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EXHIBIT 10.3
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AMENDED AND RESTATED
CASH MANAGEMENT AGREEMENT
among
AerFi Cash Manager II Limited,
as Cash Manager
AerFi Group plc,
as Guarantor
AerCo Limited
AerFi Group plc,
as Servicer
Bankers Trust Company,
not in its individual capacity,
but solely as Trustee under the Indenture
and as Security Trustee under the Security Trust Agreement
and
The Entities Listed on Appendix A Hereto
Dated as of July 17, 2000
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions...................................................1
ARTICLE 2
APPOINTMENT; CASH MANAGEMENT SERVICES
SECTION 2.01. Appointment...................................................4
SECTION 2.02. Establishment of Accounts.....................................4
SECTION 2.03. Description of Accounts.......................................5
SECTION 2.04. Investments of Cash...........................................7
SECTION 2.05. Calculations..................................................7
SECTION 2.06. Withdrawals and Transfers.....................................7
SECTION 2.07. Ratings and the Accounts......................................9
SECTION 2.08. Records......................................................10
SECTION 2.09. Reports......................................................10
SECTION 2.10. Additional Aircraft..........................................10
SECTION 2.11. Professional Advice..........................................10
ARTICLE 3
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
SECTION 3.01. Standard of Performance......................................10
SECTION 3.02. Liability and Indemnity......................................10
SECTION 3.03. Conflicts of Interest........................................11
ARTICLE 4
CASH MANAGER UNDERTAKINGS
SECTION 4.01. Cash Manager Undertakings....................................12
ARTICLE 5
UNDERTAKINGS OF AERCO GROUP
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SECTION 5.01. Cooperation..................................................15
SECTION 5.02. Information..................................................15
SECTION 5.03. Scope of Services............................................16
SECTION 5.04. Ratification.................................................16
SECTION 5.05. Accounts and Cash Arrangements...............................17
SECTION 5.06. Further Assurances...........................................17
SECTION 5.07. Covenants of AerCo Group.....................................17
ARTICLE 6
EFFECTIVENESS
SECTION 6.01. Effectiveness................................................19
ARTICLE 7
CASH MANAGEMENT FEES AND EXPENSES
SECTION 7.01. Cash Management Fees.........................................20
SECTION 7.02. Expenses.....................................................20
ARTICLE 8
TERM; REMOVAL OF OR TERMINATION BY THE CASH MANAGER
SECTION 8.01. Term.........................................................20
SECTION 8.02. Cross-termination............................................20
SECTION 8.03. Right to Terminate...........................................20
SECTION 8.04. Consequences of Termination..................................23
SECTION 8.05. Survival.....................................................24
ARTICLE 9
APPOINTMENT OF SUCCESSOR CASH MANAGER
SECTION 9.01. Appointment of Successor Cash Manager........................24
ARTICLE 10
ASSIGNMENT AND DELEGATION
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SECTION 10.01. Assignment and Delegation...................................24
ARTICLE 11
GUARANTEE
SECTION 11.01. Guarantee...................................................25
SECTION 11.02. Reinstatement...............................................26
SECTION 11.03. Unconditional Nature of Guarantee...........................26
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Notices.....................................................27
SECTION 12.02. Governing Law...............................................29
SECTION 12.03. Jurisdiction................................................29
SECTION 12.04. Agent for Service of Process................................29
SECTION 12.05. WAIVER OF JURY TRIAL........................................29
SECTION 12.06. Counterparts; Third Party Beneficiaries.....................29
SECTION 12.07. Entire Agreement............................................30
SECTION 12.08. Table of Contents; Headings.................................30
SECTION 12.09. Restrictions on Disclosure..................................30
SECTION 12.10. No Partnership..............................................31
SECTION 12.11. No Retroactive Application..................................31
SECTION 12.12. Limited Recourse............................................32
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AMENDED AND RESTATED CASH MANAGEMENT AGREEMENT dated as of July 17,
2000 (the "AGREEMENT"), among AerFi Cash Manager II Limited, a limited company
organized under the laws of Ireland and formerly known as GPA Cash Manager II
Limited, as Cash Manager (the "CASH MANAGER"), AerFi Group plc, a public limited
company organized under the laws of Ireland and formerly known as GPA Group plc
(the "GUARANTOR" or "AERFI GROUP"), AerCo Limited, a limited liability company
incorporated in Jersey, Channel Islands ("AERCO"), AerFi Group plc, as Servicer
(the "SERVICER"), Bankers Trust Company, a New York banking corporation, not in
its individual capacity, but solely as trustee under the Indenture (the
"TRUSTEE") and as security trustee under the Security Trust Agreement (the
"SECURITY TRUSTEE"), and the entities listed on Appendix A hereto and any other
Subsidiary of AerCo which accedes to this Agreement pursuant to an Accession
Agreement (together, the "SUBSIDIARIES" and collectively with AerCo, "AERCO
GROUP"). This Agreement amends and restates in its entirety the cash management
agreement dated as of July 15, 1998 (the "ORIGINAL AGREEMENT"), entered into
among certain of the parties hereto.
For the consideration set forth herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree that the Original Agreement be and the same is hereby amended and restated
to read in its entirety as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings. Unless otherwise defined herein, all capitalized terms
used but not defined herein have the meanings assigned to such terms in the
Indenture and the Security Trust Agreement.
"ACCESSION AGREEMENT" means an accession agreement substantially in the
form of Appendix B hereto.
"ADMINISTRATIVE AGENCY AGREEMENT" means the Amended and Restated
Administrative Agency Agreement dated as of July 17, 2000, among the
Administrative Agent, the Guarantor, AerCo, the Servicer and the entities listed
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Appendix A thereto and any other Subsidiary of AerCo which accedes thereto,
as amended from time to time.
"ADMINISTRATIVE AGENT" means AerFi Administrative Services Limited.
"AERCO" has the meaning assigned to such term in the preamble hereto.
"AERCO GROUP" has the meaning assigned to such term in the preamble
hereto.
"AERFI GROUP" has the meaning assigned to such term in the preamble
hereto.
"AFFILIATE" means a Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control
with, the Person specified. The parties hereto acknowledge that each of AerCo
and its Subsidiaries, on the one part, and AerFi Group plc and its subsidiaries,
on the other part, are not Affiliates of each other.
"AFTER-TAX BASIS" means on a basis such that any payment received,
deemed to have been received or receivable by any Person shall, if necessary, be
supplemented by a further payment to that Person so that the sum of the two
payments shall, after deduction of all U.S. federal, state, local and Irish or
other foreign Taxes, penalties, fines, interest, additions to Tax and other
charges resulting from the receipt (actual or constructive) or accrual of such
payments imposed by or under any U.S. federal, state, local or Irish or other
foreign law or Governmental Authority (after taking into account any current
deduction to which such Person shall be entitled with respect to the amount that
gave rise to the underlying payment) be equal to the payment received, deemed to
have been received or receivable.
"AGREEMENT" has the meaning assigned to such term in the preamble
hereto.
"BOARD OF DIRECTORS" means the board of directors of AerCo.
"CASH MANAGEMENT SERVICES" has the meaning assigned to such term in
Section 2.01(a) hereof.
"CASH MANAGER" has the meaning assigned to such term in the preamble
hereto.
"EU" means the European Union.
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"GOVERNMENTAL AUTHORITY" means any court, administrative agency or
commission or other governmental agency or instrumentality (or any officer or
representative thereof), national, federal, state, local or international, of
competent jurisdiction including, without limitation, the EU.
"GUARANTEED OBLIGATIONS" has the meaning assigned to such term in
Section 11.01 hereof.
"GUARANTOR" has the meaning assigned to such term in the preamble
hereto.
"INDENTURE" means the Indenture dated as of July 15, 1998, between
AerCo and the Trustee, as amended or supplemented from time to time.
"INFLATION FACTOR" has the meaning specified in the Administrative
Agency Agreement.
"LOSSES" means any and all liabilities (including liabilities arising
out of the doctrine of strict liability), obligations, losses, damages,
penalties, Taxes, actions, suits, judgments, costs, fees, expenses (including
reasonable legal fees, expenses and related charges and costs of investigation)
and disbursements, of whatsoever kind and nature; provided, that the term
"Losses" shall not include any indemnified party's management time or overhead
expenses.
"RELATED DOCUMENTS" has the meaning assigned to such term in the
Indenture.
"REPRESENTATIVES" with respect to any Person means the officers,
directors, employees, advisors and agents of such Person.
"SECURITY TRUST AGREEMENT" means the Security Trust Agreement dated as
of July 15, 1998, among AerCo, the Security Trustee and the other entities
specified therein, as amended or supplemented from time to time.
"SECURITY TRUSTEE" has the meaning assigned to such term in the
preamble hereto.
"SERVICER" has the meaning assigned to such term in the preamble
hereto.
"SERVICING AGREEMENT" means the Servicing Agreement dated as of July
17, 2000, among the Servicer, AerCo, the Cash Manager, the Administrative Agent
and
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the entities listed on Appendix A thereto and any other Subsidiary of AerCo
which accedes thereto, as amended from time to time.
"SPECIAL BOARD RESOLUTION" has the meaning given to it in the Articles
of Association of AerCo; provided that references to a Special Board Resolution
shall be construed as references to an ordinary resolution of the Board of
Directors any time at which the Servicer and/or its Affiliates do not hold a
majority of the Class E Notes.
"STANDARD OF PERFORMANCE" has the meaning assigned to such term in
Section 3.01 hereof.
"TRUSTEE" has the meaning assigned to such term in the preamble hereto.
ARTICLE 2
APPOINTMENT; CASH MANAGEMENT SERVICES
SECTION 2.01. Appointment. (a) The Security Trustee, on behalf of the
Secured Parties, having been duly authorized by AerCo, hereby appoints the Cash
Manager as the provider to AerCo Group of the cash management services set forth
herein and in the Indenture (the "CASH MANAGEMENT SERVICES") and delegates to
the Cash Manager its authority to administer the Accounts, to undertake the
transactions contemplated hereby (including the power to direct withdrawals or
transfers from the Accounts in accordance with this Agreement and the Indenture)
and to otherwise perform the Cash Management Services on behalf of AerCo Group
on the terms and subject to the conditions set forth in this Agreement.
(b) The Cash Manager hereby accepts such appointment and agrees to
perform the Cash Management Services on the terms and subject to the conditions
set forth in this Agreement.
SECTION 2.02. Establishment of Accounts. (a) Operating Bank. The
Operating Bank shall be the Senior Trustee, initially Bankers Trust Company,
located at Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) Establishment of Accounts. The Cash Manager shall establish and
maintain each of the Accounts set forth on Schedule 1 hereto, in each case in
the manner described herein and in Section 3.01 of the Indenture. The Cash
Manager
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shall take all actions necessary to establish, and shall establish, additional
or replacement Accounts from time to time as required by and in accordance with
the terms of Section 3.01 of the Indenture. In addition, the Cash Manager shall
take all actions necessary to cause the Security Trustee to be granted, to the
extent possible, a security interest pursuant to Section 2.01 of the Security
Trust Agreement in the interest of each AerCo Group Member in the cash balances
from time to time deposited in the Accounts.
(c) Successor Operating Bank. If the Operating Bank should change as a
result of (A) the resignation of the Senior Trustee or replacement of the Senior
Trustee by an Eligible Institution pursuant to the terms of the Indenture, (B)
the repayment in full of the Senior Class of Notes or (C) such Operating Bank's
failure to meet the criteria necessary to qualify as an Eligible Institution,
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 to such successor Operating Bank.
(d) Account Information. The Cash Manager agrees to provide AerCo with
the information regarding the Accounts which AerCo is to furnish pursuant to
Section 2.02(b) of the Cash Management Agreement dated as of July 17, 2000 among
debis AirFinance PLC, debis AirFinance B.V., AerCo, Bankers Trust Company and
the entities listed on Appendix A thereto.
SECTION 2.03. Description of Accounts. (a) Collection Account. The
Cash Manager shall establish and maintain the Collection Account in accordance
with Section 3.01(b) of the Indenture.
(b) The Lessee Funded Account. The Cash Manager shall establish and
maintain the Lessee Funded Account in accordance with Section 3.01(c) of the
Indenture.
(c) Expense Account. The Cash Manager shall establish and maintain
the Expense Account in accordance with Section 3.01(d) of the Indenture.
(d) Rental Accounts. The Cash Manager shall establish and maintain the
Rental Accounts, and from time to time shall establish and maintain one or more
additional Rental Accounts (including one or more Non-Trustee Accounts that, for
tax
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or other regulatory or legal purposes, cannot be established in the name of
the Security Trustee), each in accordance with Section 3.01(e) of the Indenture.
(e) Refinancing Account. The Cash Manager shall establish and
maintain a Refinancing Account with respect to each subclass of Notes in
accordance with Section 3.01(f) of the Indenture.
(f) Defeasance/Redemption Account. The Cash Manager shall establish
and maintain the Defeasance/Redemption Account in accordance with Section
3.01(g) and Article XI of the Indenture.
(g) Aircraft Purchase Account. The Cash Manager shall establish and
maintain the Aircraft Purchase Account in accordance with Section 3.01(h) of the
Indenture.
(h) Note Account. The Cash Manager shall establish and maintain the
Note Account in accordance with Section 3.01(i) of the Indenture.
(i) Lessee Payment Instructions. (i) The Cash Manager shall furnish
transfer instructions in the form set forth in Exhibit D to the Security Trust
Agreement to each bank other than the Operating Bank at which a Rental Account
is located and take all necessary steps to ensure that all funds on deposit in
each such Rental Account are transferred from such Rental Account to the
Collection Account within one Business Day of receipt thereof.
(ii) Not later than one month after the Closing Date and from time to
time thereafter, the Cash Manager shall (A) transmit payment
instructions directing each Lessee which, in accordance with the terms
of the relevant Lease, made payments into any bank accounts prior to
such Closing Date to make all future Rental Payments to a designated
Rental Account at the Operating Bank, (B) transmit payment instructions
to the bank in which such Accounts are maintained, directing such bank
to forward to a designated Rental Account at the Operating Bank any
payments made into any such Account after such Closing Date and (C)
close any such Accounts as soon as practicable after all AerCo Group
Lessees have been given payment instructions pursuant to this Section
2.03(i) and the Cash Manager has become satisfied that all such Lessees
are making and will continue to make payments in accordance with such
payment instructions.
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(j) Bank Account Statements. The Cash Manager shall take all necessary
steps to ensure that the Operating Bank and each other bank at which a Rental
Account is located shall furnish as of the close of business on each Calculation
Date a statement providing the then current balance of each applicable Account
to the Security Trustee, AerCo, the Trustee, the Servicer and the Cash Manager.
(k) Maintaining the Non-Trustee Accounts. So long as any Secured
Obligations remain Outstanding:
(i) The Cash Manager shall maintain, or cause to be maintained, each
Non-Trustee Account in the name of the related Grantor (as defined in
the Security Trust Agreement) only with a bank (an "ACCOUNT BANK")
that has entered into a letter agreement in substantially the form of
Exhibit D to the Security Trust Agreement (or made such other
arrangements as are acceptable to the Cash Manager and the Security
Trustee) with such Grantor and the Security Trustee (an "ACCOUNT
LETTER").
(ii) The Cash Manager (x) shall promptly instruct each Person obligated
at any time to make any payment to any Grantor for any reason (an
"OBLIGOR") to make such payment to a Non-Trustee Account meeting the
requirements of clause (i) above, (y) shall instruct each such Account
Bank to transfer to the Collection Account, in immediately available
funds, within one Business Day of receipt thereof, an amount equal to
the credit balance of the Non-Trustee Account in such Account Bank
(other than any amount required to be left on deposit in such Account
Bank for local tax or other regulatory or legal purposes), and (z)
shall transfer or cause each such Account Bank to transfer to the
Security Trustee for deposit in the Collection Account, within one
Business Day of receipt thereof, all other Cash Collateral and any
proceeds of any of the Collateral.
(iii) Upon the termination of any Account Letter or other arrangement
with respect to the maintenance of a Non-Trustee Account by any Grantor
or any Account Bank, the Cash Manager shall immediately notify all
Obligors that were making payments to such Non-Trustee Account to make
all future payments to another Non-Trustee Account meeting the
requirements of clause (i) above or, if practicable at such time, to an
Account in the name of the Security Trustee.
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SECTION 2.04. Investments of Cash. The Cash Manager shall invest and
reinvest the funds on deposit in the Accounts as permitted by and in accordance
with Section 3.02 of the Indenture.
SECTION 2.05. Calculations. Pursuant to Section 3.06 of the Indenture,
the Cash Manager shall, at the times and in the manner set forth therein,
determine or calculate each of the amounts required to be determined or
calculated by it pursuant to Sections 3.06(a) through (f) of the Indenture.
SECTION 2.06. Withdrawals and Transfers. The Cash Manager shall
make the following withdrawals and transfers in accordance with the terms of the
Indenture:
(a) Closing Date Deposits, Withdrawals and Transfers. On the Closing
Date, the Cash Manager shall or shall instruct, in writing, the Trustee or the
Security Trustee, as the case may be, to make each of the transfers described in
Section 3.03 of the Indenture.
(b) Interim Withdrawals and Transfers for Expenses and Certain Lease
Obligations. From time to time, the Cash Manager shall or shall instruct, in
writing, the Trustee or the Security Trustee, as the case may be, to make the
withdrawals and transfers provided for in Section 3.04(a) of the Indenture in
accordance with such Section.
For the purposes of this Section 2.06(b), neither the Trustee nor the
Security Trustee shall be liable for withdrawals or transfers made solely by the
Cash Manager without direction of either the Trustee or Security Trustee.
(c) Interim Withdrawals and Transfers in Respect of Undelivered
Related Collateral. From time to time, the Cash Manager shall make the
withdrawals and transfers provided for in Section 3.04(b) of the Indenture in
accordance with such Section.
(d) Interim Deposits and Withdrawals for Modification Payments or
Dispositions of Aircraft. From time to time, the Cash Manager shall or shall
instruct, in writing, the Trustee or the Security Trustee, as the case may be,
to make the withdrawals and transfers provided for in Section 3.05 of the
Indenture in accordance with such Section.
(e) Interim Deposits and Withdrawals for Aircraft Purchases. From time
to time, the Cash Manager shall or shall instruct, in writing, the Trustee or
the Security
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Trustee, as the case may be, to make the deposits, withdrawals and transfers
provided for in Section 3.04 of the Indenture in accordance with such Section.
(f) Payment Date First Step Withdrawals and Transfers. On each Payment
Date, the Cash Manager shall or shall instruct, in writing, the Trustee or the
Security Trustee, as the case may be, to make the withdrawals and transfers
provided for in Section 3.07 of the Indenture in accordance with such Section.
(g) Payment Date Second Step Withdrawals. Subject to Section 2.06(h)
hereof, on each Payment Date, after the withdrawals and transfers provided for
in Section 2.06(f) hereof have been made, the Cash Manager shall or shall
instruct, in writing, the Trustee or the Security Trustee, as the case may be,
to distribute funds on deposit in the Collection Account and the Expense Account
as provided in Section 3.08 of the Indenture; provided, that any such direct
funds transfer shall have been authorized on or prior to the date thereof by the
Cash Manager in the form of a certificate, substantially in the form of Exhibit
A hereto, delivered to and acknowledged by the Trustee.
(h) Event of Default and Default Notice Withdrawals and Transfers.
Notwithstanding anything to the contrary contained in Section 2.06(f) or 2.06(g)
hereof, following the delivery of a Default Notice to the Cash Manager or AerCo
pursuant to the Indenture or during the continuation of an Acceleration Default,
after the withdrawals and transfers provided for in Section 2.06(f) hereof have
been made, the Cash Manager shall distribute funds on deposit in the Collection
Account and the Expense Account in the amounts and in the order of priority
provided for in Section 3.08(b) of the Indenture.
(i) Defeasance/Redemption Transfers. The Cash Manager shall or shall
direct, in writing, the Trustee or the Security Trustee, as the case may be, to
transfer from time to time amounts on deposit in the Defeasance/Redemption
Account to the applicable Note Account in connection with either the redemption
of any subclass of Notes in accordance with Section 3.10 of the Indenture or the
exercise of the defeasance provisions set forth in Article XI of the Indenture.
(j) Tax Defeasance Account Transfers. The Cash Manager shall or shall
direct, in writing, the Trustee or the Security Trustee, as the case may be, to
transfer from time to time amounts on deposit in the Defeasance/Redemption
Account to the
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Note Account or to the relevant Investors in connection with any tax defeasance
transactions in accordance with Section 3.10(b) of the Indenture.
(k) Refinancing Transfers. The Cash Manager shall or shall direct, in
writing, the Trustee or the Security Trustee, as the case may be, to transfer
from time to time amounts on deposit in the Refinancing Account to the Note
Accounts in connection with any Refinancing in accordance with Section 2.10
of the Indenture.
(l) Currency Conversions. If and to the extent that any AerCo Group
member incurs any payment obligation or other cost in a currency other than U.S.
dollars, the Cash Manager shall, to the extent practicable, convert U.S. dollars
into such other currency at the then prevailing market rate as necessary to
discharge such payment obligations or costs, at the expense of AerCo in
accordance with Section 13.07 of the Indenture.
SECTION 2.07. Ratings and the Accounts. Each Account shall at all times
be maintained at the Operating Bank or another Eligible Institution selected by
the Cash Manager in accordance with the Security Trust Agreement and the
Indenture; provided that one or more Rental Accounts may be maintained at any
other reputable and responsible bank in accordance with Section 3.01 of the
Indenture.
SECTION 2.08. Records. The Cash Manager shall provide such information
relating to the Accounts and the Permitted Account Investments to the Security
Trustee, the Trustee or the Rating Agencies as any of them may reasonably
request from time to time.
SECTION 2.09. Reports. The Cash Manager shall provide the reports and
other information required to be provided by it pursuant to Section 3.06(f) of
the Indenture, together with copies of such additional reports or other
information as the Security Trustee or the Trustee may reasonably request, all
in accordance with the terms of the Indenture.
SECTION 2.10. Additional Aircraft. In the event that AerCo Group shall
acquire any Additional Aircraft (as defined in the Servicing Agreement) and
notwithstanding that AerCo Group may retain different Service Providers for such
Additional Aircraft, the Cash Manager hereby agrees to provide the same Cash
Management Services with respect to all such Additional Aircraft.
SECTION 2.11. Professional Advice. The Cash Manager may, on behalf of
AerCo Group, retain and instruct legal counsel and accounting, tax and other
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professional advisers to represent and advise AerCo Group when the Cash Manager
considers in good faith that it is appropriate or necessary for such advisers to
be appointed to protect the interests and rights of any AerCo Group Member or
for the Cash Manager to comply with its obligations under this Agreement;
provided, however, that, in any one-month period, the Cash Manager shall not be
permitted contractually to obligate AerCo Group to pay fees to such advisers
pursuant to this Section 2.11 or any other section of this Agreement relating to
the engagement of advisers in an aggregate amount in excess of $100,000 without
the prior written consent of the Board of Directors of AerCo.
ARTICLE 3
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
SECTION 3.01. Standard of Performance. The Cash Manager will devote the
same amount of time and attention to, and shall be required to exercise the same
level of skill, care and diligence in the performance of the Cash Management
Services as a prudent businessperson would in administering such services on its
own behalf (the "STANDARD OF PERFORMANCE").
SECTION 3.02. Liability and Indemnity. (a) The Cash Manager shall not
be liable for any Losses or Taxes to or of, or payable by, any AerCo Group
Member at any time including Losses resulting from the investment in any
Permitted Account Investment or any investment losses resulting from such
investment, unless such Losses or Taxes shall arise in connection with the Cash
Manager's own gross negligence (or simple negligence in the handling of funds),
willful misconduct, deceit or fraud or that of any of its directors, trustees,
officers, agents, permitted delegates or employees, as the case may be.
(b) Subject to and in accordance with the provisions of the Indenture,
AerCo and the other AerCo Group Members do hereby agree to indemnify and hold
harmless the Cash Manager, its respective directors, officers, agents and
employees and each of them against any Losses or Taxes whatsoever which they or
any of them may incur or be subject to as a consequence of this Agreement or as
a result of the performance of the functions and services hereunder (including
any Losses or Taxes incurred by the Cash Manager as a result of its indemnifying
any permitted delegate of any of its functions hereunder) except as a result of
the negligence, willful default, deceit or
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fraud of the Cash Manager or any of its directors, officers, agents or
employees, as the case may be. This indemnity shall expressly inure to the
benefit of any existing or future director, officer, agent or employee of the
Cash Manager and to the benefit of any successor of the Cash Manager and shall
survive the termination or expiration of this Agreement.
(c) Each of the Cash Manager, the Security Trustee, the Trustee and
AerCo acknowledges and agrees that the terms of this Agreement contemplate that
the Cash Manager shall receive the Relevant Information in order for the Cash
Manager to make required credit and debit entries and to make the calculations
and supply the information and reports required herein, and that the Cash
Manager will do the foregoing to the extent such information is so provided by
such relevant parties and on the basis of such information, without undertaking
any independent verification or recalculation of such information.
(d) The Cash Manager agrees to indemnify, reimburse and hold harmless
(on an after-tax basis) each AerCo Group Member, the Trustee and the Security
Trustee and their respective directors, trustees and agents for any Losses
whatsoever which they or any of them may incur or be subject to in consequence
of the performance of the Cash Management Services or any breach of the terms of
this Agreement by the Cash Manager, but only to the extent such Losses arise due
to the gross negligence (or simple negligence in the handling of funds), wilful
misconduct, deceit or fraud of the Cash Manager or any of its directors,
trustees, officers, agents, permitted delegates or employees, as the case may
be.
SECTION 3.03. Conflicts of Interest. (i) Each of AerCo and its
Subsidiaries acknowledges and agrees that (a) in addition to providing the Cash
Management Services under this Agreement, AerFi Cash Manager II Limited may
provide similar services for other third parties, (b) in the course of
conducting such activities, the Cash Manager may from time to time have
conflicts of interest in performing its duties on behalf of the Security Trustee
and the Trustee and the various entities in respect of which it provides such
similar services, (c) an Affiliate of the Cash Manager is acting as the
Administrative Agent and another Affiliate of the Cash Manager is acting as
Servicer, (d) an Affiliate or Affiliates of the Cash Manager hold all of the
Class E Notes and (e) the Directors of AerCo have approved the transactions
contemplated by this Agreement and desire that such transactions be consummated
and, in giving such approval, the Board of Directors of AerCo has expressly
recognized that such conflicts of interest may arise from time to time and that,
when such conflicts of interest arise,
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the Cash Manager shall promptly report the same to the Security Trustee, AerCo
and the Trustee and shall act in a manner that (i) treats each AerCo Group
Member equally with such other entities, (ii) does not violate the Standard of
Performance and (iii) would not be reasonably likely to have a material adverse
effect on the Noteholders.
(ii) The Directors of AerCo, by a Special Board Resolution, shall be
entitled to seek independent advice and to appoint an independent representative
in connection with the provision of the Cash Management Services by the Cash
Manager hereunder, including in connection with any conflict of interest or any
potential conflict of interest.
ARTICLE 4
CASH MANAGER UNDERTAKINGS
SECTION 4.01. Cash Manager Undertakings. The Cash Manager hereby
covenants with the Security Trustee and the Trustee that it will conduct its
business such that it is a separate and readily identifiable business from, and
independent of, that of each AerCo Group Member (it being understood that any
AerCo Group Member may publish financial statements that are consolidated with
those of AerFi Group and any of its Affiliates, if to do so is required by any
applicable law or accounting principles from time to time in effect) and further
covenants as follows:
(a) if the Cash Manager receives (including in its capacity as agent
for the Security Trustee after the delivery of a Default Notice) any funds
whatsoever under this Agreement or any Related Document, which funds belong to
the Security Trustee, AerCo or the Trustee, or are to be paid to the Security
Trustee, AerCo or the Trustee or into any Account pursuant to this Agreement,
any Related Document or otherwise, then the Cash Manager shall (i) hold such
funds in trust for the Security Trustee, AerCo, or the Trustee, as the case may
be, (ii) keep such funds separate from all other funds belonging to the Cash
Manager and (iii) as soon as possible following receipt thereof, pay the same
into the appropriate Account in accordance with the terms hereof;
(b) the Cash Manager shall comply with all lawful directions, orders
and instructions which the Security Trustee may from time to time give to it in
writing which are in accordance with the provisions of this Agreement and the
Indenture;
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(c) the Cash Manager shall not knowingly fail to comply with any legal
requirements in the performance of the Cash Management Services;
(d) the Cash Manager shall make all payments required to be made by it
at any time and from time to time pursuant to this Agreement on the required
date for payment thereof and shall turn over any amounts owed to the Security
Trustee, AerCo or the Trustee without set-off or counterclaim;
(e) the Cash Manager shall cooperate with the Security Trustee and the
Trustee and their respective agents, directors or trustees (including by
providing such information as may reasonably be requested at any time and from
time to time) to permit the Security Trustee and the Trustee or their respective
authorized agents to monitor the Cash Manager's compliance with its obligations
under this Agreement;
(f) the Cash Manager is acting hereunder as the agent of the Security
Trustee and the Trustee and, except in relation to any money erroneously
received by the Cash Manager by way of deposit into any of the Cash Manager's
bank accounts (which shall be held in trust by the Cash Manager on behalf of the
Security Trustee and deposited into the appropriate Account as soon as
reasonably practicable), neither the Cash Manager nor any of its Affiliates
shall be under any fiduciary duty or other implied obligation or duty to any
AerCo Group Member or any holder of any equity or debt security issued by any
AerCo Group Member, any Lessee or any other Person arising out of this
Agreement;
(g) the Cash Manager shall not take any steps for the purpose of
procuring the appointment of any administrative receiver or the making of any
administrative order or for instituting any bankruptcy, reorganization,
arrangement, insolvency, winding up, liquidation, composition or any like
proceedings under the laws of any jurisdiction in respect of any AerCo Group
Member or in respect of any of their respective liabilities, including, without
limitation, as a result of any claim or interest of the Cash Manager or any of
its Affiliates;
(h) the Cash Manager shall cooperate with the Security Trustee, AerCo
Group and their respective agents, trustees and directors, including any
providing such information as may reasonably be requested, to permit AerCo Group
or its authorized agents to monitor the Cash Manager's compliance with its
obligations under this Agreement;
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(i) during the term of this Agreement, the Cash Manager shall observe
all corporate formalities necessary to remain a legal entity separate and
distinct from each AerCo Group Member;
(j) during the term of this Agreement, the Cash Manager shall maintain
its assets and liabilities separate and distinct from each AerCo Group Member;
(k) during the term of this Agreement, the Cash Manager shall maintain
records, books, accounts and minutes separate from those of each AerCo Group
Member;
(l) during the term of this Agreement, the Cash Manager shall pay its
obligations in the ordinary course of its business as a legal entity separate
from each AerCo Group Member;
(m) during the term of this Agreement, the Cash Manager shall keep its
funds separate and distinct from the funds of each AerCo Group Member, and it
will receive, deposit, withdraw and disburse such funds separately from the
funds of each AerCo Group Member;
(n) during the term of this Agreement, the Cash Manager shall conduct
its business in its own name and not in the name of any AerCo Group Member;
(o) during the term of this Agreement, the Cash Manager shall not pay
or become liable for any debt of any AerCo Group Member, other than to make
payments in the form of indemnity as required by the express terms of this
Agreement;
(p) during the term of this Agreement, the Cash Manager shall not hold
out that it is a division of any AerCo Group Member, or that any AerCo Group
Member is a division of it;
(q) during the term of this Agreement, the Cash Manager shall not
induce any third party to rely on the creditworthiness of any AerCo Group Member
in order that such third party will be induced to contract with it;
(r) during the term of this Agreement, the Cash Manager shall not
enter into any agreements between it and any AerCo Group Member that are more
favorable to either party than agreements that the parties would have been able
to enter into at such
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time on an arm's-length basis with a non-affiliated third party, other than any
agreements in effect on the date hereof (it being understood that the parties
hereto do not intend by this covenant to ratify any self-dealing transactions);
and
(s) during the term of this Agreement, it shall observe all corporate
or other procedures required under applicable law and each of their constitutive
documents.
ARTICLE 5
UNDERTAKINGS OF AERCO GROUP
SECTION 5.01. Cooperation. The Trustee shall use its best efforts and
AerCo shall, and shall cause each AerCo Subsidiary, and, to the extent within
its power each other Service Provider, to cooperate at all times with the Cash
Manager to enable the Cash Manager to provide the Cash Management Services,
including providing the Cash Manager with all powers of attorney and such
information as may be reasonably necessary or appropriate for the Cash Manager
to perform the Cash Management Services.
SECTION 5.02. Information. AerCo will provide the Cash Manager with
the following information in respect of itself and each other AerCo Group
Member:
(a) a list of all legal advisers;
(b) copies of all Related Documents, including the Memorandum and
Articles of Association of AerCo, and copies of all statutory books and records
maintained on behalf thereof by such Persons;
(c) details of all bank accounts and bank mandates maintained by the
Cash Manager on behalf of the Security Trustee, the Trustee and each AerCo Group
Member;
(d) names of and contact information with respect to the board of
directors of each AerCo Group Member and the secretary and registered office of
each AerCo Group Member; and
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(e) such other information as is necessary to the Cash Manager's
performance of the Cash Management Services.
The information referred to in this Section 5.02 (with the exception of
paragraph (e)) shall be provided to the Cash Manager upon execution of this
Agreement and, with respect to the information noted in paragraph (e), upon
request and, in respect of any amendment or changes to the information provided
to the Cash Manager upon execution of this Agreement, promptly following the
effectiveness of such amendments or changes.
SECTION 5.03. Scope of Services. (a) Subject to subsection (b) below,
in the event that any AerCo Group Member enters into any agreement, amendment or
other modification of any Related Document or shall take any other action that
has the effect of increasing in any material respect the scope, nature or level
of the Cash Management Services, the Trustee shall provide written notice
thereof to the Cash Manager (provided the Trustee has actual knowledge of same),
and the Cash Manager shall not be obligated to perform such affected Cash
Management Services to the extent of such increase unless and until the Cash
Manager, the Security Trustee and the Trustee shall agree on the terms on which
such increased Cash Management Services shall be provided. In each such case,
the Cash Manager shall not be obligated or permitted to take any action that
might reasonably be expected to result in the business of AerCo Group ceasing to
be separate and readily identifiable from, and independent of, that of the Cash
Manager and its Affiliates. The Security Trustee and the Trustee shall, as
directed in writing by AerCo, engage another Person to perform the affected or
increased Cash Management Services without the prior written consent of the Cash
Manager if they determine, in their discretion, that timely agreement with the
Cash Manager for the performance of such services cannot be reached on
commercially reasonable terms.
(b) In the event that AerCo Group shall acquire Additional Aircraft,
AerCo Group shall so notify the Cash Manager and the Cash Manager shall be
obligated to provide the Cash Management Services with respect to such
Additional Aircraft in accordance with Section 2.10 hereof.
SECTION 5.04. Ratification. (a) AerCo and the other AerCo Group Members
hereby ratify and confirm, and agree to ratify and confirm (and shall furnish
written evidence thereof upon request of the Cash Manager), any act or omission
by the Cash Manager in accordance with this Agreement in the exercise of any of
the powers or authorities conferred upon the Cash Manager under the terms of
this Agreement, it
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being expressly understood and agreed that none of the foregoing shall have any
obligation to ratify and confirm, and expressly does not ratify and confirm, any
act or omission of the Cash Manager in violation of this Agreement, the Standard
of Performance or for which the Cash Manager is obligated to indemnify any AerCo
Group Member or any Subsidiary under Article 3 hereof.
(b) AerCo hereby undertakes to cause, if so requested by the Cash
Manager, any subsidiary of AerCo formed or acquired after the date hereof to
execute an agreement with the Cash Manager adopting and confirming, as regards
such subsidiary, the terms of this Agreement and agreeing to ratify whatever the
Cash Manager does in accordance with this Agreement in the exercise of any
powers or authorities conferred upon the Cash Manager under the terms of this
Agreement, it being expressly understood and agreed that no AerCo Group Member
shall have any obligation to ratify and confirm, and expressly does not ratify
and confirm, any act or omission of the Cash Manager in violation of the
Standard of Performance or for which the Cash Manager is obligated to indemnify
any AerCo Group Member under Article 3 hereof.
SECTION 5.05. Accounts and Cash Arrangements. (a) No new bank or other
account shall be established other than in accordance with this Agreement, the
Security Trust Agreement and the Indenture. The Security Trustee shall not
authorize the Trustee, AerCo, any other AerCo Group Member or any other Person
other than the Cash Manager and its authorized agents to make disbursements from
any such accounts on their behalf or on behalf of the Trustee, AerCo, or any
AerCo Group Member.
(b) Except as provided in Section 2.07 hereof, neither the Cash
Manager nor any AerCo Group Member shall modify any arrangement with respect to
the flow of cash in connection with payments, remittances and investment of
funds or the creation, maintenance or termination of any Account (other than in
accordance with this Agreement and the Indenture) without the written consent of
the Security Trustee, the Trustee and AerCo.
SECTION 5.06. Further Assurances. Each of the Cash Manager and AerCo
agrees that, at any time and from time to time, upon the written request of the
Security Trustee or the Trustee, it shall execute and deliver such further
documents and do such further acts and things and, solely with respect to AerCo,
shall cause each AerCo Subsidiary to execute and deliver such further documents
and do such further acts and
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things, in each case as the Security Trustee or the Trustee may reasonably
request in order to effect the purposes of this Agreement.
SECTION 5.07. Covenants of AerCo Group. Each AerCo Group Member
covenants with the Cash Manager that it shall conduct its business in every way
possible such that it is a separate and readily identifiable business from that
of the Cash Manager and its Affiliates (it being understood that any AerCo Group
Member may publish financial statements that are consolidated with those of
AerFi Group and any of its Affiliates, if to do so is required by any applicable
law or accounting principles from time to time in effect) and, to the extent
possible, shall cause each of its Subsidiaries to do the same, and further
covenants as follows:
(a) during the term of this Agreement, it will observe, and shall
cause each AerCo Subsidiary to observe, all corporate formalities necessary to
remain legal entities separate and distinct from the Cash Manager;
(b) during the term of this Agreement, it will maintain, and shall
cause each AerCo Subsidiary to maintain, its assets and liabilities separate
from those of the Cash Manager;
(c) during the term of this Agreement, it will maintain, and shall
cause each AerCo Subsidiary to maintain, records, books, accounts, and minutes
separate from those of the Cash Manager;
(d) during the term of this Agreement, it shall pay, and shall cause
each AerCo Subsidiary to pay, its obligations in the ordinary course of business
as a legal entity separate from the Cash Manager;
(e) during the term of this Agreement, it shall keep, and shall cause
each AerCo Subsidiary to keep, its funds separate and distinct from any funds of
the Cash Manager, and shall receive, deposit, withdraw and disburse such funds
separately from any funds of the Cash Manager;
(f) during the term of this Agreement, it shall conduct, and shall
cause each AerCo Subsidiary to conduct, its business in its own name, and not in
the name of the Cash Manager;
(g) during the term of this Agreement, it shall conduct, and shall
cause each AerCo Subsidiary not to agree, to pay or become liable for any debt
of the Cash
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Manager, other than to make payments in the form of indemnity as required by the
express terms of this Agreement;
(h) during the term of this Agreement, it shall not hold out, and
shall cause each AerCo Subsidiary not to hold out, that it or any of them is a
division of the Cash Manager, or that the Cash Manager is a division of any of
them;
(i) during the term of this Agreement, it shall not induce, and shall
cause each AerCo Subsidiary not to induce, any third party to rely on the
creditworthiness of the Cash Manager in order that such third party will be
induced to contract with it;
(j) during the term of this Agreement, it shall not enter into, and
shall cause each AerCo Subsidiary not to enter into, any transaction between any
of them and the Cash Manager that is more favorable to either party than
transactions that the parties would have been able to enter into at such time on
an arm's-length basis with a non-affiliated third party; other than any
agreements in effect on the date hereof (it being understood that the parties
hereto do not intend by this covenant to ratify any self-dealing transactions);
and
(k) during the term of this Agreement, it shall observe, and shall
cause each other AerCo Group Member to observe, all material corporate
procedures and other procedures required under applicable law and each of their
constitutive documents.
ARTICLE 6
EFFECTIVENESS
SECTION 6.01. Effectiveness. The effectiveness of this Agreement and
all obligations of the parties hereunder with respect to each Aircraft Asset
shall be conditional upon:
(i) the occurrence of the Delivery Date of such Aircraft Asset,
(ii) with respect to AerCo, the Cash Manager, the Guarantor, the
Servicer, the Security Trustee, the Trustee and the entities listed on
Appendix A to this Agreement, the execution hereof by those parties;
and
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(iii) with respect to any entity which executes and delivers an
Accession Agreement, the execution thereof in acknowledgment and
agreement by AerCo, the Servicer, the Cash Manager, the Guarantor, the
Security Trustee and the Trustee. The original parties hereto and each
entity which becomes a party hereto by executing and delivering such an
Accession Agreement agree that such Accession Agreement shall be
effective without the need for each other party hereto to execute such
Accession Agreement in acknowledgment and agreement.
ARTICLE 7
CASH MANAGEMENT FEES AND EXPENSES
SECTION 7.01. Cash Management Fees. (a) In consideration of the Cash
Manager's performance of the Cash Management Services, AerCo shall pay to the
Cash Manager an annual fee (the "CASH MANAGEMENT FEE") equal to $250,000 (as
such amount may be adjusted for each annual period by reference to the Inflation
Factor at the commencement of such annual period on each March 15), payable
monthly in arrears in equal installments on the Payment Date commencing August
17, 1998; provided that the Cash Manager shall receive payment for the period
between the Closing Date and August 17, 1998 in arrears on August 17, 1998.
SECTION 7.02. Expenses. The Cash Manager shall be responsible for all
costs and expenses relating to or associated with the Cash Manager's performance
of its duties as set forth in this Agreement, other than such costs as are
expressly stated herein to be an expense or cost of AerCo Group or costs
incurred as a result of the breakage of investments.
ARTICLE 8
TERM; REMOVAL OF OR TERMINATION BY THE CASH MANAGER
SECTION 8.01. Term. This Agreement shall have a term commencing on the
Closing Date and expiring on the date of payment in full of all amounts
outstanding to be paid on the Notes (including the Class D and the Class E
Notes) and any other
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securities issued by AerCo as relating to Additional Aircraft owned by AerCo
Group. During such term, this Agreement shall not be terminable by either party
except as expressly provided in this Article 8.
SECTION 8.02. Cross-termination. This Agreement shall terminate in
the event of a termination of either the Servicing Agreement or the
Administrative Agency Agreement.
SECTION 8.03. Right to Terminate. (a) At any time during the term of
this Agreement, the Security Trustee, on behalf and at the written direction of
the Secured Parties, or AerCo by a Special Board Resolution shall be entitled to
terminate this Agreement on 120 days' written notice if:
(i) the Cash Manager shall materially breach its obligations under
this Agreement and, after written notice from AerCo, the Cash Manager
has failed to cure such breach within 30 days; or
(ii) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking
relief in respect of the Cash Manager, or of a substantial part of the
property or assets of the Cash Manager, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other U.S.
Federal or state or foreign bankruptcy, insolvency, receivership or
similar law, and such proceeding or petition shall continue undismissed
for 75 days or an order or decree approving or ordering any of the
foregoing shall be entered or the Cash Manager shall go into
liquidation, suffer a receiver or mortgagee to take possession of all
or substantially all of its assets or have an examiner appointed over
it or if a petition or proceeding is presented for any of the foregoing
and not discharged within 75 days; or
(iii) the Cash Manager shall (A) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other U.S.
Federal or state or foreign bankruptcy, insolvency, receivership or
similar law, (B) consent to the institution of, or fail to contest the
filing of, any petition described in clause (ii) above, (C) file an
answer admitting the material allegations of a petition filed against
it in any such proceeding, or (D) make a general assignment for the
benefit of its creditors.
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(b) Following the delivery of a Default Notice or during the
continuance of an Acceleration Default, the Security Trustee, on behalf of the
Secured Parties, shall be entitled to terminate on 5 days' written notice the
authority granted to the Cash Manager to perform the Cash Management Services
set forth in Section 2.01 hereof and in the Indenture.
(c) At any time during the term of this Agreement, the Cash Manager
shall be entitled to terminate this Agreement on 60 days' written notice if:
(i) any AerCo Group Member shall fail to pay in full when due (A) any
installment of the Cash Management Fee within 30 days after the
effectiveness of written notice from the Cash Manager of such failure
or (B) any other amount payable to the Cash Manager hereunder within 60
days after written notice from the Cash Manager of such failure;
(ii) any AerCo Group Member shall fail to perform or observe or shall
violate in any material respect any material term, covenant, condition
or agreement to be performed or observed by it in respect of this
Agreement for 30 days after AerCo Group shall have received notice of
such failure (other than with respect to payment obligations referred
to in clause (c)(i) of this Section 8.03);
(iii) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking
relief in respect of AerCo or any other AerCo Group Member, or of a
substantial part of the property or assets of AerCo or any other AerCo
Group Member, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other U.S. federal or state or
foreign bankruptcy, insolvency, receivership or similar law, and such
proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered or AerCo or any other AerCo Group Member shall go into
liquidation, suffer a receiver or mortgagee to take possession of all
or substantially all of its assets or have an examiner appointed over
it or if a petition or proceeding is presented for any of the foregoing
and not discharged within 60 days; or
(iv) AerCo or any other AerCo Group Member shall (A) voluntarily
commence any proceeding or file any petition seeking relief under any
U.S.
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federal or state or foreign bankruptcy, insolvency, receivership
or similar law, (B) consent to the institution of, or fail to contest
the filing of, any petition described in clause (b)(iii) above, (C)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding or (D) make a general assignment for
the benefit of its creditors.
(d) Notwithstanding anything to the contrary in this Article 8, no
termination of this Agreement pursuant to Section 8.02 hereof, no termination of
this Agreement by the Security Trustee or AerCo pursuant to Section 8.03(a)
hereof and no termination by the Cash Manager pursuant to Section 8.03(c) hereof
shall become effective prior to the date of appointment by AerCo Group of a
successor cash manager and the acceptance of such appointment by such successor
cash manager; provided, however, that in the event that a successor cash manager
shall not have been appointed within 90 days after the date upon which this
Agreement would otherwise have terminated, the Cash Manager may petition any
court of competent jurisdiction for the appointment of a successor cash manager.
Upon action by either party pursuant to the provisions of this Section 8.03(d),
the Cash Manager shall be entitled to the payment of any compensation owed to it
hereunder in connection with all services rendered by it hereunder, as provided
in Article 7 hereof, and for so long as the Cash Manager is continuing to
perform any of the Cash Management Services for any AerCo Group Member, the Cash
Manager shall be entitled to continue to be paid all amounts due to it
hereunder, net of any amounts that shall have been finally adjudicated by a
court of competent jurisdiction to be owed by the Cash Manager to AerCo Group or
not to be due to the Cash Manager, until a successor cash manager shall have
been appointed and shall have accepted such appointment in accordance with the
provisions of Section 8.04(c) hereof.
(e) Subject to Section 9.01 hereof, the parties hereto agree not to
amend this Agreement to reduce the scope of the Cash Management Services to be
provided by the Cash Manager hereunder unless a third party reasonably
acceptable to the parties hereto and to the Servicer becomes a party to this
Agreement and agrees to provide such Cash Management Services in the place of
the Cash Manager.
SECTION 8.04. Consequences of Termination. (a) Notices. (i) Following
the termination of this Agreement pursuant to Section 8.02 hereof or by the
Security Trustee, AerCo or the Cash Manager pursuant to Section 8.03 hereof and
the replacement of the Cash Manager by a successor cash manager under Section
9.01 hereof, the former Cash Manager will promptly forward to the successor cash
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manager, the Security Trustee, AerCo, the Trustee and, where applicable, any
AerCo Group Member, any notices and accounting reports (or copies thereof)
received by it during the year immediately after such termination or
resignation.
(ii) AerCo Group will promptly notify any relevant third party,
including the Rating Agencies and the Trustee of the removal of or
resignation by the Cash Manager under this Agreement and will request
that all such notices and accounting reports and communications to the
Cash Manager thereafter be made or given directly to the successor cash
manager and AerCo Group.
(b) Accrued Rights. A termination of this Agreement by the Security
Trustee or the resignation by the Cash Manager hereunder shall not affect the
respective rights and liabilities of any party hereto accrued prior to such
removal or resignation in respect of any prior breaches hereof or otherwise.
Upon action by any party hereto pursuant to the provisions of Section 8.03
hereof, the Cash Manager shall be entitled to the payment of any compensation
owed to it by AerCo Group hereunder.
(c) Replacement. If this Agreement is terminated pursuant to Section
8.02 hereof or by the Security Trustee or AerCo or by the Cash Manager pursuant
to Section 8.03 hereof and the Cash Manager is replaced by a successor cash
manager under Section 9.01 hereof, such former Cash Manager will cooperate with
such successor cash manager, including providing such successor cash manager
with all information and documents reasonably requested.
SECTION 8.05. Survival. Notwithstanding any termination or the
expiration of this Agreement, the respective obligations of AerCo Group and the
Cash Manager under Sections 3.02, 7.01 (to the extent any fees due and owing
through such date of termination remain unpaid) and 8.04 hereof shall survive
such termination or expiration, as the case may be.
ARTICLE 9
APPOINTMENT OF SUCCESSOR CASH MANAGER
SECTION 9.01. Appointment of Successor Cash Manager. In the event of
the removal or resignation of the Cash Manager pursuant to Section 8.02 or 8.03
hereof,
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the Security Trustee, on behalf of, and at the written direction of, the
Secured Parties, may appoint a successor cash manager or any other Person as
successor cash manager. Any successor cash manager so appointed following the
removal or resignation of the Cash Manager pursuant to the provisions of Section
8.02 or 8.03 hereof shall execute and deliver to the former Cash Manager, the
Security Trustee, AerCo Group and the Trustee an instrument accepting such
appointment. Thereupon, such successor cash manager shall, without any further
act, deed or conveyance, become vested with all the authority, rights, powers,
immunities, duties and obligations of the Cash Manager, and with like effect as
if originally named as Cash Manager under this Agreement, and the former Cash
Manager shall thereupon be obligated to transfer and deliver such relevant
records or copies thereof maintained by the Cash Manager in connection with the
performance of its obligations under this Agreement and each of the other
Related Documents.
ARTICLE 10
ASSIGNMENT AND DELEGATION
SECTION 10.01. Assignment and Delegation. (a) The Cash Manager may
delegate the performance of any of the Cash Management Services (provided that
any such delegation shall not release the Cash Manager from its obligations
hereunder), such delegation to be procured by delivery to the Trustee of a
Certificate in the form of Exhibit B hereto.
(b) Except as set forth in this Section 10.01, none of the parties to
this Agreement shall assign or delegate this Agreement or all or any part of its
rights or obligations hereunder to any other person without the prior written
consent of the other parties thereto.
(c) Without limiting the foregoing, any Person who shall become a
successor by assignment or otherwise of the Cash Manager (or any respective
successors thereof) in accordance with this Section 10.01 shall be required, as
a condition to the effectiveness of any such assignment or other arrangements,
to become a party to this Agreement.
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ARTICLE 11
GUARANTEE
SECTION 11.01. Guarantee. The Guarantor hereby fully and
unconditionally guarantees to AerCo Group and the Servicer (i) the due and
punctual performance by the Cash Manager of all agreements, covenants and other
obligations required to be performed by the Cash Manager hereunder or under any
other Related Document (including, without limitation, the punctual payment when
due of all amounts now or hereafter payable by the Cash Manager hereunder or
under any other Related Document) (all such agreements, covenants and other
obligations being the "GUARANTEED OBLIGATIONS"), all in accordance with the
terms of this Agreement and the other Related Documents, and agrees to pay any
and all expenses (including counsel fees and expenses) incurred by any of the
parties hereto or any of their respective officers, directors or agents in
enforcing any right under this Section 11.01. The liability of the Guarantor
under this Section 11.01 is limited to the maximum amount that will result in
the obligations of the Guarantor not constituting a fraudulent conveyance or
fraudulent transfer under applicable law.
The Guarantor hereby waives diligence, presentment, filing of claims
with a court in the event of merger or bankruptcy of the Cash Manager, any right
to require a proceeding first against the Cash Manager, and the benefit of
discussion, protest or notice with respect to any and all demands for
performance or payment hereunder whatsoever (except as specified above), and
covenants that this Article 11 shall not be discharged except by performance or
payment in full of all of the Guaranteed Obligations.
The Guarantor hereby irrevocably waives any claim or other rights which
it may now or hereafter acquire against the Cash Manager that arise from the
existence, payment, performance or enforcement of the Guarantor's obligations
under this Agreement or any other Related Document, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of any party
against the Cash Manager, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including, without limitation,
the right to take or receive from the Cash Manager, 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 Guarantor's obligations under this
Agreement have been satisfied. If any amount shall be paid to the Guarantor in
violation of the preceding sentence and this Agreement shall not have
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been terminated, such amount shall be deemed to have been paid to the Guarantor
for the benefit of, and held in trust for the benefit of, AerCo Group and the
Servicer, and shall forthwith be paid to AerCo Group and the Servicer, as the
case may be. The Guarantor acknowledges that it will receive direct and indirect
benefits from the execution, delivery and performance by the Cash Manager of
this Agreement and that the waiver set forth in this paragraph is knowingly made
in contemplation of such benefits.
SECTION 11.02. Reinstatement. The Guarantor hereby agrees that the
guarantee provided for in Section 11.01 hereof shall continue to be effective or
be reinstated, as the case may be, if at any time, payment, or any part thereof,
of any Guaranteed Obligations or interest thereon is rescinded or must otherwise
be restored to the Cash Manager upon the bankruptcy or insolvency of the Cash
Manager or the Guarantor or otherwise.
SECTION 11.03. Unconditional Nature of Guarantee. The Guarantor hereby
agrees that its obligations under the guarantee set forth in Section 11.01
hereof shall be irrevocable and unconditional, irrespective of the invalidity,
irregularity or unenforceability of this Agreement or any other Related Document
against the Cash Manager, the absence of any action to enforce the Cash
Manager's obligations hereunder or under any other Related Document, any waiver
or consent by any party hereto with respect to any provisions thereof, any
amendment to the terms hereof or of any other Related Document, the bankruptcy
of the Cash Manager or any circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor; provided, however, that the
Guarantor shall be entitled to exercise any right that the Cash Manager could
have exercised under this Agreement to cure any default in respect of its
obligations hereunder or under any other Related Document, if any, but only to
the extent such right, if any, is provided to the Cash Manager hereunder or
under any other Related Document.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Notices. (a) All notices, consents, directions,
approvals, instructions, requests and other communications required or permitted
by this Agreement to be given to any Person shall be in writing, and any such
notice shall
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become effective five Business Days after being deposited in the mail, certified
or registered, return receipt requested, with appropriate postage prepaid for
first class mail, or if delivered by hand or courier service or in the form of a
facsimile, when received (and, in the case of a facsimile, receipt of such
facsimile is confirmed to the sender), and shall be directed to the address or
facsimile number of such Person set forth below:
If to the Cash Manager, to:
AerFi Cash Manager II Limited
Xxxxxxxx Xxxxx
Xxxxxxx
Xx. Xxxxx, Xxxxxxx
Attention: Corporate Secretary
Facsimile: 353-61-360-220
If to the Guarantor, to:
AerFi Group plc
Xxxxxxxx Xxxxx
Xxxxxxx
Xx. Xxxxx, Xxxxxxx
Attention: Corporate Secretary
Facsimile: 353-61-360-220
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If to AerCo and the other AerCo Group Members, to:
AerCo Limited
00 Xxxxxxxxx Xxxxxx
Xx. Xxxxxx
Xxxxxx, XX0 0XX
Channel Islands
Attention: Mourant & Co. Secretaries
Limited - Company Secretary
Facsimile: 44-1534-609-333
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With a copy to:
Xxxxx Xxxx & Xxxxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Xx. Xxxxxx Xxxx
Facsimile: 00-00-0000-0000
and
AerFi Administrative Services Limited
as Administrative Agent
Xxxxxxxx Xxxxx
Xxxxxxx
Xx. Xxxxx, Xxxxxxx
Attention: General Counsel
Facsimile: 353-61-360-113
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37
If to the Servicer, to:
AerFi Group plc
Xxxxxxxx Xxxxx
Xxxxxxx
Xx. Xxxxx, Xxxxxxx
Attention: Company Secretary
Telephone: 000-00-000000
Facsimile: 000-00-000000
If to the Trustee or the Security Trustee, to:
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group,
Structured Finance Team
Facsimile: 000-000-0000
Telephone: 000-000-0000
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If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly given
whether or not the addressee receives it.
From time to time any party to this Agreement may designate a new
address or number for purposes of notices thereunder by notice to each of the
other parties thereto.
SECTION 12.02. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 12.03. Jurisdiction. Except as otherwise expressly provided in
this Agreement, the parties hereto agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in the United States District Court for the Southern District of New
York or any other New York State court sitting in New York City, and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 12.01 or 12.04 hereof
shall be deemed effective service of process on such party.
SECTION 12.04. Agent for Service of Process. Each of AerCo and its
Subsidiaries hereby appoint Corporation Service Company, 00 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxx, X.X., 00000, X.X.X. as its nonexclusive agent for service of
process in the United States in connection with this Agreement. The parties may
use any legally available means of service of process. Each of AerCo and its
Subsidiaries will promptly notify the other persons listed in Section 12.01
hereof of any change in the address of the respective agents; provided, however,
that each of AerCo and its Subsidiaries will at all times maintain an agent
located within New York State for service of process in connection with this
Agreement, the identity of any successor agent to be reasonably satisfactory to
the Cash Manager.
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SECTION 12.05. WAIVER OF JURY TRIAL. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 12.06. Counterparts; Third Party Beneficiaries. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by the other party
hereto. No provision of this Agreement is intended to confer upon any Person
other than the parties hereto any rights or remedies hereunder.
SECTION 12.07. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
SECTION 12.08. Table of Contents; Headings. The table of contents and
headings of the various articles, sections and other subdivisions of this
Agreement are for convenience of reference only and shall not modify, define or
limit any of the terms or provisions of this Agreement.
SECTION 12.09. Restrictions on Disclosure. The Cash Manager agrees that
it shall not, prior to the termination or expiration of this Agreement or within
the three years after such termination or expiration, disclose to any Person any
confidential or proprietary information, whether of a technical, financial,
commercial or other nature, received directly or indirectly from AerCo Group
regarding AerCo Group or its business or the Aircraft, except as authorized in
writing by AerCo Group or otherwise permitted by this Agreement, and except:
(a) to Representatives of the Cash Manager and any of its affiliates
in furtherance of the purposes of this Agreement, provided that any such
Representatives shall have agreed to be bound by the restrictions on disclosure
set forth in this Section 12.09;
(b) to the extent (i) required by Applicable Law or by judicial or
administrative process, including pursuant to any subpoena, civil investigative
demand or similar demand or request of any court, regulatory authority,
arbitrator or arbitration to which the Cash Manager or an affiliate thereof is a
party, or (ii) reasonably
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necessary in order to enable the Cash Manager to perform the Cash Management
Services, but in the case of clause (i) above, in the event of proposed
disclosure, the Cash Manager shall seek the assistance of AerCo Group to protect
information in which AerCo Group has an interest to the maximum extent
achievable;
(c) to the extent such information is required to be included in any
preliminary or final offering circular, registration statement or contract or
other document pertaining to the transactions contemplated by the Indenture and
the Related Documents approved in advance by AerCo;
(d) to the extent that the information:
(i) was generally available in the public domain;
(ii) was lawfully obtained from a source under no obligation of
confidentiality, directly or indirectly, to AerCo Group;
(iii) was disclosed to the general public with the approval of
AerCo Group;
(iv) was in the files, records or knowledge of the Cash Manager or any
Affiliates of the Cash Manager prior to initial disclosure thereof to
the Cash Manager or any Affiliates of the Cash Manager by AerCo Group;
and
(v) was developed independently by the Cash Manager or any
Affiliates of the Cash Manager; and
(e) to the extent the Cash Manager reasonably deems necessary to
protect and enforce its rights and remedies under this Agreement; provided,
however, that in such an event the Cash Manager shall act in a manner reasonably
designed to prevent disclosure of such confidential information; and provided
further, that prior to disclosure of such information the Cash Manager shall
inform AerCo Group of such disclosure.
SECTION 12.10. No Partnership. (a) It is expressly recognized and
acknowledged that this Agreement is not intended to create a partnership, joint
venture or other similar arrangement between any AerCo Group Member or Members
on the one part and the Cash Manager on the other part. It is also expressly
understood that any actions taken on behalf of any AerCo Group Member by the
Cash Manager shall
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be taken as agent for such AerCo Group Member, either naming the relevant AerCo
Group Member, or naming the Cash Manager as agent for an undisclosed principal.
No AerCo Group Member shall hold itself out as a partner of the Cash Manager,
and the Cash Manager will not hold itself out as a partner of any AerCo Group
Member.
(b) The Cash Manager shall not have any fiduciary duty or other
implied obligations or duties to any AerCo Group Member, any Lessee or any other
Person arising out of this Agreement.
SECTION 12.11. No Retroactive Application. This Agreement amends and
restates the Original Agreement with no intention of retroactive application.
The Original Agreement has been restated for the convenience of the parties and
such amendment and restatement is not intended to waive or modify the
obligations of any party which accrued or were to have been performed on or
prior to the effective date hereof or to deprive any party of its rights and
remedies in respect thereof.
SECTION 12.12. Limited Recourse. (a) In the event that the assets of
AerCo are insufficient, after payment of all other claims, if any, ranking in
priority to the claims of the Cash Manager hereunder, to pay in full such claims
of the Cash Manager, then the Cash Manager shall have no further claim against
AerCo in respect of any such unpaid amounts.
(b) No recourse under any obligation, covenant or agreement of any
party contained in this Agreement shall be had against any shareholder, officer
or director of the relevant party as such, by the enforcement of any assessment
or by any proceeding, by virtue of any statue or otherwise; it being expressly
agreed and understood that this Agreement is a corporate obligation of the
relevant party and no personal liability shall attach to or be incurred by the
shareholders, officers, agents or directors of the relevant party as such, or
any of them under or by reason of any of the obligations, covenants or
agreements of such relevant party contained in this Agreement, or implied
therefrom, and that any and all personal liability for breaches by such party of
any of such obligations, covenants or agreements, either at law or by statute or
constitution, of every such shareholder, officer, agent or director is hereby
expressly waived by the other parties as a condition of and consideration for
the execution of this Agreement.
(c) The Cash Manager hereby agrees that it shall not, until the expiry
of one year and one day after the payment of all sums outstanding and owing
under the latest maturing Note, take any corporate action or other steps or
legal proceedings for the
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winding-up, dissolution or re-organization or for the
appointment of a receiver, administrator, administrative receiver, trustee,
liquidator, sequestrator or similar officer of AerCo or of any or all of AerCo's
revenues and assets.
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IN WITNESS WHEREOF, this Agreement has been duly executed on the date
first written above.
AERFI CASH MANAGER II LIMITED,
as Cash Manager
By: _______________________________
Name:
Title:
AERFI GROUP PLC,
as Guarantor
By: _______________________________
Name:
Title:
AERCO LIMITED
By: _______________________________
Name:
Title:
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44
AERFI GROUP PLC,
as Servicer
By: ___________________________________
Name:
Title:
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45
BANKERS TRUST COMPANY,
not in its individual capacity,
but solely as Security Trustee
By: _______________________________
Name:
Title:
BANKERS TRUST COMPANY,
not in its individual capacity,
but solely as trustee under the Indenture
By: _______________________________
Name:
Title:
AERCO IRELAND LIMITED
By: _______________________________
Name:
Title:
AERCO IRELAND II LIMITED
By: _______________________________
Name:
Title:
XXXXX XXXXXXX X.X.
00
00
By: _______________________________
Name:
Title:
AERCOUSA INC.
By: _______________________________
Name:
Title:
AIRCRAFT LEASE PORTFOLIO
SECURITIZATION 94-1 LIMITED
By: _______________________________
Name:
Title:
ALPS 00-0 (XXXXXXX) N.V.
By: _______________________________
Name:
Title:
PERGOLA LIMITED
By: _______________________________
Name:
Title:
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APPENDIX A
SUBSIDIARIES
AerCo Ireland Limited
AerCo Ireland II Limited
AerCoUSA Inc.
AerFi Belgium N.V.
Aircraft Lease Portfolio Securitization 94-1 Limited
ALPS 00-0 (Xxxxxxx) N.V.
Pergola Limited
X-0
00
XXXXXXXX X
FORM OF ACCESSION AGREEMENT
[DATE]
We refer to the Amended and Restated Cash Management Agreement dated as
of July 17, 2000, among AerFi Cash Manager II Limited, AerFi Group plc, as
Guarantor, AerCo Limited, AerFi Group plc, as Servicer, Bankers Trust Company,
solely in its capacity as indenture trustee and security trustee, the entities
listed on Appendix A thereto and all other Subsidiaries which have heretofore
signed an Accession Agreement in substantially the form of this Accession
Agreement (the "CASH MANAGEMENT AGREEMENT").
We agree, as of the date of this Accession Agreement, to be considered
a party to the Cash Management Agreement for all purposes, as if an original
signatory to the Cash Management Agreement, and to be bound by the terms of the
Cash Management Agreement.
This Accession Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, this Accession Agreement has been duly executed on
the date first written above.
[ ]
By: _______________________
Name:
Title:
B-1
49
ACCEPTED AND ACKNOWLEDGED:
AERFI CASH MANAGER II LIMITED,
as Cash Manager
By: ____________________________
Name:
Title:
AERFI GROUP PLC,
as Guarantor
By: ____________________________
Name:
Title:
AERCO LIMITED
By: __________________________
Name:
Title:
AERFI GROUP PLC,
as Servicer
By: __________________________
Name:
Title:
B-2
50
BANKERS TRUST COMPANY
not in its individual capacity,
but solely as Security Trustee
By: __________________________
Name:
Title:
BANKERS TRUST COMPANY
not in its individual capacity,
but solely as trustee under the Indenture
By: __________________________
Name:
Title:
B-3
51
SCHEDULE 1
ACCOUNTS
BANKERS TRUST ACCOUNTS
Trustee
Account Number
--------------
1. RENTAL ACCOUNTS
(a) Bankers Trust Company, as Trustee for AerCo 00-000-000
(b) Bankers Trust Company, as Trustee for AerCo 00-000-000
2. EXPENSE ACCOUNT
Bankers Trust Company, as Trustee for AerCo 00-000-000
3. OTHER ACCOUNTS PURSUANT TO THE CASH MANAGEMENT AND
INDENTURES
AerCo Expense Account 26071
AerCo Purchase Account 26076
AerCo Note Account 26070
AerCo Lessee Funded Account 26072
AerCo Collection Account 26073
AerCo Defeasance/Redemption Account 26075
AerCo Refinancing Account 26074
4. ADDITIONAL BANK ACCOUNTS
Account Name: ALPS 1994-- 1 Belgium NV
Bank: Generale de Bank, Brussels
Account No.: 000-0000000-00
Currency: Belgian Franc
Account Name: AerFi Belgium NV
Bank: Citibank Brussels
52
Trustee
Account Number
--------------
Account No.: 000-0000000-00
Currency: Belgian Franc
Account Name: AerFi Belgium NV
Bank: Citibank Brussels
Account No.: 000-0000000-00
Currency: US Dollar
53
EXHIBIT A
FORM OF CERTIFICATE REQUESTING DIRECT FUNDS TRANSFER
[Date]
Bankers Trust Company,
as Trustee under the Indenture
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Cash Management Agreement:
Request for Direct Funds Transfer
Sirs:
The undersigned hereby requests that all amounts distributable to the
Expense payee named below pursuant to Section 2.06(f) of the Amended and
Restated Cash Management Agreement dated as of July 17, 2000 (the "CASH
MANAGEMENT AGREEMENT"; terms used herein but not otherwise defined herein being
used herein as therein defined), among AerFi Cash Manager II Limited, AerFi
Group plc, as Guarantor, AerCo Limited, AerFi Group plc, as Servicer, Bankers
Trust Company, solely in its capacity as indenture trustee and security trustee
and the entities listed on Appendix A thereto, be transferred on each Payment
Date to the following account:
[Name of Expense Payee]
[Name of Bank]
Account No. _____________________
[Location]
Attention: ________________________
54
Please acknowledge your approval of the foregoing payment instructions
by executing a copy of this letter and returning it to ___________at ________.
AERFI CASH MANAGER II LIMITED
By: _______________________________
Name:
Title:
Acknowledged and Approved:
BANKERS TRUST COMPANY,
not in its individual capacity,
but solely as trustee under the Indenture
By: ____________________________
Name:
Title:
55
EXHIBIT B
FORM OF CERTIFICATE AUTHORIZING DELEGATION OF SERVICES
[Date]
Bankers Trust Company,
as Trustee under the Indenture
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Cash Management Agreement:
Delegation of Certain Cash Management Services
Sirs:
Pursuant to Section 10.01 of the Amended and Restated Cash Management
Agreement dated as of July 17, 2000 (the "CASH MANAGEMENT AGREEMENT"; terms used
herein but not otherwise defined herein being used herein as therein defined),
among AerFi Cash Manager II Limited (the "CASH MANAGER"), AerFi Group plc, as
Guarantor, AerCo Limited, AerFi Group plc, as Servicer, Bankers Trust Company,
solely in its capacity as indenture trustee and security trustee and the
entities listed on Appendix A thereto, the Cash Manager hereby requests your
approval to the delegation by it to [name] of cash disbursement and related
services.
The Cash Manager acknowledges and agrees that the foregoing delegation
of services does not in any way release the Cash Manager from its obligations
under the Cash Management Agreement.
AERFI CASH MANAGER II LIMITED
By: _______________________________
Name:
Title:
56
Acknowledged and Approved:
BANKERS TRUST COMPANY,
not in its individual capacity,
but solely as trustee under the Indenture
By: _____________________________________
Name:
Title:
Acknowledged and Agreed:
[NAME]
By: _____________________________________
Name:
Title:
