signed manually or by facsimile by its Responsible Officer.
Date: __________ AERCO LIMITED
By: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass A-1 Notes due July 15, 2023 designated above
and referred to in the within-mentioned Indenture.
Date: ___________ BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: ________________________________
Authorized Signatory
000
X-0-0
XXXXXXXX XX XXXXXXXXX XXXXXX XX XXXXXXXXXXXX
EVIDENCED BY THIS SUBCLASS A-1 NOTE
The initial principal amount of indebtedness evidenced by this Subclass A-1
Note shall be $_________. The following decreases/increases in the principal
amount evidenced by this Subclass A-1 Note have been made:
Decrease in Increase in Total Principal
Principal Principal Amount of this Notation Made
Date of Amount of Amount of Subclass A-1 Note by or on
Decrease/ this Subclass this Subclass Following such Behalf of
Increase A-1 Note A-1 Note Decrease/Increase Trustee
--------- ------------- ------------- ------------------ -------------
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
141
EXHIBIT A-2
FORM OF SUBCLASS A-2 FLOATING RATE NOTE
AERCO LIMITED
SUBCLASS A-2 NOTE, due July 15, 2023
No._______
$_________
[CUSIP][ISIN][CCN]
GLOBAL BEARER CERTIFICATE
AERCO LIMITED, a limited liability company organized under the laws of
Jersey, Channel Islands (herein referred to as the "Issuer"), for value
received, hereby promises to pay to the BEARER, upon surrender hereof, the
principal sum set forth on the grid schedule attached hereto and made a part
hereof (provided, however that the aggregate principal amount hereof and of all
other Subclass A-2 Notes outstanding, collectively, shall not exceed TWO HUNDRED
AND NINETY MILLION DOLLARS ($290,000,000)) on July 15, 2023 (the "Final Maturity
Date") and to pay interest monthly in arrears on the Outstanding Principal
Balance hereof at a fluctuating interest rate per annum equal to the sum of
LIBOR plus 0.32% per annum (the "Stated Interest Rate") from the date hereof
until the Outstanding Principal Balance hereof is paid or duly provided for,
payable on each Payment Date. Interest on this Subclass A-2 Note in each
Interest Accrual Period shall be calculated on the basis of a 360-day year and
the actual number of days elapsed in such Interest Accrual Period.
This Subclass A-2 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its "Subclass A-2 Notes, due July 15, 2023", issued under
the Trust Indenture dated as of July 15, 1998 (as amended or supplemented from
time to time, the "Indenture"), between the Issuer and Bankers Trust Company, as
trustee (the "Trustee"). This Subclass A-2 Note is freely negotiable and
transfer of this Subclass A-2 Note shall be by delivery hereof. The Indenture
also provides for the issuance of Subclass A-1 Notes, Subclass B-1 Notes,
Subclass C-1 Notes, Subclass D-1 Notes and Subclass E-1 Notes (collectively, the
"Initial Notes"). All capitalized terms used in this Subclass A-2 Note and not
defined herein shall have the respective meanings assigned to such terms in the
Indenture. Reference is made to the Indenture and all indentures supplemental
thereto for a statement of the respective rights and obligations thereunder of
the Issuer, the Trustee and the Subclass A-2 Noteholders. This Subclass A-2 Note
is subject to all terms of the Indenture.
The Issuer will pay or redeem the Outstanding Principal Balance of this
Subclass A-2 Note prior to the Final Maturity Date on the Payment Dates and in
the amounts specified in the Indenture, subject to the availability of the
Available Collections Amount therefor after making payments entitled to priority
under Sections 3.08 and 3.09 of the Indenture.
142
A-2-2
The Issuer may redeem all or part of the Outstanding Principal Balance of
this Subclass A-2 Note prior to the Final Maturity Date on the Payment Dates, in
the amounts and under the circumstances specified in the Indenture.
Other than in the case of a redemption for taxation reasons specified in
the Indenture, upon any redemption of any amount of the Outstanding Principal
Balance of this subclass A-2 Note (i) with the application of funds other than
the Available Collections Amount (including proceeds from Refinancing Notes and
proceeds from third parties), such amount shall be redeemed at a Redemption
Price equal to the product of the applicable Redemption Premium applicable
thereto and the outstanding Principal Balance thereof and (ii) with the
application of the Available Collections Amount, such amount shall be redeemed
at a Redemption Price equal to the Outstanding Principal Balance thereof.
Any amount of Redemption Premium or interest on this Subclass A-2 Note that
is not paid when due shall, to the fullest extent permitted by applicable law,
bear interest at a fluctuating interest rate per annum equal to the Stated
Interest Rate from the date when due until such amount is paid or duly provided
for, payable on the next succeeding Payment Date, subject to the availability of
the Available Collections Amount therefor after making payments entitled to
priority under Section 3.08 of the Indenture.
If an exchange offer (the "Exchange Offer") registered under the Securities
Act is not consummated and a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of the
Initial Notes other than the Subclass D-1 and Subclass E-1 Notes is not declared
effective by the Commission, on or before April 12, 1999 in accordance with the
terms of the Registration Rights Agreement dated as of July 15, 1998 between the
Issuer and Xxxxxx Xxxxxxx & Co. International Limited, thereafter an additional
incremental interest amount will accrue on each subclass of Notes other than the
Subclass D-1 and Subclass E-1 Notes, at an annual rate of 0.5%. Such additional
incremental interest amounts on the Notes other than the Subclass D-1 and
Subclass E-1 Notes will be payable in cash on each Payment Date until the
Exchange Offer is consummated or the Shelf Registration Statement is declared
effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
The indebtedness evidenced by the Subclass A-2 Notes is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims and this Subclass A-2
Note is issued subject to such provisions. Each Holder of this Subclass A-2
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee his attorney-in-fact for
such purpose.
The maturity of this Subclass A-2 Note is subject to acceleration upon the
occurrence and during the continuance of the Events of Default specified in the
Indenture.
143
A-2-3
This Subclass A-2 Note is and will be secured, on a subordinated basis, by
the collateral pledged as security therefor as provided in the Security
Documents.
Subject to and in accordance with the terms of the Indenture, there will be
distributed monthly on each Payment Date commencing on August 17, 1998, to the
Holder hereof, in the manner specified in Section 3.08 of the Indenture, such
Holder's pro rata share (based on the aggregate percentage of the Outstanding
Principal Balance of the Subclass A-2 Notes held by such Holder) of the
aggregate amount distributable to all Holders of Subclass A-2 Notes on such
Payment Date.
All amounts payable in respect of this Subclass A-2 Note shall be payable
in U.S. dollars in immediately available funds in the manner provided in the
Indenture to the Holder hereof. The final payment with respect to this Subclass
A-2 Note, however, shall be made only upon presentation and surrender of this
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice given by the Trustee or
Paying Agent with respect to such final payment. At such time, if any, as this
Subclass A-2 Note is issued in the form of one or more Definitive Registered
Notes, payments on a Payment Date shall be made by check mailed to each
Noteholder of such a Definitive Registered Note on the applicable Record Date at
its address appearing on the Register maintained with respect to Subclass A-2
Notes. Alternatively, upon application in writing to the Trustee, not later than
the applicable Record Date, by a Noteholder of one or more Definitive Registered
Notes of Subclass A-2 having an aggregate principal amount of not less than
$1,000,000, any such payments shall be made by wire transfer to an account
designated by such Noteholder at a financial institution in New York, New York.
The final payment with respect to any such Definitive Registered Note, however,
shall be made only upon presentation and surrender of such Definitive Registered
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice of such final payment given
by the Trustee or Paying Agent. Any reduction in the principal amount of this
Subclass A-2 Note (or any one or more predecessor Subclass A-2 Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Subclass A-2 Note and of any Subclass A-2 Note issued upon the
exchange or in lieu of or upon the refinancing of this Subclass A-2 Note,
whether or not noted hereon.
The Holder of this Subclass A-2 Note agrees, by acceptance hereof, to pay
over to the Cash Manager any money (including principal, Redemption Premium and
interest) paid to it in respect of this Subclass A-2 Note in the event that the
Cash Manager, acting in good faith, determines subsequently that such monies
were not paid in accordance with the priority of payment provisions of the
Indenture or as a result of any other mistake of fact or law on the part of the
Cash Manager in making such payment.
The Indenture permits the amendment or modification of the Indenture and
the Subclass A-2 Notes by the Issuer with the consent of the Holders of a
majority of the Outstanding Principal Balance of all Notes on the date of any
vote of such Holder (voting as a single class); provided that, without the
consent of each Swap Provider and each Holder of any Notes affected thereby, no
such amendment may (i) modify the provisions of the Indenture
144
A-2-4
or the Notes setting forth the frequency or the currency of payment of, the
maturity of, or the method of calculation of the amount of, any interest,
principal and Redemption Premium, if any, payable in respect of any subclass of
Notes, (ii) reduce the percentage of the aggregate Outstanding Principal Balance
of such subclass of Notes required to approve any amendment or waiver of Section
9.01 of the Indenture or (iii) alter the manner or priority of payment of such
subclass of Notes (each, a "Basic Terms Modification"). Any such amendment or
modification shall be binding on every Holder hereof, whether or not notation
thereof is made upon this Subclass A-2 Note. The Indenture also permits the
Trustee to agree, without the consent of any Noteholder, (a) to any modification
(other than a Basic Terms Modification) of, or the waiver or authorization of
any breach or prospective breach of, any provision of any Related Document or of
the relevant Notes to correct a manifest error or an error which is of a formal,
minor or technical nature or (b) to modify the provisions of the Indenture or
the Cash Management Agreement relating to the timing of movement of Rental
Payments or other monies received or Expenses incurred among the Accounts by the
Cash Manager.
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent of
each Swap Provider, each provider of a Credit Facility, each Noteholder of the
subclass affected thereby and each Noteholder of any subclass of Notes ranking
senior thereto. In no event shall the provisions set forth in Section 3.08 of
the Indenture relating to the priority of the Expenses, Swap Payments and
payments under all Credit Facilities be amended or modified.
The Indenture also contains provisions permitting the Holders of Notes
representing a majority of the Outstanding Principal Balance of the Senior Class
of Notes, on behalf of the Holders of all of the Subclass A-2 Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver shall be conclusive and binding upon all present and future Holders of
this Subclass A-2 Note and of any Subclass A-2 Note issued upon the exchange or
in lieu of or upon the refinancing of this Subclass A-2 Note, whether or not
notation of such constant or waiver is made upon this Subclass A-2 Note.
The term "Issuer" as used in this Subclass A-2 Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Trustee and the Holders of
Subclass A-2 Notes under the Indenture.
The Subclass A-2 Notes are issuable only in bearer form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Subclass A-2 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, including all matters of
construction, validity and performance.
145
A-2-5
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual or facsimile signature, this
Subclass A-2 Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Subclass A-2 Note to be
signed manually or by facsimile by its Responsible Officer.
Date: __________ AERCO LIMITED
By: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass A-2 Notes due July 15, 2023 designated above
and referred to in the within-mentioned Indenture.
Date: ___________ BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: ________________________________
Authorized Signatory
000
X-0-0
XXXXXXXX XX XXXXXXXXX XXXXXX XX XXXXXXXXXXXX
EVIDENCED BY THIS SUBCLASS A-2 NOTE
The initial principal amount of indebtedness evidenced by this Subclass A-2
Note shall be $_________. The following decreases/increases in the principal
amount evidenced by this Subclass A-2 Note have been made:
Decrease in Increase in Total Principal
Principal Principal Amount of this Notation Made
Date of Amount of Amount of Subclass A-2 Note by or on
Decrease/ this Subclass this Subclass Following such Behalf of
Increase A-2 Note A-2 Note Decrease/Increase Trustee
--------- ------------- ------------- ------------------ -------------
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
147
EXHIBIT
FORM OF SUBCLASS B-1 FLOATING RATE NOTE
AERCO LIMITED
SUBCLASS B-1 NOTE, due July 15, 2023
No.______ [CUSIP][ISIN][CCN]
$________
GLOBAL BEARER CERTIFICATE
AERCO LIMITED, a limited liability company organized under the laws of
Jersey, Channel Islands (herein referred to as the "Issuer"), for value
received, hereby promises to pay to the BEARER, upon surrender hereof, the
principal sum set forth on the grid schedule attached hereto and made a part
hereof (provided, however that the aggregate principal amount hereof and of
all other Subclass B-1 Notes outstanding, collectively, shall not exceed
EIGHTY-FIVE MILLION DOLLARS ($85,000,000)) on July 15, 2023 (the "Final
Maturity Date") and to pay interest monthly in arrears on the Outstanding
Principal Balance hereof at a fluctuating interest rate per annum equal to
the sum of LIBOR plus 0.60% per annum (the "Stated Interest Rate") from the
date hereof until the Outstanding Principal Balance hereof is paid or duly
provided for, payable on each Payment Date. Interest on this Subclass B-1
Note in each Interest Accrual Period shall be calculated on the basis of a
360-day year and the actual number of days elapsed in such Interest Accrual
Period.
This Subclass B-1 Note is one of a duly authorized issue of Notes of
the Issuer, designated as its "Subclass B-1 Notes, due July 15, 2023",
issued under the Trust Indenture dated as of July 15, 1998 (as amended or
supplemented from time to time, the "Indenture"), between the Issuer and
Bankers Trust Company, as trustee (the "Trustee"). This Subclass B-1 Note is
freely negotiable and transfer of this Subclass B-1 Note shall be by
delivery hereof. The Indenture also provides for the issuance of Subclass
A-1 and A-2 Notes, Subclass C-1 Notes, Subclass D-1 Notes and Subclass E-1
Notes (collectively, the "Initial Notes"). All capitalized terms used in
this Subclass B-1 Note and not defined herein shall have the respective
meanings assigned to such terms in the Indenture. Reference is made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights and obligations thereunder of the Issuer, the Guarantor,
the Trustee and the Subclass B-1 Noteholders. This Subclass B-1 Note is
subject to all terms of the Indenture.
The Issuer will pay or redeem the Outstanding Principal Balance of this
Subclass B-1 Note prior to the Final Maturity Date on the Payment Dates and
in the amounts specified in the Indenture, subject to the availability of
the Available Collections Amount therefor after making payments entitled to
priority under Sections 3.08 and 3.09 of the Indenture.
148
B-1-2
The Issuer may redeem all or part of the Outstanding Principal Balance
of this Subclass B-1 Note prior to the Final Maturity Date on the Payment
Dates, in the amounts and under the circumstances specified in the
Indenture.
Other than in the case of a redemption for taxation reasons specified
in the Indenture, upon any redemption of any amount of the Outstanding
Principal Balance of this Subclass B-1 Note (i) with the application of
funds other than the Available Collections Amount (including proceeds from
Refinancing Notes and proceeds from third parties), such amount shall be
redeemed at a Redemption Price equal to the product of the applicable
Redemption Premium applicable thereto and the Outstanding Principal Balance
thereof and (ii) with the application of the Available Collections Amount,
such amount shall be redeemed at a Redemption Price equal to the Outstanding
Principal Balance thereof.
Any amount of Redemption Premium or interest on this Subclass B-1 Note
that is not paid when due shall, to the fullest extent permitted by
applicable law, bear interest at a fluctuating interest rate per annum equal
to the Stated Interest Rate form the date when due until such amount is paid
or duly provided for, payable on the next succeeding Payment Date, subject
to the availability of the Available Collections Amount therefor after
making payments entitled to priority under section 3.08 of the Indenture.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated and a shelf registration statement (the
"Shelf Registration Statement") under the Securities Act with respect to
resales of the Initial Notes other than the Subclass D-1 and Subclass E-1
Notes is not declared effective by the Commission, on or before April 12,
1999 in accordance with the terms of the Registration Rights Agreement dated
as of July 15, 1998 between the Issuer and Xxxxxx Xxxxxxx & Co.
International Limited, thereafter an additional incremental interest amount
will accrue on each subclass of Notes other than the Subclass D-1 and
Subclass E-1 Notes, at an annual rate of 0.5%. Such additional incremental
interest amounts on the Notes other than the Subclass D-1 and Subclass E-1
Notes will be payable in cash on each Payment Date until the Exchange Offer
is consummated or the Shelf Registration Statement is declared effective.
The Holder of this Note is entitled to the benefits of such Registration
Rights Agreement.
The indebtedness evidenced by the Subclass B-1 Notes is, to the extent
and in the manner provided in the Indenture, subordinate and subject in
right of payment to the prior payment in full of all Senior Claims, and this
Subclass B-1 Note is issued subject to such provisions. Each Holder of this
Subclass B-1 Note, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes an directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee his
attorney-in-fact for such purpose.
The maturity of this Subclass B-1 Note is subject to acceleration upon
the occurrence and during the continuance of the Events of Default specified
in the Indenture. The Subclass B-1 Noteholders shall not be permitted to
deliver a Default Notice or to exercise any
149
B-1-3
remedy in respect of any such Event of Default until all interest and principal
on the Class A Notes have been paid in full.
This Subclass B-1 Note is and will be secured, on a subordinated basis, by
the collateral pledged as security therefor as provided in the Security
Documents.
Subject to and in accordance with the terms of the Indenture, there will
be distributed monthly on each Payment Date commencing on August 17, 1998, to
the Holder hereof, in the manner specified in Section 3.08 of the Indenture,
such Holder's pro rata share (based on the aggregate percentage of the
Outstanding Principal Balance of the Subclass B-1 Notes held by such Holder) of
the aggregate amount distributable to all Holders of Subclass B-1 Notes on such
Payment Date.
All amounts payable in respect of this Subclass B-1 Note shall be payable
in U.S. dollars in immediately available funds in the manner provided in the
Indenture to the Holder hereof. The final payment with respect to this Subclass
B-1 Note, however, shall be made only upon presentation and surrender of this
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice given by the Trustee or
Paying Agent with respect to such final payment. At such time, if any, as this
Subclass B-1 Note is issued in the form of one or more Definitive Registered
Notes, payments on a Payment Date shall be made by check mailed to each
Noteholder of such a Definitive Registered Note on the applicable Record Date at
its address appearing on the Register maintained with respect to Subclass B-1
Notes. Alternatively, upon application in writing to the Trustee, not later than
the applicable Record Date, by a Noteholder of one or more Definitive Registered
Notes of Subclass B-1 having an aggregate principal amount of not less than
$1,000,000, any such payments shall be made by wire transfer to an account
designated by such Noteholder at a financial institution in New York, New York.
The final payment with respect to any such Definitive Registered Note, however,
shall be made only upon presentation and surrender of such Definitive Registered
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice of such final payment given
by the Trustee or Paying Agent. Any reduction in the principal amount of this
Subclass B-1 Note (or any one or more predecessor Subclass B-1 Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Subclass B-1 Note and of any Subclass B-1 Note issued upon the
exchange or in lieu of or upon the refinancing of this Subclass B-1 Note,
whether or not noted hereon.
The Holder of this Subclass B-1 Note agrees, by acceptance hereof, to pay
over to the Cash Manager any money (including principal, Redemption Premium and
interest) paid to it in respect of this Subclass B-1 Note in the event that the
Cash Manager, acting in good faith, determines subsequently that such monies
were not paid in accordance with the priority of payment provisions of the
Indenture or as a result of any other mistake of fact or law on the part of the
Cash Manager in making such payment.
The Indenture permits the amendment or modification of the Indenture and
the Subclass B-1 Notes by the Issuer with the consent of the Holders of a
majority of the
150
B-1-4
Outstanding Principal Balance of all Notes on the date of any vote of
such Holders (voting as a single class); provided that, without the consent
of each Swap Provider and each Holder of any Notes affected thereby, no such
amendment may (i) modify the provisions of the Indenture or the Notes
setting forth the frequency or the currency of payment of, the maturity of,
or the method of calculation of the amount of, any interest, principal and
Redemption Premium, if any, payable in respect of such subclass of Notes,
(ii) reduce the percentage of the aggregate Outstanding Principal Balance of
such subclass of Notes required to approve any amendment or waiver of
Section 9.01 of the Indenture or (iii) alter the manner or priority of
payment of any subclass of Notes (each, a "Basic Terms Modification"). Any
such amendment or modification shall be binding on every Holder hereof,
whether or not notation thereof is made upon this Subclass B-1 Note. The
Indenture also permits the Trustee to agree, without the consent of any
Noteholder, (a) to any modification (other than a Basic Terms Modification)
of, or the waiver or authorization of any breach or prospective breach of,
any provision of any Related Document or of the relevant Notes to correct a
manifest error or an error which is of a formal, minor or technical nature
or (b) to modify the provisions of the Indenture or the Cash Management
Agreement relating to the timing of movement of Rental Payments or other
monies received or Expenses incurred among the Accounts by the Cash Manager.
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent
of each Swap Provider, each provider of a Credit Facility, each Noteholder of
the subclass affected thereby and each Noteholder of any subclass of Notes
ranking senior thereto. In no event shall the provisions set forth in Section
3.08 of the Indenture relating to the priority of the Expenses, Swap Payments
and payments under all Credit Facilities be amended or modified.
The Indenture also contains provisions permitting the Holders of Notes
representing a majority of the Outstanding Principal Balance of the Senior
Class of Notes, on behalf of the Holders of all of the Subclass B-1 Notes,
to waive compliance by the Issuer with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any
such consent or waiver shall be conclusive and binding upon all present and
future Holders of this Subclass B-1 Note and of any Subclass B-1 Note issued
upon the exchange or in lieu of or upon the refinancing of this Subclass B-1
Note, whether or not notation of such consent or waiver is made upon this
Subclass B-1 Note.
The term "Issuer" as used in this Subclass B-1 Note includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Holders of Subclass B-1 Notes under the Indenture.
The Subclass B-1 Notes are issuable only in bearer form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
151
B-1-5
This Subclass B-1 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, including all matters of
construction, validity and performance.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual or facsimile signature, this
Subclass B-1 Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Subclass B-1 Note to be
signed manually or by facsimile by its Responsible Officer.
Date: __________ AERCO LIMITED
By: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass B-1 Notes due July 15, 2023 designated above
and referred to in the within-mentioned Indenture.
Date: ___________ BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: ________________________________
Authorized Signatory
152
B-1-6
SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS
EVIDENCED BY THIS SUBCLASS B-1 NOTE
The initial principal amount of indebtedness evidenced by this Subclass B-1
Note shall be $_________. The following decreases/increases in the principal
amount evidenced by this Subclass B-1 Note have been made:
Decrease in Increase in Total Principal
Principal Principal Amount of this Notation Made
Date of Amount of Amount of Subclass B-1 Note by or on
Decrease/ this Subclass this Subclass Following such Behalf of
Increase B-1 Note B-1 Note Decrease/Increase Trustee
--------- ------------- ------------- ------------------ -------------
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
153
EXHIBIT C
FORM OF SUBCLASS C-1 FLOATING RATE NOTE
AERCO LIMITED
SUBCLASS C-1 NOTE, due July 15, 2023
No. ____ [CUSP][ISIN][CCN]
$_________
GLOBAL BEARER CERTIFICATE
AERCO LIMITED, a limited liability company organized under laws of Jersey,
Channel Islands, (herein referred to as the "Issuer") for value received,
hereby promises to pay to the BEARER, upon surrender hereof, the principal sum
set forth on the grid schedule attached hereto and made a part hereof
(provided, however that the aggregate principal amount hereof and of all other
Subclass C-1 Notes outstanding, collectively, shall not exceed EIGHTY-FIVE
MILLION DOLLARS ($85,000,000)) on July 15, 2023 (the "Final Maturity Date") and
to pay interest monthly in arrears on the Outstanding Principal Balance hereof
at a fluctuating interest rate per annum equal to the sum of LIBOR plus 1.35%
per annum (the "Stated Interest Rate") from the date hereof until the
Outstanding Principal Balance hereof is paid or duly provided for, payable on
each Payment Date. Interest on this Subclass C-1 Note in each Interest Accrual
Period shall be calculated on the basis of a 360-day year and the actual number
of days elapsed in such Interest Accrual Period.
This Subclass C-1 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its "Subclass C-1 Notes, due July 15, 2023", issued under
the Trust Indenture dated as of July 15, 1998 (as amended or supplemented from
time to time, the "Indenture"), between the Issuer and Bankers Trust Company,
as trustee (the "Trustee"). This Subclass C-1 Note is freely negotiable and
transfer of this Subclass C-1 Note shall be by delivery hereof. The Indenture
also provides for the issuance of Subclass A-1 and A-2 Notes, Subclass B-1
Notes, Subclass D-1 Notes and Subclass E-1 Notes (collectively, the "Initial
Notes"). All capitalized terms used in this Subclass C-1 Note and not defined
herein shall have the respective meanings assigned to such terms in the
Indenture. Reference is made to the Indenture and all indentures supplemental
thereto for a statement of the respective rights and obligations thereunder of
the Issuer, the Trustee and the Subclass C-1 Noteholders. This Subclass C-1
Note is subject to all terms of the Indenture.
The Issuer will pay or redeem the Outstanding Principal Balance of this
Subclass C-1 Note prior to the Final Maturity Date on the Payment Dates and in
the amounts specified in the Indenture, subject to the availability of the
Available Collections Amount therefor after making payments entitled to
priority under Sections 3.08 and 3.09 of the Indenture.
154
C-1-2
The Issuer may redeem all or part of the Outstanding Principal Balance of
this Subclass C-1 Note prior to the Final Maturity Date on the Payment Dates, in
the amounts and under the circumstances specified in the Indenture.
Other than in the case of redemption for taxation reasons specified in the
Indenture, upon any redemption of any amount of the Outstanding Principal
Balance of this Subclass C-1 Note (i) with the application of funds other than
the Available Collections Amount (including proceeds from Refinancing Notes and
proceeds from third parties), such amount shall be redeemed at a Redemption
Price equal to the product of the applicable Redemption Premium applicable
thereto and the Outstanding Principal Balance thereof and (ii) with the
application of the Available Collections Amount, such amount shall be redeemed
at a Redemption price equal to the Outstanding Principal Balance thereof.
Any amount of Redemption Premium or interest on this Subclass C-1 Note that
is not paid when due shall, to the fullest extent permitted by applicable law,
bear interest at a fluctuating interest rate per annum equal to the Stated
Interest Rate from the date when due until such amount is paid or duly provided
for, payable on the next succeeding Payment Date, subject to the availability of
the Available Collections Amount therefor after making payments entitled to
priority under Section 3.08 of the Indenture.
If an exchange offer (the "Exchange Offer") registered under the Securities
Act is not consummated and a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of the
Initial Notes other than the Subclass D-1 and Subclass E-1 Notes is not declared
effective by the Commission, on or before April 12, 1999 in accordance with the
terms of the Registration Rights Agreement dated as of July 15, 1998 between the
Issuer and Xxxxxx Xxxxxxx & Co. International Limited, thereafter an additional
incremental interest amount will accrue on each subclass of Notes other than the
Subclass D-1 and Subclass E-1 Notes, at an annual rate of 0.5%. Such additional
incremental interest amounts on the Notes other than the Subclass D-1 and
Subclass E-1 Notes will be payable in cash on each Payment Date until the
Exchange Offer is consummated or the Shelf Registration Statement is declared
effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
The indebtedness evidenced by the Subclass C-1 Notes is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims and this Subclass C-1
Note is issued subject to such provisions. Each Holder of this Subclass C-1
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee his attorney-in-fact for
such purpose.
The maturity of this Subclass C-1 Note is subject to acceleration upon the
occurrence and during the continuance of the Events of Default specified in the
Indenture. The Subclass C-1 Noteholders shall not be permitted to deliver a
Default Notice or to exercise any
155
C-1-3
remedy in respect of any such Event of Default until all interest and
principal on the Class A Notes and the Class B Notes have been paid in full.
This Subclass C-1 Note is and will be secured, on a subordinated basis, by
the collateral pledged as security therefor as provided in the Security
Documents.
Subject to and in accordance with the terms of the Indenture, there will be
distributed monthly on each Payment Date commencing on August 17, 1998, to the
Holder hereof, in the manner specified in Section 3.08 of the Indenture, such
Holder's pro rata share (based on the aggregate percentage of the Outstanding
Principal Balance of the Subclass C-1 Notes held by such Holder) of the
aggregate amount distributable to all Holders of Subclass C-1 Notes on such
Payment Date.
All amounts payable in respect of this Subclass C-1 Note shall be payable
in U.S. dollars in immediately available funds in the manner provided in the
Indenture to the Holder hereof. The final payment with respect to this Subclass
C-1 Note, however, shall be made only upon presentation and surrender of this
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice given by the Trustee or
Paying Agent with respect to such final payment. At such time, if any, as this
Subclass C-1 Note is issued in the form of one or more Definitive Registered
Notes, payments on a Payment Date shall be made by check mailed to each
Noteholder of such a Definitive Registered Note on the applicable Record Date at
its address appearing on the Register maintained with respect to Subclass C-1
Notes. Alternatively, upon application in writing to the Trustee, not later than
the applicable Record Date, by a Noteholder of one or more Definitive Registered
Notes of Subclass C-1 having an aggregate principal amount of not less than
$1,000,000, any such payments shall be made by wire transfer to an account
designated by such Noteholder at a financial institution in New York, New York.
The final payment with respect to any such Definitive Registered Note, however,
shall be made only upon presentation and surrender of such Definitive Registered
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice of such final payment given
by the Trustee or Paying Agent. Any reduction in the principal amount of this
Subclass C-1 Note (or any one or more predecessor Subclass C-1 Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Subclass C-1 Note and of any Subclass C-1 Note issued upon the
exchange or in lieu of or upon the refinancing of this Subclass C-1 Note,
whether or not noted hereon.
The Holder of this Subclass C-1 Note agrees, by acceptance hereof, to pay
over to the Cash Manager any money (including principal, Redemption Premium and
interest) paid to it in respect of this Subclass C-1 Note in the event that the
Cash Manager, acting in good faith, determines subsequently that such monies
were not paid in accordance with the priority of payment provisions of the
Indenture or as a result of any other mistake of fact or law on the part of the
Cash Manager in making such payment.
The Indenture permits the amendment or modification of the Indenture and
the Subclass C-1 Notes by the Issued with the consent of the Holders of a
majority of the
156
C-1.4
Outstanding Principal Balance of all Notes on the date of any vote of such
Holders (voting as a single class); provided that, without the consent of each
Swap Provider and each Holder of any Notes affected thereby, no such amendment
may (i) modify the provisions of the Indenture and the Notes setting forth the
frequency or the currency of payment of, the maturity of, or the method of
calculation of the amount of, any interest, principal and Redemption Premium, if
any, payable in respect of such subclass of Notes, (ii) reduce the percentage of
the aggregate Outstanding Principal Balance of such subclass of Notes required
to approve any amendment or waiver of Section 9.01 of the Indenture or (iii)
alter the manner or priority of payment of such subclass of Notes (each, a
"Basic Terms Modification"). Any such amendment or modification shall be binding
on every Holder hereof, whether or not notation thereof is made upon this
Subclass C-1 Note. The Indenture also permits the Trustee to agree, without the
consent of any Noteholder, (a) to any modification (other than a Basic Terms
Modification) of, or the waiver or authorization of any breach or prospective
breach of, any provision of any Related Document or of the relevant Notes to
correct a manifest error or an error which is of a formal, minor or technical
nature or (b) to modify the provisions of the Indenture or the Cash Management
Agreement relating to the timing of movement of Rental Payments or other monies
received or Expenses incurred among the Accounts by the Cash Manager.
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent of
each Swap Provider, each provider of a Credit Facility, each Noteholder of the
subclass affected thereby and each Noteholder of any subclass of Notes ranking
senior thereto. In no event shall the provisions set forth in Section 3.08 of
the Indenture relating to the priority of the Expenses, Swap Payments and
payments under all Credit Facilities be amended or modified.
The Indenture also contains provisions permitting the Holders of Notes
representing a majority of the Outstanding Principal Balance of the Senior Class
of Notes, on behalf of the Holders of all of the Subclass C-1 Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver shall be conclusive and binding upon all present and future Holders of
this Subclass C-1 Note and of any Subclass C-1 Note issued upon the exchange or
in lieu of or upon the refinancing of this Subclass C-1 Note, whether or not
notation of such consent or waiver is made upon this Subclass C-1 Note.
The term "Issuer" as used in this Subclass C-1 Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Trustee and the Holders of
Subclass C-1 Notes under the Indenture.
The Subclass C-1 Notes are issuable only in bearer form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
157
C-1-5
This Subclass C-1 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, including all matters of
construction, validity and performance.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual or facsimile signature, this
Subclass C-1 Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Subclass C-1 Note to be
signed manually or by facsimile by its Responsible Officer.
Date: __________ AERCO LIMITED
By: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass C-1 Notes due July 15, 2023 designated above
and referred to in the within-mentioned Indenture.
Date: ___________ BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: ________________________________
Authorized Signatory
158
C-1-6
SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS
EVIDENCED BY THIS SUBCLASS C-1 NOTE
The initial principal amount of indebtedness evidenced by this Subclass C-1
Note shall be $_________. The following decreases/increases in the principal
amount evidenced by this Subclass C-1 Note have been made:
Decrease in Increase in Total Principal
Principal Principal Amount of this Notation Made
Date of Amount of Amount of Subclass C-1 Note by or on
Decrease/ this Subclass this Subclass Following such Behalf of
Increase C-1 Note C-1 Note Decrease/Increase Trustee
--------- ------------- ------------- ------------------ -------------
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
_________ _____________ _____________ __________________ _____________
159
EXHIBIT D
FORM OF SUBCLASS D-1 FIXED RATE NOTE
160
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY AUTHORITY IN
ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE
144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) IF APPLICABLE) UNDER
THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL
OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO AERCO LIMITED OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN
ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN
EACH CASE (A) THROUGH (E) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE ATTACHED HERETO AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
161
EXHIBIT D
FORM OF SUBCLASS D-1 FIXED RATE NOTE
AERCO LIMITED
8.50% SUBCLASS D-1 NOTE, due July 15, 2023
No. ____
$_________
AERCO LIMITED, a limited liability company organized under the laws of
Jersey, Channel Islands (herein referred to as the "Issuer"), for value
received, hereby promised to pay to GPA GROUP PLC, the principal sum of
________________________________________________________ DOLLARS ($_________)
on July 15, 2023 (the "Final Maturity Date") and to pay interest monthly in
arrears on the Outstanding Principal Balance hereof at the rate of 8.50% per
annum (the "Stated Interest Rate") from the date hereof until the Outstanding
Principal Balance hereof is paid or duly provided for, payable on each Payment
Date. Interest on this Subclass D-1 Note for each Interest Accrual Period shall
be calculated on the basis of a 360-day year and one-twelfth of an annual
interest payment and, in the case of a payment other than on an Interest
Payment Date, on the basis of a 360-day year consisting of twelve 30-day months.
This Subclass D-1 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its "Subclass D-1 Notes, due July 15, 2023", issued under
the Trust Indenture dated as of July 15, 1998 (as amended or supplemented from
time to time, the "Indenture"), between the Issuer and Bankers Trust Company,
as trustee (the "Trustee"). The Indenture also provides for the issuance of
Subclass A-1 and A-2 Notes, Subclass B-1 Notes, Subclass C-1 Notes and
Subclass E-1 Notes (collectively, the "Initial Notes"). All capitalized terms
used in this Subclass D-1 Note and not defined herein shall have the respective
meanings assigned to such terms in the Indenture. Reference is made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights and obligations thereunder of the Issuer, the Trustee and the
Subclass D-1 Noteholders. This Subclass D-1 Note is subject to all terms of the
Indenture.
The Issuer will pay or redeem the Outstanding Principal Balance of this
Subclass D-1 Note prior to the Final Maturity Date on the Payment Dates and in
the amounts specified in the Indenture, subject to the availability of the
Available Collections Amount therefor after making payments entitled to
priority under Sections 3.08 and 3.09 of the Indenture.
The Issuer may redeem all or part of the Outstanding Principal Balance of this
Subclass D-1 Note prior to the Final Maturity Date on the Payment Dates, in the
amounts and under the circumstances specified in the Indenture.
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D-1-3
Other than the case of a redemption for taxation reasons specified in the
Indenture, upon any redemption of any amount of the Outstanding Principal
Balance of this Subclass D-1 Note (i) prior to July 15, 2003, such amount shall
be redeemed at a Redemption Price equal to the higher of (A) the discounted
present value of the Scheduled Principal Payment Amounts allocable in accordance
with Section 3.09 of the Indenture in respect of, and interest from the
Redemption Date to, but not including, July 15, 2003, plus the product of the
Redemption Premium applicable thereto and the assumed Outstanding Principal
Balance thereof on July 15, 2003, discounted at a rate equal to the Treasury
Yield plus 1.00% and (B) the Outstanding Principal Balance thereof and (ii) on
or after July 15, 2003, such amount shall be redeemed at a Redemption Price
equal to the product of the Redemption Premium applicable thereto and the
Outstanding Principal Balance thereof.
Any amount of Redemption Premium or interest on this Subclass D-1 Note that
is not paid when due shall, to the fullest extent permitted by applicable law,
bear interest at a fluctuating interest rate per annum equal to the Stated
Interest Rate from the date when due until such amount is paid or duly provided
for, payable on the next succeeding Payment Date, subject to the availability of
the Available Collections Amount therefor after making payments entitled to
priority under Section 3.08 of the Indenture.
The indebtedness evidenced by the Subclass D-1 Notes is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims, and this Subclass D-1
Note is issued subject to such provisions. Each Holder of this Subclass D-1
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee his attorney-in-fact for
such purpose.
The maturity of this Subclass D-1 Note is subject to acceleration upon the
occurrence and during the continuance of the Events of Default specified in the
Indenture. The Subclass D-1 Noteholders shall not be permitted to deliver a
Default Notice or to exercise any remedy in respect of any such Event of Default
until all interest and principal on the Class A Notes, the Class B Notes and the
Class C Notes have been paid in full.
This Subclass D-1 Note is and will be secured, on a subordinated basis, by
the collateral pledged as security therefor as provided in the Security Trust
Agreement.
Subject to and in accordance with the terms of the Indenture, there will be
distributed monthly on each Payment Date commencing on August 17, 1998, to the
Holder hereof, in the manner specified in Section 3.08 of the Indenture, such
Holder's pro rata share (based on the aggregate percentage of the Outstanding
Principal Balance of the Subclass D-1 Notes held by such Holder) of the
aggregate amount distributable to all Holders of Subclass D-1 Notes on such
Payment Date.
All amounts payable in respect of this Subclass D-1 Note shall be payable
in U.S. dollars in immediately available funds in the manner provided in the
Indenture to the
163
D-1-4
Holder hereof. The final payment with respect to this Subclass D-1 Note,
however, shall be made only upon presentation and surrender of this Note by the
Noteholder or its agent at the Corporate Trust Office or agency of the Trustee
or Paying Agent specified in the notice given by the Trustee or Paying Agent
with respect to such final payment. At such time, if any, as this subclass D-1
Note is issued in the form of one or more Definitive Registered Notes, payments
on a Payment Date shall be made by check mailed to each Noteholder of such a
Definitive Registered Note on the applicable Record Date at its address
appearing on the Register maintained with respect to Subclass D-1 Notes.
Alternatively, upon application in writing to the Trustee, not later than the
applicable Record Date, by a Noteholder of one or more Definitive Registered
Notes of Subclass D-1 having an aggregate principal amount of not less than
$1,000,000, any such payments shall be made by wire transfer to an account
designated by such Noteholder at a financial institution in New York, New York.
The final payment with respect to any such Definitive Registered Note, however,
shall be made only upon presentation and surrender of such Definitive Registered
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice of such final payment given
by the Trustee or Paying Agent. Any reduction in the principal amount of this
Subclass D-1 Note (or any one or more predecessor Subclass D-1 Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Subclass D-1 Note and of any Subclass D-1 Note issued upon the
exchange or in lieu of or upon the refinancing of this Subclass D-1 Note,
whether or not noted hereon.
The Holder of this Subclass D-1 Note agrees, by acceptance hereof, to pay
over to the Cash Manager any money (including principal, Redemption Premium and
interest) paid to it in respect of this Subclass D-1 Note in the event that the
Cash Manager, acting in good faith, determines subsequently that such monies
were not paid in accordance with the priority of payment provisions of the
Indenture or as a result of any other mistake of fact or law on the part of the
Cash Manager in making such payment.
This Subclass D-1 Note is issuable only in registered form. A Holder may
transfer this Note only by written application to the Registrar stating the name
of the proposed transferee and otherwise complying with the terms of the
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Register. When this Subclass D-1 Note is
presented to the Registrar with a request to register the transfer or to
exchange it for an equal principal amount of Subclass D-1 Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met
(including, in the case of a transfer, that such Note is duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and Registrar duly executed by the Holder thereof or by an attorney who
is authorized in writing to act on behalf of the Holder). No service charge
shall be made for any registration of transfer or exchange of this Subclass D-1
Note, but the party requesting such new Note or Notes may be required to pay a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
Prior to the registration of transfer of this Subclass D-1 Note, the Issuer
and the Trustee may deem and treat the Person in whose name this Subclass D-1
Note (as of the
164
D-1-5
day of determination or as of such other date as may be specified in the
Indenture) is registered as the absolute owner and Holder hereof for the purpose
of receiving payment of all amounts payable with respect of this Subclass D-1
Note and for all other purposes, and neither the Issuer nor the Trustee shall be
affected by notice to the contrary.
The Indenture permits the amendment or modification of the Indenture and
the Subclass D-1 Notes by the Issuer with the consent of the Holders of a
majority of the Outstanding Principal Balance of all Notes on the date of any
vote of such Holders (voting as a single class); provided that, without the
consent of each Swap Provider and each Holder of any Notes affected thereby, no
such amendment may (i) modify the provisions of the Indenture or the Notes
setting forth the frequency or the currency of payment of, the maturity of, or
the method of calculation of the amount of, any interest, principal and
Redemption Premium, if any, payable in respect of such subclass of Notes, (ii)
reduce the percentage of the aggregate Outstanding Principal Balance of any
subclass of Notes required to approve any amendment or waiver of Section 9.01 of
the Indenture or (iii) alter the manner or priority of payment of any subclass
of Notes (each, a "Basic Terms Modification"). Any such amendment or
modification shall be binding on every Holder hereof, whether or not notation
thereof is made upon this Subclass D-1 Note. The Indenture also permits the
Trustee to agree, without the consent of any Noteholder, (a) to any modification
(other than a Basic Terms Modification) of, or the waiver or authorization of
any breach or prospective breach of, any provision of any Related Document or of
the relevant Notes to correct a manifest error or an error which is of a formal,
minor or technical nature or (b) to modify the provisions of the Indenture or
the Cash Management Agreement relating to the timing of movement of Rental
Payments or other monies received or Expenses incurred among the Accounts by the
Cash Manager.
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent of
each Swap Provider, each provider of a Credit Facility, each Noteholder of the
subclass affected thereby and each Noteholder of any subclass of Notes ranking
senior thereto. In no event shall the provisions set forth in Section 3.08 of
the Indenture relating to the priority of the Expenses, Swap Payments and
payments under all Credit Facilities be amended or modified.
The Indenture also contains provisions permitting the Holder of Notes
representing a majority of the Outstanding Principal Balance of the Senior Class
of Notes, on behalf of the Holders of all of the Subclass D-1 Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver shall be conclusive and binding upon all present and future Holders of
this Subclass D-1 Note and of any Subclass D-1 Note issued upon the registration
of transfer of, in exchange or in lieu of or upon the refinancing of this
Subclass D-1 Note, whether or not notation of such consent or waiver is made
upon this Subclass D-1 Note.
The term "Issuer" as used in this Subclass D-1 Note includes any successor
to the Issuer under the Indenture.
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D-1-6
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Trustee and the Holders of
Subclass D-1 Notes under the Indenture.
The Subclass D-1 Notes are issuable only in bearer form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Subclass D-1 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, including all matters of
construction, validity and performance.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual or facsimile signature, this
Subclass D-1 Note shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
166
D-1-7
IN WITNESS WHEREOF, the Issuer has caused this Subclass D-1 Note to be
signed manually or by facsimile by its Responsible Officer.
Date: __________ AERCO LIMITED
By: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass D-1 Notes due July 15, 2023 designated above
and referred to in the within-mentioned Indenture.
Date: ___________ BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: ________________________________
Authorized Signatory
167
D-1-8
[FORMS OF] TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s)
assign(s) and transfer(s) unto
Insert Taxpayer Identification No. ________________
______________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________________ attorney to transfer said Note on the
books of the Issuer with full power of substitution in the premises.
Date: ________________________________ ________________________________________
Signature of Transferor
NOTE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
168
EXHIBIT E
FORM OF SUBCLASS E-1 FIXED RATE NOTE
169
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY AUTHORITY IN
ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE
144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) IF APPLICABLE) UNDER
THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE,
RESELL, OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO AERCO LIMITED OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM
REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE (A) THROUGH (E) ABOVE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
TRANSFER NOTICE ATTACHED HERETO AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
170
EXHIBIT E
FORM OF SUBCLASS E-1 FIXED RATE NOTE
AERCO LIMITED
20.00% SUBCLASS E-1 NOTE, due July 15, 2023
No._______
$______________________
July 15, 1998
AERCO LIMITED, a limited liability company organized under the laws of
Jersey, Channel Islands (herein referred to as the "Issuer"), for value
received, hereby promises to pay to GPA GROUP PLC, the principal sum of
__________________ DOLLARS ($________________) on July 15, 2023 (the "Final
Maturity Date") and to pay interest monthly in arrears on the Outstanding
Principal Balance hereof, initially at the rate of 20.00% per annum (subject to
adjustment as discussed below) from the date hereof until the Outstanding
Principal Balance is paid or duly provided for, payable on each Payment Date;
provided, however, that the obligation of the Issuer to pay interest hereon is
subject to the availability of Available Collections therefor after making
payments entitled to priority under Section 3.08 of the Indenture.
Interest on this Subclass E-1 Note in each Interest Accrual Period shall be
calculated on the basis of a 360-day year and one-twelfth of an annual interest
payment and, in the case of a payment other than on a Payment Date, on the basis
of a 360-day year consisting of twelve 30-day months.
This Subclass E-1 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its "20.00% Subclass E-1 Notes due July 15, 2023", issued
under the Indenture dated as of July 15, 1998 (as amended or supplemented from
time to time, the "Indenture"), among the Issuer and Bankers Trust Company, as
trustee (the "Trustee"). This Indenture also provides for the issuance of
Subclass A-1 Notes, Subclass A-2 Notes, Subclass B-1 Notes, Subclass C-1 Notes
and Subclass D-1 Notes (collectively with the Subclass E-1 Notes, the "Initial
Notes"). All capitalized terms used in this Subclass E-1 Note and note defined
herein shall have the respective meanings assigned to such terms in the
Indenture. Reference is made to the Indenture and all indentures supplemental
thereto for a statement of the respective rights and obligations thereunder of
the Issuer, the Trustee and the Subclass E-1 Noteholders. This Subclass E-1 Note
is Subject to all terms of the Indenture.
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E-1-3
Subject as provided below, the amount of interest accruing in respect
of this Subclass E-1 Note on each Payment Date shall be the amount as
referred to above multiplied by the Index (as defined below) applicable to
the month in which such Payment Date falls divided by the Base Index and
calculated to four decimal places. If interest is required to be calculated
for a period not ending on a Payment Date such interest shall be multiplied
by the Index applicable to the month in which such interest accrues divided
by the Base Index and calculated to four decimal places.
"Index" means, subject as provided below, the United States Consumer
Price Index for all Urban Consumers published by the United States
Department of Labor (1982-84 = 100). Any reference to the Index
applicable to a particular month (the "relevant month") shall be
construed as a reference to the Index issued in the month prior to the
relevant month.
"Base Index" means 163 namely the Index issued in June 1998 or such other
value as shall be substituted for this as provided below.
If at any time and from time to time the Index shall be changed by the
substitution of a new base therefor (so that the base of 100 ceases to be
the base for 1982-84 or such other date or month as may already have been
substituted) then with effect from the date or month as from and including
which such substitution takes effect:
(a) the definition of Index shall be deemed to refer to the new date or
month in substitution for 1982-84 (or as the case may be for such
other date or month as may have been substituted); and
(b) the definition of "Base Index" shall be amended in such manner as in
the opinion of the Trustee after consultation with the Issuer is most
appropriate to implement such change.
The Issuer will pay or redeem the Outstanding Principal Balance of this
Subclass E-1 Note prior to the Final Maturity Date on the Payment Dates and in
the amounts specified in the Indenture, subject to the availability of the
Available Collections Amount therefor after making payments entitled to priority
under Sections 3.08 and 3.09 of the Indenture.
The Issuer may redeem all or part of the Outstanding Principal Balance of
this Subclass E-1 Note prior to the Final Maturity Date on the Payment Dates, in
the amounts and under the circumstances specified in the Indenture.
Upon any redemption of any amount of the Outstanding Principal Balance of
this Subclass E-1 Note, such amount shall be redeemed at a Redemption Price
equal to the Outstanding Principal Balance thereof, without premium or penalty.
Any amount of interest on this Subclass E-1 Note that is not paid when due
shall, to the fullest extent permitted by applicable law, accrue and bear
interest at an
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E-1-4
interest rate per annum as stated herein, payable on the next succeeding Payment
Date under priority (xxvii) under Section 3.08 of the Indenture, subject to the
availability of the Available Collections Amount therefor after making payments
entitled to priority thereunder.
The indebtedness evidenced by the Subclass E-1 Notes is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims (as defined in the
Indenture), and this Subclass E-1 Note is issued subject to such provisions.
Each Holder of this Subclass E-1 Note, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee his
attorney-in-fact for such purpose.
The maturity of this Subclass E-1 Note is subject to acceleration upon the
occurrence and during the continuance of Events of Default specified in the
Indenture. The Class E Noteholders shall not be permitted to deliver a Default
Notice or to exercise any remedy in respect of any such Event of Default until
all interest and principal on the Subclass A-1 Notes, the Subclass A-2 Notes,
the Subclass B-1 Notes, the Subclass C-1 Notes and the Subclass D-1 Notes have
been paid in full.
This Subclass E-1 Note is and will be secured, on a subordinated basis, by
the collateral pledged as security therefor as provided in the Security
Documents.
Subject to and in accordance with the terms of the Indenture, there will be
distributed monthly in arrears on each Payment Date commencing on August 17,
1998, to the Holder hereof, in the manner specified in Section 3.08 of the
Indenture, such Holder's pro rata share (based on the aggregate percentage of
the Outstanding Principal Balance of Subclass E-1 Notes held by such Holder) of
the aggregate amount distributable to all Holders of Subclass E-1 Notes on such
Payment Date.
All amounts payable in respect of this Subclass E-1 Note shall be payable
in U.S. dollars in immediately available funds at the Corporate Trust Office of
the Trustee or as otherwise directed in the manner provided in the Indenture to
the Holder hereof. Any reduction in the principal amount of this Subclass E-1
Note (or any one or more predecessor Subclass E-1 Notes) effected by any
payments made on any Payment Date shall be binding upon all future Holders of
this Subclass E-1 Note and of any Subclass E-1 Note issued upon the exchange or
in lieu of or upon the refinancing of this Subclass E-1 Note, whether or not
noted hereon.
The Holder of this Subclass E-1 Note agrees, by acceptance hereof, to pay
over to the Cash Manager any money (including principal, Redemption Premium and
interest) paid to it in respect of this Subclass E-1 Note in the event that the
Cash Manager, acting in good faith, determines subsequently that such monies
were not paid in accordance with the priority of payment provisions of the
Indenture or as a result of any other mistake of fact or law on the part of the
Cash Manager in making such payment.
173
E-1-5
This Subclass E-1 Note is issuable only in registered form. A Holder may
transfer this Note only by written application to the Registrar stating the name
of the proposed transferee and otherwise complying with the terms of the
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Register. When this Subclass E-1 Note is
presented to the Registrar with a request to register the transfer or to
exchange it for an equal principal amount of Subclass E-1 Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met
(including, in the case of a transfer, that such Note is duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and Registrar duly executed by the Holder thereof or by an attorney who
is authorized in writing to act on behalf of the Holder). No service charge
shall be made for any registration of transfer or exchange of this Subclass E-1
Note, but the party requesting such new Note or Notes may be required to pay a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
Prior to the registration of transfer of this Subclass E-1 Note, the Issuer
and the Trustee may deem and treat the Person in whose name this Subclass E-1
Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the absolute owner and Holder
hereof for the purpose of receiving payment of all amounts payable with respect
of this Subclass E-1 Note and for all other purposes, and neither the Issuer nor
the Trustee shall be affected by notice to the contrary.
The Indenture permits the amendment or modification of the Indenture and
the Subclass E-1 Note by the Issuer with the consent of the Holders of a
majority of the Outstanding Principal Balance of all Notes on the date of any
vote of such Holders (voting as a single class); provided that, without the
consent of each Swap Provider and each Holder of any Notes affected thereby, no
such amendment may (i) modify the provisions of the Indenture or the Notes
setting forth the frequency or the currency of payment of, the maturity of, or
the method of calculation of the amount of, any interest, principal and
Redemption Premium, if any, payable in respect of any subclass of Notes,
(ii) reduce the percentage of the aggregate Outstanding Principal Balance of any
subclass of Notes required to approve any amendment or waiver of Section 9.01 of
the Indenture or (iii) alter the manner or priority of payment of such subclass
of Notes (each, a "Basic Terms Modification"). Any such amendment or
modification shall be binding on every Holder hereof, whether or not notation
thereof is made upon this Subclass E-1 Note. The Indenture also permits the
Trustee to agree, without the consent of any Noteholder, (a) to any modification
(other than a Basic Terms Modification) of, or the waiver or authorization of
any breach or prospective breach of, any provision of any Related Document or of
the relevant Notes to correct a manifest error or an error which is of a formal,
minor or technical nature or (b) to modify the provisions of the Indenture or
the Cash Management Agreement relating to the timing of movement of Rental
Payments or other monies received or Expenses incurred among the Accounts by the
Cash Manager.
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent
of each Noteholder of any subclass affected thereby and each Noteholder of any
subclass of Notes
174
E-1-6
ranking senior thereto. In no event shall the provisions set forth in Section
3.08 of the Indenture relating to the priority of the Expenses, Swap Payments
and payments under all Credit Facilities be amended or modified.
The Indenture also contains provisions permitting the Holders of Notes
representing a majority of the Outstanding Principal Balance of the Senior
Class of Notes, on behalf of the Holders of all of the Subclass E-1 Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver shall be conclusive and binding upon all present and future
Holders of this Subclass E-1 Note and of any Subclass E-1 Note issued upon the
registration of transfer of, in exchange or in lieu of or upon the refinancing
of this Subclass E-1 Note, whether or not notation of such consent or waiver is
made upon this Subclass E-1 Note.
Each Holder of this Subclass E-1 Note, by acceptance hereof, appoints and
authorizes GPA Group plc (together with its successors hereunder, the "Class E
Note Representative") to take such action on its behalf and to exercise such
powers and discretion under this Subclass E-1 Note, the Indenture and the other
Related Documents as are delegated to the Class E Note Representative by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Subclass E-1 Note or the Indenture, the Class E Note Representative shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Holders of Class
E Notes (the "Required Holders"), and each Holder of this Subclass E-1 Note, by
acceptance hereof, agrees that such instructions shall be binding upon it and
all Holders of Class E Notes; provided, however, that nothing contained in this
paragraph shall affect in any way the right of the Holder hereof to vote in
favor of taking or refraining from taking any action in respect of, or any
amendment or modification of, this Subclass E-1 Note or the Indenture which, by
the terms of this Subclass E-1 Note or the Indenture, requires the consent of
each Class E Noteholder.
The Class E Note Representative may resign at any time by giving written
notice thereof to each Class E Noteholder, the Trustee and the Security Trustee
and may be removed at any time with or without cause by the Required Holders.
Upon any such resignation or removal, the Required Holders shall have the right
to appoint a successor Class E Note Representative. If no successor Class E
Note Representative shall have been so appointed by the Required Holders, and
shall have accepted such appointment, within 30 days after the retiring Class E
Note Representative's giving of notice of resignation or the Required Holders'
removal of the retiring Class E Note Representative, then the retiring Class E
Note Representative may, on behalf of the Class E Noteholders, appoint a
successor Class E Note Representative, which shall be the Holder at such time
of the largest aggregate principal amount of Class E Notes the Outstanding.
Upon the acceptance of any appointment as Class E Note Representative hereunder
by a successor Class E Note Representative, such successor Class E Note
Representative shall so notify in
175
E-1-7
writing each Class E Noteholder, the Trustee and the Security Trustee and
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Class E Note Representative hereunder and
under the other Related Documents, and the retiring Class E Note Representative
shall be discharged from its duties and obligations under this Subclass E-1
Note, the Indenture and the other Related Documents.
The Term "Issuer" as used in this Subclass E-1 Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Trustee and the Holders of
Subclass E-1 Notes under the Indenture.
The Subclass E-1 Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
The Subclass E-1 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York including all matters of
construction, validity and performance.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual signature, this Subclass E-1 Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
176
E-1-8
IN WITNESS WHEREOF, the Issuer has caused this Subclass E-1 Note to be
signed manually or by facsimile by its Responsible Officer.
Date: __________ AERCO LIMITED
By: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass E-1 Notes due July 15, 2023 designated above
and referred to in the within-mentioned Indenture.
Date: ___________ BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: ________________________________
Authorized Signatory
177
E-1-9
[FORMS OF] TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s)
assign(s) and transfer(s) unto
Insert Taxpayer Identification No. ________________
______________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________________ attorney to transfer said Note on the
books of the Issuer with full power of substitution in the premises.
Date: ________________________________ ________________________________________
Signature of Transferor
NOTE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
178
FORM OF CERTIFICATE OF TRANSFER
AerCo Limited
00 Xxxxxxxxx Xxxxxx
Xx. Xxxxxx
Xxxxxx XX0 0XX
Channel Islands
Bankers Trust Company
Four Albany Street
Mail Shop 0000
Xxx Xxxx, Xxx Xxxx 00000
XXX
RE: 20.00% SUBCLASS E-1 NOTES OF AERCO LIMITED
Reference is hereby made to the Indenture, dated as of July 15, 1998 (the
"Indenture"), between AerCo Limited, as issuer (the "Company"), and Bankers
Trust Company, as trustee. Capitalized terms used but not defined herein have
the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $______ in such Note[s] or interests (the "Transfer"), to
_____________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF DEFINITIVE REGISTERED NOTES
PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Definitive Registered Notes are being transferred to a
Person that the Transferor reasonably believes is purchasing the Definitive
Registered Notes for its own account, or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and
each such account is a "qualified institutional buyer" within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A and such
Transfer is in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred Definitive
Registered Notes will be subject to the restrictions on transfer enumerated in
the Private Placement Legend set forth
179
in the Indenture and applicable to the 144A Global Note and/or printed on the
Definitive Registered Note and otherwise specified in the Indenture and the
Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF DEFINITIVE REGISTERED NOTES
PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in
accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a
person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of Regulation
S under the Securities Act and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred Definitive Registered Notes will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend set forth in
the Indenture and applicable to the Regulation S Global Note and/or printed on
the Definitive Registered Note and otherwise specified in the Indenture and the
Securities Act.
3. [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act
and in compliance with the transfer restrictions contained in the Indenture and
any applicable blue sky securities laws of any state of the United States, and
(ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred Definitive Registered Notes will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend set forth in the Indenture and applicable to the Global Notes,
on Definitive Registered Notes bearing the Private Placement Legend and in the
Indenture.
4. [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is
being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144 and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred Definitive Registered Notes will not
be subject to the restrictions on transfer enumerated in the Private Placement
Legend set forth in the Indenture and applicable to the Global Notes or
Definitive Registered Notes bearing the Private Placement Legend and in the
Indenture.
180
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
1. ________________________________
[Insert Name of Transferor]
2. By: ___________________________
Name:
Title:
Dated: ________________________
181
FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the Definitive Registered
Notes.
2. that the Transferee will hold:
[CHECK ONE]
(a) [ ] Definitive Registered Notes bearing the Private Placement Legend;
(b) [ ] Definitive Registered Notes that do not bear the Private
Placement Legend;
in accordance with the terms of the Indenture.
182
EXHIBIT F
CONCENTRATION LIMITS
Percentage of Most
Recent Appraised
Value of Portfolio
Lessee Concentration Limits (2)
--------------------------- --------------------
Single Lessee rated BBB/Baa2 (or the equivalent) or better 15%
Other single Lessees...................................... 10%
Five largest Lessees...................................... 35%
Percentage of Most
Recent Appraised
Value of Portfolio
Country Concentration Limits (2)
---------------------------- --------------------
United States............................................. 25%
Countries rated BBB/Baa2 (or the equivalent) or better (1) 20%
Other..................................................... 15%
Percentage of Most
Recent Appraised
Value of Portfolio
Region Concentration Limits (2)
--------------------------- --------------------
Developed Market Region (3)............................... 50%
Emerging Market Region (3)................................ 25%
Other (3)................................................. 20% (4)
Asia/Pacific (3).......................................... 55%
(1) Based on the sovereign foreign currency debt rating assigned by the
Rating Agencies to the country in which a Lessee is habitually based at
the time the relevant Lease is executed.
(2) Percentage to be obtained by dividing the aggregate most recent Appraised
Values of all Aircraft operating or to be operated by Lessees habitually
based in the applicable country or region by the aggregate most recent
Appraised Values of all Aircraft then owned by AerCo Group.
(3) The designations of Emerging Markets and Developed Markets are as
determined and published by Capital International Perspective S.A. from
time to time based on, among other things, gross domestic product levels,
regulation of foreign ownership of assets, the regulatory environment,
exchange controls and perceived investment risk. The current designations
are as set out below:
183
F-2
Region Country
------ -------
DEVELOPED MARKETS
Europe.................. European Union (except Greece and Luxembourg), Norway and
Switzerland
North America........... Canada and United States
Pacific................. Australia, Hong Kong, Japan, New Zealand and Singapore
EMERGING MARKETS
Asia.................... China, India, Indonesia, South Korea, Malaysia, Pakistan,
Philippines, Sri Lanka, Taiwan and Thailand
Europe and Middle East.. Czech Republic, Greece, Hungary, Israel, Jordan, Poland,
Russia and Turkey
Latin America........... Xxxxxxxxx, Xxxxxx, Xxxxx, Xxxxxxxx, Xxxxxx, Xxxx and Venezuela
OTHER
All other countries (generally those that have small or under-developed capital
markets, including Fiji)
(4) In addition, within the Other designation, no more than 10% of the most
recent Appraised Value of the Portfolio shall be leased to Lessees
habitually based in "Other" countries rated below BBB/Baa2 (or the
equivalent) and no more than 5% of the most recent Appraised Value of the
Portfolio shall be leased to Lessees habitually based in "Other" countries
in Africa.
PRI Guidelines
(a) Prohibited Countries:
Burma
Cuba
Iran
Iraq
Libya
North Korea
Sudan
Syria
184
F-3
(b) Countries with respect to which PRI must be procured:
Angola Congo Mongolia
Armenia Equatorial Guinea Niger
Azerbaijan Eritrea Sao Tome & Principe
Belarus Ethiopia Somalia
Benin Grenada Sudan
Bhutan Kazakhstan Syria
Cameroon Kirilsati Turkmenistan
Cape Verde Islands Kyrgistan Uzbekistan
Chad Liberia
Comoros Moldova
185
EXHIBIT G
AGENTS FOR SERVICE OF PROCESS
Party Jurisdiction Appointed Agent
----- ------------ ---------------
AerCo Limited Jersey Corporation Service Company
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
U.S.A.
Bankers Trust Company New York Bankers Trust Company
0 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
U.S.A.
186
EXHIBIT H
INSURANCE PROVISIONS
Minimum Limits
-----------------
Model (liability cover)
-----
F100 U.S.$300 million
X000 X.X.x000 xxxxxxx
XX00 X.X.x000 million
A320 U.S.$400 million
A300 U.S.$550 million
B767 U.S.$550 million
B757 U.S.$450 million
B747 U.S.$750 million
DC8 U.S.$450 million
187
EXHIBIT I
FORM OF MONTHLY REPORT TO THE ISSUER
AND EACH RATING AGENCY
(i) With respect to each Payment Date,
A. The balances on deposit on the Calculation Date
immediately preceding the prior Payment Date;
B. The aggregate amounts of deposits and withdrawals
between such Calculation Date and the Calculation
Date immediately preceding such Payment Date; and
C. The balances on deposit in the Expense Account,
Collection Account and Lessee Funded Account on the
Calculation Date immediately preceding such Payment
Date.
(ii) Analysis of Expense Account Activity
Balance on the preceding Calculation Date
Net Transfer to the Expense Account from the Collection
Account during the period between prior Calculation Date
and the relevant Calculation Date
Payments during the period between the prior Calculation
Date and the relevant Calculation Date:
(1) Payments on prior Payment Date;
(2) Other payments;
Balance on the relevant Calculation Date
(iii) Analysis of Collection Account Activity
Balance on the preceding Calculation Date;
- Required Expense Amount (including on preceding
Payment Date);
- Net Transfer to Lessee Funded Account during period;
- Collections during period;
- Transfer from the Aircraft Purchase Account;
- Drawings under Credit Facilities;
- Aggregate Note Payments;
- Swap Payments;
188
I-2
- Repayments of drawings under credit or liquidity
enhancement facilities;
Balance on relevant Calculation Date (separately stating
components of the Liquidity Reserve Amount)
Analysis of current Payment Date distributions
(iv) Payments on the Notes
(a) Floating Rate Notes (by class and, if
applicable, subclass)
- Applicable LIBOR for the
current Interest Accrual Period;
- Applicable Margin for the
current Interest Accrual Period;
- Applicable Interest Rate for
current Interest Accrual Period;
- Interest Amount Payable;
- Step-Up Interest;
- Opening Outstanding Principal Balance;
- Minimum Principal Payment Amount;
- Scheduled Principal Payment Amount;
- Supplemental Principal Payment Amount;
- Redemption Amount;
- amount allocable to principal;
- amount allocable to Premium;
- Closing Outstanding Principal Balance;
(b) Fixed Rate Notes (by class and, if applicable, subclass)
- Interest Amount Payable;
- Opening Outstanding Principal Balance;
- Minimum Principal Payment Amount;
- Scheduled Principal Payment Amount;
- Redemption Amount
- amount allocable to principal;
- amount allocable to Premium;
- Closing Outstanding Principal Balance;
189
I-3
(v) Floating Rate Note information for next Interest
Accrual Period (by subclass):
Applicable LIBOR;
Applicable Margin;
Applicable Interest Rate
(vi) Payments per $100,000 Initial Outstanding
Principal Balance of Notes (by subclass):
Opening Outstanding Principal Balance;
Total Principal Payments;
Closing Outstanding Principal Balance;
Total Interest;
Total Premium
190
EXHIBIT J
FORM OF CERTIFICATE OF TRANSFER
AerCo Limited
00 Xxxxxxxxx Xxxxxx
Xx. Xxxxxx
Xxxxxx
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group
Re: Subclass -- Notes due 2023 of AerCo Limited
Reference is hereby made to the Indenture, dated as of July 15, 1998
(the "Indenture"), between AerCo Limited, as issuer (the "Issuer") and
Bankers Trust Company, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
________________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $____ in such Note[s] or interests (the "Transfer"), to
__________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF BOOK-ENTRY INTERESTS
CORRESPONDING TO THE RULE 144A GLOBAL NOTE OR DEFINITIVE REGISTERED NOTES
PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Book-Entry Interests or Definitive Registered
Notes are being transferred to a Person that the Transferor reasonably
believes is purchasing the Book-Entry Interests or Definitive Registered
Notes for its own account, or for one or more accounts with respect to which
such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such
Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Any such Transfer of a Book-Entry Interest
in the Regulation S Global Note for Definitive Registered Notes shall only
occur under the circumstances specified in the Indenture. Upon consummation
of the proposed Transfer in accordance with the terms of the
191
J-2
Indenture, the transferred Book-Entry Interest or Definitive Registered Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Rule 144A Global Note and/or the Definitive
Registered Note and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF BOOK-ENTRY INTERESTS
CORRESPONDING TO THE REGULATION S GLOBAL NOTE OR DEFINITIVE REGISTERED NOTES
PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in
accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made
to a person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor
and any Person acting on its behalf reasonably believed and believes that
the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore
securities market and neither such Transferor nor any Person acting on its
behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of
the requirements of Rule 904(b) of Regulation S under the Securities Act and
(iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act. Any such Transfer of a
Book-Entry Interest in the Regulation S Global Note for Definitive
Registered Notes shall only occur under the circumstances specified in the
Indenture. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred Book-Entry Interest or
Definitive Registered Note will be subject to the restrictions on Transfer
enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Definitive Registered Note and in the Indenture and
the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
_______________________________
[Insert Name of Transferor]
By:____________________________
Name:
Title:
Dated: ____________________ , ______
192
FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] Book-Entry Interests corresponding to the
(i) [ ] Rule 144A Global Note (CUSIP _______), or
(ii) [ ] Regulation S Global Note (CUSIP _______), or
(b) [ ] Definitive Registered Note.
2. that the Transferee will hold:
[CHECK ONE]
(a) [ ] Book-Entry Interests corresponding to the:
(i) [ ] Rule 144A Global Note (CUSIP _______), or
(ii) [ ] Regulation S Global Note (CUSIP _______), or
(b) [ ] Definitive Registered Notes;
in accordance with the terms of the Indenture.
193
EXHIBIT K
CORE LEASE PROVISIONS
1. Representations and Warranties, etc.
representations and warranties or a legal opinion or such other
comfort acceptable to the lessor as to, without limitation, the
due execution of such lease by the related lessee and the
validity of such lessee's obligations thereunder, due
authorization of such lease and procurement of relevant licenses
and permits in connection therewith;
2. Subleasing
permission to sublease only if the primary lessee thereunder
remains obligated to make payments on such primary lease, except
with respect to the specific classes of sublessees and under the
specific conditions provided in such lease;
3. Permitted Encumbrances
provisions requiring the lessee not to create any Encumbrances
in respect of the aircraft or the related engines, except for
exceptions thereto consistent with the reasonable commercial
practices of leading international aircraft operating lessors,
including Encumbrances not affecting the use or operation of the
aircraft arising in the ordinary course of the lessee's
business;
4. No Right to Sell
the lease shall not permit a lessee to sell any aircraft except,
with respect to an aircraft the subject of a purchase option,
pursuant to an agreement entered into by such lessee prior to
the exercise of such purchase option to sell or otherwise
transfer ownership of such aircraft upon the exercise of such
purchase option;
5. Events of Loss
provisions stipulating that the lease will terminate in the
event of a Total Loss of the relevant aircraft;
6. Return of Aircraft
provisions for redelivery of the relevant aircraft, including,
if applicable, replacement engines and parts, on expiry or
termination of the lease (other than any expiration or
termination coincident with the purchase of the
194
K-2
relevant aircraft pursuant to exercise of a purchase option by
the relevant lessee or in cases in which such lease provides
for retention of the relevant Aircraft by the lessee or for
delivery to a third party), specifying the required return
condition and any obligation upon the Lessee to remedy or
compensate the lessor, directly or indirectly, for any material
deviations from such return condition, in each case considering
the other terms of the relevant lease and to the extent
consistent with the reasonable commercial practices of leading
international aircraft operating lessors;
7. Termination Events
provisions setting forth the conditions under which the Lessor
may terminate a lease and repossess the relevant aircraft, at
any time after the expiration of any agreed grace period or
remedy period, in each case consistent with the reasonable
commercial practices of leading international aircraft operating
lessors;
8. Assignment
provisions prohibiting the assignment by the Lessee of any
benefits or obligations under the lease to any Person, subject
to exceptions consistent with the reasonable commercial
practices of leading international aircraft operating lessors;
9. Disclaimer of Conditions or Warranty
provisions acknowledging that when the Lessee gives formal
notice of acceptance of the relevant aircraft, it takes delivery
of such aircraft with no condition, warranty or representation
of any kind having been given by or on behalf of the lessor in
respect of such aircraft, except as to matters expressly set
forth in the lease;
10. Net Lease
provisions stating the Lessee's obligation to make rental
payments is absolute and unconditional under any and all
circumstances and regardless of other events or similar
provisions.
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APPENDIX A
CLASS PERCENTAGES
See Tab No. 14.
000
XXXXXXXX X
TARGET PRINCIPAL BALANCES
See Tab No. 14.
