MASTER SERVICING AGREEMENT between GE COMMERCIAL AVIATION SERVICES LIMITED and GENESIS LEASE LIMITED
between
GE
COMMERCIAL AVIATION SERVICES LIMITED
and
GENESIS
LEASE LIMITED
|
ARTICLE
I |
DEFINITIONS
|
1
|
|
Section
1.01. |
Definitions
|
1
|
|
Section
1.02. |
Construction
and Usage |
1
|
|
ARTICLE
II |
APPOINTMENT;
SERVICES |
1
|
|
Section
2.01. |
Appointment
|
1
|
|
Section
2.02. |
Aircraft
Asset Services |
3
|
|
Section
2.03. |
Offerings
|
6
|
|
Section
2.04. |
Compliance
with Applicable Laws and GE Policies |
10
|
|
Section
2.05. |
Limitations
|
11
|
|
ARTICLE
III |
STANDARD
OF CARE; CONFLICTS OF INTEREST; STANDARD OF LIABILITY |
12
|
|
Section
3.01. |
Standard
of Care |
12
|
|
Section
3.02. |
Conflicts
of Interest |
12
|
|
Section
3.03. |
Standard
of Liability |
14
|
|
Section
3.04. |
Waiver
of Implied Standard |
14
|
|
ARTICLE
IV |
REPRESENTATIONS
AND WARRANTIES |
15
|
|
Section
4.01. |
Aircraft
Assets |
15
|
|
Section
4.02. |
Aircraft
Assets Related Documents |
15
|
|
Section
4.03. |
Accounts
and Cash Flow |
15
|
|
Section
4.04. |
Organization
and Standing |
15
|
|
Section
4.05. |
Authority
|
16
|
|
Section
4.06. |
No
Conflicts |
16
|
|
Section
4.07. |
Compliance
with Applicable Laws |
16
|
|
Section
4.08. |
Litigation;
Decrees |
17
|
|
Section
4.09. |
Appointments
|
17
|
|
Section
4.10. |
Authority
|
17
|
|
Section
4.11. |
No
Conflicts |
17
|
|
Section
4.12. |
Compliance
with Applicable Laws of Ireland |
18
|
|
Section
4.13. |
Litigation;
Decrees |
18
|
|
ARTICLE
V |
SERVICER
UNDERTAKINGS |
18
|
|
Section
5.01. |
Access
|
18
|
|
Section
5.02. |
Compliance
with Law |
18
|
|
Section
5.03. |
Commingling
|
18
|
|
Section
5.04. |
Restrictions
on Exercise of Certain Rights |
18
|
|
Section
5.05. |
Coordination
with Genesis Group |
19
|
i
|
ARTICLE
VI |
UNDERTAKINGS
OF GENESIS |
19
|
|
Section
6.01. |
Cooperation
|
19
|
|
Section
6.02. |
No
Representation with Respect to Third Parties |
19
|
|
Section
6.03. |
Related
Document Amendments |
19
|
|
Section
6.04. |
Exclusivity
|
19
|
|
Section
6.05. |
Communications
|
19
|
|
Section
6.06. |
Ratification
|
20
|
|
Section
6.07. |
Additional
Aircraft Assets |
20
|
|
Section
6.08. |
Execution,
Amendment, Modification or Termination of Aircraft Assets Related
Documents |
20
|
|
Section
6.09. |
Access
to Genesis Group Information |
21
|
|
Section
6.10. |
Genesis
Group Accounts and Cash Arrangements |
21
|
|
Section
6.11. |
[Intentionally
Left Blank] |
21
|
|
Section
6.12. |
Further
Assurances |
21
|
|
Section
6.13. |
Guarantees
|
21
|
|
Section
6.14. |
Transfers
of Funds |
21
|
|
ARTICLE
VII |
GENESIS
GROUP RESPONSIBILITY |
22
|
|
Section
7.01. |
Genesis
Group Responsibility |
22
|
|
Section
7.02. |
Performance
with Respect to Aircraft Assets |
23
|
|
Section
7.03. |
Lease
Operating Budget; Aircraft Asset Expenses Budget |
23
|
|
Section
7.04. |
Transaction
Approval Requirements |
24
|
|
Section
7.05. |
Approved
Budgets and Transaction Approval Requirements |
27
|
|
ARTICLE
VIII |
EFFECTIVENESS
|
27
|
|
Section
8.01. |
Effectiveness
|
27
|
|
ARTICLE
IX |
SERVICING
FEES; EXPENSES; TAXES; PRIORITY OF SERVICING FEES |
27
|
|
Section
9.01. |
Servicing
Fees |
27
|
|
Section
9.02. |
Monthly
Base Fee |
27
|
|
Section
9.03. |
Rent
Fees |
27
|
|
Section
9.04. |
Sales
Fee |
28
|
|
Section
9.05. |
[Intentionally
Left Blank] |
28
|
|
Section
9.06. |
Expenses
|
29
|
|
Section
9.07. |
Taxes
|
29
|
|
Section
9.08. |
Priority
of Payments to Servicer |
32
|
ii
|
ARTICLE
X |
TERM;
RIGHT TO TERMINATE; RESIGNATION; CONSEQUENCES OF EXPIRATION, TERMINATION,
RESIGNATION OR REMOVAL; CERTAIN TAX MATTERS; SURVIVAL |
32
|
|
Section
10.01. |
Term
|
32
|
|
Section
10.02. |
Right to
Terminate |
32
|
|
Section
10.03. |
Resignation
or Removal |
35
|
|
Section
10.04. |
Consequences
of Expiration, Termination, Resignation or Removal |
36
|
|
Section
10.05. |
Survival
|
37
|
|
ARTICLE
XI |
INDEMNIFICATION
|
37
|
|
Section
11.01. |
Indemnity
|
37
|
|
Section
11.02. |
Procedures
for Defense of Claims |
38
|
|
Section
11.03. |
Reimbursement
of Costs |
39
|
|
Section
11.04. |
Waiver
of Certain Claims; Special Indemnity |
39
|
|
Section
11.05. |
Waiver
of Certain Accounting Claims; Special Indemnity |
39
|
|
Section
11.06. |
Continuing
Liability under Other Agreements |
40
|
|
ARTICLE
XII |
ASSIGNMENT
AND DELEGATION |
40
|
|
Section
12.01. |
Assignment
and Delegation |
40
|
|
ARTICLE
XIII |
MISCELLANEOUS
|
40
|
|
Section
13.01. |
Documentary
Conventions |
40
|
|
Section
13.02. |
Power of
Attorney |
40
|
|
Section
13.03. |
Reliance
|
41
|
|
Section
13.04. |
Certain
Information |
41
|
|
Section
13.05. |
[Intentionally
Left Blank] |
41
|
|
Section
13.06. |
Relationship
to Securitization Servicing Agreement and WHCO Servicing Agreement
|
41
|
Schedules
|
Schedule
2.02(a) |
Aircraft
Assets Services |
|
Schedule
2.02(a)(i) |
Intentionally
Left Blank |
|
Schedule
2.02(a)(ii) |
Form of
Officer’s Certificate |
|
Schedule
4.01 |
Aircraft
Assets |
|
Schedule
4.02 |
Aircraft
Assets Related Documents |
|
Schedule
4.03 |
Bank
Accounts |
|
Schedule
4.04(a) |
List of
Persons within the Genesis Group and Jurisdictions |
|
Schedule
7.01 |
Responsibilities
of Genesis Group |
|
Schedule
7.04 |
Liabilities
Incurred in Ordinary Course of Business |
|
Schedule
8.01 |
Conditions
to Execution |
|
Schedule
9.06(a) |
Overhead
Expenses |
|
Schedule
9.06(b) |
Categories
of Aircraft Asset Expenses |
| Schedule 13.02 | Management Services Power of Attorney of [Grantor] |
iii
Annexes
|
Annex
1 |
Insurance
Guidelines |
| Annex 2 | Intentionally Left Blank |
Appendices
|
Appendix
A |
Construction
and Usage; Definitions |
|
Appendix
B |
Form of
Guarantee |
| Appendix C | Notices |
Exhibits
|
Exhibit
A |
Monthly
Report Form |
| Exhibit B | Quarterly Report Form |
iv
MASTER
SERVICING AGREEMENT dated as of _______ __, 2006, between GE COMMERCIAL
AVIATION SERVICES LIMITED, a company incorporated under the laws of Ireland
(the “Servicer”)
and GENESIS LEASE LIMITED, a limited liability company incorporated under the
laws of Bermuda (“Genesis”).
For the consideration set forth herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Servicer and
Genesis agree as follows:
ARTICLE
I
Definitions
Section
1.01. Definitions. Unless
otherwise defined herein, all capitalized terms used but not defined herein
have the meanings assigned to such terms in Appendix A.
Section
1.02. Construction
and Usage. The
conventions of construction and usage set forth in Appendix A are incorporated
by reference herein.
ARTICLE
II
Appointment;
Services
Section
2.01. Appointment.
(a) Subject to Section 2.01(c) below, Genesis appoints the Servicer
as the exclusive provider of the Services (as defined in Section 2.02(a))
to (1) Genesis, (2) Subsidiaries of Genesis and (3) Affiliates
of Genesis (collectively, including GFL and its Subsidiaries, the
“Genesis
Group”)
in respect of all Aircraft Assets on the terms and subject to the conditions
set forth in this Agreement. In furtherance of the foregoing, the parties
hereto acknowledge and agree that, notwithstanding any other provision of this
Agreement, without the consent of the Servicer, Genesis shall not, and shall
not permit any Person within the Genesis Group or any agent of any thereof,
including the Administrative Agent, to, contact directly or otherwise have any
direct dealings with any Lessee or any relevant third party with respect to any
Aircraft Asset (which, as provided in the definition of “Aircraft
Assets”, the parties understand shall not include any Aircraft in respect
of which the Servicer determines it will not provide Services pursuant to
Section 2.02(h) or any Aircraft Asset (x) that shall have ceased to be an
Aircraft Asset in accordance with the provisions of Sections 2.04(b) or
3.02(d), but shall include any Former Aircraft Asset that shall have become an
Aircraft Asset pursuant to Section 6.07 of the Servicing Agreement or
(y) in respect of which the obligation of the Servicer to provide Services
shall have been terminated in accordance with Article X) (such contact or
other direct dealing, a “Lessee
Contact”)
to the extent that such Lessee Contact constitutes, or involves taking any
action that constitutes, the provision or performance of any Services (to such
extent, a “Restricted
Lessee Contact”).
Notwithstanding the foregoing, in the event that Genesis or any other member of
the Genesis Group reasonably believes that it shall be necessary or, in the
case of clause (iv) or (v) below only, desirable, for there to be a
Restricted Lessee Contact under circumstances in which one of the following
clauses is applicable:
(i) [Intentionally
Left Blank];
(ii) following
the cessation of all dividends and other distributions to shareholders of
Genesis for at least sixty (60) days, and at least 15% of the number of
Aircraft Assets shall not be subject to Leases and each such Aircraft Asset
shall have been off-lease and reasonably available for re-lease (which, for
purposes of clarification, shall mean that such Aircraft Asset shall be in the
possession or under the unfettered control of the Servicer, together with the
related Aircraft Documents, shall be free of any legal prohibition on the
re-leasing thereof, shall be free of Liens (other than Liens, if any, created
pursuant to the Financing
Agreement
or created by or at the instruction of the Servicer and shall be in a condition
which should be reasonably acceptable to a potential lessee) during the
three-month period ending on the sixtieth (60th) day
after the date of cessation;
(iii) in
respect of any claim for indemnification made by the Servicer under this
Agreement in respect of a Loss incurred by the Servicer related to a
Lessee;
(iv) to
discharge Genesis’s or any other Person within the Genesis Group’s or
any of their officer’s or director’s obligations under Applicable Law
(including under United States’ securities laws and under United States
and European “know your customer” laws) including any requirement to
obtain information, to file any report with any Governmental Authority, to
fulfill their fiduciary duties or other obligations under Applicable Laws or to
respond to any court order or to prosecute or defend any suit;
(v) to
respond to requests from auditors of any Person within the Genesis Group
reasonably related to the filing of any tax return or the conduct of any audit
in respect of Genesis and/or its subsidiaries;
(vi) to
enable Genesis to discharge its obligations under
Article VII;
(vii) to
enable the Administrative Agent to monitor the Servicer’s performance
under this Agreement in accordance with the express terms of the Administrative
Agency Agreement;
(viii) [Intentionally
Left Blank]; or
(ix) the
Servicer’s material failure to perform a Service which involves a Lessee
and necessitates a Lessee Contact, which material failure continues unremedied
for 30 days after the Servicer’s receipt of written notice of such
material failure from Genesis and which if left unremedied would have a
Material Adverse Effect on the Genesis Group taken as a whole;
then
Genesis or another Person within the Genesis Group, shall deliver a written
notice to the Servicer setting forth in reasonable detail the reasons for such
Restricted Lessee Contact (including which of the foregoing clauses (i)
through (ix) is applicable thereto) and the specifics of such Restricted Lessee
Contact. In the case of clauses (ii) and (iv) through (vii) above, after
receipt of such notice, the Servicer shall promptly notify Genesis whether the
Servicer will itself make such Restricted Lessee Contact, or whether a Person
within the Genesis Group or agent of any thereof, including the Administrative
Agent, should make such Restricted Lessee Contact. In the case of
clauses (iii) and (ix) above, after delivering such notice to the
Servicer, any Person within the Genesis Group shall be permitted to make such
Restricted Lessee Contact directly itself or through any agent, including the
Administrative Agent. In making any Restricted Lessee Contact Genesis shall
not, and shall not permit any Person within the Genesis Group or any agent of
any thereof, including the Administrative Agent, to interfere with the
Servicer’s performance of any Services.
For
purposes of clarification, the parties agree that Genesis or any agent thereof,
including the Administrative Agent, may contact a Lessee for the purpose of
purchasing Aircraft from such Lessee or for the purpose of selling or leasing
Aircraft that are not Aircraft Assets hereunder, or “Aircraft Assets”
under any Securitization Servicing Agreement or the WHCO Servicing Agreement,
to such Lessee, and such contact shall not be considered a Restricted Lessee
Contact, so long as in no event shall Genesis or any agent thereof interfere
with the Servicer’s performance of any Services in respect of any Aircraft
Asset.
2
(b) The
Servicer hereby accepts its appointment pursuant to the first sentence of
Section 2.01(a) and agrees to perform the Services on the terms and
subject to the conditions set forth in this Agreement.
(c) Notwithstanding
the foregoing, on and as of the date hereof, and for so long as the GFL
Servicing Agreement or the WHCO Servicing Agreement, as the case may be,
remains in effect and applicable to the “Aircraft Assets” covered
thereby, the Services provided by the Servicer in respect of the Aircraft
Assets owned by GFL and its Subsidiaries, and the Services provided by the
Servicer in respect of the Aircraft Assets owned by WHCO and its Subsidiaries,
shall be provided by the Servicer pursuant to the GFL Servicing Agreement and
the WHCO Servicing Agreement, respectively, and not this Agreement. This
Agreement shall be applicable to such Aircraft Assets only as and to the extent
set forth in Section 13.06. In the event that Aircraft Assets are at any time
after the date hereof owned by a Securitization Vehicle or its Subsidiaries
other than GFL or WHCO, then the Servicer and such Securitization Vehicle shall
enter into a Servicing Agreement with substantially the same terms and
conditions as the GFL Servicing Agreement (together with the GFL Servicing
Agreement, a “Securitization
Servicing Agreement”),
which shall control in lieu of this Agreement in respect of the Securitization
Vehicle and the “Aircraft Assets” as defined therein for so long as
such “Aircraft Assets” remain covered by such Securitization
Servicing Agreement. All Aircraft Assets owned or leased in by Persons of the
Genesis Group shall be covered by this Agreement when not covered by the WHCO
Servicing Agreement or a Securitization Servicing Agreement. Persons in the
Genesis Group whose Aircraft Assets are covered by this Agreement, and not by
the WHCO Servicing Agreement or by any Securitization Servicing Agreement, are
referred to as “MSA
Persons”
and the Aircraft Assets owned or leased by any such MSA Person are referred to
as “MSA
Aircraft Assets”.
Section
2.02. Aircraft
Asset Services.
(a) The Services to be provided by the Servicer in respect of the MSA
Aircraft Assets are as set forth in Schedule 2.02(a) (the
“Services”),
the provisions of which Schedule 2.02(a) are hereby incorporated herein by
reference.
(b) Genesis
has advised the Servicer that each MSA Person has appointed Genesis to act as
its representative with respect to any matter in respect of which Genesis or
any such MSA Person is required or permitted to take any action pursuant to the
terms of this Agreement. Accordingly, in connection with the performance of the
Services, the Servicer shall in all cases be entitled to rely on the
instructions (or other actions) of Genesis as representative of each MSA
Person. The Servicer shall not be liable to Genesis or any other MSA Person for
any act taken or omission to act in accordance with such instructions (or other
actions), except to the extent otherwise provided in Section 3.03 and
Article XI. The Servicer shall in all cases be entitled to rely upon the
instructions (or other actions) of Genesis and upon notices, reports or other
communications (whether written or oral) made by any Lessee or any other Person
(other than any Affiliate of the Servicer) in or concerning any MSA Aircraft
Assets, Aircraft Assets Related Document or any document in connection
therewith and shall not be responsible for the accuracy or completeness of any
such notices, reports or other communications.
(c) Genesis
has advised the Servicer that it has appointed the Administrative Agent, on a
revocable basis, to, among other things, act on its behalf in connection with
any actions required or permitted to be taken by Genesis on its own behalf or
on behalf of any other MSA Person (including as provided in
Section 2.02(b)) pursuant to the terms of this Agreement. Accordingly, in
connection with the performance of the Services, unless earlier notified in
writing by Genesis that the Administrative Agent’s appointment to act on
behalf of Genesis has been revoked or terminated, the Servicer shall in all
cases be entitled to rely on the instructions (or other actions) of the
Administrative Agent; provided,
however, that
the Servicer shall not be obliged to act upon the instructions of, or with
respect to, the Administrative Agent unless the Servicer consented to the
appointment of such Administrative Agent in writing, which consent shall not be
unreasonably withheld (it being understood that the Servicer may
3
consider,
among other factors, whether the proposed Administrative Agent is a
Competitor). The Servicer hereby consents to the appointment of
___________________ as the initial Administrative Agent. The appointment of the
Administrative Agent to act on behalf of Genesis shall in no way limit or
otherwise derogate from the Servicer’s right to rely on the instructions
(or other actions) of Genesis as set forth in Section 2.02(b). Without
limiting the foregoing, until such time as the Servicer has been notified in
writing that the Administrative Agent’s appointment has been revoked or
terminated, in all circumstances requiring the direction, consent or approval
of, or the delivery of any notices or other communications to, Genesis or any
other MSA Person hereunder, the Servicer shall only be required to seek the
direction, consent or approval of, or deliver any such notices or other
communications to, the Administrative Agent. The Servicer shall not be liable
to any Person within the Genesis Group or any other Person for any act taken or
omission to act in accordance with the instructions (or other actions) of the
Administrative Agent, except to the extent otherwise provided in
Section 3.03 and Article XI. Genesis agrees with the Servicer that
the Administrative Agency Agreement shall not be amended by the parties thereto
in any manner that may, directly or indirectly, affect the Servicer’s
rights, obligations or liabilities (or potential liabilities) under this
Agreement or with respect to the Administrative Agency Agreement or otherwise
without the Servicer’s prior written consent. Genesis further agrees that
it alone shall be responsible for any limitations placed on the authority of or
scope of the actions to be taken by the Administrative Agent and the Servicer
shall have no responsibilities or liabilities in connection therewith or be
deemed to have knowledge of or otherwise be concerned with respect
thereto.
(d) Except
as otherwise provided in Sections 2.02(h), 2.04(b), 3.02(c), 3.02(d) and 10.04,
Genesis agrees not to (and not to permit any other Person within the Genesis
Group to) appoint any third party service provider (whether an Affiliate or
otherwise) with respect to any Aircraft Asset without the prior written consent
of the Servicer; provided,
however, that
the Servicer’s prior written consent is not required with respect to the
appointment by any Person within the Genesis Group of any legal, accounting,
insurance, valuation or other similar service providers to perform services not
included within the Services.
(e) The
Servicer shall in all cases be entitled to rely on the instructions (or other
actions) of any MSA Person that the Servicer reasonably believes to be
authorized to act on behalf of Genesis (or any other MSA Person) or the
Administrative Agent and shall not be liable to any Person within the Genesis
Group for any act taken or omission to act in accordance with such instructions
(or other actions), except to the extent otherwise provided in
Section 3.03 and Article XI.
(f) Notwithstanding
anything contained in this Agreement to the contrary, the Servicer shall not be
required to perform any Service (or any other service) with respect to any MSA
Aircraft Asset unless and until a true and complete copy of all Aircraft Assets
Related Documents related thereto has been delivered to the Servicer or other
written notice thereof has been provided to the Servicer.
(g) Genesis
agrees not to (and not to permit any other Person within the Genesis Group to)
enter into any agency, finders’ or brokerage agreements (whether with an
Affiliate or otherwise) relating to the procurement of lessees or purchasers
for the Aircraft Assets (or agreements similar thereto) without the prior
written consent of the Servicer or as otherwise permitted under the WHCO
Servicing Agreement or an applicable Securitization Servicing
Agreement;
(h) Without
limiting the exclusive right of Servicer to service all Aircraft Assets, the
Servicer shall not be obligated or required to accept an Aircraft as an
Aircraft Asset or provide any Services in respect of any Aircraft Asset
if:
4
(i) at any
time the Servicer believes, in good faith but sole discretion, that the
provision of any of the Services with respect thereto or any actions, inactions
or consequences related thereto or arising therefrom, or any conditions, events
or circumstances existing at any time of determination, may directly or
indirectly lead to or create:
(A) (x) a
violation of any Applicable Law with respect to the Servicer or its Affiliates
or of any GE Policy or (y) an investigation by any Governmental Authority
of or relating to the Servicer, any of its Affiliates or the Services,
or
(B) a
conflict of interest with respect to any Person that is unacceptable to the
Servicer for any reason determined in good faith but sole discretion, and for
the avoidance of doubt and in recognition of the potentially sensitive nature
of any information related thereto, the Servicer shall have no obligation to
disclose any such basis therefor, or
(C) a
requirement of resources being allocated to, or expenses being incurred in
connection with, the servicing of one or more of such Aircraft, individually or
in the aggregate with respect to any group thereof, which will be materially
different from those being allocated to, or incurred in connection with, other
Aircraft which are serviced by the Servicer, or
(ii) such
Aircraft is a commercial jet aircraft which as of its date of acquisition is
more than 20 years old or is not manufactured by manufacturers based in North
America, South America, Asia or Europe; or such Aircraft is of a model or type
not then currently in the GECAS and its Affiliates owned fleet or is of a model
or type of which GECAS has decided to phase out of such owned
fleet;
(iii) such
Aircraft is on lease to or otherwise involves a Person with whom the Servicer
or any of its Affiliates is involved in a legal proceeding or otherwise with
which the Servicer or any of its Affiliates has a material dispute;
or
(iv) there is
any default or event of default, or any potential payment, insurance or
bankruptcy default, then in existence by Genesis or any of its Affiliates under
this Agreement or the WHCO Servicing Agreement or any Securitization Servicing
Agreement, or any guaranties or any related or other agreements with the
Servicer or any of its Affiliates, or any event or condition has occurred and
is continuing which gives, or with notice or the passage of time would give,
Servicer or any of its Affiliates, a right to terminate any of such agreements,
in each case which has not been cured or is not reasonably expected to be cured
on or before the date that Services by the Servicer in respect of such Aircraft
are expected to commence; or
(v) Genesis
and the Servicer so mutually agree (but neither party shall have any obligation
to do so or to negotiate to do so).
Except
with respect to the Original Aircraft, Genesis shall notify the Servicer of the
entry by any Person in the Genesis Group into any letter of intent, memorandum
of understanding, term sheet or other preliminary agreement for the acquisition
of the ownership or leasing-in of any Aircraft, and shall provide the Servicer
with a true and complete copy thereof and with such additional information
regarding such Aircraft (including any Lease or Lessee in respect thereof) as
the Servicer shall reasonably request. Within ten (10) Business Days after
having been provided with all such information, the Servicer shall advise
Genesis whether or not each such Aircraft is to be considered an Aircraft Asset
hereunder. If the Servicer notifies Genesis that any Aircraft shall not be
considered an Aircraft Asset hereunder then such Aircraft shall not become
subject to this Agreement (or the WHCO Servicing Agreement or any
5
Securitization
Servicing Agreement) and Genesis shall be free to make such alternative
arrangements for the servicing of such Aircraft as Genesis shall
determine.
Section
2.03. Offerings.
(a) (i) In connection with the public or private offering and sale
(whether within the United States, outside of the United States or both within
and outside of the United States) of any equity or debt securities or the
obtaining of any loans (including lines of credit but excluding individual
aircraft financing of five or fewer Aircraft) by (x) Genesis or any of its
Affiliates or (y) any other Person, pursuant to which any Person within
the Genesis Group or any of its Affiliates is required to file, or assist in
the filing of, any registration statement with the United States Securities and
Exchange Commission, or prepare and distribute, or assist in the preparation
and distribution of, a private placement memorandum, lender group memorandum or
other securities or loan offering document (any such offering and sale,
including the Initial Offer, being hereinafter referred to herein as an
“Offering”),
Genesis will provide (or cause its advisors to provide, as the case may be) the
Servicer and its advisors drafts of, and a reasonable time to review, each
registration statement, prospectus, offering memorandum, private placement
memorandum, lender group memorandum or other securities or loan offering
document, as the case may be, and each amendment or supplement to any thereof
relating to any such Offering (each, a “Prospectus”),
with information therein that Genesis reasonably determines under Applicable
Law cannot or should not be disclosed to the Servicer at such time redacted
therefrom, and will use its best efforts to incorporate the comments, if any,
provided by the Servicer with respect to the Servicer or any of its Affiliates
or their respective roles in connection with any such Offering , including
under this Agreement, the WHCO Servicing Agreement any Securitization Servicing
Agreement or the Business Opportunities Agreement (the “Servicer Disclosure”,
which term shall include, without limitation, the Servicer Information) (it
being understood that the Servicer and its Affiliates have the right, but not
the obligation, to comment thereon). Genesis will not, and will not permit any
Person within the Genesis Group to, file, or assist in the filing of, any such
Prospectus with any governmental agency or otherwise publicly disclose or
distribute to potential purchasers or lenders the contents of such Prospectus
without the Servicer’s prior consent (which consent must be written only
with respect to, in the case of any Prospectus that is filed with the United
States Securities and Exchange Commission, the last Prospectus filed prior to
or concurrently with the filing of a request for acceleration of effectiveness
of the related registration statement or post-effective amendment thereto or,
in the case of any Prospectus that is not filed with the United States
Securities and Exchange Commission, the version of the Prospectus to be
delivered in connection with the sale, or confirmation of sale, of any debt or
equity securities or the making of any loans, as the case may be) as to those
portions of any such Prospectus constituting Servicer Disclosure which consent
shall not be unreasonably withheld or determination delayed.
(ii) Genesis
understands and agrees that the Servicer has the right to approve any and all
Servicer Disclosure, including the context thereof, and that Genesis will not
permit the inclusion in any Prospectus of (x) any financial statements or
financial data relating to the Servicer or any Affiliate thereof,
(y) performance or related data with respect to the Servicer’s
servicing of aircraft directly or indirectly owned by any Person within the
Genesis Group or directly or indirectly owned by Genesis or any of its
Affiliates or any other Person’s aircraft or other assets or (z)
information relating to aircraft owned or managed by the Servicer or any of its
Affiliates. For the avoidance of doubt, however, if such information and the
context of its disclosure are approved by the Servicer in writing, then Genesis
shall have the right to include such information in such Prospectus.
Notwithstanding the foregoing, the Servicer agrees (A) that, subject to
its prior review and updating, any Prospectus may include Servicer Disclosure
substantially identical to that contained in the Servicer Information in the
Final Prospectus and (B) to respond with any comments it may have on any
Servicer Disclosure reasonably promptly following Genesis’s delivery of
drafts of the entire Prospectus (subject to redaction as provided above),
including any Servicer Disclosure, to the Servicer. Genesis will also provide
(or cause its
6
Affiliates
or advisors to provide, as the case may be) the Servicer with copies of, and an
opportunity to review, any marketing and marketing related materials that
contain Servicer Disclosure produced in connection with any Offering. Genesis
will not distribute any such marketing materials (or disseminate, or permit the
dissemination of, the information contained therein) without the
Servicer’s prior written consent in respect of such Servicer Disclosure,
which consent shall not be unreasonably withheld or determination delayed. The
Servicer agrees to respond with any comments it may have on any such marketing
materials reasonably promptly following Genesis’s delivery of copies
thereof to the Servicer.
(iii) Genesis
agrees that it will use its commercially reasonable efforts to cause its legal,
accounting and other technical advisors to include the Servicer and such
Affiliates of the Servicer as the Servicer designates as addressees of any
opinions and/or comfort letters being provided to any Person within the Genesis
Group and/or any underwriters in connection with any Offering.
(iv) Genesis
agrees that each Prospectus will include disclosure, in form and substance
satisfactory to the Servicer, of all disclaimers, the Standard of Care,
Standard of Liability and Conflicts Standard, waivers of liability and
indemnification pertaining to the Servicer or any of its Affiliates or their
respective roles in connection with this Agreement and any related
Offering.
(b) Subject
to Section 2.03(g) below, if Genesis reasonably requests that the Servicer or
its Affiliates be present on a reasonable basis at customary
marketing activities (including a so-called “road show”), related to
any Offering, the Servicer and its Affiliates shall agree to discuss being
present at such marketing activities, but solely in the Servicer’s
capacity as Servicer with respect to the Aircraft Assets pursuant to this
Agreement and only on such basis and with such compensation as is acceptable to
the Servicer. Genesis agrees that, to the extent the Servicer has agreed to
participate in any such marketing activities, on any such marketing activities
the Servicer’s only obligation shall be, to the extent necessary, to
discuss the factual matters relating to its role as servicer hereunder, under
any applicable Securitization Servicing Agreement and the Business
Opportunities Agreement and the Aircraft Assets which are the subject hereof,
including discussing information contained in the Prospectus with respect to
such assets relating to types of aircraft, aircraft maintenance and aircraft
leases. Notwithstanding the foregoing, the Servicer shall not be required to
make any presentations with respect to, or to comment upon, its views of future
trends in the aviation industry, including future trends relating to types of
aircraft, particular lessees or expected aircraft lease rates or values, or to
provide opinions, forecasts, predictions or prospects relating thereto (or to
the Aircraft Assets). In no event shall a representative of the Servicer be
required to attend any marketing activities without representatives of Genesis
and the underwriters.
(c) Genesis
agrees that it will not submit any materials to any Rating Agency containing
any Servicer Disclosure without the Servicer’s prior consent, which
consent shall be in writing and not be unreasonably withheld or determination
delayed.
(d) Genesis
understands, acknowledges and agrees that the Servicer will not be a party to
any underwriting, securities purchase or similar agreement or any letter to,
representation to or indemnity or other agreement with, any underwriter or
initial purchaser, in connection with any Offering, and, except as set forth in
Section 2.03(m), shall not assume responsibility for any information set
forth in any Prospectus related thereto.
(e) (i) Subject
to executing confidentiality agreements satisfactory in form and substance to
Genesis, Genesis agrees to use its commercially reasonable efforts to provide
the Servicer or
7
any of
its Affiliates and/or advisors with an opportunity, at the Servicer’s
election, to conduct customary due diligence with respect to any Offering,
including with respect to any matters disclosed in any Prospectus.
(ii) Subject
to executing confidentiality agreements satisfactory in form and substance to
the Servicer, the Servicer agrees to provide Genesis, underwriters, Rating
Agencies and/or advisors with reasonable opportunities to conduct due diligence
with respect to information pertaining to the Servicer and the provision of
Services pursuant to this Agreement with respect to the Aircraft Assets;
provided,
however, that,
if it is established to the Servicer’s reasonable satisfaction that any
Rating Agency does not execute confidentiality agreements as a matter of
policy, the Servicer will waive such requirement with respect to such Rating
Agency so long as such Rating Agency establishes to the Servicer’s
reasonable satisfaction that any information made available to it will be held
confidential.
(f) Except
to the extent required by law, Genesis agrees not to (and not to permit any
other Person within the Genesis Group or Genesis or any of its Affiliates to)
make directly or indirectly, any press release or other public announcement by
any means (including by making disclosures to financial analysts or other
members of the financial community that are intended to be or could reasonably
be expected to be publicly disclosed) containing or relating to Servicer
Disclosure without the Servicer’s prior written consent, which consent
shall not be unreasonably withheld or determination delayed. In the event a
press release or other public announcement is recommended by securities counsel
or required by law, Genesis shall consult with the Servicer prior to making (or
permitting to be made) any such press release or public announcement to the
extent that such press release or public announcement relates to the Servicer
(or any of its Affiliates) or their respective involvement in any Offering.
Promptly after Genesis’s request therefor, the Servicer agrees to provide
Genesis with the Servicer’s pre-approved customary Servicer Disclosure for
inclusion in Genesis’s quarterly and annual public reporting disclosure
documents to be filed with the Securities and Exchange Commission; provided,
however, that
the context of such Servicer Disclosure in each such document shall be subject
to the prior consent of the Servicer.
(g) Upon the
closing of any Offering (other than the Initial Offer) with respect to which
Genesis has requested participation from the Servicer as provided above in
Section 2.03(b), Genesis shall pay, or cause another Person to pay, the
Servicer financing fees in such amount as Genesis and the Servicer shall have
agreed. In addition to such agreement on such fees, Genesis and the Servicer
hereby agree that additional fees shall be paid to the Servicer in connection
with the Servicer’s involvement with the solicitation of, or other action
to obtain, any lessee consents and/or novations in connection with any
Offering. Such additional fees to be paid to the Servicer in connection with
the Servicer’s involvement with respect to any such Offering shall consist
of $6,000 per applicable Aircraft.
(h) Notwithstanding
the foregoing, (i) except as otherwise expressly agreed by an Affiliate of
the Servicer in a separate agreement in the case of this clause (i),
neither the Servicer nor any of its Affiliates shall be obligated to underwrite
or purchase any securities to be issued by Genesis or any other Person within
the Genesis Group or by any other Person in any Offering; (ii) neither the
Servicer nor any of its Affiliates shall be obligated to issue any Guarantees
or otherwise to provide any credit enhancement or support or incur any
obligations or liabilities to provide any credit enhancement or support or
incur any other obligations or liabilities in connection with any Offering;
(iii) neither the Servicer nor any of its Affiliates shall be required to
sign any registration statement (or any similar document) in connection with
any Offering (as “registrant”, “issuer” or in any other
capacity) or take any other action that could, in the Servicer’s sole
determination, result in the Servicer or any of its Affiliates being (or being
deemed to be) a “control person” with respect to the applicable
issuer of any securities issued in connection with any such financing
transaction under applicable securities laws in connection with any such
financing or an “underwriter” of any such securities; and
(iv) the obligations of the Servicer under this Section 2.03 shall be
subject to the reasonable satisfaction of the Servicer with all the terms
and
8
conditions
of the applicable Offering that relate to the Servicer or any of its Affiliates
or their respective roles (including the indemnities in favor of the Servicer
and its Affiliates).
(i) In the
case of any Offering, the Indemnified Parties shall have no liability for, and
Genesis shall hold, and shall cause each other Person, if any, for whom a
Offering was conducted to hold, each Indemnified Party harmless from, and
indemnify on an After-Tax Basis each Indemnified Party against, any and all
Losses that may be imposed on, incurred by or asserted against (including with
respect to any such claims, suits, actions or proceedings by third parties,
including the applicable underwriters and purchasers of any securities issued
in connection with any such Offering) such Indemnified Party, directly or
indirectly, arising out of, in connection with or related to the
Servicer’s performance of the obligations set forth in this
Section 2.03 with respect to any Offering; provided,
however, that
such indemnity shall not apply to the extent that, if Genesis had suffered such
Losses, the Servicer would have been required to indemnify Genesis pursuant to
the terms of Section 2.03(m). The obligation of Genesis under this
Section 2.03(i) shall be in addition to any liability that Genesis may
otherwise have to the Indemnified Parties and shall not be limited or reduced
with respect to the Indemnified Parties by any other rights to indemnification
that may be available to such Indemnified Parties.
(j) Genesis
agrees to reimburse the Servicer, on a monthly basis, for all out-of-pocket
expenses incurred directly or indirectly by the Servicer or any of its
Affiliates in connection with any Offering with respect to which the Servicer
shall provide services pursuant to this Section 2.03, including any
outside advisor fees and expenses (including travel and lodgings), including
legal, accounting, investment banking, consulting and other similar advisors
retained by the Servicer or any of its Affiliates in connection with any
Offering.
(k) For the
avoidance of doubt, but without derogating from any of the Servicer’s
rights hereunder, the Servicer shall continue to act as the primary servicer
for each Aircraft Asset, following the financing or refinancing thereof
pursuant to a public or private aircraft financing transaction, so long as any
Person within the Genesis Group owns or leases, or otherwise has direct or
indirect interest, in such Aircraft Asset, on the terms provided in this
Agreement. In furtherance of the foregoing, the Servicer shall continue to act
as the primary servicer for any Aircraft Assets that are financed or refinanced
pursuant to a public or private aircraft financing transaction (including a
public or private securitization financing transaction) under circumstances in
which, following such financing or refinancing, (i) Genesis or any Person
in the Genesis Group has (individually or in the aggregate) a direct or
indirect interest in such Aircraft Assets or in any securities representing the
residual or equity interest in such Aircraft Assets, and (ii) such
Aircraft Assets are to be managed pursuant to a servicing agreement or other
arrangement other than this Agreement, (x) on a basis substantially the
same as the basis upon which the Servicer provides the Services pursuant to
this Agreement (including for the fees provided for herein to be paid to the
Servicer and in accordance with the Standard of Care and the Conflicts Standard
and subject to the Standard of Liability and Article XI) and
(y) otherwise on such commercially reasonable terms as shall be
agreed.
(l) Notwithstanding
any provision to the contrary in this Agreement, GE Capital or any Affiliate of
GE Capital may, in its sole discretion, at any time and from time to time enter
into and effectuate, directly or indirectly, public or private financing
transactions with respect to Aircraft other than the Aircraft
Assets.
(m) The
Servicer shall indemnify and hold harmless Genesis, and its trustees, officers
and employees from and against any and all Losses that may be imposed on,
incurred by or asserted against Genesis or any such other Person insofar as any
such Loss arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Servicer
Information (as
9
defined
below) contained in any final or preliminary Prospectus or in any amendment
thereof or supplement thereto or in any other document filed with the United
States Securities and Exchange Commission or (ii) the omission or alleged
omission to state in the Servicer Information included in any final or
preliminary Prospectus a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that
the Servicer shall not be liable to Genesis or any other Person under the
indemnity set forth in this Section 2.03(m) (x) unless the Servicer
shall have consented in writing to the text of the Servicer Information in such
final or preliminary Prospectus and (y) if the relevant Loss results from
an untrue statement or omission contained in a preliminary Prospectus that was
delivered to a person that was sold a security described in such preliminary
Prospectus and if the Servicer shall have provided to Genesis prior to the
investment decision of the applicable buyer asserting such loss information
correcting such untrue statement or omission and Genesis shall have failed to
deliver or cause to be delivered such corrected information to such person
containing such corrected information. “Servicer
Information”
shall mean the information set forth in the sections of the Final Prospectus
captioned [WGM to insert] and the comparable sections (or comparable disclosure
in comparable portions thereof) contained in any other preliminary or final
Prospectus. In connection with any Offering, upon the request and at the
expense of Genesis, the Servicer shall make a good faith effort to obtain from
one of its regular outside legal counsel, selected by the Servicer, a customary
securities law disclosure letter related solely to the Servicer Information
included in the relevant Prospectus and addressed to the underwriters or
initial purchasers in respect of the securities being offered under such
Prospectus (such underwriters and initial purchasers not, however, constituting
third party beneficiaries of this Agreement).
Section
2.04. Compliance
with Applicable Laws and GE Policies. (a)
Notwithstanding anything to the contrary in this Agreement, the Servicer shall
not be obligated to take or refrain from taking any action at any time that the
Servicer believes, in good faith but sole discretion, is reasonably likely to
(i) violate any Applicable Law with respect to the Servicer or its
Affiliates or any GE Policy or (ii) lead to an investigation by any
Governmental Authority, directly or indirectly, of or relating to the Servicer,
any of its Affiliates or the Services. “GE
Policy”
means each of the established written policies of GE applicable to GE and its
controlled affiliates related to business practices with respect to legal,
ethical and social matters, which policies are currently embodied in the
pamphlet The
Spirit & The Letter, a copy
of which has been provided to Genesis, as the same may be amended and in effect
from time to time. The Servicer shall provide Genesis with a copy of all
amendments and updates to The
Spirit & The Letter.
(b) If
pursuant to paragraph (a) above, the Servicer shall have determined not to
take any action with respect to any transaction or potential transaction
(whether or not any such transaction or a similar transaction has previously
been entered into) relating to any MSA Aircraft Asset and as a consequence
thereof any Person within the Genesis Group shall be denied the opportunity to
participate in any transaction or potential transaction in which it would
otherwise be able to participate in accordance with Applicable Law, then,
notwithstanding the provisions of Section 2.01, any such Person within the
Genesis Group may enter into, or engage another Person to arrange on its
behalf, such transaction or potential transaction with respect to such MSA
Aircraft Asset; provided,
however, that
such Person within the Genesis Group may not enter into any such transaction or
potential transaction if at or about the same time a substantially similar
transaction (with at least as favorable or the same economic terms) could be
arranged by the Servicer with respect to such MSA Aircraft Asset in a manner
that is not reasonably likely to violate GE Policy or lead to an investigation
by any Governmental Authority, directly or indirectly, of or relating to the
Servicer, any of its Affiliates or the Services; provided further,
however, that
(i) the MSA Aircraft Asset that is the subject of such transaction or
potential transaction or the subject of a resignation or removal as provided in
Section 3.02(d) (a “Former
Aircraft Asset”)
shall cease to be a MSA Aircraft Asset (including for the purposes of
calculating the Servicing Fees) on the date that such transaction or potential
transaction is entered into, (ii) from and after such date (unless and
until such
10
Former
Aircraft Asset becomes a MSA Aircraft Asset pursuant to Section 6.07) no
further Services shall be provided with respect to such Former Aircraft Asset
and (iii) the Servicer shall not have any obligation or liability with
respect to such Former Aircraft Asset or such transaction or potential
transaction.
(c) Notwithstanding
anything to the contrary set forth in paragraph (b) above, no Person
within the Genesis Group shall be entitled to enter into, or engage any other
Person to arrange on its behalf, any transaction or potential transaction with
respect to any MSA Aircraft Asset if the Servicer shall have made a
determination regarding that a party to such transaction or potential
transaction is an OFAC Designated Person or that transaction or potential
transaction pursuant to paragraph (a) above because it reasonably believed
that such transaction or potential transaction was reasonably likely to violate
the United States Foreign Corrupt Practices Act (or any similar or successor
statute), any of the Anti Terrorism Laws or any similar or successor statutes
or orders applicable to entities organized under the laws of the United States
(or any state or political subdivision thereof) or applicable to any Person
within the Genesis Group or otherwise applicable to such transaction or
potential transaction.
Section
2.05. Limitations.
(a) Notwithstanding any other provision of this Agreement which could be
construed to the contrary, neither the Servicer nor any of its Affiliates shall
assume any Indebtedness of any Person within the Genesis Group nor shall any
provision of this Agreement or any other Operative Agreement be construed so as
to imply that the parties intended any such assumption.
(b) In
addition to Section 2.04, the Servicer shall not, and shall not be
obligated to, act in a manner inconsistent with the rights, obligations or
undertakings of the “Lessor” under any Lease or of the
“seller” under a sale contract or any other Person party to any other
contract for the benefit of any Person in the Genesis Group or otherwise in any
manner that is illegal or prohibited by Applicable Law or any applicable
contract.
(c) Notwithstanding
any other provision of this Agreement (but without limiting its obligation to
provide Genesis with certain offers of aircraft for sale, and certain
information related thereto, as and to the extent provided in the Business
Opportunities Agreement) the Servicer shall not be obligated either initially
or on a continuing basis to provide any Person within the Genesis Group or any
of its Representatives any confidential or proprietary information regarding
the Servicer’s or any of its Affiliates’ business or the business or
finances of any Person, other than information regarding any Person within the
Genesis Group, whose assets it manages from time to time.
(d) The
Servicer shall not be liable or accountable for (i) the failure by a
Lessee, any buyer or any other Person to perform any of its obligations under
any Lease, sale contract or any other contract including the payment of amounts
payable under any Lease or any other contract or (ii) the accuracy or
completeness of any notices, reports or other communications (whether written
or oral) made by any Lessee, any buyer or any Person other than the Servicer in
or concerning any Lease or any other contract or any document in connection
therewith and shall be entitled to rely upon all such notices, reports and
communications except to the extent that the Servicer has actual notice of any
matter to the contrary.
(e) The
Servicer may rely on any Adviser, Broker, law firm or other professional
adviser appointed by the Servicer or Genesis and shall not be liable for any
claim by any Person within the Genesis Group or any other Person to the extent
that it was acting in good faith upon the advice of such Adviser, Broker, law
firm or other professional adviser.
(f) The
relationship between the Servicer and Genesis is an agency relationship,
however, except in relation to any money erroneously received by the Servicer
or any of its Affiliates into any of the Servicer’s or any of its
Affiliates’ bank accounts on behalf of any Person within the
Genesis
11
Group,
which the Servicer will hold in trust for such Person and deposit into the
Collection Account as soon as reasonably practicable, neither the Servicer nor
any of its Representatives shall be under any fiduciary duty or other implied
obligation or duty to any Person within the Genesis Group or to any Affiliate
of any such Person or any holder of any equity or debt security issued by or
lender to any Person within the Genesis Group, any Lessee, the Administrative
Agent, or any other Person arising out of this Agreement; it being agreed that
the rights and obligations of the parties hereto shall only be those expressly
provided for in this Agreement.
(g) Without
prejudice to the Standard of Care, the Servicer shall not be imputed with the
knowledge of any of its employees other than its directors, officers and those
employees involved in the performance of the Services relevant to such
knowledge responsible for the day-to-day administration of this Agreement. The
Servicer shall be deemed to have actual notice of any matter only upon the
receipt of written notice describing any such matter in reasonable detail or to
the extent that one of the foregoing Persons has actual knowledge of any such
matter or which one of such Persons ought to have known if the Servicer had
acted in accordance with the Standard of Care.
(h) The
Servicer shall not be obligated to assume, or engage in activities which could
reasonably be expected to subject the Servicer to, any liability as a related
company or shadow director of any Person within the Genesis Group or under any
similar legal concept. Genesis and each other party hereto understands,
acknowledges and agrees that the intent of the parties hereunder is that the
Servicer will not be subject to any obligations or liabilities whatsoever other
than as and to the extent that any obligations or liabilities arise pursuant to
the express terms of this Agreement.
ARTICLE
III
Standard
of Care; Conflicts of Interest; Standard of Liability
Section
3.01. Standard
of Care. The
Servicer shall use reasonable care and diligence at all times in the
performance of the Services (the “Standard
of Care”).
Section
3.02. Conflicts
of Interest.
(a) Genesis and each other party hereto acknowledges and agrees that
(i) in addition to managing the Aircraft Assets under this Agreement, the
Servicer may manage, and shall be entitled to manage, from time to time the
separate assets and businesses of (r) Pegasus Aviation Finance Company and
its Affiliates, (s) Export Development Canada, (t) GFL and its
Affiliates, (u) GE Capital and its Affiliates, (v) Commercial
Aircraft Leasing Ltd. and its Affiliates, (w) Lease Investment Flight
Trust and its Affiliates, (x) Airplanes U.S. Trust and Airplanes Limited
and their respective Affiliates, (y) Aircraft Finance Trust and its
Affiliates and (z) other third parties (the assets of the parties
described in clauses (r), (s), (t), (u), (v), (w), (x), (y) and (z) are
collectively hereinafter referred to as the “Other
Assets”);
(ii) in the course of conducting such activities, the Servicer may from
time to time have conflicts of interest in performing its duties on behalf of
the various entities to whom it provides management services and with respect
to the various assets in respect of which it provides management services; and
(iii) the board of directors of Genesis have approved the transactions
contemplated by this Agreement and the other Operative Agreements and desire
that such transactions be consummated and in giving such approval and the board
of directors of Genesis have expressly recognized that such conflicts of
interest may arise and that when such conflicts of interest arise the Servicer
shall perform the Services hereunder in accordance with the Standard of Care
and, to the extent applicable, the Conflicts Standard.
(b) If
conflicts of interest arise regarding the management of (i) a particular
Aircraft Asset, on the one hand, and another Aircraft Asset, on the other hand,
or (ii) any Aircraft Asset, on the one hand, and any Other Asset, on the
other hand, the Servicer shall perform the Services in good faith
12
and,
without prejudice to the generality of the foregoing, to the extent
(i) such Aircraft Assets or (ii) such Aircraft Asset and such Other
Asset are substantially similar in terms of objectively identifiable
characteristics relevant for purposes of the particular Services to be
performed, the Servicer shall not discriminate among such Aircraft Assets or
between such Aircraft Asset and such Other Asset, respectively, on an
unreasonable basis (the standard set forth in this Section 3.02(b) shall
be referred to collectively as the “Conflicts
Standard”).
(c) Notwithstanding
any provision herein to the contrary, if, in connection with the provision of
Services with respect to an Aircraft Asset or Lease, a conflict of interest
shall exist that, in the good faith opinion of the Servicer, requires an
arm’s-length negotiation between the Servicer or an Affiliate of the
Servicer, on the one hand, and any Person within the Genesis Group, on the
other hand, and the Servicer believes it would not be appropriate for the
Servicer to act on behalf of such Person within the Genesis Group in connection
with such negotiation (whether or not the Servicer shall propose to act on
behalf of itself or one of its Affiliates in connection with such negotiation),
then the Servicer shall withdraw from acting as Servicer with respect to such
Aircraft Asset or Lease in connection with the negotiation of the issue giving
rise to such conflict of interest. The Servicer shall provide written notice to
Genesis not more than ten Business Days after it has made a determination that
an arm’s-length negotiation is necessary with respect to such conflict of
interest and it would not be appropriate for the Servicer to act on behalf of
such Person within the Genesis Group in connection with such negotiation. Not
more than seven Business Days after receipt of such notice from the Servicer,
Genesis shall appoint an independent representative (which may be any Person
within the Genesis Group or the Administrative Agent, but otherwise not a
Competitor listed in clause (ii) of the definition of such term or any of
its Affiliates) (the “Independent
Representative”)
to act on behalf of such Person within the Genesis Group to which such Aircraft
Asset or Lease and conflict of interest relates. Any such Independent
Representative so appointed shall act on behalf of the relevant Person within
the Genesis Group for purposes of such negotiation relating to such Aircraft
Asset or Lease and the Servicer shall have no responsibility or liability to
any Person within the Genesis Group with respect to such negotiation relating
to such Aircraft Asset or Lease. In any event, the Servicer shall be entitled
to act on behalf of itself or its Affiliate with respect to such negotiation.
During the period of such Independent Representative’s appointment, the
Servicer shall continue to perform its ordinary functions as Servicer with
respect to such Aircraft Asset or Lease to the extent that the performance of
the Servicer does not directly or indirectly affect the negotiation of the
issue giving rise to such conflict of interest. To the extent, if any, the
Servicer cannot continue to perform any Services with respect to such Aircraft
Asset or Lease during such negotiation, such Services shall be performed by the
Independent Representative or any other designee of such Person within the
Genesis Group. Except as provided in Section 3.02(d) below, any such
Aircraft Asset or any Aircraft Assets subject to any such Lease shall continue
to be included as an Aircraft Asset for purposes of calculating the Servicing
Fees pursuant to Article IX during the appointment of an Independent
Representative and the fees, if any, of any such Independent Representative
shall be paid by Genesis.
(d) If
(i) the Servicer reasonably determines that directions given by any Person
to the Servicer in accordance with this Agreement or Services required to be
performed under this Agreement (other than any Service involving an
arm’s-length negotiation between the Servicer or an Affiliate of the
Servicer, on the one hand, and any Person within the Genesis Group, on the
other hand) would, in either case, if carried out, place the Servicer in a
conflict of interest with respect to which, in the Servicer’s good faith
opinion, the Servicer cannot continue to perform its obligations hereunder
within the requirements set forth in Section 3.02 with respect to all
Aircraft Assets or any affected Aircraft Assets, as the case may be, or
(ii) there is a conflict of interest of the type described in
Section 3.02(c) above which results in the Independent Representative
being required to perform substantially all of the Services described in
Sections 1 through 3 of Schedule 2.02(a) of this Agreement on a long-term
basis in respect of an affected Aircraft Asset, the Servicer shall give Genesis
prompt written notice thereof and thereafter the
13
Servicer
may resign as Servicer with respect to the affected Aircraft Assets or Genesis
may elect to remove the Servicer with regard to the affected Aircraft Assets as
provided in Article X, with the result that the affected Aircraft Asset
shall cease to be an Aircraft Asset hereunder.
Section
3.03. Standard
of Liability.
Notwithstanding any other provision of this Agreement which could be construed
to the contrary, the Servicer shall not be liable or accountable to any Person
including, without limitation, Genesis or any Subsidiary or Affiliate of
Genesis (other than Genesis to the extent set forth in the next following
sentence) thereof or any other Person, under any circumstances for any Losses
directly or indirectly arising out of, in connection with or related to, the
management by the Servicer of Aircraft Assets or Other Assets. The Servicer
shall not be liable or accountable to Genesis or any other Person in the
Genesis Group, or any other Person under any circumstances for, and Genesis
shall indemnify the Servicer on an After-Tax Basis in accordance with the
provisions of Article XI for, any Losses, directly or indirectly, arising
out of, in connection with or related to, the management by the Servicer of
Aircraft Assets or Other Assets, unless such Losses are finally adjudicated to
have resulted directly from (x) the Servicer’s gross negligence or
willful misconduct (including willful misconduct that constitutes fraud) in
respect of its obligation to apply the Standard of Care or the Conflicts
Standard in respect of its performance of the Services or (y) any
representation or warranty by the Servicer to such Person set forth in Sections
4.10 or 4.11 having proven to be false on the date hereof (the liability
standards set forth in this Section 3.03, the “Standard
of Liability”).
For the avoidance of doubt, but without limiting the provisions of
Section 9.07, the provisions of this Section 3.03 shall not give rise
to any obligation on the part of the Servicer to indemnify Genesis for any
Taxes. Without limiting the foregoing, the Servicer shall not be directly or
indirectly liable or accountable to Genesis or any Person in the Genesis Group
under any circumstances for any Losses directly or indirectly arising out of,
in connection with or related to, (i) the direct or indirect transfer of
any Aircraft Assets or Leases related thereto or any other assets to any Person
within the Genesis Group or outside of the Genesis Group, (ii) the
adequacy of the terms of any Lease or other contract relating to any Aircraft
Assets, (iii) the reliability or creditworthiness of any Lessee or other
party to a contract with respect to its obligations under any Lease or any
other contract relating to the Aircraft Assets, (iv) the adequacy of the
lease payments derived from the Leases related to any Aircraft Assets of values
or sales proceeds of Aircraft Assets to support various obligations of the
Persons within the Genesis Group, or to pay any dividends or make other
distributions to shareholders, (v) the adequacy of any utilization rents
or other payments or security deposits relating to the Aircraft Assets,
(vi) the terms and conditions of any securities or instruments being
offered and sold by Genesis or any of its Affiliates as of the Closing Date (or
thereafter) or pursuant to any Offering, (vii) the ability of Genesis or
any other Person to comply with the terms and conditions of such securities or
other instruments or any other agreement to which it is a party and (viii) the
structuring and implementation of any aspect of the various transactions
contemplated by any Offering, including the Final Prospectus.
Section
3.04. Waiver
of Implied Standard. Except
as expressly stated above in this Article III, ALL OTHER WARRANTIES,
CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
ARISING UNDER U.S. FEDERAL, DELAWARE, IRISH, CAYMAN ISLANDS, BERMUDAN OR OTHER
LAW IN RELATION TO THE SKILL, CARE, DILIGENCE OR OTHERWISE IN RESPECT OF ANY
SERVICE TO BE PERFORMED HEREUNDER OR TO THE QUALITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR MERCHANTABILITY OF ANY GOODS OR SERVICES ARE HEREBY
EXCLUDED AND WAIVED BY GENESIS AND EACH OTHER PERSON IN THE GENESIS GROUP, AND
THE SERVICER SHALL NOT BE LIABLE TO GENESIS OR ANY OTHER PERSON WITHIN THE
GENESIS GROUP OR ANY OTHER PERSON IN CONTRACT, TORT OR OTHERWISE UNDER U.S.
FEDERAL, DELAWARE, IRISH, CAYMAN ISLANDS, BERMUDAN OR OTHER LAW FOR ANY LOSS,
DAMAGE, EXPENSE OR INJURY OF ANY KIND WHATSOEVER, CONSEQUENTIAL OR OTHERWISE,
ARISING OUT OF OR IN CONNECTION WITH EITHER
14
THE
SERVICES TO BE SUPPLIED PURSUANT TO THIS AGREEMENT OR ANY GOODS TO BE PROVIDED
OR SOLD IN CONJUNCTION WITH SUCH SERVICES OR ANY DEFECT IN EITHER SUCH GOODS OR
SERVICES OR FROM ANY OTHER CAUSE, WHETHER OR NOT ANY SUCH MATTER AMOUNTS TO A
FUNDAMENTAL BREACH OF A FUNDAMENTAL TERM OF THIS AGREEMENT. Nothing in this
Article III should be taken as in any way limiting or excluding any
liability which the Servicer may have to Genesis under Section 2 of the
Irish Liability for Defective Products Act, 1991.
THE
CONTRACTUAL RIGHTS, IF ANY, WHICH THE GENESIS GROUP ENJOYS BY VIRTUE OF
SECTIONS 12, 13, 14 AND 15 OF THE SALE OF GOODS ACT, 1893 (AS AMENDED) AND
SECTION 39 OF THE SALE OF GOODS AND SUPPLY OF SERVICES ACT, 1980 ARE IN NO WAY
PREJUDICED BY ANYTHING CONTAINED IN THIS AGREEMENT SAVE TO THE EXTENT PERMITTED
BY LAW.
ARTICLE
IV
Representations
and Warranties
Genesis
represents and warrants to, and agrees with, the Servicer as
follows:
Section
4.01. Aircraft
Assets.
Schedule 4.01 contains a true and complete list of all Aircraft Assets
constituting MSA Aircraft Assets as of the Closing Date and each Person within
the Genesis Group, if any, that owns such MSA Aircraft Assets as of the Closing
Date (which Schedule, along with Schedules 4.02 and 4.03 shall be updated,
represented and warranted to by Genesis upon any Aircraft or Additional
Aircraft becoming a MSA Aircraft Asset). Except as otherwise set forth therein,
on the Delivery of each MSA Aircraft Asset listed in Schedule 4.01, each
Person within the Genesis Group listed as an owner of a MSA Aircraft Asset on
such Schedule will have such title to such MSA Aircraft Asset as was conveyed
to such Person on its Delivery, free and clear of all Liens created by or
through such Person.
Section
4.02. Aircraft
Assets Related Documents.
(a) The Servicer shall not be required to perform any service provided for
in or in connection with any Aircraft Assets Related Documents not in its
possession (all such Aircraft Assets Related Documents listed in
Schedule 4.02 being in its possession) or delivered to it, and, to the
extent that the failure to provide such service results in any Losses to the
Servicer, Genesis shall indemnify the Servicer for such Losses on an After-Tax
Basis, in accordance with the provisions of Article XI.
(b) Each
Aircraft Assets Related Document is a legal, valid and binding agreement of the
Person within the Genesis Group that is a party thereto (including by way of
assignment or novation) and is enforceable against such Person within the
Genesis Group that is a party thereto in accordance with its terms. No Person
within the Genesis Group has modified, amended or waived any provision of or
terminated any MSA Aircraft Assets Related Document referred to in
Schedule 4.02 except as disclosed therein.
Section
4.03. Accounts
and Cash Flow.
Schedule 4.03 sets forth a true and complete list of all bank or other
similar accounts and any other accounts relating to the MSA Aircraft Assets,
including wire transfer instructions, with respect to which any Person within
the Genesis Group, the Security Trustee, the Administrative Agent or any other
agent of any of the foregoing has authority. Genesis shall provide the Servicer
in reasonable detail with a written description of all material arrangements
and procedures relating to the flow of cash related to the MSA Aircraft Assets,
including wire transfer instructions.
15
Section
4.04. Organization
and Standing.
(a) Genesis
is a limited liability company duly created under the laws of Bermuda, and each
other Person within the Genesis Group is a corporation duly incorporated, a
trust duly created or a limited liability company duly formed and validly
existing and, if relevant, in good standing under the laws of the jurisdiction
in which it is legally incorporated, created or formed, respectively, and
possesses all franchises, licenses, permits, authorizations and approvals
necessary to enable it to use its corporate or trust name and to own, lease or
otherwise hold its properties and assets and to carry on its business as
presently conducted and as proposed to be conducted except for such franchises,
licenses, permits, authorizations and approvals the failure of which to obtain
could not, individually or in the aggregate, have a Material Adverse Effect on
the Persons within the Genesis Group, taken as a whole, or on the Servicer.
Each of Genesis and each other Person within the Genesis Group is in compliance
in all material respects with all terms and conditions of such franchises,
licenses, permits, authorizations and approvals. Schedule 4.04(a) sets
forth a true and complete list of each Person within the Genesis Group and the
jurisdiction in which each such Person within the Genesis Group is legally
organized.
(b) Each of
Genesis and each other Person within the Genesis Group is duly qualified to do
business as a foreign corporation in each jurisdiction in which the nature of
its business or the ownership, leasing or holding of its properties or assets
requires qualification except for such jurisdictions where the failure to be so
qualified could not, individually or in the aggregate, have a Material Adverse
Effect on the Persons within the Genesis Group, taken as a whole, or on the
Servicer.
Section
4.05. Authority.
(a) Each of
Genesis and each other Person within the Genesis Group which is a party to an
Operative Agreement has all requisite power and authority to execute each
Operative Agreement to which it is or will be a party and to consummate the
transactions and to perform its obligations contemplated thereby. All corporate
acts and other proceedings required to be taken by each Person within the
Genesis Group to authorize the execution, delivery and performance of each
Operative Agreement to which it is or will be a party and the consummation of
the transactions and the performance of its obligations contemplated thereby
have been or on or before the date of entering into the relevant Operative
Agreements will have been duly and properly taken.
(b) Each of
the Operative Agreements to which any Person within the Genesis Group is or
will be a party has been or will be duly and validly executed and delivered by
such Person, as applicable, and each such Operative Agreement is or upon such
execution and delivery will be a legal, valid and binding obligation of such
Person, as applicable, enforceable against it in accordance with its
terms.
Section
4.06. No
Conflicts.
Neither the execution and delivery of any Operative Agreement to which any
Person within the Genesis Group is a party nor the consummation of the
transactions contemplated thereby nor performance by any Person within the
Genesis Group of any of its obligations thereunder will (i) violate any
provision of the constituent documents of any such Person within the Genesis
Group, (ii) violate any order, writ, injunction, judgment or decree
applicable to any Person within the Genesis Group or any of their respective
properties or assets, (iii) violate in any material respect any Applicable
Law or (iv) result in any conflict with, breach of or default (or give
rise to any right of termination, cancellation or acceleration) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
warrant or other similar instrument or any license, permit, material agreement
or other material obligation to which any Person within the Genesis Group is a
party or by which any Person within the Genesis Group or any of their
respective properties or assets may be bound. No action, consent or approval
by, or filing with, any Governmental Authority or any other regulatory or self
regulatory body, or any other Person, is required in connection with the
execution, delivery or
16
performance
by any Person within the Genesis Group of the Operative Agreements to which it
is a party or the consummation by any Person within the Genesis Group of the
transactions contemplated thereby.
Section
4.07. Compliance
with Applicable Laws. Each
of Genesis and each other Person within the Genesis Group is in compliance in
all material respects with all Applicable Laws and any filing requirements
relating thereto.
Section
4.08. Litigation;
Decrees. (a)
Other than in the case of subclause (i) as may exist with respect to the
Original Aircraft on the Closing Date, or MSA Aircraft Assets which in good
faith are believed by Genesis to be fully covered by insurance, there are no
claims, actions, suits, arbitrations or other proceedings or investigations
(i) pending or, to the best knowledge of each of Genesis and each other
Person within the Genesis Group, threatened, by or against or affecting Genesis
or any other Person within the Genesis Group, which in any case involves a
potential loss exceeding $1,000,000 and (ii) pending, or to the best
knowledge of each of Genesis and each other Person within the Genesis Group,
threatened, by or against or affecting Genesis or any other Person within the
Genesis Group, related to the transactions contemplated by the Operative
Agreements.
(b) Each of
Genesis and each other Person within the Genesis Group is in compliance in all
material respects with each outstanding judgment, order or decree (other than
as may exist with respect to the Aircraft Assets) of any Governmental Authority
or arbitrator applicable to Genesis or any other Person within the Genesis
Group, as the case may be, and no such judgment, order or decree has or could
have a Material Adverse Effect on Genesis or any other Person within the
Genesis Group, or on the Servicer.
Section
4.09. Appointments. (a)
Each MSA Person within the Genesis Group has appointed Genesis, and Genesis has
accepted such appointment, to act as representative of each such Person with
respect to any matter in respect of which Genesis or any other MSA Person
within the Genesis Group is required or permitted to take any action pursuant
to the terms of this Agreement.
(b) Genesis
has appointed the Administrative Agent to act on its behalf and on behalf of
each of its Subsidiaries pursuant to the terms of the Administrative Agency
Agreement and Genesis has appointed the Administrative Agent, on a revocable
basis, to act on its behalf in connection with any action required or permitted
to be taken by Genesis on its own behalf or on behalf of any other Person
within the Genesis Group pursuant to the terms of this Agreement in the case of
the Administrative Agent.
The
Servicer represents and warrants to Genesis as follows:
Section
4.10. Authority.
(a) The
Servicer is a limited liability company duly created under the laws of Ireland,
and, if relevant, in good standing under the laws of Ireland, and possesses all
franchises, licenses, permits, authorizations and approvals necessary under the
laws of Ireland to enable it to use its corporate name and to own, lease or
otherwise hold its properties and assets and to carry on its business as
presently conducted and as proposed to be conducted except for such franchises,
licenses, permits, authorizations and approvals the failure of which to obtain
could not, individually or in the aggregate, have a Material Adverse Effect on
the Persons within the GFL Group, taken as a whole, or on the Servicer. The
Servicer has all requisite power and authority to execute each Operative
Agreement to which it is or will be a party and to consummate the transactions
and to perform its obligations contemplated thereby. All corporate acts and
other proceedings required to be taken by the Servicer to authorize the
execution, delivery and performance of each Operative Agreement to which it is
or will be a party and the consummation of the transactions and the performance
of its obligations contemplated
17
thereby
have been or on or before the date of entering into the relevant Operative
Agreements will have been duly and properly taken.
(b) Each of
the Operative Agreements to which the Servicer is or will be a party has been
or will be duly and validly executed and delivered by the Servicer, as
applicable, and each such Operative Agreement is or upon such execution and
delivery will be a legal, valid and binding obligation of the Servicer,
enforceable against it in accordance with its terms.
Section
4.11. No
Conflicts.
Neither the execution and delivery of any Operative Agreement to which the
Servicer is a party nor the consummation of the transactions contemplated
thereby nor performance by the Servicer of any of its obligations thereunder
will (i) violate any provision of the constituent documents of the
Servicer, (ii) violate any order, writ, injunction, judgment or decree
applicable to the Servicer or any of its properties or assets,
(iii) violate in any material respect any Applicable Law or
(iv) result in any conflict with, breach of or default (or give rise to
any right of termination, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, warrant
or other similar instrument or any license, permit, material agreement or other
material obligation to which the Servicer is a party or by which the Servicer
or any of its properties or assets may be bound. No action, consent or approval
by, or filing with, any Governmental Authority or any other regulatory or
self-regulatory body, or any other Person, is required in connection with the
execution, delivery or performance by the Servicer of the Operative Agreements
to which it is a party or the consummation by the Servicer of the transactions
contemplated thereby.
Section
4.12. Compliance
with Applicable Laws of Ireland. The
Servicer is in compliance in all material respects with all Applicable Laws of
Ireland and any filing requirements in Ireland relating thereto necessary to
perform its obligations under this Agreement.
Section
4.13. Litigation;
Decrees. (a)
There are no claims, actions, suits, arbitrations or other proceedings or
investigations pending, or to the best knowledge of the Servicer, threatened,
by or against or affecting the Servicer related to the transactions
contemplated by this Agreement.
(b) The
Servicer is in compliance in all material respects with each judgment, order or
decree (other than may exist with respect to the Aircraft Assets) of any
Governmental Authority or arbitrator applicable to the Servicer, and no such
judgment, order or decree has or could have a Material Adverse Effect on
Genesis or any Person within the Genesis Group, or on the
Servicer.
ARTICLE
V
Servicer
Undertakings
Section
5.01. Access. The
Servicer at such times as Genesis may reasonably request shall grant, and shall
cause any Servicer Delegate to grant, to the Persons within the Genesis Group
and their agents (including the Administrative Agent and auditors), to the
extent party to confidentiality agreements acceptable to the Servicer, access
to the documents and other records generated by the Servicer (and in its
possession) as part of its performance of the Services (exclusive of internal
correspondence, approval materials, internal evaluations and similar documents
or other records developed by the Servicer or any of its Affiliates for their
own use) or by a Lessee and delivered to the Servicer related to the Aircraft
Assets (copies of which Genesis shall (at its expense) be entitled to take), to
enable the Persons within the Genesis Group to monitor the performance by the
Servicer under this Agreement or to otherwise discharge their respective
obligations under Applicable Law (including applicable securities laws). Upon
reasonable prior written notice and at reasonable times (in any event not more
than an aggregate, with respect to the Genesis Group taken as a whole (but
exclusive of GFL), of four (4) times per Year), the
18
Servicer
shall make one or more (such number to be determined by the Servicer in good
faith but sole discretion) members of its management available to attend
(including by telephone) meetings of the board of directors of Genesis. In
addition, the Servicer will make one or more members of its management
available to participate in additional meetings of such board of directors
either, in the Servicer’s sole discretion, by participating in person or
by teleconference. Any out-of-pocket expenses incurred by the Servicer in
connection with any such attendance shall be reimbursed by
Genesis.
Section
5.02. Compliance
with Law. The
Servicer shall, in connection with the performance of the Services, comply in
all material respects with all laws, rules and regulations applicable to the
Servicer.
Section
5.03. Commingling. The
Servicer shall not commingle, with its own funds, any funds of any Person
within the Genesis Group from time to time in its possession.
Section
5.04. Restrictions
on Exercise of Certain Rights.
Subject to the enforcement of its rights under any Financing Agreement, the
Servicer shall not take any steps for the purpose of procuring the appointment
of an administrative receiver or the making of any administrative order or for
instituting any bankruptcy, reorganization, arrangement, insolvency, winding
up, liquidation, composition or any similar proceeding under the laws of any
jurisdiction with respect to any Person within the Genesis Group.
Section
5.05. Coordination
with Genesis Group. The
Servicer shall designate an individual who shall be an employee of the Servicer
and who shall be primarily responsible for coordinating with Genesis and any
other MSA Person regarding the Services, and the Servicer may from time to time
change such designation by providing notice to Genesis of such
change.
Section
5.06. Corporate
Formalities. During
the term of this Agreement, the Servicer will observe all corporate formalities
necessary to remain a legal entity separate and distinct from, and independent
of, each member of the Genesis Group and will maintain its assets, liabilities,
funds, records, books and accounts separate and distinct from those of each
member of the Genesis Group.
ARTICLE
VI
Undertakings
of Genesis
Section
6.01. Cooperation.
Genesis shall, and shall cause each other MSA Person and their respective
agents (including the Administrative Agent) to, at all times cooperate with the
Servicer to enable the Servicer to provide the Services, including providing
the Servicer with all powers of attorney as may be reasonably necessary or
appropriate for the Servicer to perform the Services.
Section
6.02. No
Representation with Respect to Third Parties.
Genesis agrees that as between the Servicer, on the one hand, and each of
Genesis and the other Person within the Genesis Group on the other hand, no
representation is made as to the financial condition and affairs of any Lessee
of, or purchaser of, any Aircraft Asset or any vendor or supplier utilized by
or any other Person party to a contract with the Servicer or any Person within
the Genesis Group in connection with Servicer’s performance of the
Services.
Section
6.03. Related
Document Amendments.
Genesis shall not take, and shall not permit any other MSA Person to take, any
action that would increase in any respect the scope, nature or level of the
Services to be provided under this Agreement without the Servicer’s
express prior written consent, including by entering into, amending, modifying
or supplementing any Aircraft Assets Related Document (it being understood that
(i) the Servicer shall have no liability to any Person directly or
indirectly arising
19
out of,
in connection with or related to, the Servicer’s failure to perform such
increased Service prior to any such amendment, modification or supplement being
consented to in writing by the Servicer and (ii) no MSA Person shall be
permitted to engage another Person to perform the affected Service without the
prior written consent of the Servicer).
Section
6.04. Exclusivity. Except
as otherwise expressly provided in Sections 2.04(b), 3.02(c) and 10.04 of this
Agreement, Genesis shall not, and shall not permit any other MSA Person or any
agent of any Person thereof (including the Administrative Agent) to, enter
into, or cause or permit any Person (other than the Servicer or any Person
acting for or on its behalf) to enter into on its behalf, (a) any
transaction for the lease or sale of any Aircraft Asset in respect of which the
Servicer is at such time performing Services or (b) any agreement for the
performance by any Person other than the Servicer of some or all of the
Services, in the case of (a) and (b) without the prior written
consent of the Servicer.
Section
6.05. Communications.
Genesis shall, and shall cause each other MSA Person and the Administrative
Agent to, forward promptly to the Servicer a copy (or, if such communication is
oral and from a Lessee in respect of an MSA Aircraft Asset or MSA Aircraft
Asset purchaser, notify the Servicer by prompt oral or written notice and, if
oral notice, confirmed in writing upon request) of any written communication
received from any Person (including any Person under any Aircraft Assets
Related Document) in relation to any MSA Aircraft Asset or oral communication
received from a Lessee in respect of an MSA Aircraft Asset or MSA Aircraft
Asset purchaser in relation to any MSA Aircraft Asset.
Section
6.06. Ratification.
Genesis hereby ratifies and confirms and agrees to ratify and confirm (and
shall cause each other MSA Person to do the same) (and shall furnish written
evidence thereof upon request of the Servicer) whatever the Servicer does in
accordance with this Agreement in the exercise of any of the powers or
authorities conferred upon the Servicer under the terms of this
Agreement.
Section
6.07. Additional
Aircraft Assets. If any
MSA Aircraft Asset shall become a Former Aircraft Asset pursuant to the
provisions of Section 2.04 and thereafter the condition which caused such
Former Aircraft Asset to cease to be a MSA Aircraft Asset shall no longer exist
or the transaction entered into as contemplated by
Section 2.04(b) shall terminate, then Genesis shall, and shall
require each other MSA Person, as appropriate, to, cause, as and to the extent
commercially feasible, such Former Aircraft Asset to become a MSA Aircraft
Asset and the Servicer shall accept such Aircraft Asset as a MSA Aircraft
Asset, such action to be confirmed by an exchange of correspondence to such
effect.
Section
6.08. Execution,
Amendment, Modification or Termination of Aircraft Assets Related
Documents.
(a) In connection with the acquisition of any Aircraft (other than any
Former Aircraft Asset) which becomes a MSA Aircraft Asset, no later than ten
Business Days prior to such Aircraft becoming a MSA Aircraft Asset, Genesis
shall deliver a written notice thereof to the Servicer setting forth the model
type and manufacturer’s serial number of such Aircraft and the Person in
the Genesis Group which will become the owner of such Aircraft upon its
acquisition, together with (x) a true and complete list all documents
related to such Aircraft which will become Aircraft Assets Related Documents
upon the acquisition of such Aircraft and (y) a true and complete copy of
each document which will become an Aircraft Assets Related Document upon the
acquisition of such Aircraft or, to the extent it has yet to be executed, the
most current draft of such document (with a final executed copy to be delivered
as promptly as practicable thereafter). Genesis will be deemed to represent and
warrant to, and agree with, the Servicer on the date such Aircraft becomes a
MSA Aircraft Asset that (i) the Person in the Genesis Group listed as the
owner of such Aircraft in the written notice provided by Genesis will have such
title to such Aircraft as was conveyed to such Person on its acquisition free
and clear of all Liens created by or through such Person, (ii) each
Aircraft Assets Related Document related to such Aircraft is a legal, valid and
binding agreement of the Person in the Genesis Group that is a party thereto
(including by way of
20
assignment
or novation) and is enforceable against such Person in the Genesis Group that
is a party thereto in accordance with its terms and (iii) no Person in the
Genesis Group has modified, amended or waived any provision of or terminated
any Aircraft Assets Related Document referred to in such written notice
provided by Genesis except as disclosed therein. The Servicer shall not be
required to perform any services provided for in or in connection with any
Aircraft Assets Related Documents not delivered to it, and, to the extent that
the failure to provide such service results in any Losses to the Servicer,
Genesis shall indemnify the Servicer for such Losses on an After-Tax Basis, in
accordance with the provisions of Article XI.
(b) No later
than five Business Days after the date that (i) any agreement, instrument
or other document becomes an Aircraft Assets Related Document (other than as
contemplated in Section 6.08(a)) or (ii) any Aircraft Assets Related
Document shall have been amended, modified or terminated, Genesis shall deliver
written notice thereof to the Servicer together with (x) in the case of
any newly executed Aircraft Assets Related Document, a true and complete copy
of such Aircraft Assets Related Document, a list of all Aircraft Assets to
which it relates and a description, in reasonable detail, of the relevance of
such Aircraft Assets Related Document to such assets or (y) in the case of
any amendment, modification or termination, a true and complete copy of any
related agreement, instrument or other document; provided,
however, that
such notice or such document shall not be required to be delivered, but shall
be delivered if the Servicer does not have possession of such notice or
document, delivery is so requested by the Servicer and Genesis has possession
of such notice or document, if the Servicer was substantially involved in the
preparation and execution of such new, amended, modified or terminated
agreement, instrument or other document.
Section
6.09. Access
to Genesis Group Information. At all
such times as the Servicer may reasonably request, Genesis shall cause each MSA
Person and the Administrative Agent to grant, access to the Servicer and its
agents to the books of account, documents and other records of such MSA Person
(including “read only” and reporting access to the management
information systems used by such MSA Persons), and to officers, directors (or
trustees, as applicable) and employees of each MSA Person, or any such agent
for the purposes of the Servicer’s performance of its obligations in
respect of Aircraft Assets under this Agreement; provided,
however, that
MSA Persons shall have no obligation to provide information that does not
relate to an MSA Aircraft Asset and is confidential or
proprietary.
Section
6.10. Genesis
Group Accounts and Cash Arrangements.
(a) Genesis shall not, and shall not permit any other MSA Person or any
agent thereof to, establish any new bank or similar account relating to the MSA
Aircraft Assets or close any bank or similar account relating to the Aircraft
Assets other than in accordance with the terms of a Financing Agreement or the
Administrative Agency Agreement.
(b) No MSA
Person shall modify any arrangement with respect to any bank or similar account
or the flow of cash in connection with the MSA Aircraft Assets other than in
accordance with the terms of a Financing Agreement or the Administrative Agency
Agreement.
Section
6.11. [Intentionally
Left Blank].
Section
6.12. Further
Assurances.
Genesis agrees and shall cause each other MSA Person and their respective
agents (including the Administrative Agent) to agree, that, at any time and
from time to time, upon the written request of the Servicer, it will execute
and deliver such further documents and do such further acts and things, after a
reasonable period for review thereof, as the Servicer may reasonably request in
order to effect the purposes of this Agreement.
21
Section
6.13. Guarantees.
Genesis represents, warrants and agrees that it has full power and authority to
bind each MSA Person to this Agreement and that each of such Persons is bound
by this Agreement and will perform its obligations hereunder. In furtherance of
the foregoing, but not in limitation thereof, Genesis agrees that it shall
cause each other MSA Person with respect to which the Servicer so requests to
execute and deliver an accession agreement, in form or substance reasonably
acceptable to the parties hereto, pursuant to which such MSA Person becomes a
party hereto or to execute and deliver a Genesis Group Guarantee in favor of
the Servicer in the form attached hereto as Appendix B.
Section
6.14. Transfers
of Funds.
Genesis agrees and shall cause each other MSA Person and their respective
agents (including the Administrative Agent), to cooperate with the Servicer to
the extent necessary to cause funds to be transferred into or out of the
various Bank Accounts in order for the various payments from Lessees to be
applied, or to Lessees to be made, on a basis consistent with the instructions
of such Lessees, subject in each case to the terms of the Leases and the rights
and obligations of the lessors thereunder.
Section
6.15. Transfer
of GFL; Directors.
Genesis shall not, and shall not permit any Person in the Genesis Group to, (a)
transfer any interest in any Securitization Vehicle, including GFL and WHCO, or
any of its other Subsidiaries, to any Person that is a Competitor or that does
not agree in a manner reasonably acceptable to the Servicer to be bound by the
provisions of this Agreement applicable thereto or by the provisions of the
WHCO Servicing Agreement or the applicable Securitization Servicing Agreement,
as the case may be, or (b) take any action, including the voting of shares, or
fail to take any action, so as to cause or permit a Representative of a
Competitor to be a Representative of any Person in the Genesis Group. Genesis
further agrees to cause each Person in the Genesis Group other than Genesis,
but including WHCO, GFL and each other Securitization Vehicle, to effect
corporate governance procedures that provide that on the occurrence of
Competitor Control with respect to Genesis, the board of directors, members,
trustees or other similar Persons, and not Genesis or any other Person in the
Genesis Group, shall maintain the persons representing Genesis prior to such
Competitor Control in such position until he or she needs to be replaced and
shall elect as any replacement thereon or thereof a person selected by any such
board of directors, members, trustees or other similar Persons (which
replacement shall not be a Competitor). Without limiting any other right or
remedy of the Servicer for breach of the foregoing provisions of this Section
6.15 or of any other provision hereof, Genesis agrees that the Servicer cannot
be adequately compensated by damages for a breach of the provisions of this
Section 6.15 and that the Servicer shall be entitled to a court order of
specific performance requiring Genesis to comply with each and every provision
in this Section 6.15 and/or an injunction prohibiting Genesis from violating
any provision of this Section 6.15, as the case may be, in addition to any and
all other remedies, at law or in equity, to which Servicer may be entitled in
connection with a breach of any provision of this Section.
ARTICLE
VII
Genesis
Group Responsibility
Section
7.01. Genesis
Group Responsibility.
Notwithstanding the appointment of the Servicer to perform the Services and the
related delegation of authority and responsibility to the Servicer pursuant to
this Agreement, each of Genesis and each other MSA Person shall continue to
have and exercise through its board of directors or trustees, as the case may
be, as applicable, real and effective central control and management of all
matters related to its ongoing business, operations, assets and liabilities,
subject to matters that are expressly the responsibility of the Servicer in
accordance with the terms of this Agreement, and each of Genesis and each other
MSA Person shall at all times conduct its separate ongoing business in such a
manner that the same shall at all times be readily identifiable from the
separate
22
business
of the Servicer. Matters with respect to which responsibility is not being
delegated to the Servicer shall include but are not limited to the matters set
forth in Schedule 7.01. Without limiting the generality of the foregoing,
each of Genesis and each other Person within the Genesis Group expressly
covenants and agrees as follows:
(a) it will
observe all corporate formalities necessary to remain a legal entity separate
and distinct from, and independent of, the Servicer, and any of its
Affiliates;
(b) it will
maintain its assets and liabilities separate and distinct from those of the
Servicer;
(c) it will
maintain records, books, accounts, and minutes separate from those of the
Servicer;
(d) it will
pay its obligations in the ordinary course of business as a legal entity
separate from the Servicer;
(e) it will
keep its funds separate and distinct from any funds of the Servicer, and it
will receive, deposit, withdraw and disburse such funds separately from any
funds of the Servicer;
(f) it will
conduct its business in its own name, and not in the name of the
Servicer;
(g) it will
not agree to pay or become liable for any debt of the Servicer, other than to
make payments in the form of indemnity as required by the express terms of this
Agreement;
(h) it will
not hold out that it is a division of the Servicer, or that the Servicer is a
division of it;
(i) it will
not induce any third party to rely on the creditworthiness of the Servicer in
order that such third party will be induced to contract with it;
(j) it will
not enter into any transactions between it and the Servicer that are more
favorable to either party than transactions that the parties would have been
able to enter into at such time on an arm’s-length basis with a
non-affiliated third party, other than any agreements in effect on the date
hereof (it being understood that the parties hereto do not intend by this
covenant to ratify any self-dealing transactions);
(k) it will
observe all corporate or other procedures required under Applicable Law and
under its constitutive documents; and
(l) it will
observe all corporate formalities necessary to keep its business separate and
readily identifiable from, and independent of, each other Person within the GFL
Group, including keeping the funds, assets and liabilities of each such Person
separate and distinct from those of each other Person within the GFL Group and
by maintaining separate records, books, accounts and minutes for each Person
within the GFL Group.
Section
7.02. Performance
with Respect to Aircraft Assets.
Genesis has directed the Servicer to, and the Servicer will, perform the
Services in a manner that is intended to be consistent with maximizing the cash
flows derived from the leases relating to the MSA Aircraft Assets over time,
subject to the constraints imposed by the Financing Agreement and this
Agreement and by seeking to achieve a balanced and diversified portfolio
(including with respect to lessees, geography and lease term lengths),
in
23
all
cases taking into account the then-existing and anticipated market conditions
affecting the operating lease of used aircraft and the commercial aviation
industry generally. Genesis understands and acknowledges the inherent
uncertainty in determining market conditions at any point in time as well as
the inherent limitations in anticipating market conditions from time to time.
It is expressly understood that this Section 7.02 does not impose any
higher or different standard of care or liability than is set forth in
Article III.
Section
7.03. Lease
Operating Budget; Aircraft Asset Expenses Budget.
(a) Genesis shall adopt with respect to each year during the term of this
Agreement during which there are MSA Aircraft Assets, in accordance with
Sections 7.03(b), (c) and (d), (i) a single lease operating budget with
respect to all MSA Aircraft Assets (the “Lease
Operating Budget”)
and (ii) a single budget with respect to the MSA Aircraft Asset expenses
related to all MSA Aircraft Assets (the “Aircraft
Asset Expenses Budget”).
(b) In
respect of each Year during the term of this Agreement during which there are
MSA Aircraft Assets, it is understood that the Administrative Agent shall
prepare on behalf of the Genesis Group, and not later than the October 31
immediately preceding the commencement of such Year deliver to the Servicer
(other than with respect to the fiscal year commencing January 1, 2007, if
applicable), a proposed Lease Operating Budget and a proposed Aircraft Asset
Expenses Budget for such Year together with reasonably detailed information
regarding the assumptions underlying such proposed budgets.
(c) In
connection with the preparation of such proposed Lease Operating Budget and
Aircraft Asset Expenses Budget, the Servicer shall provide the Administrative
Agent, not later than the September 30 immediately preceding the commencement
of such Year (other than with respect to the fiscal year commencing with the
acquisition of the initial MSA Aircraft Assets, information in a form to be
agreed from time to time relating to (i) MSA Aircraft Assets lease rates,
Utilization Rent, Aircraft redelivery payments, and Deposits (including
interest, if any, thereon), (ii) MSA Aircraft Assets downtime,
(iii) direct technical expenditures (including any costs to be
capitalized) relating to the MSA Aircraft Assets, (iv) indirect costs
relating to insurance, legal, consulting and other similar expenses and
(v) such other MSA Aircraft Assets expense related information as may be
reasonably required to prepare such budgets, in each case including the
assumptions relating thereto. The Servicer shall only be obligated to provide
expense-related information to the Administrative Agent pursuant to this
Section 7.03(c) to the extent that such information relates to the
Services performed by the Servicer hereunder. Genesis shall ensure that the
Administrative Agent is instructed to prepare each such proposed Lease
Operating Budget and proposed Aircraft Asset Expenses Budget on a timely basis
and that the Administrative Agent cooperates therewith.
(d) After
the delivery of such proposed Lease Operating Budget and Aircraft Asset
Expenses Budget as described in Sections 7.03(b) and (c), the Servicer and the
Administrative Agent shall review and discuss such proposed Lease Operating
Budget and Aircraft Asset Expenses Budget and shall make such adjustments
thereto as they shall deem appropriate, and the revised proposed Lease
Operating Budget and proposed Aircraft Asset Expenses Budget in respect of any
Year shall then be submitted no later than the December 1 preceding such Year
to Genesis for its consideration and approval (other than with respect to the
fiscal year commencing with the acquisition of the initial MSA Aircraft
Assets). The approved Lease Operating Budget and Aircraft Asset Expenses Budget
for any Year, as each may be amended or modified from time to time, shall
hereinafter be referred to as the “Approved
Budget”.
Each Approved Budget shall be consistent with, and not in any manner reduce,
limit or circumscribe, the delegation to the Servicer pursuant to this
Agreement (including pursuant to Section 7.04) of a practical and workable
level of autonomy, authority and responsibility with respect to the performance
of the Services.
24
(e) If
Genesis does not adopt any Approved Budget for any Year as contemplated by
Section 7.03(d) or if, after an Approved Budget is adopted, Genesis shall
determine that any Changed Circumstances have occurred and are continuing, then
Genesis shall instruct the Servicer and the Administrative Agent, on behalf of
the Genesis Group, to review and, to the extent possible, revise the Lease
Operating Budget and Aircraft Asset Expenses Budget in such a manner as to
adequately address the concerns of Genesis and/or such Changed Circumstances
(it being understood that, subject to the last sentence of
Section 7.03(d), Genesis may instruct the Servicer not to proceed with a
Lease Operating Budget and an Aircraft Asset Expenses Budget approved by
Genesis if Genesis determines that any proposed revisions do not adequately
address the concerns of Genesis and/or such Changed
Circumstances).
(f) Notwithstanding
any other provision hereof, the Servicer shall have no liability for the
failure of the Approved Budget for any Year to be achieved.
Section
7.04. Transaction
Approval Requirements.
(a) The Servicer shall not do any of the following without the express
prior written approval of Genesis:
(i) Except
as otherwise required in accordance with the terms of any Lease, sell (or enter
into any agreement to sell) or otherwise dispose of any MSA Aircraft Asset
(excluding any sale or exchange of any Engine, parts or components thereof or
aircraft or engine spare parts or ancillary equipment or devices furnished
therewith) forming part of the MSA Aircraft Assets; provided,
however, that
the Servicer may transfer title or another interest in an MSA Aircraft Asset,
or cause them to be subject to a lease, (x) to or in favor of a trust or
an entity for the purpose of registering the Aircraft under the laws of an
applicable jurisdiction or for tax or other regulatory purposes so long as a
MSA Person retains the beneficial or economic ownership of the Aircraft,
(y) from such trust or entity to a MSA Person or (z) within or among
Genesis and any MSA Person without limitation, or in any case as required in
accordance with the terms of any Lease in effect on the date of acquisition
thereof.
(ii) Enter
into any new Lease (or any renewal or extension of an existing Lease, unless
any such Lease being renewed or extended had previously been approved pursuant
to this Section 7.04(a) or if any such Lease contains an extension option
and such option is being exercised in accordance with the terms of such Lease)
of MSA Aircraft Assets if the Lease shall not comply with all the applicable
provisions of Financing Agreements applicable to the leasing of such MSA
Aircraft Assets as set forth in Section 2.1 of Schedule 2.02(a) or if
the Lease grants a purchase option in favor of the Lessee (it being agreed that
a right of first refusal or right of first offer is not a purchase option for
purposes hereof).
(iii) Terminate
any Lease or Leases to any single Lessee with respect to any MSA Aircraft
Assets then having an aggregate depreciated net book value on the books of the
applicable MSA Person(s) in excess of $100,000,000 unless such Lease or Leases
is substituted or replaced by another substantially similar Lease or Leases
with respect to such Aircraft Assets.
(iv) Unless
provided for in the then current Approved Budget (including the provisions of
Section 7.03(e)), to make any capital expenditure for the purpose of
effecting any optional improvement or modification of any MSA Aircraft Asset,
including any optional conversion thereof from passenger to a freighter or
mixed use aircraft, except for capital expenditures made in the ordinary course
of business in connection with the sale or lease of a MSA Aircraft Asset, or
enter into any contract for maintenance of any MSA Aircraft Asset if the costs
to be incurred thereunder by the applicable MSA Person within the Genesis Group
exceed the greater of (1) the estimated aggregate cost of the heaviest or
most extensive maintenance
25
check
for the airframe and a total refurbishment and full restoration shop visit of
the engines for Aircraft Assets of the type in question, in each case based on
then prevailing industry rates in the United States or Europe, and (2) the
amount of the available utilization rent or other payments or other collateral
under the applicable Lease.
(v) Issue
any Guarantee on behalf of, or otherwise pledge the credit of (other than with
respect to trade payables in the ordinary course of the Genesis Group’s
business), any MSA Person, except for guarantees by Genesis or any other MSA
Person of the obligations of any other MSA Person (including in connection with
a Lease or the sale of a MSA Aircraft Asset), and, so long as the out-of-pocket
cash payment or cash collateral deposit in respect thereof does not exceed
$3,000,000 in any individual case (and not in the aggregate), any Lien or
indebtedness created in favor of the issuer of a surety bond, letter of credit
or similar instrument to be obtained by or for the benefit of any MSA Person in
connection with the detention or repossession of a MSA Aircraft Asset or
enforcement action under a Lease or removal of a Lien.
(vi) Except
as specifically contemplated by Schedule 2.02(a), on behalf of any MSA
Person, enter into, amend or grant a waiver with respect to, any transaction
with GE Capital or any of its Affiliates (including GE and its Affiliates),
including for the acquisition, sale or lease of any MSA Aircraft Assets from or
to, or the obtaining or provision of services by, any such Person (except for
the acquisition, sale, exchange or lease of or services in respect of any
Engine, parts or components thereof or aircraft or engine spare parts,
components or ancillary equipment or devices furnished therewith).
(vii) Incur on
behalf of any other MSA Person any liability (actual or contingent) or cause
any such liability to be incurred, except for a liability (A) contemplated
in the then current Approved Budget, (B) arising out of, in connection
with or related to a transaction of a type which is otherwise subject to
approval under this Section 7.04 and is in fact so approved or, due to the
existence of an exception, limitation or other carve out contained therein or
in any definition therein, is not subject to approval under the relevant
provision of this Section 7.04, (C) incurred in the ordinary course
of the Genesis Group’s business, including, but not limited to,
liabilities related to such matters specified in Schedule 7.04 so long as
no individual (and not aggregate) net out-of-pocket cash expenditure exceeds
$3,000,000, or (D) incurred pursuant to a Lease or sale of an Aircraft
Asset, in entering into the Lease or sale contract or performing any
obligations as lessor or seller thereunder; provided,
however, that
the exception contained in clause (C) above is not intended to override
any other restriction contained in this Agreement (other than this
clause (vii)) relating to the incurrence of any liability referred to in
such clause (C).
(viii) Enter
into on behalf of Genesis or any other MSA Person, any order or commitment to
acquire, or acquire on behalf of the Genesis Group, aircraft or, except as
otherwise provided in Section 4(e) of Schedule 2.02(a), so long as no
individual (and not aggregate) net (after credit for any exchanges, replacement
or similar items) out-of-pocket cash purchase price exceeds $3,000,000,
aircraft engines, except in the case of aircraft engines (A) in accordance
with any Lease or for the benefit of a Lessee pursuant to a Lease or
(B) to acquire a replacement engine for an Aircraft so long as the same is
provided for in the then current Approved Budget;
provided,
however, that,
before the Servicer shall effect (or cause to be effected) any optional
improvement or modification of any MSA Aircraft Asset not permitted pursuant to
any of the foregoing clauses (i) through (viii), or effect any optional
conversion of any MSA Aircraft Asset from a passenger aircraft to a freighter
or mixed-use aircraft that is not expressly provided for in the Approval Budget
or
26
purchase
or otherwise acquire any Engines or parts not permitted pursuant to any of the
foregoing clauses (i) through (viii), the Servicer shall request that
Genesis deliver to the Servicer a certificate certifying that such action will
not violate any agreement to which such MSA Person is a party or by which it is
bound, such certificate to be delivered to the Servicer within seven Business
Days after such request therefor, and the Servicer shall not undertake such
action pending receipt of such certificate.
(b) Any
transaction entered into by the Servicer on behalf of any MSA Person (other
than with other MSA Persons), including with GE or any of its Affiliates, shall
be on an arm’s-length basis and on fair market value terms, unless
otherwise agreed by Genesis on behalf of any such MSA Person.
(c) The
transaction approval requirements (the “Transaction
Approval Requirements”)
set forth in this Section 7.04 may only be amended by mutual agreement of
the parties, and shall not in any event be amended to reduce, or circumscribe
the delegation to the Servicer of, the level of autonomy, authority and
responsibility contemplated by the Transaction Approval Requirements with
respect to the performance of the Services. Any rejection by Genesis of any
proposed transaction submitted to it by the Servicer pursuant to the
Transaction Approval Requirements shall only be applicable to such portions of
any such proposed transaction as are specifically required to be approved as
set forth in Section 7.04(a).
(d) Genesis
shall provide the Servicer with a response confirming its approval or rejection
of any proposed transaction submitted to it by the Servicer as promptly as
practicable following its receipt of a proposal from the Servicer and in any
event not more than three Business Days after receipt of such a proposal. In
the event that the board of directors of Genesis, a duly authorized committee
thereof or the Administrative Agent fails to approve of any transaction with
respect to which an approval is required pursuant to the Transaction Approval
Requirements and in respect of which the Servicer has submitted a reasonably
detailed written proposal, Genesis shall provide a reasonably detailed written
explanation for any such rejection to the Servicer simultaneously with
notifying the Servicer of such rejection. The Servicer is not required to take
any action with respect to any transaction for which approval was sought
pending receipt of such explanation.
Section
7.05. Approved
Budgets and Transaction Approval Requirements. Except
as set forth in Section 7.04(a), no transaction entered into by the
Servicer on behalf of any MSA Person in connection with the performance by the
Servicer of the Services shall require the approval of any MSA Person or its
board of directors or trustees, as applicable, or any committees thereof, or
the Administrative Agent; provided,
however, that
nothing set forth in this Article VII shall prohibit the Servicer from
seeking any approval or direction from Genesis with respect to any matter
related to the Services or the Aircraft Assets to the extent that the Servicer
believes to be appropriate and, pending the Servicer’s receipt of any such
approval or direction, the Servicer may refrain from taking any action with
respect to the matter for which the Servicer has sought approval or
direction.
ARTICLE
VIII
Effectiveness
Section
8.01. Effectiveness. The
effectiveness of this Agreement and all obligations of the parties hereunder
shall be conditioned upon satisfaction (or waiver by the appropriate party) of
the conditions set forth in Schedule 8.01.
ARTICLE
IX
27
Servicing
Fees; Expenses; Taxes;
Priority
of Servicing Fees
Section
9.01. Servicing
Fees.
(a) In consideration of the Servicer’s performance of the Services,
Genesis agrees to pay to the Servicer servicing fees consisting of (i) the
monthly base fee set forth in Section 9.02 (“Monthly
Base Fee”),
(ii) the rent fees set forth in Section 9.03 (“Rent
Fees”),
and (iii) the sales fee set forth in Section 9.04 (“Sales
Fee”).
(b) Genesis
agrees to provide the Servicer (with a copy to the Administrative Agent) with
any information in a timely manner that the Servicer may reasonably request to
enable the Servicer to determine the timing and amount of any payment that the
Servicer is entitled to receive pursuant to this Agreement.
Section
9.02. Monthly
Base Fee. A
Monthly Base Fee equal to 0.01% of the purchase price of each MSA Aircraft
Asset , as of the date it becomes a MSA Aircraft Asset, shall be payable by
Genesis to the Servicer in arrears on each Payment Date during the Term of this
Agreement on which there are any MSA Aircraft Assets subject
hereto.
Section
9.03. Rent
Fees.
(a) Rent Fees shall consist of the Rent Payable Fee and the Rent Collected
Fee. The Rent Fees shall be calculated by the Servicer and payable by Genesis
as follows:
(i) A Rent
Payable Fee shall be payable by Genesis to the Servicer in arrears for each
period commencing on the date of the acquisition of the initial MSA Aircraft
Asset hereunder (or, thereafter, the fourth Business Day prior to the most
recent Calculation Date) and ending on the fourth Business Day prior to the
next succeeding Calculation Date during the term of this Agreement on which
there are any MSA Aircraft Assets subject hereto (each such period, a
“Fee
Period”),
such payment to be made no later than the Payment Date immediately following
the end of each such Fee Period.
The
“Rent
Payable Fee”
in respect of any Fee Period shall equal one percent (1.00%) of the aggregate
amount of the Rents due from each Lessee in respect of MSA Aircraft Assets
attributable to such Fee Period so long as such MSA Aircraft Asset remains
subject to this Agreement, or portion of such Fee Period in which the relevant
Aircraft constitutes a MSA Aircraft Asset; provided,
however, that,
in the event of an early termination of a Lease relating to any MSA Aircraft
Asset for any reason (other than by reason of the occurrence of an event of
loss or exercise of a purchase option), the Rents which would have been payable
pursuant to such Lease but for such early termination will be included in this
calculation of the Rent Payable Fee until the earlier of (a) the date on
which Rents shall become payable in respect of such MSA Aircraft Asset pursuant
to another Lease (the Rents of which shall be included in this calculation of
the Rent Payable Fee) and (b) the day that numerically corresponds to the
first date by which such MSA Aircraft Asset and related Aircraft Documents
shall have been physically repossessed by the Servicer following such early
termination in (or, if no such day exists, the last day of) the calendar month
that is the third month after the month in which such date occurs.
(ii) A Rent
Collected Fee shall be payable by Genesis to the Servicer in arrears for each
Fee Period, such payment to be made no later than the Payment Date immediately
following the end of each such Fee Period.
The
“Rent
Collected Fee”
in respect of any Fee Period shall equal one percent (1.00%) of the aggregate
amount of the Rents actually paid by each Lessee in respect of MSA Aircraft
Assets so long as such MSA Aircraft Asset remains subject to this Agreement
and, if any Lessee fails to pay any Rent when due, amounts applied towards such
payment during such Fee Period or portion of such Fee Period in
28
which
the relevant Aircraft constitutes a MSA Aircraft Asset so long as such MSA
Aircraft Asset remains subject to this Agreement; provided,
however, that
if any collateral security, including any security deposit, is applied to the
payment of Rent, then, for purposes of calculating the Rent Collected Fee, the
amounts so applied shall not be included as Rent at the time of such
application but shall be so included at such time as any Person within the
Genesis Group shall receive substitute collateral security or a payment
(whether in the form of Rent or otherwise) which restores, in whole or in part,
such collateral security.
(b) Not less
than four Business Days prior to each Payment Date immediately following the
end of each Fee Period, the Servicer shall deliver a written notice to Genesis
specifying the amount of the Rent Payable Fee and the amount of the Rent
Collected Fee payable in respect of such Fee Period.
Section
9.04. Sales
Fee.
(a) A Sales Fee shall be payable with respect to each Fee Period by
Genesis to the Servicer, such payment to be made not later than the Payment
Date immediately following the end of each such Fee Period.
(b) The
“Sales
Fee”
in respect of any Fee Period shall equal one and one-half percent (1.50%) of
the Aggregate Gross Proceeds in respect of Dispositions of MSA Aircraft Assets
during such Fee Period. “Aggregate
Gross Proceeds”
for any Fee Period means the sum of the Gross Proceeds for each Disposition of
an MSA Aircraft Asset that is an MSA Aircraft Asset during such Fee Period.
“Disposition”
means, with respect to any MSA Aircraft Asset, the sale (including pursuant to
the exercise of a purchase option), total loss or other event or circumstances
under which such MSA Aircraft Asset ceases to be an MSA Aircraft Asset.
“Gross
Proceeds”
shall be an amount equal to the gross proceeds (including the fair market value
of any non-cash consideration, but excluding any cash added to the purchase
price of the applicable Aircraft Asset in respect of any Utilization Rent or
Deposit) received by any Person within the Genesis Group in respect of any
Disposition of an Aircraft Asset.
(c) Not less
than four Business Days prior to each Payment Date immediately following the
end of each Fee Period, the Servicer shall deliver a written notice to Genesis
specifying the amount of the Sales Fee payable in respect of such Fee
Period.
Section
9.05. [Intentionally
Left Blank].
Section
9.06. Expenses.
(a) The Servicer shall be responsible for, and shall not be entitled to
reimbursement for, the Servicer’s overhead expenses set forth in
Schedule 9.06(a) (“Overhead
Expenses”).
(b) (i) Genesis
shall be responsible for all costs and expenses relating to or associated with
the MSA Aircraft Assets other than Overhead Expenses, including those costs and
expenses set forth in Schedule 9.06(b) (“Aircraft
Asset Expenses”).
Nothing contained in this Section 9.06 shall be deemed to impose on the
Servicer any obligation to advance any of its own funds for any MSA Aircraft
Asset Expenses.
(ii) If, in
connection with the performance of Services, and without limiting the Genesis
Group’s liability to pay for any goods and services as and when invoiced
by the Servicer that are not required to be so paid in advance by the Servicer,
the Servicer, on behalf of any Person within the Genesis Group, proposes to
provide goods and services, or arrange for the provision of goods or services,
from any vendor, supplier, service provider or other Person (A) for a purchase
price in excess of U.S. $1,000,000 (or the equivalent thereof in the currency
in which such obligation is payable) or (B) at any time when a default in
respect of the payment of any amount due under this Agreement shall have
occurred and be continuing, the Servicer may require Genesis to pay for such
goods or services in
29
advance
or otherwise make the funds for payment of such goods or services available to
the satisfaction of the Servicer. If such advance payment is not made or such
funds are not otherwise made available, notwithstanding any other provision in
this Agreement, the Servicer shall be relieved of its obligation to provide or
arrange for the provision of such goods or services in respect of the MSA
Aircraft Assets for which such goods or services were to be provided but shall
otherwise continue to manage such MSA Aircraft Assets as provided in this
Agreement and shall continue to be entitled to receive the fees specified in
Sections 9.01, 9.02, 9.03 and 9.04 in respect of such MSA Aircraft Assets. In
such case, Genesis may provide or arrange for the provision of such goods or
services in respect of such MSA Aircraft Assets.
Section
9.07. Taxes.
(a) Genesis agrees to pay on an After-Tax Basis and to indemnify and hold
harmless the Indemnified Parties on an After-Tax Basis from and against
(i) all liability for Taxes of or imposed on the Taxpayers that are
imposed on, or asserted to be payable by, any Indemnified Party as a result of
the structuring and implementation of any aspect of the various transactions
contemplated by the Final Prospectus or otherwise, regardless of whether such
Taxes are attributable to a taxable period ending before, on or after the
Closing Date, other than any such Taxes imposed on or payable by a Taxpayer in
its capacity as a withholding agent in respect of amounts payable pursuant to
this Agreement to an Indemnified Party and any Taxes imposed on or payable by a
Taxpayer that, prior to the Closing Date, was an Affiliate of the Servicer to
the extent attributable to the period on or prior to the Closing Date, and
(ii) any liability for out-of-pocket fees, costs and expenses (including
reasonable attorneys’ fees) arising out of or incident to any Tax
indemnified hereunder. If any Taxes for which Genesis is to indemnify any
Indemnified Party pursuant to the immediately preceding sentence are payable
after the Closing Date, Genesis shall pay or cause to be paid to such
Indemnified Party an amount calculated on an After-Tax Basis equal to the
amount of such Taxes no later than the later of (x) five Business Days
after such Indemnified Party gives notice to Genesis that such amount is due
and specifying the date such Taxes are due and payable (the “Due
Date”)
and (y) one Business Day before the Due Date. Amounts described in
clause (ii) shall be reimbursed on an After-Tax Basis not less frequently
than quarterly. Any payment required to be made hereunder and not made at the
time specified in the preceding two sentences shall bear interest at the
Stipulated Interest Rate or such higher rate actually payable by such
Indemnified Party on the delayed payment of the Taxes being indemnified,
calculated from the date such payment was required to be made hereunder to the
date such payment is actually received by the Indemnified Party.
(b) All
amounts payable by or on behalf of Genesis pursuant to this Agreement shall be
payable exclusive of any applicable value added tax, which value added tax, if
payable, shall also be payable, upon production of a valid value added tax
invoice by the Servicer. All amounts payable to Genesis by an Indemnified Party
pursuant to this Agreement shall be inclusive of value added tax save to the
extent such Indemnified Party is entitled to recover (by way of repayment,
credit or set off) the whole or any part of such value added tax. Where it is
so entitled, at the request of Genesis, value added tax shall be payable in
addition thereto on production of a valid value added tax invoice but payment
of the value added tax element shall not fall due until the latest possible
date before the date on which such Indemnified Party shall receive such
repayment, credit or set off (and such Indemnified Party shall be obligated to
use reasonable endeavors (taking into account its overall tax position) to
obtain such repayment, credit or set off as soon as possible); provided,
however, that,
to the extent such payment of the value added tax element shall fall due prior
to such date of receipt pursuant to Applicable Law, Genesis shall compensate
such Indemnified Party at the Prime Rate for any resulting loss of the time
value of funds. The Servicer shall act on Genesis’s behalf in processing
any refund of value added tax and the Servicer and Genesis shall cooperate in
good faith to file an application for relief from value added taxes on VAT form
60A as soon as practicable after the date of this Agreement.
(c) Genesis
shall pay and indemnify and hold the Indemnified Parties harmless, on an
After-Tax Basis, from all Taxes imposed, levied or assessed against or upon the
Person in the Genesis
30
Group or
any Indemnified Parties by any Governmental Authority upon or with respect to
any of the Operative Agreements or any payment pursuant thereto or resulting
from the matters or activities described therein, other than (except to the
extent required to make any payment on an After-Tax Basis) (i) payroll,
social security and employment Taxes of such Indemnified Party and any Taxes
that are based on or measured by the net income, net receipts, net profits, net
worth, franchise or conduct of business of such Indemnified Party,
(ii) any Taxes payable by such Indemnified Party pursuant to the
controlled foreign corporation provisions or the passive foreign investment
company provisions of the U.S. Internal Revenue Code of 1986, as amended (the
“Code”),
or any successor provision, (iii) any Taxes payable by an Indemnified
Party (other than stamp, documentary or other similar taxes), which Taxes are
imposed by Ireland or the United States of America or any political subdivision
of either, or any other jurisdiction, to the extent such Taxes would not have
been imposed but for any connection of the Indemnified Party or any Affiliate
thereof with the jurisdiction imposing such Taxes (other than any such
connection that results from activities of such Indemnified Party or any
Affiliate which activities are located in such jurisdiction by reason of the
location of (x) a specific lessee or sublessee of any Person within the
Genesis Group (or, with respect to any Original Aircraft, the owner),
(y) an Aircraft or any part thereof or (z) any other Person (other
than any Indemnified Party) with whom any Person within the Genesis Group (or,
with respect to any Original Aircraft, the owner) may be engaging, or
contemplating engaging, in a commercial relationship), (iv) Taxes
attributable to events or conditions arising after the termination or
expiration of this Agreement and (v) Taxes imposed as a result of the
gross negligence or willful misconduct of any Indemnified Party. All Taxes with
respect to which Genesis has an indemnification responsibility under this
Section 9.07 shall be paid not later than the date such Taxes shall be due
unless and to the extent, in the case of Taxes that do not burden any of the
assets or property of any Indemnified Party and are assessed solely upon a
Person or Persons within the Genesis Group, such Person or Persons within the
Genesis Group shall be contesting such Taxes in good faith by appropriate
proceedings, in which case such Taxes, or so much thereof as are being
contested and are unpaid, shall be paid promptly upon a final determination
that such Taxes, are due and payable. In the event any Taxes with respect to
which Genesis has an indemnification responsibility under this
Section 9.07 are levied on any Indemnified Party, or any Indemnified Party
is required by law or otherwise to pay any such Taxes in the first instance or
as a result of a Person or Persons within the Genesis Group’s failure to
comply with, or nonperformance in relation to, any Applicable Law or
regulations governing the payment thereof by such Person or Persons within the
Genesis Group, Genesis shall pay to such Indemnified Party the full amount
thereof on an After-Tax Basis within five Business Days after receipt from such
Indemnified Party of any written request for such payment but not later than
the due date for such Taxes. Any payment required to be made hereunder and not
made at the time specified under this Section 9.07 shall bear interest at
the Stipulated Interest Rate or such higher rate actually paid by such
Indemnified Party on the delayed payment of the Taxes being indemnified,
calculated from the date such payment was required to be made hereunder to the
date such payment is actually received by such Indemnified Party.
(d) If any
claim or demand is asserted in writing with respect to a Tax indemnified
hereunder, such Indemnified Party shall in good faith notify Genesis of such
claim or demand within 10 days of receipt thereof; provided,
however, that
failure to give such notification shall not affect such Indemnified
Party’s entitlement to indemnification hereunder unless such failure shall
materially and adversely prejudice the ability of Genesis to defend itself or
any Indemnified Party against any such action, claim, demand, proceeding or
suit. If Genesis shall so request within 30 days after receipt of such notice,
such Indemnified Party shall in good faith at Genesis’s expense contest
the imposition of such Tax; provided,
however, that
such Indemnified Party may in its sole discretion select any applicable forum
for such contest and determine whether any such contest shall be by
(i) resisting payment of such Tax, (ii) paying such Tax under protest
or (iii) paying such Tax and seeking a refund thereof; provided further,
however, that
at such Indemnified Party’s option such contest shall be conducted by
Genesis in the name of such Indemnified Party (subject to the preceding
proviso) (it being understood that Genesis shall not be permitted to contest
the imposition of such Tax in the name of such Indemnified Party
31
without
the prior written consent of such Indemnified Party). In no event shall such
Indemnified Party be required or Genesis be permitted by such Indemnified Party
to contest the imposition of any Tax for which Genesis is obligated to
indemnify pursuant to this Section 9.07 unless (i) such Indemnified
Party shall have received from Genesis (A) an indemnity reasonably satisfactory
to such Indemnified Party for any liability, expense or loss arising out of or
relating to such contest and (B) an opinion of tax counsel to Genesis
furnished at the expense of Genesis to the effect that a reasonable basis
exists for contesting such claim; (ii) Genesis shall have agreed to pay
such Indemnified Party on demand all reasonable costs and expenses that such
Indemnified Party may incur in connection with contesting such claim (including
all costs, expenses, losses, reasonable legal and accounting fees,
disbursements, penalties, interest and additions to tax); (iii) Genesis
shall be in compliance with all of its payment obligations under this Agreement
and shall have acknowledged, in a manner reasonably satisfactory to the
Servicer, its liability hereunder to indemnify the Indemnified Parties in
respect of such Tax; (iv) such Indemnified Party shall have determined
that the action to be taken will not result in a material risk of sale,
forfeiture or loss of, or the creation of any Lien (except if Genesis shall
have adequately bonded such Lien or otherwise made provision to protect the
interests of such Indemnified Party in a manner reasonably satisfactory to such
Indemnified Party) on any property or rights of such Indemnified Party, or any
portion thereof or any interest therein; and (v) if such contest shall be
conducted in a manner requiring the payment of the claim, shall have paid the
amount required. Notwithstanding anything contained in this Section 9.07,
an Indemnified Party shall not be required nor shall Genesis be permitted by
such Indemnified Party to contest or continue to contest in the name of an
Indemnified Party the imposition of any Tax for which Genesis is obligated to
indemnify pursuant to this Section 9.07 if such an Indemnified Party shall
waive in writing its rights to indemnification under this Section 9.07
with respect to such Tax.
(e) If any
Indemnified Party shall obtain a refund of all or any part of any Tax paid by
Genesis such Indemnified Party shall, provided no Event of Default, or default
by Genesis in the payment of any amount due hereunder, has occurred and is
continuing, pay Genesis an amount equal to the amount of such refund, including
interest received or credited and attributable thereto, plus any net Tax
benefit (or minus any net Tax detriment) realized by such Indemnified Party as
a result of a payment made pursuant to this sentence or as a result of the
receipt or accrual of such refund, including interest received or credited and
attributable thereto. If any Indemnified Party shall have paid Genesis any
refund of all or part of any Tax paid by Genesis and it is subsequently
determined that such Indemnified Party was not entitled to the refund, such
determination shall be treated as the imposition of a Tax for which Genesis is
obligated to indemnify such Indemnified Party pursuant to the provisions of
Section 9.07 hereof.
Section
9.08. Priority
of Payments to Servicer. Any
and all amounts due and owing to the Servicer or any of its Affiliates
(including any amounts due and owing to the Servicer or any of its Affiliates
with respect to indemnification) pursuant to this Agreement shall be general
corporate obligations of Genesis and all other MSA Persons; provided, however, that
in the event any MSA Person becomes a party to any Financing Agreement such
amounts shall be entitled to the highest level of payment and Lien priority
available under any such Financing Agreements applicable to any MSA Person,
which priority Genesis agrees not to amend or permit to be amended without the
consent of the Servicer.
32
ARTICLE
X
Term;
Right to Terminate; Resignation;
Consequences
of Expiration, Termination,
Resignation
or Removal; Certain Tax Matters; Survival
Section
10.01. Term. This
Agreement shall have a non-cancelable term commencing on the Closing Date and
expiring on ________, 2021. During the term, this Agreement shall not be
terminable by either party except as expressly provided in this Article X
or otherwise as the parties hereto may agree between themselves (with neither
party being under any obligation to negotiate in good faith or otherwise or
agree on any early termination hereof).
Section
10.02. Right
to Terminate. (a)
(i) At any time during the term of this Agreement, the Servicer shall in
accordance with Section 10.02(c) be entitled to terminate this Agreement
if:
(A) Genesis
shall fail to pay in full when due (1) any Servicing Fees within five days
after the receipt of written notice from the Servicer of such failure or
(2) any other amount payable by Genesis hereunder or under any other
Operative Agreement within ten days after the receipt of written notice from
the Servicer of such failure; or
(B) any
Person within the Genesis Group shall fail to perform or observe or shall
violate in any material respect any material term, covenant, condition or
agreement to be performed or observed by it in respect of this Agreement or any
other Operative Agreement (other than with respect to payment obligations of
Genesis referred to in clause (a)(i)(A) of this Section 10.02);
or
(C) any
material representation or warranty by any Person within the Genesis Group made
in this Agreement or any other Operative Agreement or in any report,
certificate, financial statement or other agreement, instrument or document at
any time furnished by or on behalf of any Person within the Genesis Group in
connection therewith shall prove to have been false or misleading in any
material respect when made or furnished and such representation or warranty
shall remain false and misleading in any material respect and such
misrepresentation or breach of warranty is reasonably likely to have a Material
Adverse Effect on the Servicer or a material adverse effect on the rights and
obligations of the Servicer under this Agreement (including the Servicer’s
compensation hereunder); or
(D) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking relief in respect of Genesis
or any Significant Subsidiary of Genesis or of a substantial part of the
property or assets of any of such Persons, under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other U.S. Federal or
state or non-U.S. 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 any such
Persons within the Genesis Group shall go into liquidation, suffer a receiver
or mortgagee to take possession of all or substantially all of its assets or
have an examiner appointed over it or if a petition or proceeding is presented
for any of the foregoing and not discharged within 75 days; or
(E) Genesis
or any Significant Subsidiary of Genesis shall (i) 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 non-U.S. bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to
33
contest
the filing of, any petition described in clause (D) above, (iii) file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, or (iv) make a general assignment for the benefit of
its creditors; or
(F) there
shall cease to be any Aircraft Assets owned by any Person within the Genesis
Group; or
(G) [Intentionally
Left Blank]; or
(H) any
Guarantee issued in favor of the Servicer shall cease to be a legal, valid and
binding agreement of the relevant Person within the Genesis Group, enforceable
in accordance with its terms, and such cessation is not cured or remedied
within thirty (30) days of the occurrence thereof; or
(I) Competitor
Control exists, and Genesis and the Servicer have been unable, or Genesis is
unwilling, to restructure this Agreement and the Services provided hereunder,
including the providing or use of information relating to the Aircraft Assets,
in a manner that the Servicer in good faith but sole discretion deems
acceptable.
(ii) Upon the
occurrence of an event set forth in clause (i) of this
Section 10.02(a), in addition to the right of the Servicer to terminate
this Agreement in whole pursuant to Section 10.02(a)(i), the Servicer
shall be entitled to terminate its obligations to provide the Services with
respect to one or more specific Aircraft Assets (but less than all the Aircraft
Assets) (any termination with respect to less than all the Aircraft Assets
being a “Partial
Termination”).
If, upon any such Partial Termination, the Servicer shall elect to continue to
provide Services with respect to any Aircraft Asset, the Servicer shall specify
the Aircraft Assets in respect of which it intends to continue to provide
Services in the Termination Notice with respect to the Partial Termination. All
references to the expiration or termination of this Agreement shall mean the
expiration or termination of this Agreement in whole and not to a Partial
Termination unless expressly otherwise stated.
(b) At any
time during the term of this Agreement, Genesis shall be entitled to terminate
this Agreement if:
(i) neither
GE nor GE Capital shall own directly or indirectly at least 50.01% of the
voting equity of, and economic interest in, the Servicer or any Servicer
Delegate; or
(ii) the
Servicer shall (A) fail in any material respect to perform any material
Services in accordance with the Standard of Care or the Conflicts Standard and
such failure shall have a Material Adverse Effect on the Genesis Group taken as
a whole or a Material Adverse Effect on the rights and obligations of the
Genesis Group taken as a whole under this Agreement; or (B) fail in any
material respect to perform any material Services which failure results in
liability of the Servicer under its Standard of Liability and such failure
shall have a Material Adverse Effect on the Genesis Group taken as a whole or a
Material Adverse Effect on the rights and obligations of the Genesis Group
taken as a whole under this Agreement; or
(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 GE, GE
Capital or the Servicer or any Servicer Delegate, or of a substantial part of
the property or assets of the Servicer, under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other U.S. Federal or
state or non-U.S. bankruptcy, insolvency, receivership or similar
law,
34
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
Servicer 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
(iv) GE, GE
Capital or the Servicer 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
non-U.S. bankruptcy, insolvency, receivership or similar law, (B) consent
to the institution of, or fail to contest the filing of, any petition described
in clause (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;
or
(v) [Intentionally
Left Blank]; or
(vi) following
the cessation of all dividends and other distributions to shareholders of
Genesis for a period of at least sixty (60) days, at least 15% of all Aircraft
Assets shall not be subject to Leases and each such Aircraft Asset shall have
been off-lease and reasonably available for re-lease (which, for purposes of
clarification, shall mean that such Aircraft Asset shall be in the possession
or under the unfettered control of the Servicer, together with the related
Aircraft Documents, shall be free of any legal prohibition on the re-leasing
thereof, shall be free of Liens (other than Liens, if any, created pursuant to
the Financing Agreement or created by or at the instruction of the Servicer)
and shall be in a condition reasonably acceptable to a potential lessee) during
the three-month period following the date of the last payment of dividends or
other distribution to Shareholders.
(c) (i) Either
party to this Agreement (the “Terminating
Party”)
may, at any time during the term of this Agreement, by written notice (the
“Termination
Notice”)
to the other (the “Nonterminating
Party”),
set forth its determination to terminate this Agreement pursuant to
clause (a) of this Section 10.02 (in the case of the Servicer) or
Section 10.01 or clause (b) of this Section 10.02 (in the case
of Genesis) or to provide for a Partial Termination of this Agreement pursuant
to clause (a)(ii) of this Section 10.02 (in the case of the
Servicer); provided,
however, that
failure by the Terminating Party to provide such Termination Notice shall not
affect such party’s rights under Section 10.02(a) or
Section 10.01 or Section 10.02(b), as the case may be. Any
Termination Notice shall set forth in reasonable detail the basis for such
termination.
(ii) Unless
the Termination Notice is provided by Genesis pursuant to
Section 10.02(b)(i), (b)(iii), (b)(iv), (b)(v) or (b)(vi), or by the
Servicer pursuant to Section 10.02(a)(i)(A) (after the applicable period
provided in such Section), (D), (a)(i)(E), (a)(i)(F), (a)(i)(G), (a)(i)(H), or
(a)(i)(I) (each a “Non-Curable
Termination Event”),
no later than the fifth day following the effectiveness of the Termination
Notice (the “Effectiveness
Date”),
the Nonterminating Party shall advise the Terminating Party in writing whether
the Nonterminating Party (A) intends to cure the basis for such
termination and, if so, the action it intends to take to effectuate such cure
or (B) does not intend to cure the basis for such termination;
provided,
however, that
the failure of the Nonterminating Party to deliver such notice by such day
shall be deemed to constitute notice that it does not intend to cure the basis
for termination. In the event that the Termination Notice is provided for a
Non-Curable Termination Event or the Nonterminating Party notifies (or is
deemed to have notified) the Terminating Party that the Nonterminating Party
does not intend to cure the basis for such termination, then this Agreement
shall terminate or the Partial Termination shall take effect, as the case may
be, (x) immediately in the case of a termination due to Competitor Control
where a Competitor holds control or beneficial ownership, directly
35
or
indirectly, of 50% or more of any class of securities of Genesis, (y) at
the end of the cure period in the case of a termination pursuant to
Section 10.02(a)(i)(A), and (z) in all other cases, one hundred
twenty (120) days following the effectiveness of the Termination Notice (except
that if a termination pursuant to Section 10.02(a)(i)(I) has occurred, and
a tender for the securities of Genesis occurs in connection therewith, then
this Agreement shall terminate or the Partial Termination shall take effect on
the earlier of one hundred eighty (180) days following the effectiveness of the
Termination Notice or the date such tender is consummated), or on such later
date as the Terminating Party shall have indicated in the Termination Notice to
the Nonterminating Party. Except in the case of a termination under
Section 10.02(a)(i)(A) (in which case the cure period shall consist only
of the period in such Section), in the event that the Nonterminating Party
notifies the Terminating Party by such fifth day that it intends to cure the
basis for such termination, then the Nonterminating Party shall (A) have
15 days from the Effectiveness Date to effectuate such cure to the reasonable
satisfaction of the Terminating Party or (B) if such cure cannot
reasonably be expected to be effectuated within such 15-day period and it is
not a payment default, (1) demonstrate to the reasonable satisfaction of
the Terminating Party that substantial progress is being made toward the
effectuation of such cure and (2) effectuate such cure to the reasonable
satisfaction of the Terminating Party no later than the thirtieth day following
the Effectiveness Date. Upon the failure of the Nonterminating Party to
effectuate a cure in accordance with the immediately preceding sentence, this
Agreement shall terminate or the Partial Termination shall take effect, as the
case may be, on the latest of (A) the day immediately following the expiration
of one hundred twenty (120) days after such 15- or 30-day period, or
(B) such later date as shall be indicated in the Termination
Notice.
Section
10.03. Resignation
or Removal.
(a) If the Servicer reasonably determines that (x) directions given by any
Person to the Servicer in accordance with this Agreement are or would be if
carried out or (y) Services required to be performed under this Agreement
are or would be if carried out (i) unlawful under Applicable Law,
(ii) in violation of any GE Policy, (iii) likely to lead to an
investigation by any Governmental Authority, directly or indirectly, of or
relating to the Servicer, any of its Affiliates or the Services,
(iv) directions or Services that would expose the Servicer to any
liabilities for which adequate bond or indemnity has not, in the
Servicer’s good faith opinion, been provided or (v) directions or
Services that would place the Servicer in a conflict of interest with respect
to which, in the Servicer’s good faith opinion, the Servicer cannot
continue to perform its obligations hereunder within the requirements set forth
in Article III with respect to all Aircraft Assets or any affected
Aircraft Assets, as the case may be, it may resign as the Servicer for all
purposes under this Agreement in relation to all the Aircraft Assets or, at its
election, any affected Aircraft Assets (but with respect to clause (v)
above the Servicer may resign only with respect to the affected Aircraft) for
the duration of this Agreement, such resignation to become effective on the one
hundred twentieth (120th) days after the date of the Servicer’s notice to
Genesis of such resignation (it being understood that, notwithstanding any
other provision herein to the contrary, the Servicer shall be under no
obligation to follow such directions or perform such Services pending the
effectiveness of such resignation).
(b) If
Genesis shall have received a notice from the Servicer pursuant to
Section 3.02(d) hereof to the effect that the Servicer cannot continue to
perform its obligations hereunder within the requirements set forth in
Section 3.02 with respect to all Aircraft Assets or any affected Aircraft
Assets, Genesis may remove the Servicer for all purposes under this Agreement
in relation to the affected Aircraft Assets or, in the event that the Servicer
has notified Genesis that the Servicer cannot continue to perform its
obligations with respect to all Aircraft Assets, all the Aircraft Assets for
the duration of this Agreement, such removal to become effective upon one
hundred twenty (120) days notice thereof (it being understood that,
notwithstanding any other provision herein to the contrary, the Servicer shall
be under no obligation to perform Services with respect to the affected
Aircraft Assets pending the effectiveness of such resignation).
36
(c) If any
Taxes that are based on or measured by all or a portion of the revenues, rental
income or assets of any Person within the Genesis Group (other than
(i) any Taxes payable by any such Person pursuant to the controlled
foreign corporation provisions or the passive foreign investment company
provisions of the Code or (ii) Taxes imposed as a result of the gross
negligence or willful misconduct of any such Person) shall be imposed on or
with respect to the Servicer or any Affiliate thereof, and if such Taxes are
not indemnified by Genesis then, provided that the Servicer shall have
undertaken reasonable efforts (that do not involve any material cost to the
Servicer or any Affiliate thereof) to otherwise avoid the imposition of such
Taxes, the Servicer may resign as the Servicer for all purposes under this
Agreement in relation to all the Aircraft Assets or, at its election, any
Aircraft Assets the resignation with respect to which would reduce or eliminate
such Taxes for the duration of this Agreement, such resignation to become
effective upon one hundred twenty (120) days notice thereof; provided,
however, that
pending the effectiveness of such resignation, Genesis shall be required to
post a bond, irrevocable letter of credit or other form of security reasonably
acceptable to the Servicer to be drawn upon by the Servicer in the event that
any such additional Taxes continue to be imposed on or with respect to the
Servicer or any Affiliate thereof during such pendency.
Section
10.04. Consequences
of Expiration, Termination, Resignation or Removal.
(a) Notices. (i)
Upon the expiration or termination of this Agreement in accordance with this
Article X, or upon the resignation by or removal of the Servicer with
respect to the performance of the Services for any or all of the Aircraft
Assets, the Servicer will promptly forward to Genesis any notices, reports and
communications received by it from any relevant Lessee during the one year
immediately after expiration, termination, resignation or removal.
(ii) Genesis
will notify promptly each relevant Lessee and any relevant third party (with a
copy to each Rating Agency) of the termination, resignation or removal of the
Servicer under this Agreement in relation to any of the Aircraft Assets and
will request that all such notices, reports and communications thereafter be
made or given directly to the Replacement Servicer and Genesis.
(b) Accrued
Rights. A
termination, resignation or removal in relation to any or all the Aircraft
Assets shall not affect the respective rights (including as to fees) and
liabilities of either party accrued prior to such termination in respect of any
prior breaches hereof or otherwise.
(c) [Intentionally
Left Blank].
(d) Payment
of Fees and Expenses. (i)
Upon the expiration or termination of this Agreement in accordance with this
Article X, or upon the resignation or removal of the Servicer with respect
to the performance of the Services for any Aircraft Asset, so long as the
Servicer is continuing to perform any of the Services, Genesis shall continue
to pay Servicing Fees and reimbursable Aircraft Asset Expenses to the Servicer
until the effectiveness of such resignation.
(ii) If an
Aircraft Asset is sold by any Person within the Genesis Group to a customer to
whom the Servicer had been actively engaged in marketing such Aircraft Asset
and with whom the Servicer had been engaged in substantive discussions at any
time during the three month period prior to its resignation or the termination
of this Agreement, the Servicer shall be paid Sales Fees in respect of such
Aircraft Asset as if the Servicer had arranged for the sale of such Aircraft
Asset. Following its resignation or the termination of this Agreement, the
Servicer will, upon the request of Genesis, provide Genesis with a list of
customers with respect to which the Servicer had been actively engaged in
marketing such Aircraft Asset and with which the Servicer had been engaged in
substantive discussions at any time during such three-month period. Such list
shall be treated as confidential by
37
Genesis
and shall not be disclosed to any Person or used for any purpose other than as
a basis for determining any Sales Fees payable to the Servicer pursuant to the
first sentence of this Section 10.04(d)(ii).
(e) Transition. Upon
the expiration or termination of this Agreement in accordance with this
Article X, or upon the resignation or removal of the Servicer with respect
to the performance of the Services for any Aircraft Asset, the Servicer shall
promptly return the originals (and all copies) within its possession of all
Aircraft Assets Related Documents to Genesis and shall provide Genesis with
such access to other nonconfidential, nonproprietary documentation and
information (exclusive of internal correspondence, approval materials, internal
evaluations or similar documentation or information) generated as part of the
performance of the Services to any Person within the Genesis Group (and, upon
the request by Genesis and to the extent practicable, copies thereof) within
its possession as is reasonably necessary to the conduct of the business of any
Person within the Genesis Group.
Section
10.05. Survival.
Notwithstanding any termination or the expiration of this Agreement,
(a) the obligations of Genesis under Sections 2.03, 2.04, 2.05(a),
2.05(c), 2.05(d), 2.05(f), 2.05(g), 2.05(h), 3.03, 3.04, 6.06 and 7.03(f),
Article IX, Sections 10.04 and 10.05, Article XI and Sections 13.01,
13.03 and 13.04 of this Agreement and Section 2.2(b) of
Schedule 2.02(a) to this Agreement and the Servicer’s obligations
under Section 10.04 and Article XI shall survive such termination or
expiration, as the case may be, and (b) the representations and warranties
contained in Article IV and in Section 2.02(g) shall survive and
remain in full force and effect until the third anniversary of the date on
which this Agreement shall have expired or terminated.
ARTICLE
XI
Indemnification
Section
11.01. Indemnity.
(a) Notwithstanding anything to the contrary set forth herein (other than
Section 2.03(m)) or in any other Operative Agreement, Genesis does hereby
assume liability for, and does hereby agree to indemnify and hold harmless on
an After-Tax Basis each of the Indemnified Parties from, any and all Losses
that may be imposed on, incurred by or asserted against any Indemnified Party,
directly or indirectly, arising out of, in connection with or related to
(i) the Servicer’s performance under this Agreement or from errors in
judgment or omissions by the Servicer under this Agreement; provided,
however, that
such indemnity shall not apply to the extent that such Losses are finally
adjudicated to have been directly caused by (x) the willful misconduct
(including willful misconduct that constitutes fraud) or gross negligence of
the Servicer in respect of its obligation to apply the Standard of Care or the
Conflicts Standard in respect of its performance of the Services or
(y) any representation or warranty by the Servicer set forth in
Section 4.10 or 4.11 having proven to be false on the date hereof;
(ii) any Indemnified Parties’ involvement (or alleged involvement) in
connection with the structuring or implementation of any aspect of the
transactions contemplated by the Final Prospectus; (iii) without limiting
the provisions of clause (y) above, any Aircraft Assets and
(iv) except as expressly provided to be the obligation of the Servicer in
Section 2.03(m), the offering or sale of the Notes, the securities of
Genesis or any other debt or equity securities or the obtaining of an loans by
Genesis or any of its Affiliates, or any other Offerings including any Losses
to which any Indemnified Party may become subject, under the Securities Act of
1933, the Securities Exchange Act of 1934 or other Federal or state statutory
law or regulation, at common law or otherwise, including any Loss that arises
out of or is based upon: (A) any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus or in any amendment
thereof or supplement thereto or in any other document filed with the United
States Securities and Exchange Commission, or (B) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading.
38
(b) Each
Indemnified Party agrees to give Genesis prompt notice of any action, claim,
demand, discovery of fact, proceeding or suit for which the applicable
Indemnified Party intends to assert a right to indemnification under this
Agreement; provided,
however, that
failure to give such notification shall not affect such Indemnified
Party’s entitlement to indemnification under this Section 11.01
unless and only to the extent such failure results in actual irreparable
prejudice to Genesis or any other Person within the Genesis Group.
Section
11.02. Procedures
for Defense of Claims.
(a) If a Third Party Claim is made against any Indemnified Party, the
applicable Indemnified Party shall promptly notify Genesis in writing of such
claim (which notice shall include all relevant information reasonably necessary
for Genesis to understand such claim which is in the possession or under the
control of, or which can with reasonable commercial efforts be obtained by,
such Indemnified Party at the time of such notice, subject to Applicable Laws
and confidentiality obligations), and the Servicer or Genesis(if so directed by
the applicable Indemnified Party and if so accepted by Genesis) will undertake
the defense thereof. The failure to notify Genesis promptly shall not relieve
Genesis of its obligations under this Article XI unless and only to the
extent that such failure results in actual irreparable prejudice to Genesis or
any other Person within the Genesis Group.
(b) If so
directed by the applicable Indemnified Party and if accepted by Genesis,
Genesis shall within 30 days, undertake the conduct and control, through
counsel of its own choosing (subject to the consent of the applicable
Indemnified Party, such consent not to be unreasonably withheld or delayed) and
at Genesis’s risk and expense, the good faith settlement or defense of
such claim, and the applicable Indemnified Party shall cooperate fully with
Genesis in connection therewith; provided,
however, that
(i) at all times the applicable Indemnified Party shall be entitled to
participate in such settlement or defense through counsel chosen by it, and the
fees and expenses of such counsel shall be borne by the applicable Indemnified
Party, and (ii) Genesis shall not be entitled to settle such claims unless
it shall have confirmed in writing its obligation to indemnify the applicable
Indemnified Party for the liability asserted in such claim. Genesis shall
obtain the written consent of the applicable Indemnified Party prior to ceasing
to defend, settling or otherwise disposing of such claim if as a result thereof
such Indemnified Party would become subject to injunctive, declaratory or other
equitable relief or the business of such Indemnified Party would be materially
adversely affected in any manner.
(c) So long
as Genesis is reasonably contesting any such claim in good faith, the
applicable Indemnified Party shall fully cooperate with Genesis in the defense
of such claim as is reasonably required by Genesis. Such cooperation shall
include the retention and the provision of records and information which are
reasonably relevant to such Third Party Claim and making directors, officers
and employees available on a mutually convenient basis to provide additional
information. Neither the Servicer nor any Indemnified Party shall settle or
compromise any claim without the written consent of Genesis unless the Servicer
or the applicable Indemnified Party agrees in writing to forego any and all
claims for indemnification from Genesis with respect to such
claims.
(d) If
Genesis, within 10 days after notice of any such claim, does not agree to
defend such Third Party Claim as directed by the applicable Indemnified Party,
such Indemnified Party will have the right to undertake the defense, compromise
or settlement of such Third Party Claim.
Section
11.03. Reimbursement
of Costs. The
costs and expenses, including fees and disbursements of counsel (except as
provided in clause (i) of the proviso to the first sentence of
Section 11.02(b)) and expenses of investigation, incurred by any
Indemnified Party in connection with any Third Party Claim, shall be reimbursed
on a quarterly basis by Genesis upon the submission of evidence reasonably
satisfactory to Genesis that such expenses have been incurred, without
prejudice to Genesis’s right to contest the Indemnified Party’s right
to indemnification and subject to refund in the event that Genesis is
ultimately held not to be obligated to indemnify the Indemnified
Party.
39
Section
11.04. Waiver
of Certain Claims; Special Indemnity.
Genesis does hereby (a) assume liability for and agree to indemnify and
hold harmless on an After-Tax-Basis, in accordance with the provisions of this
Article XI, each of the Indemnified Parties from any and all Losses that
may be imposed on, incurred by or asserted against any Indemnified Party
directly or indirectly arising out of, in connection with or related to any
claims of shareholders or creditors of any Person within the Genesis Group and
any claims (“Shadow
Director/Related Company Claims”)
that may be made by or on behalf of any Person against any Indemnified Party
which are based on any Indemnified Party being a shadow director of, or a
related company to, any Person within the Genesis Group under applicable Irish
law or which are based on any similar concept under any other Applicable Law;
(b) waive, and shall cause each other Person within the Genesis Group to
waive, any and all Shadow Director/Related Company Claims that may be made by
or on behalf of any Person within the Genesis Group against any Indemnified
Party, (c) agree not to xxx, and to cause each other Person within the
Genesis Group and Genesis not to xxx, upon any such Shadow Director/Related
Company Claims, and (d) agree that any amounts awarded to or received by
any Person within the Genesis Group arising out of or related to any such
Shadow Director/Related Company Claims (whether such claims were made by or on
behalf of any Person within the Genesis Group or by a third party (including
any liquidator)) shall be paid over to the applicable Indemnified
Party.
Section
11.05. Waiver
of Certain Accounting Claims; Special Indemnity.
Genesis does hereby (a) assume liability for and agree to indemnify and
hold harmless on an After-Tax-Basis, in accordance with this Article XI,
each of the Indemnified Parties from any and all Losses that may be imposed on,
incurred by or asserted against any Indemnified Party directly or indirectly
arising out of, in connection with or related to any claims of shareholders or
creditors of any Person within the Genesis Group or of any other Person arising
out of, in connection with or related to, the compliance by Genesis or any
other Person within the Genesis Group of their respective obligations,
including any of their respective reporting obligations (“Compliance
Obligations”)
to any party to any Financing Agreement applicable to any Person in the Genesis
Group, any holder of any Indebtedness or of any debt or equity securities
issued by any Person within the Genesis Group or any Governmental Authorities
and for all instructions, discretion, judgments and assumptions related to such
Compliance Obligations (collectively “Accounting
Claims”);
provided,
however, that
such indemnity shall not apply to the extent that such Losses are finally
adjudicated to have been directly caused by the willful misconduct (including
willful misconduct that constitutes fraud) or gross negligence of the Servicer
in respect of its obligation to apply the Standard of Care in respect of its
performance of such Services, waive, and shall cause each other Person within
the Genesis Group to waive, any and all Accounting Claims that may be made by
or on behalf of Genesis or any other Person within the Genesis Group or of any
holder of a beneficial interest in respect of the Genesis Group against any
Indemnified Party and (c) agree not to xxx, and to cause each other Person
within the Genesis Group not to xxx, upon any such Accounting
Claim.
Section
11.06. Continuing
Liability under Other Agreements. The
Servicer understands, acknowledges and agrees that the intent of the parties
hereunder is that any limitation on the liability of the Servicer under this
Agreement, whether under this Article XI, Article III or otherwise,
is not intended to and shall not be construed to limit the liability of any
Person selling any Aircraft Assets under the Asset Purchase Agreement or the
liability, if any, of GE Capital to the initial purchasers under a separate
Indemnification Agreement, and that any such liability under such agreement
shall not give rise to any claim for indemnification in favor of the Servicer
or any of its Affiliates under this Agreement.
40
ARTICLE
XII
Assignment
and Delegation
Section
12.01. Assignment
and Delegation.
(a) No party to this Agreement shall assign or delegate this Agreement or
all or any part of its rights or obligations hereunder to any Person without
the prior written consent of all other parties; provided,
however, that
(i) the Servicer may delegate any portion of but not all its obligations
to any Affiliate of the Servicer (a “Servicer
Delegate”);
(ii) the foregoing provisions on assignment and delegation shall not limit
the ability of the Servicer to contract with any Person, including any of its
Affiliates, for services in respect of Aircraft Assets; and (iii) Genesis
may assign its rights hereunder to a Security Trustee under Financing
Agreements and, without in any way releasing Genesis from any of its duties or
obligations hereunder, the Servicer consents to such assignment, it being
understood that neither Genesis’s assignment nor the Servicer’s
consent to such assignment will affect the Servicer’s rights and
obligations hereunder, subject the Servicer to any liability to which it would
not otherwise be subject to hereunder nor modify in any respect the contract
rights of the Servicer hereunder. In addition, as a result of such assignment
the Security Trustee and each Person entitled to any direct or indirect benefit
under Financing Agreements shall be bound by the provisions of this Agreement,
including Article 3 hereof. Any assignment or delegation pursuant to this
Section 12.01(a) shall not require any approval pursuant to
Section 7.04.
(b) Without
limiting the foregoing, any Person who shall become a successor by assignment
or otherwise of Genesis or the Servicer (or any of their respective successors)
in accordance with this Section 12.01 shall be required as a condition to
the effectiveness of any such assignment or other arrangement to become a party
to this Agreement; provided,
however, that a
Security Trustee shall not be required to become a party to this Agreement
solely by reason of the execution and delivery of the Financing
Agreements.
ARTICLE
XIII
Miscellaneous
Section
13.01. Documentary
Conventions. The
Documentary Conventions shall govern this Agreement.
Section
13.02. Power
of Attorney.
Genesis shall and shall cause each other Person within the Genesis Group, to
appoint the Servicer and its successors, and its permitted designees and
assigns, as their true and lawful attorney-in-fact pursuant to the form of
Power of Attorney attached as Schedule 13.02 to this Agreement (with such
modifications as are necessary under the laws of the jurisdictions in which
such Persons are organized). All services to be performed and actions to be
taken by the Servicer pursuant to this Agreement shall be performed for and on
behalf of Genesis. The Servicer shall be entitled to seek and obtain from
Genesis (and/or any other MSA Person within the Genesis Group as appropriate) a
power of attorney in respect of the execution of any specific action as the
Servicer deems appropriate.
Section
13.03. Reliance. The
Servicer shall be entitled to rely on the provisions of this Agreement,
including Schedule 2.02(a), any Approved Budget, any direction of, or
certification by, Genesis or its board of directors (or any duly appointed
committee thereof) or the Administrative Agent, to the extent set forth in
Section 2.02(c), and the Transaction Approval Requirements, and Genesis
hereby waives any rights to challenge any action taken by the Servicer that is
consistent with the provisions of this Agreement (including the Standard of
Care and the Conflicts Standard), including Schedule 2.02(a), any Approved
Budget, any such direction or certification or the Transaction Approval
Requirements, or
41
which
has been approved by the board of directors of Genesis or a duly appointed
committee thereof, or the Administrative Agent.
Section
13.04. Certain
Information. The
parties hereto agree (a) not to provide to each other competitively
sensitive information, other than information required to be provided by GECAS
or Genesis, as the case may be, under contractual arrangements existing on the
date hereof (or successor arrangements thereto), (b) that any party
receiving such information shall take such action as shall be necessary to
maintain the confidentiality thereof and (c) to establish appropriate
procedures and protocols to ensure compliance with the agreements in
clauses (a) and (b). Similarly, Genesis’s board of directors and
Genesis itself on behalf of itself and its Representatives shall agree
(x) not to provide competitively sensitive information which it may
receive from GECAS pursuant to this Agreement, including the WHCO Servicing
Agreement or any Securitization Servicing Agreement, to any third party and
(y) not to use any such competitively sensitive information for any
purpose other than its duties and responsibilities as a director or
Representative of Genesis. In addition, to the extent that any director of
Genesis or Representative of Genesis is involved in any other business
activities that are competitive with GECAS or any Affiliate, Genesis must
screen such Person from receipt of competitively sensitive information. Genesis
shall require any such director or Representative of Genesis to undertake in
writing not to provide competitively sensitive information which it may receive
pursuant to this Agreement to any third party and not to use any such
competitively sensitive information for any purpose other than its duties and
responsibilities as a director of Genesis or as a Representative of Genesis.
Genesis agrees that it will cause the terms of this Section 13.04 to be
included in any other servicing agreement entered into by any Person within the
Genesis Group with any other entity pursuant to which such entity will provide
services with respect to any Aircraft on behalf of any Person within the
Genesis Group, and, in connection therewith, the relevant directors shall
provide to the servicer under such other servicing agreement written
undertakings substantially similar to those provided to the Servicer as
contemplated by the immediately preceding sentence. Without limiting the
foregoing, Genesis shall, and shall cause each Person in the Genesis Group and
each of its and their Representatives, to ensure that no competitively
sensitive information is provided to a Competitor, even a Competitor that is a
shareholder of Genesis or any Person within the Genesis Group. Genesis and the
Servicer shall separately agree on the Aircraft Asset information to be
provided under any Financing Agreement, and Genesis shall not provided Aircraft
Asset information thereunder except as so agreed.
Section
13.05. [Intentionally
Left Blank].
Section
13.06. Relationship
to Securitization Servicing Agreement and WHCO Servicing
Agreement. While
a Securitization Servicing Agreement or the WHCO Servicing Agreement remains in
full force and effect, the terms thereof shall govern exclusively the rights
and obligations of the parties thereto with respect to “Aircraft
Assets” as defined thereunder and in the event of any conflict between
such agreements, the provisions of the Securitization Servicing Agreement or
the WHCO Servicing Agreement, as applicable, shall apply to the Aircraft Assets
related thereto. Upon the expiration or termination of a Securitization
Servicing Agreement or the WHCO Servicing Agreement, this Agreement shall, if
and to the extent it is then in full force and effect, govern the rights and
obligations of the parties hereto with respect to the Aircraft Assets covered
by such terminated or expired agreement, which shall thereupon become MSA
Aircraft Assets, provided,
however, that,
notwithstanding the foregoing, the provisions thereof which are provided
therein to survive the expiration or termination of such Securitization
Servicing Agreement or the WHCO Servicing Agreement shall also continue to
survive and be in full force and effect.
Section
13.07. Limited
Recourse.
(a) In the
event that the assets of the Persons in the Genesis Group are insufficient,
after payment of all other claims, if any, ranking in priority to the claims of
the Servicer hereunder (it being agreed that there are no claims ranking in
priority to those of the Servicer), to
42
pay in
full such claims of the Servicer, then the Servicer shall have no further claim
against the Persons in the Genesis Group in respect of any such unpaid
amounts.
(b) To the
extent permitted by Applicable Law, 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 statute or
otherwise; it being expressly agreed and understood that this Agreement is a
corporate obligation 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. For purposes of clarification, the foregoing applies only to Persons
acting in their capacity as such shareholder, officer, agent or director and
not in any other capacity and does not extend to the benefit of the Person for
which such Person serves as shareholder, officer, agent or
officer.
43
IN
WITNESS WHEREOF, this Agreement has been duly executed on the date first
written above.
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GE
COMMERCIAL AVIATION SERVICES
LIMITED, |
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Name: |
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| Title | ||
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GENESIS LEASE LIMITED |
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| By: | ||
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Name: |
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| Title | ||
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
Aircraft
Assets Services
The
provision of the Services set forth in this Schedule 2.02(a) shall apply
only to MSA Aircraft Assets and MSA Persons from time to time and will be
subject in all cases to such approval as may be required or such limitations as
may be imposed pursuant to Section 7.04(a) of the Servicing Agreement and
the provisions of this Schedule 2.02(a) shall be deemed to be so
qualified.
Unless
otherwise defined herein, all capitalized terms used in this
Schedule 2.02(a) have the meanings assigned to such terms in Appendix A to
the Servicing Agreement. Genesis shall provide to the Servicer any instructions
the Servicer may require in the interpretation of provisions of this Servicing
Agreement related to Financing Agreements, on which instructions the Servicer
shall be entitled to rely in all respects.
SECTION 1. Lease
Services.
SECTION 1.1. Collections
and Disbursements. In
connection with each Lease of an Aircraft Asset under which any Person within
the Genesis Group is the lessor, the Servicer will:
(a) invoice
the Lessee or otherwise arrange, as the Servicer deems reasonably appropriate,
on behalf of such Person within the Genesis Group, for all payments due from
the Lessee, including Rents, Deposits, Utilization Rent, Aircraft redelivery
payments, late payment charges and any payments in respect of Taxes and other
payments (including technical, engineering, insurance and other recharges) due
under the relevant Lease, use reasonable commercial efforts to direct the
Lessee, subject to the terms of the Lease, to make such payments to such
account designated as the “Rental Account” in Schedule 4.03 to
the Servicing Agreement (the relevant details of such Rental Account being set
forth in such Schedule) or to such other accounts as specified in writing by
the Administrative Agent and use reasonable commercial efforts to enforce the
payment thereof in the event of a nonpayment by the relevant due
date;
(b) review
from time to time, as deemed necessary by the Servicer, the level of Rents,
Deposits, Utilization Rent and other amounts that may be adjusted under a Lease
(and to the extent they are provided to be adjusted pursuant to the provisions
of such Lease) and shall propose to the relevant Lessee and/or make such
adjustments to the Rents, Deposits, Utilization Rent and other amounts as are
required or that the Servicer otherwise deems reasonably appropriate
considering, among other things, the terms of the relevant Lease and practices
that the Servicer believes are prevalent in the operating lease
market;
(c) subject
to the timely receipt by the Servicer of the information related to the receipt
of all payments made pursuant to any Lease into any Bank Account, maintain
appropriate records regarding payments under the Leases;
(d) subject
to the terms of any applicable Aircraft Assets Related Document, take such
commercially reasonable actions as are necessary to apply any payments of any
type received from any Lessee, or to make any payments payable to a Lessee, on
a basis consistent with the directions of such Lessee and, to the extent that
any such payments are made to an account other than the account to which such
payment should have been directed pursuant to such Lessee’s direction, to
take such further commercially reasonable actions as are necessary to give
effect to such directions; provided,
however, that,
in the event a Lessee is in default under a Lease or a Lessee is subject to a
voluntary or involuntary bankruptcy, liquidation, receivership or other similar
proceeding, the Servicer will advise Genesis of how funds received from such
Lessee
SCHED 2.02(a)-1
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
were
applied to the extent that such funds were applied to leases relating to both
Aircraft Assets and Other Assets; and
(e) provide
for the safekeeping and recording of any letters of credit, guarantees or other
credit support (other than cash and cash equivalents) held as part of Deposits
or Utilization Rent and the timely renewal or drawing on or disbursement
thereof as provided under the applicable Lease or other Aircraft Assets Related
Document or otherwise in accordance with Section 1.5 of this
Schedule 2.02(a).
SECTION 1.2. Maintenance.
Subject to the availability of adequate funding to comply with the obligations
under this Schedule 2.02(a) and the Servicing Agreement, the Servicer will
perform the following technical services relating to the maintenance of the
Aircraft Assets:
(a) monitor
the performance of maintenance obligations by Lessees under all Leases relating
to the Aircraft Assets by including the Aircraft Assets in the Servicer’s
technical audit program, which program entails, to the extent feasible in a
reasonable commercial manner in the ordinary course under the terms of the
applicable Lease, the review of a Lessee’s technical recordkeeping
procedures, the collection of summary maintenance data on each Aircraft Asset
and, to the extent the Servicer deems reasonably necessary or appropriate,
physical inspection of the Aircraft Assets on a sampling basis consistent with
procedures employed from time to time by GECAS and its Affiliates with respect
to their own or other serviced Aircraft;
(b) confirm
the air authority approval status of a Lessee’s proposed maintenance
program and proposed maintenance performer under any new Lease of any Aircraft
Assets under which any Person within the Genesis Group is, or following the
Delivery of the related Aircraft Asset will be, the lessor;
(c) in
connection with a termination or expiration of a Lease under which any Person
within the Genesis Group is, or following the Delivery of the related Aircraft
Asset will be, the lessor:
(i) arrange
for the appropriate technical inspection of the Aircraft Asset for the purpose
of determining if the re-delivery conditions under the Lease have been
satisfied;
(ii) maintain
a record of all material reports and other written materials (including any
relevant reconciliation statements) received or generated by the Servicer in
connection with such inspection and provide reasonable access to such reports
and written materials to the relevant Persons within the Genesis
Group;
(iii) on the
basis of the final inspection and available records, determine whether the
Lessee has complied with all required airworthiness directives and mandatory
modifications, and establish the status of compliance with Airframe and Engine
manufacturer service bulletins and Lessee-originated modifications undertaken,
in each case with respect to the Aircraft Asset and as required by the
Lease;
(iv) (A)
determine whether the Lessee has satisfied the re-delivery conditions
applicable to the Aircraft Asset specified in the Lease and negotiate any
modifications, repairs, refurbishments, inspections or overhauls to or
compromises of such conditions that the Servicer deems reasonably necessary or
appropriate, (B) determine the application of any available Deposits,
Utilization Rent or other payments under the Lease
SCHED 2.02(a)-2
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
and
(C) maintain a record of the satisfaction of such conditions and accept
re-delivery of the Aircraft Asset; and
(v) determine
the need for, procure and monitor (as provided in clause (a) above) the
performance of any maintenance and refurbishment of the Aircraft Asset upon
re-delivery, including compliance with applicable airworthiness directives,
service bulletins and other modifications which the Servicer may deem
reasonably necessary or appropriate for the marketing of the Aircraft
Asset;
(d) consider
and, to the extent the Servicer deems reasonably necessary or appropriate,
approve any Lessee-originated modifications to any Aircraft Asset submitted by
any Lessee for approval:
(i) to the
extent authorized by the terms of the relevant Lease; or
(ii) which
the Servicer reasonably determines would not result in a material diminution in
value of the Aircraft Asset or the interests of any Person within the Genesis
Group; or
(iii) which
are approved by Genesis;
(e) determine
the amount (if any) that the relevant Person within the Genesis Group is
obliged to contribute pursuant to the provisions of a Lease (taking into
account where applicable the amount of Utilization Rent paid with respect to
such Lease and the receivables position of the related Lessee) to the cost of
complying with any modification requirements, maintenance contribution
requirements, redelivery condition payment requirements, airworthiness
directives and similar requirements; and
(f) arrange
and supervise appropriate storage and any required on-going maintenance of any
Aircraft Asset, at the expense of the relevant Person within the Genesis Group,
following termination of a Lease for any reason and re-delivery of the Aircraft
Asset thereunder and prior to delivery of such Aircraft Asset to a new lessee
or purchaser, on the most economic basis reasonably available and appropriate
under the circumstances.
The
Servicer shall generally provide the technical/maintenance services set forth
in this Section 1.2 through the use of its own staff where it shall deem
appropriate and shall utilize third parties to provide such
technical/maintenance services where it shall deem appropriate.
SECTION 1.3. Insurance.
(a) The
Servicer will provide the following insurance services:
(i) negotiate
the insurance provisions of any proposed lease or other agreement affecting any
of the Aircraft Assets, with such provisions to include such minimum coverage
amounts with respect to hull and liability insurance as are set forth on Annex
1 to the Servicing Agreement, as the same may be amended from time to time at
the direction of Genesis (but in no event shall any amendment adversely affect
the right of GECAS to be insured under general and war risk liability policies
acceptable to it with the minimum amounts specified herein); provided,
however, that,
if an agreement with respect to hull or liability insurance, if any, cannot be
reached with any particular Lessee pursuant to which such Lessee will procure
and pay the premiums for such insurance in
SCHED 2.02(a)-3
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
amounts
consistent with the foregoing, the Servicer may still cause the applicable
Person in the Genesis Group to enter into such proposed lease or other
agreement, but in which case the Servicer shall arrange for any shortfall in
the required amount of insurance to be covered, at the expense of Genesis,
pursuant to arrangements entered into pursuant to clauses (iii) and (v) of
this Section 1.3(a);
(ii) monitor
the performance of the obligations of Lessees relating to insurance under
Leases of any Aircraft Assets and, where practicable, ensuring that appropriate
evidence of insurance exists with respect to any Aircraft Assets maintenance
providers;
(iii) source
and arrange an aviation insurance program covering the Aircraft Assets (it
being understood that such program may be arranged pursuant to a group policy
covering both Aircraft Assets and Other Assets the premiums in respect of which
are shared equitably based on the amount of insurance obtained and premium paid
thereunder with respect to the covered Aircraft Assets, on the one hand, and
the Other Assets, on the other hand; provided that the Servicer is not
obligated to arrange such a group policy and that Genesis acknowledges that
(A) such group policy may not result in any savings; and (B) the
Servicer’s current practice is to include the Other Assets serviced for
other third parties under a different group policy than that for Other Assets
serviced for GE Capital and its Affiliates), with such minimum coverage amounts
with respect to hull and liability insurance as are set forth on Annex 1 to the
Servicing Agreement, as the same may be amended from time to time at the
direction of Genesis;
(iv) procure
such repossession insurance for Aircraft Assets registered in those countries
listed on Annex 1 to the Servicing Agreement (which list has been established
by Genesis and may be modified from time to time by Genesis) and with such
minimum coverage amounts with respect to hull insurance as are set forth on
Annex 1 to the Servicing Agreement, as the same may be amended from time to
time at the direction of Genesis; provided,
however, that,
if an agreement with respect to repossession insurance, if any, cannot be
reached with any particular Lessee pursuant to which such Lessee will pay the
premiums for such insurance in amounts consistent with the foregoing, the
Servicer may still cause the applicable Person in the Genesis Group to enter
into such proposed lease or other agreement, but in which case the Servicer
shall pay any premiums to the extent unpaid by the Lessee, at the expense of
Genesis; and
(v) if at
any time any Aircraft Asset ceases to be insured or any Person within the
Genesis Group requires insurance coverage relating to an Aircraft Asset for any
reason, including default by the Lessee or an Aircraft Asset not being leased
upon termination of a Lease, the Servicer will procure, at the expense of the
relevant Person within the Genesis Group, alternative insurance coverage, with
such minimum coverage amounts with respect to hull and liability insurance as
are set forth on Annex 1 to the Servicing Agreement, as the same may be amended
from time to time at the direction of Genesis;
provided,
however, that,
in each case where insurance is to be obtained by the Servicer, such insurance
is reasonably available in the relevant insurance market and the Servicer shall
have used reasonable sourcing techniques prior to obtaining such insurance;
provided, further, however, that the Servicer shall not obtain or shall
terminate, as the case may be, any such insurance (except liability insurance
and war risk liability insurance in favor of the Servicer and its Affiliates)
with respect to which the Servicer has been so instructed by Genesis because
Genesis has determined that the rates for such insurance are not
SCHED 2.02(a)-4
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
commercially
reasonable. The foregoing provisions shall apply, mutatis mutandis, to any
arrangements in which Persons other than Lessees have possession of, or
insurance responsibility for, an Aircraft Asset (including in the event that an
Aircraft Asset has been sold pursuant to a mortgage, deferred payment agreement
or any similar arrangement).
(b) The
Servicer may engage, on behalf of, and for the benefit and at the expense of,
any Person within the Genesis Group, one or more Advisers and Brokers, each of
whom:
(i) may also
act in the same or similar capacities for the Servicer and its
Affiliates;
(ii) shall
take directions from the Servicer (as authorized by the Servicing Agreement) in
respect of the Aircraft Assets; and
(iii) may act
on behalf of any Person within the Genesis Group in respect of any of their
other insurance requirements, if requested to do so by any such Person within
the Genesis Group.
The
Servicer shall be entitled to rely reasonably on the actions taken by or
recommendations of any such Adviser and Broker, subject to the terms of the
relevant Lease. The Servicer will obtain such advice from the relevant Adviser
or Broker or both, as it deems appropriate, as to the reasonableness of any
insurance arrangements proposed by a Lessee, and as to the levels and types of
insurance to be provided by a Lessee or to be arranged by the Servicer, for any
of the Aircraft Assets. Except to the extent the Servicer can effect more cost
efficient coverage under fleet or group policies, the Servicer will use
reasonable commercial efforts to maintain separate and distinct customer
relationships with such Advisers or Brokers when acting on behalf of any Person
within the Genesis Group, on the one hand, and when acting on its own behalf or
on behalf of other Persons not within the Genesis Group whose Aircraft Assets
it manages, on the other hand. Any such insurance obtained by the Servicer
shall include as the named insured thereunder, such Persons as are required to
be designated as named insureds pursuant to paragraph 6 of Annex 1 to the
Servicing Agreement.
(c) The
Servicer shall provide to Genesis such periodic reports regarding insurance
matters relating to the Aircraft Assets as Genesis may reasonably
request.
SECTION 1.4. Administration. The
Servicer shall administer each Lease in accordance with its terms and as
otherwise specifically addressed herein.
SECTION 1.5. Enforcement. The
Servicer shall take commercially reasonable steps to enforce the obligations to
the relevant Person within the Genesis Group of the Lessee and any other
parties under each Lease and under any ancillary agreements thereto delivered
by Genesis to the Servicer (including any guarantees of the obligations of the
Lessee). Following any default by a Lessee under the applicable Lease, the
Servicer will take all such commercially reasonable steps as it deems
reasonably necessary or appropriate to preserve and enforce the rights of the
relevant Person within the Genesis Group under the applicable Lease, including
entering into negotiations with such Lessee with respect to the restructuring
of such Lease or declaration of an event of default under the applicable Lease,
drawing on or making disbursement of any Deposits, Utilization Rent or any
letters of credit, guarantees or other credit support thereunder, voluntary or
involuntary termination of the Lease and repossession of the Aircraft Asset
that is the subject of the Lease, and pursuing such legal action with respect
thereto as the Servicer deems reasonably necessary or appropriate.
SCHED 2.02(a)-5
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
SECTION 1.6. Lease
Modifications. (a)
The Servicer shall be authorized to make such amendments and modifications to
any Lease as it shall deem reasonably necessary or appropriate; provided,
however, that
such amendment or modification shall require the approval of Genesis pursuant
to Section 7.04(a) of the Servicing Agreement if the provisions of such
amendment or modification, were they to be included in a new Lease to be
entered into after the date hereof, would, on their own, cause the entering
into of such new Lease to require the approval of Genesis pursuant to
Section 7.04(a)(ii) of the Servicing Agreement. Such amendments or
modifications may be made without regard to whether there is a default by the
Lessee or other party under or with respect to any such Lease.
(b) The
Servicer may waive, in good faith but sole discretion, overdue interest due
from any Lessee under any Lease on any default in payment of rent, Utilization
Rent or other amount thereunder.
SECTION 1.7. Options
and Other Rights. The
Servicer shall be authorized to take such action as it shall deem reasonably
necessary or appropriate with respect to:
(a) the
exercise by any Lessee or other party of any option or right affecting the
applicable Aircraft Asset or the applicable Lease, consistent with the terms of
any such option or right; and
(b) the
exercise on behalf of any Person within the Genesis Group of any right or
option that such Person may have with respect to any of the Aircraft Assets or
the Leases.
SECTION 2. Compliance
with Covenants; Security Interests.
SECTION 2.1. Compliance
Generally. (a)
Subject to the availability to the Servicer of adequate funding to comply with
its obligations under this Schedule 2.02(a) and the Servicing Agreement,
the Servicer shall take such commercially reasonable actions as it shall deem
reasonably necessary or appropriate to keep Genesis and other MSA Persons in
compliance with its obligations and covenants under applicable Financing
Agreements as and to the extent set forth on Schedule 2.02(a)(i), as
amended from time to time, and solely to the extent that such obligations and
covenants specifically and directly relate to the Services, excluding, in any
case, (i) any reporting obligations in respect of any of the foregoing and
(ii) any payment or monetary obligations; provided,
however, that
the foregoing shall only apply to (A) any Financing Agreement covenants that
are set forth (or, in certain cases, appear as extracts) on
Schedule 2.02(a)(i) to the Servicing Agreement, to the extent that each
provision set forth (or extracted) on such Schedule includes the relevant
section references for each such provision from such Financing Agreements, and
which (together with the definitions for any capitalized terms used therein)
are set forth in full in a copy of such Financing Agreements delivered by
Genesis to the Servicer, certified by Genesis as a true and complete copy
thereof (and Genesis shall promptly provide the Servicer with all amendments,
supplements and waivers thereto, so certified), and Genesis shall provide to
the Servicer any instructions the Servicer may require in the interpretation of
such Financing Agreements, on which instructions the Servicer shall be entitled
to rely in all respects and (B) such Financing Agreement covenants first
coming into effect (including through amendments or modifications) after the
date of the Servicing Agreement that are reasonably acceptable to the Servicer,
or which Genesis shall from time to time notify the Servicer in writing, in
reasonably specific detail such Financing Agreements by amendment to such
Schedule 2.02(a)(i) and that are reasonably acceptable to the
Servicer.
(b) Nothing
in this Schedule 2.02(a) or elsewhere in the Servicing Agreement shall be
deemed to constitute or be construed as (i) a delegation or other transfer
to, or an assumption by, the Servicer or any of its Affiliates of any
obligations of any Person within the Genesis Group (or, with respect to any
Original Aircraft, the owner) to make any payment to any Lessee or other
Person, or to comply with any other monetary obligation, under any Lease or
other contract of any Person in the
SCHED 2.02(a)-6
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
Genesis
Group or (ii) a transfer to the Servicer or any of its Affiliates of any
right, title or interest in any Lease or related agreement or any Aircraft
Asset covered thereby.
SECTION 2.2. [Intentionally
Left Blank]
SECTION 2.3. Security
Interests and International Interests. (a)
Security
Interests. In
connection with the obligation of any Person within the Genesis Group under
Financing Agreements to perfect any security interest granted by it in its
right, title and interest in and to any assigned Lease, the Servicer’s
sole responsibility in respect thereof shall be to take the following actions
with respect to each assigned Lease: (1) seek advice from local counsel in
the jurisdiction where the related Aircraft Asset is registered as to what
actions would be customarily taken in such jurisdiction to perfect the security
interest created in such assigned Lease pursuant to such Financing Agreements
and to use commercially reasonable efforts to implement such advice,
(2) create an original chattel paper copy of such assigned Lease by adding
the following language to the cover of such assigned Lease: “To the
extent, if any, that this [Lease Agreement] or any [Lease Supplement] hereunder
constitutes chattel paper (as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction), no security interest in this
[Lease Agreement] or such [Lease Supplement] may be created through the
transfer or possession of any counterpart other than the original executed
counterpart, which shall be identified as the counterpart containing the
receipt therefor executed by the Security Trustee under and as defined in the
[______________] dated as of [_________] between Genesis, [_______________], as
Security Trustee, and the various other parties identified on the signature
pages thereof”, and (3) no later than ten days after the execution of
such assigned Lease by all the parties thereto, deliver such original chattel
paper copy (which, by way of clarification, shall not include the signature or
the receipt therefor of the Security Trustee) to a courier service for delivery
to the Security Trustee at its address for notices in such Financing Agreement,
(4) notify the Lessee in writing of the security assignment of such
assigned Lease to the Security Trustee pursuant to such Financing Agreements
(which notice may be contained in such assigned Lease), (5) obtain from
the Lessee a written acknowledgment addressed to, or for the benefit of, the
Security Trustee (A) acknowledging receipt of notification of such
security assignment and (B) containing the agreement of the Lessee to
continue to make all payments required to be made to the lessor under such
assigned Lease to the account specified in such assigned Lease unless and until
the Security Trustee otherwise directs (it being understood that the account
specified in such assigned Lease will be the account specified by the
Administrative Agent to the Servicer as contemplated by Section 1.1(a) of
this Schedule 2.02(a)) and (6) take such other action as Genesis
shall have reasonably requested and described in reasonable detail in a written
notice to the Servicer. Notwithstanding the foregoing, the Servicer shall have
no obligation to take any action specified in the prior sentence of this
Section 2.3(a) with respect to any assigned Lease or any supplement or
amendment thereto that was executed before the related Aircraft became an
Aircraft Asset (it being the expectation of the parties hereto that such action
will be taken by the seller of any Aircraft Asset related to such assigned
Lease to any Person within the Genesis Group). In connection with any assigned
Lease, Genesis will cooperate with the Servicer in obtaining a letter of quiet
enjoyment with respect to such assigned Lease.
(b)
International
Interests. In
connection with the obligation of any Person within the Genesis Group under any
Financing Agreement to register at the International Registry any International
Interest provided for under any Lease, the Servicer’s sole responsibility
in respect thereof shall be to direct the International Registry administrator
of the Person within the Genesis Group that is lessor under such Lease to
register such International Interest with the International Registry and seek
the consent of the Lessee to such registration. In connection with the
obligation of any Person within the Genesis Group under any Financing Agreement
to register the assignment to the Security Trustee of any International
Interest provided for under any Lease of an Aircraft, the Servicer’s sole
responsibility in respect thereof shall be to, upon request by the Security
Trustee, direct the International Registry administrator of the Person within
the Genesis Group that is lessor under such Lease to consent to the
registration of the
SCHED 2.02(a)-7
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
assignment
in favor of the Security Trustee of any International Interest that has been
registered with the International Registry in respect of such Lease and is then
held by a Person with the Genesis Group, and request the consent of the Lessee
under such assigned Lease to such assignment (which consent may be forth in the
assigned Lease). In connection with the obligation of any Person within the
Genesis Group under any Financing Agreement to register any International
Interest created under any contract of sale with respect to an Aircraft Asset,
the Servicer’s sole responsibility in respect thereof shall be to direct
the International Registry administrator of the Person within the Genesis Group
that is a party to such contract of sale to register such International
Interest with the International Registry and seek the consent of the other
party to such contract of sale to such registration. In connection with the
obligation of any Person within the Genesis Group under any Financing Agreement
to register any contact of sale with respect to an Aircraft Asset, the
Servicer’s sole responsibility in respect thereof shall be to, upon
request by the Security Trustee, direct the International Registry
administrator of the Person within the Genesis Group that is owner of such
Aircraft Asset to consent to the registration in favor of the Security Trustee
of such International Interest with the International Registry.
SECTION 3. Lease
Marketing.
(a) The
Servicer shall provide and perform lease marketing services with respect to the
Aircraft Assets and in connection therewith is authorized:
(i) to
negotiate and enter into any commitment for a lease of an Aircraft Asset in the
name of the relevant Person within the Genesis Group (or, with respect to any
Original Aircraft, the owner); and
(ii) to
include within any commitment for a Lease of an Aircraft Asset and/or effect
any intermediate Lease or Leases through any Person within the Genesis Group
that the Servicer deems reasonably necessary or appropriate.
(b) The
Servicer shall commence the negotiation of any commitment for a Lease or Leases
of Aircraft Assets in a manner consistent with the practices employed by the
Servicer with respect to its aircraft operating leasing services business
generally and shall commence the drafting of, and negotiation with respect to,
any Leases for Aircraft Assets on the following basis:
(i) in the
case of any proposed Lessee that is not and has not been a lessee of an
aircraft managed or serviced by the Servicer, the Servicer shall commence the
drafting of, and negotiation with respect to, a Lease for Aircraft Assets based
on the form of lease agreement or agreements then used by the Servicer in
connection with its aircraft operating leasing services business generally (as
such form of lease shall be amended from time to time by the Servicer, the
“Genesis
Pro Forma Lease”);
and
(ii) in the
case of any proposed Lessee that is or was a lessee of an aircraft managed or
serviced by the Servicer, the Servicer may commence the drafting of, and
negotiation with respect to, a Lease for Aircraft Assets based on a form of
lease substantially similar to the lease previously used with respect to such
Lessee (the “Precedent
Lease”).
Provided
that the Servicer commences the negotiation of a Lease of any Aircraft Asset in
accordance with clauses (b)(i) and (b)(ii) above, the terms of any
executed Lease may vary from the terms of the Genesis Pro Forma Lease or the
Precedent Lease employed by the Servicer in accordance with such clauses.
Section 3(b) shall not be applicable to the negotiation with respect to,
or execution of, any Lease for Aircraft Assets in which negotiations commenced
on or prior to the Closing Date. The Servicer is
SCHED 2.02(a)-8
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
authorized
to execute and deliver binding leases and related agreements on behalf of the
relevant Person within the Genesis Group based on the foregoing
procedures.
(c) Upon ten
Business Days’ prior written notice from Genesis requesting a copy of the
then current Genesis Pro Forma Lease (the “Annual
Review”),
the Servicer shall provide Genesis with a copy of its then current Genesis Pro
Forma Lease, together with a copy thereof marked (with such marking to be
accomplished only if, and to the extent, possible with the then current word
processing software employed by the Servicer and, for the avoidance of doubt,
not manually) to reflect changes from the version of the Genesis Pro Forma
Lease from the Genesis Pro Forma Lease utilized previously or as of the Closing
Date (a copy of which shall have been delivered to Genesis on or before the
Closing Date) in the case of the first such Annual Review.
(d) The
Servicer shall take such reasonable commercial actions as shall be reasonably
necessary or appropriate to deliver any Aircraft Asset pursuant to the terms of
the documentation of the Lease or Leases of such Aircraft Asset, including upon
an extension of such Leases.
(e) The
Servicer shall generally provide the marketing services set forth in this
Section 3 through the use of its own marketing staff where it shall deem
appropriate and shall utilize third parties to provide such marketing services
where it shall deem appropriate.
SECTION 4. Sales of
Aircraft and Engines.
(a) The
Servicer shall provide and perform sales services with respect to the Aircraft
Assets at, and on a basis consistent with, the direction from time to time of
Genesis, and, in connection therewith, is authorized:
(i) to enter
into any commitment for a sale of an Aircraft Asset on behalf and (through a
power of attorney) in the name of the relevant Person within the Genesis Group;
and
(ii) to
include within any sale and effect any intermediate Lease or Leases through any
Person within the Genesis Group that the Servicer deems reasonably necessary or
appropriate;
provided,
however, that,
except as otherwise required in accordance with the terms of a Lease, the
Servicer shall not enter into any sale of any Aircraft Asset or agreement to
sell any Aircraft Assets without obtaining the approval of Genesis or the
Administrative Agent pursuant to Section 7.04(a) of the Servicing
Agreement.
(b) The
Servicer shall negotiate documentation of any sale and, subject to
Section 4(a) of this Schedule 2.02(a), is authorized to execute and
deliver binding agreements on behalf and (through a power of attorney) in the
name of the relevant Person within the Genesis Group.
(c) The
Servicer shall take such reasonable commercial actions as shall be reasonably
necessary or appropriate to deliver any Aircraft Asset pursuant to the terms of
the documentation of the sale.
(d) In the
event that Genesis directs the Servicer to sell or arrange for the sale of any
Aircraft Asset, the Servicer will not be required to take any such action until
Genesis shall
SCHED 2.02(a)-9
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
provide
the Servicer with an Officer’s Certificate, substantially in the form
attached as Schedule 2.02(a)(ii) to the Servicing Agreement, certifying
that such sale complies with the terms of any applicable Financing Agreements
and that the Servicer is entitled to rely upon such certification for all
purposes of the Servicing Agreement and this
Schedule 2.02(a).
(e) Notwithstanding
any other provision in Section 7.04 of the Servicing Agreement to the
contrary, the Servicer shall be permitted to purchase, sell or exchange any
Engine relating to an Aircraft or any part or components thereof or spare parts
or ancillary equipment or devices furnished with an Aircraft at such times and
on such terms and conditions as the Servicer deems reasonably necessary or
appropriate in connection with its performance of the Services; provided,
however, the
Servicer shall not be permitted to purchase, or enter any order to purchase,
Engines or spare parts (y) in a quantity in excess of that quantity deemed
by the Servicer as appropriate in connection with the operation, leasing or
sale of such the Aircraft Assets without obtaining the prior written consent of
Genesis, or (z) if the net (after credit for any exchanges, replacements
or similar items) cash out-of-pocket purchase price of such Engine exceeds
$3,000,000.
SECTION 5. Aircraft
Acquisitions.
SECTION 5.1. Acquisitions. For
purposes of clarification, while Genesis shall in its sole discretion be
entitled to acquire any Additional Aircraft, the Servicer shall have no
obligations under this Agreement with respect to the acquisition of any
Aircraft except to the extent expressly set forth in Section 5.2 and
subject to the conditions in Sections 2.02(h) and 2.03(g) of the Servicing
Agreement.
SECTION 5.2. Other
Acquisition Activities. Except
as otherwise provided in Section 2.03(g) of the Servicing Agreement, the
Servicer shall not be required to assist in the solicitation of, or otherwise
take any action to obtain, any acquisition of any Aircraft, Engine or other
property or any lessee consents and/or novations in connection with the
acquisition of any Aircraft Assets or the issuance of Indebtedness or equity
(it being the expectation of the parties hereto that the obtaining of any
lessee consents and/or novations with respect to any Aircraft Asset shall be
the responsibility of the seller of such Aircraft Asset to any Person within
the Genesis Group). The parties hereto acknowledge that Section 2.03 of
the Servicing Agreement deals with, among other things, the Servicer’s
involvement in the issuance of additional Indebtedness or equity.
SECTION 6. [Intentionally
Left Blank].
SECTION 7. Aircraft
Asset Cash Services.
SECTION 7.1. Accounts
and Account Information.
(a) Existing
Accounts. In the
event that the Administrative Agent desires to modify any of the arrangements
relating to any of the bank accounts set forth on Schedule 4.03 to the
Servicing Agreement (the “Existing
Accounts”)
in accordance with Section 2.04 of the Administrative Agency Agreement,
Genesis shall cause the Administrative Agent to (i) deliver a certificate
to the Servicer specifying in reasonable detail the modifications to be made
with respect to any such Existing Accounts and certifying that any such
modifications are in accordance with the applicable provisions of the
applicable Financing Agreement and the Administrative Agency Agreement and
(ii) transmit instructions to the relevant banking institution to effect
such modifications and shall take such other actions as are incidental thereto
in order to give effect to the foregoing.
SCHED 2.02(a)-10
SCHEDULE
2.02(a) TO
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AGREEMENT
(b) New
Accounts. The
Servicer shall notify the Administrative Agent in the event that any new bank
accounts need to be established on behalf of any Person within the Genesis
Group in connection with a Lease and shall set forth in reasonable detail the
(i) identity of the Lessee, (ii) Aircraft Assets subject to such
Lease and (iii) jurisdiction of the Lessee and in which such Aircraft
Assets are to be registered. Following receipt of such notice from the
Servicer, Genesis shall cause the Administrative Agent promptly to
(i) deliver a certificate to the Servicer specifying (v) the name and
location of the bank at which such account will be established, (w) the
name(s) in which such account will be established, (x) the names of the
beneficiaries of such account, (y) the names of the Persons authorized to
make withdrawals from such account and (z) such other information
(including with respect to any security arrangements) as the Administrative
Agent deems appropriate and certifying that the establishment of such account
is in accordance with the applicable provisions of the applicable Financing
Agreement and the Administrative Agency Agreement and (ii) transmit
instructions to the relevant banking institution to effect the establishment of
such account and shall take such other actions as are incidental thereto in
order to give effect to the foregoing (the “New
Accounts”;
and, together with the Existing Accounts, the “Bank
Accounts”).
SECTION
7.2. Cash
Transfers.
(a) In the event that funds are required to be transferred from any Bank
Account to the account of another Person (other than any Person within the
Genesis Group) in order to give effect to the directions of any Lessee in
accordance with Section 1.1(d) of this Schedule 2.02(a), the Servicer
shall provide the Administrative Agent with written notice setting forth the
(i) name of the transferor, (ii) name of the transferee,
(iii) accounts from and to which funds are to be transferred,
(iv) amounts to be transferred, (v) amount of the initial payment
from or to the Lessee and (vi) anticipated date of transfer. No later than
the next following Business Day, Genesis shall cause the Administrative Agent
to notify the Servicer in writing whether the proposed transfer will be made on
such anticipated date of transfer or on another stated date. Genesis shall
instruct the Administrative Agent to cause such transfer to be made on such
date in accordance with the terms of the written notice provided by the
Servicer.
(b) It is
understood and agreed that (i) all decisions as to any transfers contemplated
by Section 7.2(a) shall be the decisions and responsibility of the
Administrative Agent and not the decisions and responsibility of the Servicer
(and the Servicer shall not be subject to any other responsibilities not
specified in this Section 7 or any liability whatsoever for any such
transfers or any decisions of the Administrative Agent related thereto) and
(ii) the Servicer shall have no responsibility as to the actions taken (or
omitted) by any banking institution upon receipt of any payment instruction
from the Administrative Agent in accordance with the procedures set forth in
this Section 7.
SECTION
7.3 Payments.
(a) Anticipated
Payments. For
purposes of the calculation of the Required Expense Amount by the
Administrative Agent pursuant to the Administrative Agency Agreement, not less
than one Business Day prior to each Calculation Date, the Servicer shall
deliver to the Administrative Agent a written projection of payment obligations
(including projected expenditures (including maintenance contribution payments,
airworthiness directive payments and redelivery condition payments), or return
to Lessees of security deposits in accordance with the terms of any Lease)
reasonably anticipated by the Servicer to be necessary to be paid in connection
with the Servicer’s performance of the Services under the Servicing
Agreement during the period extending from the Payment Date immediately
following such Calculation Date through to the next succeeding Payment Date
(the “Monthly
Payment Period”).
Not later than two Business Days prior to the date of each cash payment, the
Servicer shall deliver to the
SCHED 2.02(a)-11
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
Administrative
Agent a written notice of such payment (whether or not such cash payment was
reflected in the projection referred to in this Section 7.3(a)), and shall
state (i) the anticipated date of such payment, (ii) the payee,
(iii) the amount of such payment and (iv) the obligation in respect
of which such payment is to be made (the “Stated
Services Obligation”),
with an appropriate notation if, and to what extent, such payment should be
made from the Lessee Funded Account. No later than the Business Day prior to
such anticipated date of payment, Genesis shall instruct the Administrative
Agent to notify the Servicer in writing whether the proposed payment will be
made on such anticipated date or on another stated date. Genesis shall instruct
the Administrative Agent to pay or cause such payment to be made on such date
to the payee for the Stated Services Obligation from the funds then available
in the Expense Account and/or the Lessee Funded Account, as the case may
be.
(b) Unanticipated
Payments. During
any Monthly Payment Period the Servicer may request in writing the
Administrative Agent’s approval for the Administrative Agent to pay or
cause to be paid expenses that had not been reasonably anticipated by the
Servicer at the time the projection required to be provided to the
Administrative Agent pursuant to Section 7.3(a) with respect to such
Monthly Payment Period was delivered to the Administrative Agent. Any such
request shall specify for each such payment obligation (i) the anticipated
date of such payment, (ii) the payee, (iii) the amount of such
payment and (iv) the Stated Services Obligation, with an appropriate
notation if, and to what extent, such payment should be made from the Lessee
Funded Account. No later than the Business Day next following such request by
the Servicer, Genesis shall instruct the Administrative Agent to notify the
Servicer in writing whether such payment will be made on such anticipated date
of payment or on another stated date. Genesis shall instruct the Administrative
Agent to pay or cause such payment to be made on such date to the payee for the
Stated Services Obligation from the funds then available in the Expense Account
or the Lessee Funded Account, as the case may be. In the event that the funds
then available in the Expense Account or the Lessee Funded Account are
insufficient to make any such payment, pursuant to the Administrative Agency
Agreement, Genesis shall cause the Administrative Agent to take such actions as
are necessary to cause funds sufficient to make any such payments to be
transferred as soon as practicable from the Collection Account to the Expense
Account and/or the Lessee Funded Account, as the case may be. Following the
transfer of such funds from the Collection Account, Genesis shall cause the
Administrative Agent to pay or cause such payments to made in accordance with
the foregoing provisions.
(c) Limitation
on Payments. It is
understood and agreed that (i) all decisions as to the payment of funds
from any Bank Account (including the timing, amount and payee thereof) shall be
the decisions and responsibility of the Administrative Agent and not the
decisions or responsibility of the Servicer (and the Servicer shall not be
subject to any other responsibilities not specified in this Section 7 or
any liability whatsoever for any such payments or any decisions of the
Administrative Agent related thereto) and (ii) the Servicer shall have no
responsibility as to the action taken (or omitted) by any banking institution
upon receipt of any payment instructions from the Administrative Agent in
accordance with the procedures set forth in this Section 7 or as to the
application by any payee of any amounts paid to it from any Bank Account in
accordance with the procedures set forth in this Section 7, including no
responsibility as to whether such payee applies such payment toward the Stated
Services Obligation for which such payment was made.
SECTION 8. Professional
and Other Services.
SECTION 8.1. Legal
Services. The
Servicer shall provide or procure legal services, in all relevant
jurisdictions, on behalf of the relevant Persons within the Genesis Group with
respect to the
SCHED 2.02(a)-12
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
lease,
sale or financing of the Aircraft Assets, any amendment or modification of any
Lease, the enforcement of the rights of any Person within the Genesis Group
under any Lease, any disputes that arise with respect to the Aircraft Assets or
for any other purpose that the Servicer reasonably determines is necessary in
connection with the performance of the Services. The Servicer shall provide
such legal services (which services shall not, in any case, be deemed to
include (i) services or transactions relating to taxation matters, the
laws of foreign jurisdictions, capital markets transactions or novel or unique
transactions or (ii) a high level of services at fiscal year end or other
times of peak activity relative to the level of services at other times) by
using its in-house legal staff where it shall deem appropriate and shall
authorize outside counsel to provide such legal services where it shall deem
appropriate. The Servicer anticipates that it will use outside counsel to
perform some or all the Services set forth in Section 2.3 of this
Schedule 2.02(a). Genesis recognizes, and shall cause each other Person
within the Genesis Group to recognize, that from time to time the Servicer will
retain legal counsel to provide legal services on behalf of Persons within the
Genesis Group and, in the event that a dispute arises between any Person within
the Genesis Group and the Servicer, Genesis agrees, and shall cause each other
Person within the Genesis Group, to waive any conflict of interest any such
counsel may have with respect to any such dispute or otherwise to enable the
Servicer to retain such counsel on its own behalf (it being understood that
notwithstanding any such waiver of a conflict of interest, any such Persons
within the Genesis Group do not waive any rights to retain any such counsel on
its own behalf if such counsel is so agreeable).
SECTION 8.2. Tax
Services. The
Servicer shall arrange for such tax services and advice (which may be provided
by the Servicer’s internal staff, to the extent available) as shall be
reasonably necessary or appropriate in connection with the structuring of lease
or sale transactions with respect to the Aircraft Assets or for any other
purpose that the Servicer reasonably determines is necessary in connection with
the performance of the Services; provided,
however, that
the Servicer shall not be responsible for arranging for any tax services with
respect to the preparation of any tax returns or the acquisition of any
Additional Aircraft or in connection with any Offering or other
financing.
SECTION 9. Reports;
Custody.
SECTION 9.1. Monthly
Reports. On the
Business Day immediately preceding each Calculation Date (or, to the extent
impracticable, promptly thereafter), the Servicer shall provide to Genesis a
written report substantially in the form attached as Exhibit A covering
the period from the end of the last such report, if any, through and including
the fourth Business Day prior to such Calculation Date.
SECTION 9.2. Quarterly
Reports. The
Servicer shall provide written reports to Genesis within thirty days after the
end of each calendar quarter substantially in the form of Exhibit B with
respect to such calendar quarter.
SECTION 9.3. Other
Information.
(a) To the
extent the Servicer is in possession of the relevant information, the Servicer
shall prepare and submit to Genesis the following information with respect to
each Person within the Genesis Group:
(i) upon
request by Genesis, information with respect to transactions relating to
Aircraft Assets necessary for each Person within the Genesis Group to prepare
value added tax and other tax returns;
(ii) promptly
after the occurrence thereof, notification to Genesis of any accident or
incident of which the Servicer has notice involving any Aircraft Asset where
(A) the potential loss in connection therewith exceeds the higher of the
damage
SCHED 2.02(a)-13
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
notification
threshold under the relevant Lease, if any, and $2,000,000 or (B) the
potential liability in connection therewith exceeds $2,000,000;
and
(iii) advise
Genesis of any settlement offers received by the Servicer with respect to any
claim of damage or loss in excess of $10,000,000 with respect to an Aircraft
Asset, and, upon request by Genesis, provide Genesis with copies of all
relevant documentation related thereto and such other additional information
and advice as Genesis may reasonably request and, upon direction from Genesis
that any such settlement offer related thereto is acceptable, prepare the
appropriate documentation, including releases and any indemnities required in
connection with such releases, to give effect to such settlement offer and
procure the execution of such documentation by Genesis (it being understood
that settlement offers with respect to any such claims up to and including
$10,000,000 may be settled by the Servicer independently);
(b) Upon
request by Genesis, the Servicer shall provide to Genesis copies of any
financial statements received by the Servicer from any Lessee under and in
accordance with the provisions of its Lease of an Aircraft Asset.
(c) Upon
request by Genesis, the Servicer shall provide to Genesis such factual
non-proprietary and non-confidential information and data about the Aircraft
Assets that the Servicer has created to provide the Services (exclusive of
internal correspondence, approval materials, internal evaluations and similar
information and data) or obtained from Lessees which may reasonably be
requested by Genesis; provided,
however, that
the Servicer shall not be required to provide any valuations, interpretations,
comparisons, evaluations, opinions, forecasts, predictions or analytical
analysis.
SECTION 9.4. Ratings
Information. Upon
request by Genesis, and subject to the rating agency’s handling of such
information and data pursuant to its confidentiality policies, the Servicer
shall provide to Genesis such information and data about the Aircraft Assets
that the Servicer has created to provide the Services or obtained from Lessees
and other commercially reasonable assistance relating to the Aircraft Assets as
Genesis shall deem reasonably necessary or appropriate in connection with
providing information to the ratings agencies for Genesis’s debt
ratings.
SECTION 9.5. Custody
of Documents. The
Servicer agrees to hold all original documents of any Person within the Genesis
Group that relate to the Aircraft Assets in the possession of the Servicer in
safe custody and according to the commercially reasonable instructions of
Genesis.
SECTION 9.6. Reporting
Obligations Generally.
Notwithstanding anything herein to the contrary, Genesis acknowledges and
agrees that it shall be responsible for, and the Servicer shall not have any
responsibility for, (a) any Compliance Obligations to any holders of
outstanding Indebtedness, any holders of any other securities issued by any
Person within the Genesis Group or any Governmental Authorities, (b) any
instructions, discretion, judgments and assumptions related to such Compliance
Obligations, and Genesis agrees to indemnify the Servicer and its Affiliates in
respect of the foregoing as further provided in Section 11.05 of the
Servicing Agreement, and (c) the completeness or accuracy of any
information or data provided hereunder (except to the extent the Servicer is
liable therefor pursuant to the proviso in Section 11.05).
SECTION 9.7. Aircraft
Assets Related Documents. The
Servicer shall provide to the Security Trustee a copy of each fully executed
Aircraft Assets Related Document received by the Servicer no later than ten
Business Days after the receipt thereof by the Servicer. For purposes of this
Section 9.7, the term
SCHED 2.02(a)-14
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
“Aircraft
Assets Related Documents” does not include letters of intent, memoranda of
understanding or similar documents.
SECTION 9.8. Quarterly
Meeting Directions. At
each quarterly meeting contemplated by Section 5.01 of the Servicing
Agreement, the Servicer will be advised by Genesis if there are MSA Aircraft
Assets which Genesis instructs the Servicer to sell pursuant to Section 4
of this Schedule 2.02(a) of the Servicing Agreement, and, with respect to
any MSA Aircraft Asset with a Lease expiring within the next twelve (12) months
of the end of the preceding calendar quarter, whether such MSA Aircraft Asset
is not to be remarketed for lease or an extension of a Loan because such MSA
Aircraft Asset is to be converted to a freighter aircraft (and is to be
remarketed for lease after giving effect to such conversion) of is to be free
and clear of a Lease (it being agreed that in the absence of an instruction not
to remarket an MSA Aircraft Asset for lease), such MSA Aircraft Asset shall be
remarketed for lease and in any event a MSA Aircraft Asset shall continue to be
remarketed for lease (or an extension of an existing Lease), and
notwithstanding any contrary institutions, may be leased if the Servicer has
entered into any preliminary agreements (such as a letter of intent) with
respect thereto or has entered into a lease or lease extension with respect
thereto.
SECTION 9.9. Public
Filing Information. The
Servicer shall provide to Genesis such information and data about the MSA
Aircraft Assets that the Servicer has created to provide the Services or
obtained from Lessees as Genesis may reasonably request to comply with its
public statutory and filing obligations.
SCHED 2.02(a)-15
TO THE
SERVICING AGREEMENT
[Intentionally
Left Blank]
SCHED 2.02(a)(ii)-1
SCHEDULE
2.02(a)(ii)
TO THE
SERVICING AGREEMENT
[Form of
Officer’s Certificate for Genesis]
The
undersigned, representing Genesis Lease Limited, a Bermudan limited liability
company, in accordance with Section 4(d) of Schedule 2.02(a) to the
Servicing Agreement dated as of _______, (the “Servicing Agreement”)
between Genesis and GE Commercial Aviation Services Limited (the
“Servicer”), hereby certifies as follows:
(a) the sale
of the [insert description of asset(s) to be sold], which Genesis or the
Administrative Agent has directed the Servicer to arrange pursuant to
Section 4 of Schedule 2.02(a) to the Servicing Agreement (the
“Sale”), complies in all respects with the terms of the ___________
dated as of ________, between Genesis and _____________________;
(b) the Sale
has been approved by the board of directors of Genesis in accordance with
Section 7.04(a) of the Servicing Agreement;
(c) in
connection with such Sale, the Servicer is entitled to rely upon this
certification for all purposes of the Servicing Agreement and
Schedule 2.02(a) thereto; and
(d) the
undersigned is a duly appointed, qualified and acting officer of Genesis and
the signature appearing below after his/her name is a genuine
signature.
IN
WITNESS WHEREOF, I have hereunto set my hand on and as of this [ ] day of
[ ], [ ].
| By: | ||
|
Name:
|
||
| Title | ||
SCHED 2.02(a)(ii)-2
SCHEDULE
4.01 TO
THE
SERVICING AGREEMENT
Aircraft
Assets
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MODEL
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OWNER
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COME] |
[TO
COME] |
[TO
COME] |
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SCHED 4.01-1
SCHEDULE
4.02
TO
THE
SERVICING AGREEMENT
Aircraft
Assets Related Documents
SCHED 4.02-1
SCHEDULE
4.03
TO THE
SERVICING AGREEMENT
Bank
Accounts
|
ACCOUNT
NAME |
ACCOUNT
NUMBER |
|
GENESIS
LESSEE FUND |
|
|
GENESIS
RENTAL ACCT (DDA Account) |
*
|
|
GENESIS
RENTAL ACCT –
SUSPENSE |
|
|
GENESIS
COLLECTIONS ACCT |
|
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GENESIS
EXPENSE ACCT |
|
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GENESIS
OWNER ACCT |
|
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| * |
NY
|
ABA #:
______________
Account
#: ____________
Account
Name: _____________________________________________
Reference:
Genesis-[lessee][serial #]
SCHED 4.03-1
SCHEDULE
4.04(a) TO
THE
SERVICING AGREEMENT
List
of Persons within the Genesis
Group
and Jurisdictions
* These
Persons will not be within the Genesis Group as of the Closing Date. These
Persons will be within the Genesis Group as of date of each such Persons’
applicable Delivery Date with respect to the related Original
Aircraft.
SCHED 4.04(a)-1
SCHEDULE
7.01 TO
SERVICING
AGREEMENT
Responsibilities
of Genesis Group
|
A.
|
With
respect to Aircraft Assets, each Person within the Genesis Group shall retain
such responsibilities as are expressly set forth in Article VII of the
Servicing Agreement. |
|
B.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of, assets
which do not constitute Aircraft Assets and for any or all Genesis Group
Liabilities. |
|
C.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of, all finance
functions which are not expressly the responsibility of the Servicer under the
Servicing Agreement. Such responsibilities of the Genesis Group shall
include: |
| (i) |
all
matters relating to the arrangement and procurement of any financings of any
type or nature for the Genesis Group; |
| (ii) |
all
matters relating to the management of borrowings and payments under such
financings and the management of the respective borrowers’ or
issuers’, as the case may be, compliance with the terms of such
financings, including compliance with the reporting requirements thereunder and
any computations required in connection with such reporting; |
| (iii) | all matters relating to the arrangement and procurement of refinancings of any type or nature of any outstanding indebtedness of the Genesis Group; |
| (iv) | all matters relating to the restructuring of any type or nature of any indebtedness of the Genesis Group; and |
| (v) | all communications with creditors (other than trade creditors and Lessees) of any type or nature of the Genesis Group. |
It is
expressly understood by the parties that while the Servicer will, to the extent
expressly provided in Schedule 2.02(a) to the Servicing Agreement, provide
Genesis with assistance and information required to assist in its compliance
with its obligations and covenants under the applicable Financing Agreement to
the extent such compliance specifically relates to the Services, the Servicer
shall not deal directly with any creditors of any Person within the Genesis
Group, except to the extent such dealings with trade creditors are incidental
to the Servicer’s provision of the Services under the Servicing
Agreement.
|
D.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of, all
treasury functions of the Genesis Group that are not expressly the
responsibility of the Servicer under the Servicing Agreement,
including: |
| (i) | cash management; |
| (ii) | currency and interest rate risk management (including the establishment of related policies and the arrangement and procurement of appropriate swap programs); and |
| (iii) | reconciliation of all Bank Account-related information. |
SCHED 7.01-1
SCHEDULE
7.01 TO
SERVICING
AGREEMENT
|
E.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of, all
accounting functions not expressly the responsibility of the Servicer under the
Servicing Agreement, including: |
| (i) | the monitoring of cash receipts and disbursements and accounts payable and accounts receivable of the Genesis Group; |
| (ii) | the promulgation, maintenance, interpretation, amending and supplementing of accounting policies for the Genesis Group, and the review and approval of any potential exceptions to the accounting policies established by the Genesis Group; |
| (iii) | maintaining the accounting ledgers, preparing balance sheets, statements of changes in shareholders’ equity and statements of income and cash flows and arranging for financial audits, as required, and for the preparation of audited financial reports for the Genesis Group; |
| (iv) | the provision of overhead services to the Genesis Group; and |
| (v) | preparing annual Lease Operating Budgets and Aircraft Asset Expenses Budgets, preparing and analyzing actual results to budget and performing profitability analysis. |
|
F.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of, all
corporate secretarial activities and other matters related to the existence of
any Person within the Genesis Group. |
|
G.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of, all matters
relating to the holders of the share capital or membership interests of any
Person within the Genesis Group. |
|
H.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of, all legal
and regulatory matters which are not expressly the responsibility of the
Servicer under the Servicing Agreement, including: |
| (i) | the preparation and filing of reports required to be filed with the U.S. Securities and Exchange Commission, any securities exchange or any other Governmental Authority; |
| (ii) | all legal services (including the negotiation of documents) not constituting the provision of Services relating to all matters described herein for which any Person within the Genesis Group has responsibility; |
| (iii) | the preparation and filing of corporate and tax returns of each Person within the Genesis Group with any Governmental Authority; and |
| (iv) | the preparation of business plans, forecasts or other similar activities. |
|
I.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of, any and all
litigation or other legal proceedings against or brought by any Person within
the Genesis Group, other than enforcement actions relating to any Aircraft
Assets (including any counterclaim arising from any such action to the extent
any such counterclaim relates to the Aircraft Assets) brought by Genesis or any
other Person within the Genesis Group commencing after the date of the
Servicing Agreement. |
SCHED 7.01-2
SCHEDULE
7.01 TO
SERVICING
AGREEMENT
|
J.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of, the
arrangement and procurement of all insurance other than insurance related to
the Aircraft Assets which the Servicer is to arrange and procure (at the
expense of the Genesis Group) under the Servicing Agreement. |
|
K.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of, employees
of any Person within the Genesis Group. |
|
L.
|
Each of
Genesis and each other Person within the Genesis Group shall be responsible
for, and the Servicer shall have no responsibilities in respect of purchases,
purchase orders and options to purchase Aircraft, except to the extent the same
constitute the provision of Services, or in respect of the decision to sell an
Aircraft Asset. |
|
M.
|
Except
to the extent expressly provided for in Section 2.3 of
Schedule 2.02(a) to the Servicing Agreement, each of Genesis and each
other Person within the Genesis Group shall be responsible for, and the
Servicer shall have no responsibilities in respect of, keeping Genesis in
compliance with their obligations and covenants under any Financing
Agreements. |
Notwithstanding
anything contained herein to the contrary, Genesis acknowledges and agrees that
it shall be responsible for, and the Servicer shall not have any responsibility
for, (a) any Compliance Obligations to any holders of outstanding Notes or
to Genesis, any holders of any other securities issued by any Person within the
Genesis Group or any Governmental Authorities and (b) all instructions,
discretion, judgments and assumptions related to such Compliance Obligations,
and Genesis agrees to indemnify the Servicer and its Affiliates in respect of
the foregoing as further provided in Section 11.05 of the Servicing
Agreement.
SCHED 7.01-3
SCHEDULE
7.04 TO
THE
SERVICING AGREEMENT
Liabilities
Incurred in Ordinary Course of Business
|
1.
|
Acquisitions,
dispositions or replacements of Aircraft, Engines or Parts (including BFE and
IFE) including, without limitation, by leasing in. |
|
2.
|
Modifications,
maintenance, overhauls, repairs, upgrades or other technical
expenditures. |
|
3.
|
Dry
Leases and wet Leases (including extensions, renewals, amendments and
terminations thereof). |
|
4.
|
Repossessions.
|
|
5.
|
Registrations
and Deregistrations. |
|
6.
|
Governmental
approvals, certifications, permits, licenses, consents, filings and
authorizations. |
|
7.
|
Third
party professional services including, without limitation, legal, tax advisory
and insurance. |
|
8.
|
Taxes.
|
|
9.
|
Aircraft
operator transition costs (including, without limitation, flight operations,
storage and maintenance, technical consultants costs, and purchase, storage and
scrapping of spare Parts). |
|
10.
|
Lessee
Liens. |
|
11.
|
Insurance.
|
SCHED 7.04-1
SCHEDULE
8.01 TO
THE
SERVICING AGREEMENT
Conditions
to Execution*
1. Each
Person within the Genesis Group (other than Genesis) as to which a request
therefor has been made shall have executed and delivered an Genesis Group
Guarantee in favor of the Servicer substantially in the form attached to the
Servicing Agreement as Appendix B.
2. Each
appendix, annex, exhibit or schedule to the Servicing Agreement and each
Genesis Group Guarantee shall have been completed to the reasonable
satisfaction of the Servicer and delivered with the Servicing Agreement and the
Genesis Group Guarantees on the Closing Date.
3. The
Aircraft Assets Related Documents shall have been delivered to the Servicer,
pursuant to Sections 2.02(f) and 4.02 of the Servicing Agreement, at the
Servicer’s offices in Xxxxxxx, Ireland, on or prior to the Closing
Date.
4. Each
person within the Genesis Group shall have executed and delivered to the
Servicer the acknowledged power of attorney contemplated by Section 13.02
of the Servicing Agreement.
5. Genesis
shall have delivered to the Servicer a copy of each relevant Financing
Agreement, certified by Genesis as a true and complete copy
thereof.
6. Genesis
and each other Person within the Genesis Group shall have delivered to the
Servicer satisfactory evidence, in the reasonable judgment of the Servicer, as
to the appointment of agents for service of process as required by the
Documentary Conventions set forth in Appendix A to the Servicing
Agreement.
7. Genesis
and each other Person within the Genesis Group shall have delivered to the
Servicer, in form and substance reasonably satisfactory to the
Servicer:
(A) a
certificate dated the Closing Date of the secretary, any assistant secretary or
other appropriate officer of each such Person certifying as to:
(1) the
attached corporate charter, by-laws and other constituent documents of such
Person, recently certified, in the case of any such document filed with the
secretary of state or similar Governmental Authority of the jurisdiction in
which such Person is organized by such Governmental Authority;
(2) the
absence of amendments to any constituent document since the date of the last
amendment (a) shown on the official evidence as to filed constituent
documents furnished pursuant to (B) below if such official evidence is
available and in any event (b) reflected in the constituent documents
furnished pursuant to (1) above;
(3) resolutions
or other written evidence of corporate action of the board of directors (or
appropriate committee thereof) and, if applicable, the shareholders of such
Person duly authorizing or ratifying the execution, delivery and performance by
such Person of the Servicing Agreement and the Genesis Group Guarantee, as
applicable, to which it is or is to be party and the absence of any
modification, amendment or revocation thereof or any other resolutions relating
thereto;
|
* |
Items
which relate to MSA Aircraft Assets shall be deliverable when they become
applicable. |
SCHED 8.01-1
SCHEDULE
8.01 TO
THE
SERVICING AGREEMENT
(4) the
absence of proceedings for the dissolution, liquidation, receivership or
similar proceedings with respect to such Person;
(5) if
applicable, its corporate seal; and
(6) the
incumbency and signatures of the individuals authorized to execute and deliver
documents on such Person’s behalf; and
(B) to the
extent available from appropriate Governmental Authorities, recent official
evidence from appropriate Governmental Authorities of appropriate jurisdictions
as to constituent documents on file, good standing, payment of franchise taxes
and qualification to do business in the jurisdiction in which such Person is
organized.
8. Genesis
and each other Person within the Genesis Group shall have delivered to the
Servicer an Officer’s Certificate dated the Closing Date, in form and
substance reasonably satisfactory to the Servicer, stating that:
(A) each
representation and warranty of such Person contained in the Servicing Agreement
and Genesis Group Guarantee, as applicable, is true and correct as of the
Closing Date;
(B) such
Person has duly performed and complied in all material respects with all
covenants, agreements and conditions contained in the Servicing Agreement and
Genesis Group Guarantee, as applicable, required to be performed or complied
with by it on or before the Closing Date;
(C) no event
has occurred and is continuing or condition exists or would result from the
consummation of any transaction contemplated by the Servicing Agreement or
Genesis Group Guarantee, as applicable, to which such Person is a party that
constitutes, or with the giving of notice or lapse of time or both would
constitute, a default in any material respect under such Servicing Agreement or
Genesis Group Guarantee, as applicable, or a breach thereof or would give any
party thereto the right to terminate, or not to perform any material obligation
under, any thereof; and
(D) the
Servicing Agreement and Genesis Group Guarantee, as applicable, to which it is
a party is in full force and effect with respect to it, has not been amended,
modified or terminated and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms (subject to bankruptcy and
similar laws applicable to creditors’ rights generally and to general
equitable principles).
9. The
Servicer (and such Affiliates of the Servicer that the Servicer designates as
addressees) shall have received legal opinions dated as of the Closing Date,
which shall cover the following matters and shall also cover such other matters
as the Servicer and its counsel may reasonably request:
(A) Each of
Genesis and each other Person within the Genesis Group has been duly organized
and is validly existing as a trust, a corporation or a limited liability
company in good standing under the laws of its jurisdiction or organization,
incorporation or formation, respectively.
(B) Neither
the execution and delivery of the Servicing Agreement and Genesis Group
Guarantee, as applicable, nor the consummation of the transactions contemplated
thereby
SCHED 8.01-2
SCHEDULE
8.01 TO
THE
SERVICING AGREEMENT
nor
the performance by Genesis or any other Person within the Genesis Group of any
of their obligations thereunder in accordance with the terms thereof will
(i) violate any order, writ, injunction, judgment or decree in effect as
of the date hereof of any [insert appropriate courts] to which Genesis or any
other Person within the Genesis Group, or any of their respective Affiliates,
is a party or by which any of their respective properties or assets are bound,
(ii) violate in any material respect any applicable law of [insert
applicable law] in effect as of the date hereof or (iii) result in any
conflict with, breach of or default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, warrant or other similar instrument or
any license, permit material agreement or other material obligation to which
any such Person is a party or by which any such Person’s properties or
assets may be bound.
(C) Upon
execution and delivery thereof, the Servicing Agreement and the Genesis Group
Guarantee, as applicable, to which Genesis and each other Person within the
Genesis Group is a party shall be valid and legally binding on and enforceable
against such party in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or
other laws affecting creditors’ rights generally from time to time in
effect and to general equity principles regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(D) No
action, consent or approval by, or filing with, any [insert appropriate
Governmental Authorities] or other third party is required in connection with
the execution, delivery or performance by Genesis or any other Person within
the Genesis Group of the Servicing Agreement and the Genesis Group Guarantee,
as applicable, to which it is a party or the consummation by Genesis or any
other Person within the Genesis Group of the transactions contemplated
thereby.
10. The
Servicer shall have delivered to Genesis, in form and substance reasonably
satisfactory to Genesis:
(A) a
certificate dated the Closing Date of the secretary, any assistant secretary or
another appropriate officer of the Servicer certifying as to:
(1) the
attached corporate charter, by-laws and other constituent documents of the
Servicer, recently certified, in the case of any such document filed with the
secretary of state or similar Governmental Authority of the jurisdiction in
which the Servicer is organized by such Governmental Authority;
(2) the
absence of amendments to any constituent document since the date of the last
amendment (a) shown on the official evidence as to filed constituent
documents furnished pursuant to (B) below if such official evidence is
available and (b) in any event reflected in the constituent documents
furnished pursuant to (1) above;
(3) resolutions
or other written evidence of corporate action of the board of directors (or
appropriate committee thereof) and, if applicable, the shareholders of the
Servicer duly authorizing or ratifying the execution, delivery and performance
by the Servicer of the Servicing Agreement and the absence of any modification,
amendment or revocation thereof or any other resolutions relating
thereto;
(4) the
absence of proceedings for the dissolution, liquidation, receivership or
similar proceedings with respect to the Servicer;
SCHED 8.01-3
SCHEDULE
8.01 TO
THE
SERVICING AGREEMENT
(5) if
applicable, its corporate seal; and
(6) the
incumbency and signatures of the individuals authorized to execute and deliver
documents on the Servicer’s behalf; and
(B) to the
extent available from appropriate Governmental Authorities, recent official
evidence from appropriate Governmental Authorities of appropriate jurisdictions
as to constituent documents on file, payment of franchise taxes and
qualification to do business in the jurisdiction in which the Servicer is
organized.
11. The
Servicer shall have delivered to Genesis an Officer’s Certificate dated
the Closing Date, in form and substance reasonably satisfactory to Genesis,
stating that:
(A) each
representation and warranty of the Servicer contained in the Servicing
Agreement is true and correct as of the Closing Date;
(B) the
Servicer has duly performed and complied in all material respects with all
covenants, agreements and conditions contained in the Servicing Agreement
required to be performed or complied with by it on or before the Closing
Date;
(C) no event
has occurred and is continuing or condition exists or would result from the
consummation of any transaction contemplated by the Servicing Agreement that
constitutes, or with the giving of notice or lapse of time or both would
constitute, a default in any material respect under the Servicing Agreement or
a breach thereof or would give any party thereto the right to terminate, or not
to perform any material obligation under, the Servicing Agreement;
and
(D) the
Servicing Agreement is in full force and effect with respect to it, has not
been amended, modified or terminated and constitutes its legal, valid and
binding obligation enforceable against it in accordance with its
terms.
12. Genesis
shall have received legal opinions dated as of the Closing Date substantially
consistent with the opinions to be given by Genesis as provided in Section 9
above.
SCHED 8.01-4
THE
SERVICING AGREEMENT
Overhead
Expenses
|
1.
|
Salary,
bonuses, company cars and benefits of Servicer’s employees.
|
|
2.
|
Travel
and entertainment expenses of Servicer’s employees. |
|
3.
|
Office,
office equipment and rental expenses of the Servicer. |
|
4.
|
Telecommunications
expenses of the Servicer. |
|
5.
|
Advertising
and promotional expenses of the Servicer. |
|
6.
|
Taxes on
the income, receipts, profits, gains, net worth or franchise of Servicer and
payroll, employment and social security Taxes for employees of the
Servicer. |
SCHED 9.06(a)-1
SCHEDULE
9.06(b) TO
THE
SERVICING AGREEMENT
Categories
of Aircraft Asset Expenses
|
1.
|
Storage,
maintenance, repossession (whether or not successful), reconfiguration,
refurbishment, delivery, redelivery, and repair expenses relating to Aircraft
Assets, including all expenses incurred by the Servicer relating to compliance
with airworthiness directives and service bulletins, which include the fees and
expenses of independent technicians and other experts retained for any of the
foregoing purposes. |
|
2.
|
Insurance
expense related to Aircraft Assets, including all fees and expenses of
insurance advisors and brokers. |
|
3.
|
Expenses
incurred in connection with the effectuation or acceptance of delivery of any
Aircraft Asset, whether being sold or leased by any Person within the Genesis
Group. |
|
4.
|
Special
studies expenses related to Aircraft Assets authorized by any Person within the
Genesis Group and fees and expenses of independent advisors retained for
providing valuation and appraisal services and general financial advice such as
structuring leases and sales and financing transactions. |
|
5.
|
Outside
legal counsel, advisory fees and expenses and other professional fees and
expenses related to Aircraft Assets (including in connection with the purchase,
sale, delivery, redelivery, lease, re-lease, lease extension or repossession of
Aircraft Assets or any enforcement actions relating to any lease).
|
|
6.
|
Subject
to Section 7.04 of the Servicing Agreement, extraordinary fees and expenses not
incurred in the ordinary course of business which the Servicer reasonably
determines appropriate in rendering the Services. |
|
7.
|
Taxes
reimbursable to Servicer pursuant to Section 9.07. |
|
8.
|
Any
other expenses relating to or associated with Aircraft Assets other than
Overhead Expenses of the Servicer and such Overhead Expenses of the Genesis
Group as are expressly the responsibility of the Servicer under
Section 9.06(a) of the Servicing Agreement. |
SCHED 9.06(b)-1
SERVICING
AGREEMENT
MANAGEMENT SERVICES
POWER OF
ATTORNEY
OF
[GRANTOR]
WHEREAS
[GRANTOR], having its [registered] office at [insert address] desires to
appoint GE COMMERCIAL AVIATION SERVICES LIMITED having its registered
office at 0 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx (“the
Attorney”) as the true and lawful attorney of the Grantor for and in the
name of and on behalf of the Grantor in such Attorney’s absolute
discretion to execute each and every Requisite Document and Requisite Act as
defined below and do all or any of the acts or things hereinafter
mentioned.
KNOW ALL
MEN BY THESE PRESENTS that in consideration for the mutual promises and
benefits set forth in the Servicing Agreement (defined below) the Grantor does
hereby make, constitute and irrevocably and unconditionally appoint for the
period (the “Term”) as and from the date hereof until termination or
expiry of the Servicing Agreement between ________________ and GE Commercial
Aviation Services Limited dated as of ________ (“the Servicing
Agreement”), in accordance with its terms, the Attorney as a true and
lawful attorney of the Grantor for and in the name of and on behalf of the
Grantor with absolute discretion to exercise, do, execute and/or deliver all or
any of the acts, documents and things hereinafter mentioned, that is to
say:
|
1.
|
To
negotiate, approve, settle the terms of, agree, make, sign, execute (whether
under hand or seal) and deliver all deeds, agreements, documents, commitments,
arrangements, instruments, applications, oaths, affidavits, declarations,
notices, confirmations, certificates, approvals, acceptances, deliveries and to
do all other acts, matters and things whatsoever which are in each case
necessary or desirable for the Attorney to do for and on behalf of the Grantor
in respect of the provision of the Services (as defined in and contemplated by
the Servicing Agreement) (each such document a “Requisite Document”
and each such act a “Requisite Act”). |
|
2.
|
To make
such amendments, modifications and variations to the Requisite Documents and to
enter into ancillary documentation in respect thereof, all on such terms as any
such Attorney may, in its sole discretion, determine from time to time for and
on behalf of the Grantor; and to make, give, sign, execute and do all things
including, without limitation, any material acts which may be necessary in
order to effect the terms of such Requisite Documents or in connection with the
making, signature, executions and delivery of the Requisite Documents or any
other documents required to be executed by the Grantor in connection therewith
or the performance of any acts, matters and things contemplated thereby or by
the Requisite Acts as may be necessary in accordance with the provision of the
Services. |
|
3.
|
To
nominate and appoint one or more substitutes as attorney or attorneys under it
for all and any of the purposes aforesaid and the appointment of same with
liberty to revoke. |
|
4.
|
To
acknowledge this Power of Attorney as the act and deed of the Grantor and
generally to do all other acts which may be necessary and desirable for
carrying the purpose of this Power of Attorney into effect. |
SCHED 13.02-1
SERVICING
AGREEMENT
IT IS
HEREBY DECLARED THAT:-
|
(A)
|
The
Grantor hereby ratifies and confirms and agrees to ratify and confirm
whatsoever any Attorney shall do or cause to be done in, or by virtue of this
Power of Attorney as long as such act is not inconsistent with the terms of the
Servicing Agreement or this Power of Attorney or in violation of Applicable
Law. |
|
(B)
|
This
Power of Attorney shall be irrevocable for the Term and at all times both
before and after the Term shall be conclusive and binding upon the Grantor and
no person or corporation having dealings with any Attorney under this Power of
Attorney shall be under any obligation to make any inquiries as to whether or
not this Power of Attorney has been revoked and all acts hereunder shall be
valid and binding on the Grantor unless express notice of its revocation shall
have been received by such person or corporation. |
|
(C)
|
Subject
to the provisions of the Servicing Agreement the Grantor unconditionally
undertakes to indemnify and keep indemnified each Attorney and his agents, and
their respective successors and estates, against all actions, proceedings,
claims, costs, expenses and liabilities of whatsoever nature arising from the
exercise or purported exercise in good faith of any of the powers conferred on
each Attorney by this Power of Attorney. |
|
(D)
|
Subject
to the provisions of the Servicing Agreement any Attorney or other person,
making or doing any payment or act, in good faith, in pursuance of this Power
of Attorney shall not be liable in respect of the payment or act by reason that
before the payment or act the Grantor was insolvent or had revoked this power
if the fact of such insolvency or revocation was not at the time of payment or
act known to the Attorney or other person making or doing same.
|
|
(E)
|
The
particular powers enumerated above shall be given the widest
interpretation. |
|
(F)
|
THIS
POWER OF ATTORNEY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF [THE STATE OF NEW YORK] [IRELAND]. |
IN
WITNESS WHEREOF the Grantor has caused this Power of Attorney duly executed by
the Grantor this day of [ ],
[ ].
| SIGNED BY: _______________________________ | ||||
| For and
on behalf of
[GRANTOR]
in the
presence of: |
||||
SCHED 13.02-2
ANNEX 1
TO THE
SERVICING
AGREEMENT
INSURANCE
GUIDELINES
|
1.
|
Hull
and Repossession Insurance: With
respect to any MSA Aircraft Asset, hull and repossession insurance, when
applicable, shall be maintained in an amount equal to the greater of
(a) the appraised value for such Aircraft (as such appraised value is set
forth on Schedule 1(a) attached hereto, as the same shall be amended in
writing from time to time by Genesis, which amendment Genesis shall provide to
Servicer promptly after any change in any such appraised value), or
(b) 110% of the net book value of such Aircraft (as such net book value is
set forth on Schedule 1(b) attached hereto, as the same shall be amended
in writing from time to time by Genesis, which amendment Genesis shall provide
to Servicer promptly after any change in such net book value), and
(c) such other amounts as may be directed in writing by Genesis from time
to time. Spare engines and parts, if any, shall be insured on the basis of
their “replacement cost”. |
|
2.
|
Liability
Insurance:
Liability insurance shall be maintained for each MSA Aircraft Asset and
occurrence in an amount not less than the amount set forth on Schedule 2
attached hereto, as the same shall be amended in writing from time to time by
Genesis. Liability insurance shall be maintained for each non-passenger MSA
Aircraft Asset and occurrence in an amount not less than 75% of the amounts set
forth on Schedule 2. The amounts of liability insurance applicable to a
MSA Aircraft Asset that is in storage or otherwise grounded may be reduced in a
manner consistent with paragraph 5 below. |
|
3.
|
Insurance
Deductibles:
|
|
(a)
|
Deductibles
and self-insurance for MSA Aircraft Assets subject to a Lease may be maintained
in an amount, which is substantially consistent with the customary practices of
the Servicer. |
|
(b)
|
Deductibles
for MSA Aircraft Assets off-lease shall be maintained in respect of any one
occurrence in respect of such MSA Aircraft Assets in an amount equal to
$200,000 or such other higher amount as Genesis may direct in writing from time
to time. |
|
4.
|
Repossession
Insurance:
Subject to prior confirmation from Genesis on a case by case basis,
repossession insurance shall be maintained for MSA Aircraft Assets subject to a
Lease that are or will be registered in any jurisdiction listed on
Schedule 4 attached hereto, as the same may be amended in writing from
time to time by Genesis. |
|
5.
|
Other
Insurance Matters: Apart
from the matters set forth above, the coverage and terms of any insurance with
respect to any MSA Aircraft Assets (a) subject to a Lease, shall be
negotiated on a basis consistent with Sections 3(b) and (c) of
Schedule 2.02(a) to the Servicing Agreement and (b) not subject to a
Lease, shall be substantially consistent with the customary practices of the
Servicer regarding similar equipment. |
|
6.
|
Named
Insureds: Any
insurance arrangements entered into with respect to any MSA Aircraft Assets
shall include as named insureds such Persons as are set forth on
Schedule 6 attached hereto, as the same shall be amended in writing from
time to time by Genesis. The Servicer shall use commercially reasonable efforts
to cause Lessees to include the Persons set forth in such clauses as named
insureds in connection with liability insurance; provided,
however, that
to the extent that a Lessee is not willing to include such Persons, the
Servicer will, subject to the provisions of the Servicing Agreement and at the
expense of Genesis, arrange for alternative liability insurance coverage with
respect to such Persons. GECAS shall, and such of its Affiliates
|
ANNEX 1-1
ANNEX 1
TO THE
SERVICING
AGREEMENT
|
|
as it
determines appropriate may, in GECAS’ sole discretion, be named as
additional insureds in connection with any such liability insurance
arrangements. |
|
7.
|
Currencies: Any
insurance requirement stated in U.S. dollar terms shall be interpreted to
include the foreign currency equivalent thereto from time to time if any such
insurance related thereto is denominated in a currency other than U.S.
dollars. |
|
8.
|
Availability: The
insurance guidelines set forth herein are subject in all cases to such
insurance being generally available in the relevant insurance market or under
applicable governmental programs, from time to time. |
|
9.
|
Revisions
to Required Amounts of Insurance:
Genesis shall use commercially reasonable efforts to provide to the Servicer
amendments to Schedules 1(a) and 1(c) attached hereto, on a quarterly
basis, and Schedule 1(b) attached hereto, on an annual basis, promptly
(and in any event within seven Business Days) following receipt or calculation
by Genesis of the relevant information that would form the basis of any such
amendment. With respect to each proposed amendment to any schedule to this
Annex 1, Genesis shall provide the Servicer with (x) a signed hard copy
thereof and (y) an e-mailed Excel version thereof. The Servicer shall not
be required to implement any change in the amount of insurance required to be
maintained with respect to any MSA Aircraft Asset pursuant to Section 1.3
of Schedule 2.02(a) to the Servicing Agreement and this Annex 1 as a
result of the receipt by the Servicer from Genesis of any written notice,
direction, amendment or similar communication pursuant to this Annex 1 until
the seventh Business Day following receipt thereof (including, with respect to
the immediately preceding sentence, receipt of the items listed in both
clauses (x) and (y) thereof). |
| 10. |
War
Risk Insurance. Unless
otherwise agreed between Genesis and the Servicer, war risk hull and liability
insurance in respect of the MSA Aircraft Assets shall be maintained in a manner
which is substantially consistent with the practices of the Servicer
. |
ANNEX 1-2
SCHEDULE
1(a) TO ANNEX 1
TO THE
SERVICING AGREEMENT
Appraised
Values
|
|
Type
|
Serial
Number
|
Appraised
Value
|
||
|
|
|
|
|
||
|
1
|
|
|
|
||
|
2
|
|
|
|
||
|
3
|
|
|
|
||
|
4
|
|
|
|
||
|
5
|
|
|
|
||
|
6
|
|
|
|
||
|
7
|
|
|
|
||
|
8
|
|
|
|
||
|
9
|
|
|
|
||
|
10
|
|
|
|
||
|
11
|
|
|
|
||
|
12
|
|
|
|
||
|
13
|
|
|
|
||
|
14
|
|
|
|
||
|
15
|
|
|
|
||
|
16
|
|
|
|
||
|
17
|
|
|
|
||
|
18
|
|
|
|
||
|
19
|
|
|
|
||
|
20
|
|
|
|
||
|
21
|
|
|
|
||
|
22
|
|
|
|
||
|
23
|
|
|
|
||
|
24
|
|
|
|
||
|
25
|
|
|
|
||
|
26
|
|
|
|
||
|
27
|
|
|
|
||
|
28
|
|
|
|
||
|
29
|
|
|
|
||
|
30
|
|
|
|
||
|
31
|
|
|
|
||
|
32
|
|
|
|
||
|
33
|
|
|
|
||
|
34
|
|
|
|
||
|
35
|
|
|
|
||
|
36
|
|
|
|
||
|
37
|
|
|
|
||
|
38
|
|
|
|
||
|
39
|
|
|
|
||
|
40
|
|
|
|
||
|
41
|
|
|
|
||
|
42
|
|
|
|
||
|
43
|
|
|
|
||
|
|
Total
|
|
|
SCHEDULE 1(a)-1
SCHEDULE
1(b) TO ANNEX 1
TO THE
SERVICING AGREEMENT
Net
Book Value
|
|
Type
|
|
Serial
Number
|
|
Net
Book
Value
|
|
110%
of Net
Book
Value |
|
|
|
|
|
|
|||
|
1
|
|
|
|
|
|||
|
2
|
|
|
|
|
|||
|
3
|
|
|
|
|
|||
|
4
|
|
|
|
|
|||
|
5
|
|
|
|
|
|||
|
6
|
|
|
|
|
|||
|
7
|
|
|
|
|
|||
|
8
|
|
|
|
|
|||
|
9
|
|
|
|
|
|||
|
10
|
|
|
|
|
|||
|
11
|
|
|
|
|
|||
|
12
|
|
|
|
|
|||
|
13
|
|
|
|
|
|||
|
14
|
|
|
|
|
|||
|
15
|
|
|
|
|
|||
|
16
|
|
|
|
|
|||
|
17
|
|
|
|
|
|||
|
18
|
|
|
|
|
|||
|
19
|
|
|
|
|
|||
|
20
|
|
|
|
|
|||
|
21
|
|
|
|
|
|||
|
22
|
|
|
|
|
|||
|
23
|
|
|
|
|
|||
|
24
|
|
|
|
|
|||
|
25
|
|
|
|
|
|||
|
26
|
|
|
|
|
|||
|
27
|
|
|
|
|
|||
|
28
|
|
|
|
|
|||
|
29
|
|
|
|
|
|||
|
30
|
|
|
|
|
|||
|
31
|
|
|
|
|
|||
|
32
|
|
|
|
|
|||
|
33
|
|
|
|
|
|||
|
34
|
|
|
|
|
|||
|
35
|
|
|
|
|
|||
|
36
|
|
|
|
|
|||
|
37
|
|
|
|
|
|||
|
38
|
|
|
|
|
|||
|
39
|
|
|
|
|
|||
|
40
|
|
|
|
|
|||
|
41
|
|
|
|
|
|||
|
42
|
|
|
|
|
|||
|
43
|
|
|
|
|
|||
|
|
Total
|
|
|
|
SCHEDULE 1(b)-1
SCHEDULE
2 TO
ANNEX 1
TO THE
SERVICING
AGREEMENT
Liability
Insurance
|
Model
|
Minimum
Limit |
|
|
RJs
|
US $250
million |
|
|
|
|
|
|
B737/A320/A319B757
|
US $500
million ($300 million for North American air carriers) |
|
|
|
|
|
|
A330/A340/MD11/B767/B777/B787
|
US $600
million |
|
|
B747/A380
|
US $750
million |
Notwithstanding
the foregoing, with respect to any liability insurance maintained by any Person
within the Genesis Group for the benefit of the Persons listed in
clause 2(h) of Schedule 6 to Annex 1, such amount of insurance shall
be not less than US$750 million for wide-body Aircraft, US$500 million for
narrow-body Aircraft and US$350 million for regional jet Aircraft.
SCHED 2-1
SCHEDULE
4 TO ANNEX 1
TO THE
SERVICING AGREEMENT
Repossession
Insurance
|
Country
|
|
|
|
|
|
Belarus
|
|
|
Bhutan
|
|
|
Kazakhstan
|
|
|
Mongolia
|
SCHED 4-1
SCHEDULE
6 TO ANNEX 1
TO THE
SERVICING AGREEMENT
Named
Insureds
| 1. |
Hull and
Repossession Insurance |
with
respect to each MSA Aircraft Asset, owner (and head lessor, if applicable)
and/or lessor and intermediate lessor(s), if any, of Aircraft and/or the
Security Trustee.
| 2. |
Liability
Insurance |
(a) owner
(and head lessor, if applicable) of Aircraft (Person within Genesis
Group)
(b) intermediate
lessor(s), if any, of Aircraft (Person(s) within Genesis Group)
(c) GECAS,
the Servicer
(d) the
Administrative Agent
(e) the
Security Trustee
(f) Genesis
(g) with
respect to each MSA Aircraft Asset acquired on or after the date hereof, the
relevant “Seller Indemnitees” (as defined in the applicable asset
purchase agreement) during the period commencing on the date of delivery of
such MSA Aircraft Asset and ending on the earlier of (i) the second
anniversary of such date of delivery and (ii) the date of completion of
the next major check in respect of such MSA Aircraft Asset.
SCHED 6-1
ANNEX 2
TO THE
SERVICING
AGREEMENT
[Intentionally
Left Blank]
ANNEX 2-1
APPENDIX
A TO THE
SERVICING
AGREEMENT
CONSTRUCTION
AND USAGE; DEFINITIONS
Construction
and Usage
The
terms defined below have the meanings set forth below for all purposes.
“Include”, “includes” and “including” shall be
deemed to be followed by “without limitation” whether or not they are
in fact followed by such words or words of like import. “Writing”,
“written” and comparable terms refer to printing, typing, lithography
or other means of reproducing words in a visible form (including electronic
mail). Any agreement or instrument or any law, rule or regulation of any
Governmental Authority defined or referred to below means such agreement or
instrument or such law, rule or regulation as from time to time amended,
modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of such law, rule or regulation) by
succession of any comparable successor law, rule or regulation and includes (in
the case of agreements or instruments) references to all attachments thereto
and instruments incorporated therein. References to a Person are also to its
permitted successors and assigns. Any term defined below by reference to any
agreement or instrument or any law, rule or regulation of any Governmental
Authority has such meaning whether or not such agreement, instrument or law,
rule or regulation is in effect. “Agreement”, “hereof”,
“herein”, “hereunder” and comparable terms refer to the
agreement in which such term appears (including all exhibits and schedules
hereto) and not to any particular article, section, clause or other subdivision
thereof or attachment thereto. References to any gender include, unless the
context otherwise requires, references to all genders, and references to the
singular include, unless the context otherwise requires, references to the
plural and vice versa. “Shall” and “will” have equal force
and effect. References to “Article”, “Section”,
“Clause” or another subdivision or to an attachment are, unless the
context otherwise requires, to an article, section, clause or subdivision of or
attachment to such agreement.
Definitions
“Accounting
Claims”
has the meaning assigned to such term in Section 11.05 of the Servicing
Agreement.
“Additional
Aircraft”
means any Aircraft that is not then an Aircraft Asset proposed to be acquired
by a Person in the Genesis Group in accordance with the provisions of the
Servicing Agreement.
“Administrative
Agency Agreement”
means the Administrative Agency Agreement dated as of ________, 2006, between
_____________, as Administrative Agent, Genesis, the issuer subsidiaries
defined therein and ____________________________.
“Administrative
Agent”
means _______________, as administrative agent under the Administrative Agency
Agreement.
“Adviser”
means an insurance adviser engaged by the Servicer in accordance with
Section 1.3(b) of Schedule 2.02(a) to the Servicing
Agreement.
“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, including a trust of which the Person specified or any of its
Affiliates is a beneficiary; provided,
however, that
Genesis and its respective Subsidiaries, on the one part, and GE and its
Subsidiaries, on the other part, shall not be considered to be Affiliates of
each other .
“After-Tax
Basis”
means on a basis such that any payment received, deemed to have been received
or receivable by any Person shall, if necessary, be supplemented by a further
payment to that
APPENDIX A-1
APPENDIX
A TO THE
SERVICING
AGREEMENT
Person
so that the sum of the two payments shall, after deduction of all Taxes
resulting from the receipt (actual or constructive) or accrual of such payments
(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.
“Aggregate
Gross Proceeds”
has the meaning assigned to such term in Section 9.04(b) of the Servicing
Agreement.
“Aircraft”
means any airframe together with (i) any Engine installed on such airframe (or
any Engine substituted therefor), (ii) parts or components thereof,
(iii) spare parts or ancillary equipment or devices furnished therewith
and (iv) the Aircraft Documents with respect thereto.
“Aircraft
Asset Expenses”
has the meaning assigned to such term in Section 9.06(b)(i) of the
Servicing Agreement.
“Aircraft
Asset Expenses Budget”
has the meaning assigned to such term in Section 7.03(a) of the Servicing
Agreement.
“Aircraft
Assets”
means all Aircraft owned or leased-in by any Person within the Genesis Group as
of the Closing Date or at any time or from time to time thereafter (taking into
account any acquisitions or dispositions made in accordance with this
Agreement), including all Original Aircraft; provided,
however, that
Aircraft Assets shall not include (x) any Aircraft Asset that shall have
ceased to be an Aircraft Asset in accordance with the provisions of Sections
2.04(b) or 3.02(d) of the Servicing Agreement or the corresponding provisions
of the WHCO Servicing Agreement or any Securitization Servicing Agreement, but
shall include any Former Aircraft Asset that shall have become an Aircraft
Asset pursuant to Section 6.07 of the Servicing Agreement or the
corresponding provisions of the WHCO Servicing Agreement or any Securitization
Servicing Agreement or (y) any Aircraft Asset in respect of which the
obligation of the Servicer to provide Services shall have been terminated in
accordance with Section 10.02 of the Servicing Agreement or
Section 10.02 of the WHCO Servicing Agreement or any Securitization
Servicing Agreement or (z) any Aircraft in respect of which the Servicer
has notified Genesis that the Servicer will not provide Services pursuant to
Section 2.02(h) of the Servicing Agreement.
“Aircraft
Assets Related Documents”
means all Leases and other contracts and agreements of Persons within the
Genesis Group the terms of which relate to or affect any of the MSA Aircraft
Assets.
“Aircraft
Documents”
means, in relation to an Aircraft, all records, logs, technical data, manuals
and other documents relating to the maintenance and operation of such
Aircraft.
“Annex
1”
means Annex 1 to the Servicing Agreement.
“Annex
2”
means Annex 2 to the Servicing Agreement.
“Annual
Review”
has the meaning assigned to such term in Section 3(c)(i) of
Schedule 2.02(a) to the Servicing Agreement.
“Anti-Terrorism
Laws”
means the USA Patriot Act and the Executive Order.
“Applicable
Law”
with respect to any Person means any law, statute, ordinance, rule or
regulation or code of conduct or practice of any U.S. Federal, state or local
Governmental Authority, the
APPENDIX A-2
APPENDIX
A TO THE
SERVICING
AGREEMENT
EU or
any Irish or other foreign or international Governmental Authority that applies
to such Person or any of its properties or assets.
“Appraised
Value”
means with respect to any Aircraft, the average of the most recent appraisals
by each of the Appraisers of the Base Value (and described in such Appraisals)
of such Aircraft.
“Appraiser”
means at least three independent appraisers that are members of the
International Society of Transport Aircraft Trading or any similar
organization.
“Approved
Budget”
has the meaning assigned to such term in Section 7.03(d) of the Servicing
Agreement.
“Asset
Purchase Agreement”
means the Asset Purchase Agreement dated as of _______, 2006, among GE Capital,
the other sellers listed on Schedule 1 thereto and GFL.
“Bank
Accounts”
has the meaning assigned to such term in Section 7.1(b) of
Schedule 2.02(a) to the Servicing Agreement.
“Broker”
means an insurance broker engaged by Servicer in accordance with
Section 1.3(b) of Schedule 2.02(a) to the Servicing
Agreement.
“Business
Day”
means a day on which U.S. dollar deposits may be traded on the London
inter-bank market and commercial banks and foreign exchange markets are open in
New York, New York and London, England.
“Business
Opportunities Agreement”
means the Business Opportunities Agreement dated as of _________, 2006 between
Genesis and the Servicer.
“Calculation
Date”
means the fourth Business Day immediately preceding each Payment
Date.
“Cape
Town Convention”
means the Convention on International Interests in Mobile Equipment and its
Protocol on Matters Specific to Aircraft Equipment, concluded in Cape Town on
16 November 2001.
“Changed
Circumstance”
means the occurrence and continuation of any material event, circumstance or
condition that is reasonably likely to result in the current cash flow
projections in any Year being materially less favorable than the forecast which
is the most current at the time that the Approved Budget is finalized for that
Year in accordance with Section 7.03 of the Servicing
Agreement.
“Closing”
means the closing of the offering and sale of the equity securities by Genesis
and the other transactions described in the Final Prospectus.
“Closing
Date”
means _______, 2006.
“Code”
has the meaning assigned to such term in Section 9.07(c) of the Servicing
Agreement.
“Collection
Account”
has the meaning assigned to such term in the applicable Financing
Agreements.
“Competitor”
means any of the following Persons:
APPENDIX A-3
APPENDIX
A TO THE
SERVICING
AGREEMENT
(i) any
Person (other than GE Capital and its Affiliates) engaged in, or which has an
Affiliate engaged in, the business of manufacturing aircraft or aircraft
engines, which business had consolidated revenues attributable to such business
for such Person’s and/or its Affiliates’, as the case may be, most
recently completed fiscal year in excess of $200 million; or
(ii) any of
the following Persons (or any of their respective Affiliates) and their
respective successors and assigns:
(a) International
Lease Finance Corporation;
(b) Aviation
Capital Group;
(c) AWAS;
(d) ORIX;
(e) CIT
Group Inc.;
(f) Xxxxxxx
& Xxxxx Limited;
(g) AerCap
B.V.;
(h) RBS
Aviation Capital;
(i) Fortress
Investments/Aircastle Advisor LLC;
(j) Cerberus
Capital Management;
(k) Terra
Firma Capital Partners;
(l) Singapore
Aircraft Leasing Enterprise;
(m) Boeing
Capital;
(n) GATX
Air; and
(o) Pegasus
Aviation; or
(iii) any
other Person (or any Affiliate thereof) (other than GE and its Affiliates)
which engages in a business as an operating lessor of Aircraft Assets in
competition with any Person within the Genesis Group either (x) in succession
to any of the Persons specified in clause (ii) above or (y) which has
consolidated aircraft leasing-related revenues (excluding revenues from sales
of aircraft) attributable to such business for its most recently completed
fiscal year in excess of $200 million.
“Competitor
Control”
means, with respect to any Person, a Competitor’s (a) control or
beneficial ownership, directly or indirectly, of 10% or more of any class of
securities (other than promissory notes or loan certificates or pass-through
certificates in respect of promissory notes or loan certificates that have no
rights to vote on the governance of such entity), directly or indirectly, of
such Person, or (b) ability to elect or election of a director, member
trustee or similar Person of such Person.
APPENDIX A-4
APPENDIX
A TO THE
SERVICING
AGREEMENT
“Compliance
Obligations”
has the meaning assigned to such term in Section 11.05 of the Servicing
Agreement.
“Conflicts
Standard”
has the meaning assigned to such term in Section 3.02(b) of the Servicing
Agreement.
“control”
(including, with its correlative meanings, “controlled
by”
and “under
common control with”)
means possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or
otherwise).
“Delivery”
has the meaning assigned to such term in Section 1.1 of the Asset Purchase
Agreement.
“Deposits”
means the deposits required under a Lease.
“Disposition”
has the meaning assigned to such term in Section 9.04(b) of the Servicing
Agreement.
“Documentary
Conventions”
with respect to any agreement, instrument or other document that states it is
governed thereby, means that, except as otherwise expressly provided
therein:
(a) No
Partnership. The
parties thereto expressly recognize and acknowledge that such agreement,
instrument or other document is not intended to create a partnership, joint
venture or other similar arrangement between or among any of the parties
thereto or their respective Affiliates.
(b) Notices.
Subject to paragraph (d) below, all notices, consents, directions,
approvals, instructions, requests and other communications required or
permitted by such agreement, instrument or other document to be given to any
Person shall be in writing, and any such notice shall become effective five
Business Days after being deposited in the mails, certified or registered,
return receipt requested, with appropriate postage prepaid for first class mail
or, if delivered by hand or courier service or in the form of a facsimile, when
received (and, in the case of a facsimile, receipt of such facsimile is
electronically or otherwise confirmed to the sender), and shall be directed to
the address or facsimile number of such Person set forth in Appendix C to the
Servicing Agreement. From time to time any party to such agreement, instrument
or other document may designate a new address or number for purposes of notice
thereunder by notice to each of the other parties thereto.
(c) Governing
Law. SUCH
AGREEMENT, INSTRUMENT OR OTHER DOCUMENT SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
(d) Jurisdiction;
Court Proceedings; Waiver of Jury Trial. Any
suit, action or proceeding against any party to such agreement, instrument or
other document arising out of or relating to such agreement, instrument or
other document, any transaction contemplated thereby or any judgment entered by
any court in respect of any thereof may be brought in any New York State court
located in the County of New York or Federal court sitting in the Second
Circuit, and each such party hereby submits to the nonexclusive jurisdiction of
such courts for the purpose of any such suit, action or proceeding. To the
extent that service of process by mail is permitted by applicable law, each
party thereto irrevocably consents to the service of process in any such suit,
APPENDIX A-5
APPENDIX
A TO THE
SERVICING
AGREEMENT
action
or proceeding in such courts by the mailing of such process by registered or
certified mail, postage prepaid, at its address for notices provided for above.
Each party to such agreement, instrument or other document irrevocably agrees
not to assert any objection which it may ever have to the laying of venue of
any such suit, action or proceeding in any New York State court located in the
County of New York or Federal court sitting in the Second Circuit, and any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. To the fullest extent permitted by
Applicable Law, each party to such agreement, instrument or other document
waives any right it may have to a trial by jury in respect of any litigation
directly or indirectly arising out of, under or in connection with such
agreement, instrument or other document. Genesis agrees, and it shall cause
each other Person within the Genesis Group, not to bring any action, suit or
proceeding against GE Capital, the Servicer or any of their respective
Affiliates or any of GE Capital’s, the Servicer’s or their respective
Affiliates’ Representatives arising out of, in connection with or related
to any such agreement, instrument or other document or any transaction
contemplated thereby except in a New York State court located in the County of
New York or Federal court sitting in the Second Circuit.
(e) Agent.
Genesis and each other Person within the Genesis Group hereby appoints
CT Corporation System (the “Agent”),
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, X.X.X. 00000, as its nonexclusive agent
for service of process in connection with each Operative Agreement. The parties
may use any other legally available means of service of process. Genesis will
promptly notify the Servicer and GE Capital of any change in the address of the
Agent; provided,
however, that
Genesis will at all times maintain an agent located within New York State for
service of process in connection with each Operative Agreement.
The
Servicer hereby appoints GE Capital (the “Servicer’s
Agent”),
000 Xxxxxxx Xxx., 00xx Xxxxx, Xxx Xxxx, X.X. 00000, X.X.X., as its
nonexclusive agent for service of process in connection with each Operative
Agreement. The parties may use any other legally available means of service of
process. The Servicer will promptly notify Genesis of any change in the address
of the Servicer’s Agent; provided,
however, that
the Servicer will at all times maintain an agent located within New York State
for service of process in connection with each Operative
Agreement.
(f) Consequential
Damages. In no
event will any party to such agreement, instrument or other document be liable
to any other for lost profits, income tax consequences, lost savings or any
other consequential damages, even if such party has been advised of the
possibility of such damages, or for punitive damages, resulting from the breach
of any obligation under such agreement, instrument or other
document.
(g) Counterparts. Each
such agreement, instrument or other document may be executed by the parties
thereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same agreement, instrument or other document. All signatures need not
be on the same counterpart.
(h) Entire
Agreement; Amendment and Waiver. Such
agreement, instrument or other document, together with the other Operative
Agreements, shall constitute the entire agreement of the parties thereto with
respect to the subject matter thereof and supersedes all prior written and oral
agreements and understandings with respect to such subject matter. Neither any
such agreement, instrument or other document nor any of the Appendix A to the
Servicing Agreement terms thereof may be terminated, amended, supplemented,
waived or modified, except by an instrument in writing signed by Genesis and
the Servicer. No failure or delay of any party to any such agreement,
instrument or other document, in exercising any power or right
APPENDIX A-6
APPENDIX
A TO THE
SERVICING
AGREEMENT
thereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof
or the exercise of any other right or power.
(i) Table
of Contents; Headings. The
table of contents and headings of the various articles, sections and other
subdivisions of such agreement, instrument or other document are for
convenience of reference only and shall not modify, define or limit any of the
terms or provisions of such agreement, instrument or other
document.
(j) Parties
in Interest; Limitation on Rights of Others. The
terms of such agreement, instrument or other document shall be binding upon,
and inure to the benefit of, the parties thereto and their permitted successors
and assigns and, to the extent applicable, their respective Affiliates and
Representatives. Except as expressly set forth in any such agreement,
instrument or other document with respect to Affiliates and Representatives of
the parties thereto, nothing in such agreement, instrument or other document,
whether express or implied, shall be construed to give any Person (including
any past, present or future employee of any Person within the Genesis Group)
other than the parties thereto and their permitted successors and assigns any
legal or equitable right, remedy or claim under or in respect of such
agreement, instrument or other document or any covenants, conditions or
provisions contained therein.
(k) Method
of Payment. Except
as otherwise agreed, all amounts required to be paid by any party to such
agreement, instrument or other document to any other party thereunder
(including in respect of any judgment or settlement entered in respect of such
agreement, instrument or other document) shall be paid in dollars, by wire
transfer, or other acceptable method of payment, of same day funds to a dollar
account located in the United States as such party may specify by notice to the
other party.
(l) Payment
on Business Days. If any
payment under such agreement, instrument or other document is required to be
made on a day other than a Business Day, the date of payment shall be extended
to the next Business Day.
(m) Past
Due Payments. Any
amount payable to any party or any of its Representatives under any such
agreement, instrument or other document shall be paid on the date therein
specified for payment of such amounts. To the extent that all or a portion of
such amount is not paid on such date, such amount (or the unpaid portion
thereof) shall bear interest at the Stipulated Interest Rate from such date
until and through the date that such amount has been paid in full.
(n) Severability. Any
provision of such agreement, instrument or other document that shall be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by Applicable Law, each of Genesis and the Servicer waives any provision of law
that renders any provision of any agreement, instrument or other document
prohibited or unenforceable in any respect.
“Dollar”
or “$”
means the lawful money of the United States of America.
“Due
Date”
has the meaning assigned to such term in Section 9.07(a) of the Servicing
Agreement.
APPENDIX A-7
APPENDIX
A TO THE
SERVICING
AGREEMENT
“Effectiveness
Date”
has the meaning assigned to such term in Section 10.02(c)(ii) of the
Servicing Agreement.
“Engine”
means owned or leased-in aircraft engines or, with respect to any Original
Aircraft, any aircraft engine required to be delivered together with such
Original Aircraft pursuant to the terms of the Asset Purchase
Agreement.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended.
“EU”
means the European Union.
“Executive
Order”
means US Executive Order No. 13224 on Blocking Property and Prohibiting
Transaction with Persons who Commit, Threaten to Commit, or Support Terrorism,
which came into effect on September 23, 2001.
“Existing
Accounts”
has the meaning assigned to such term in Section 7.1(a) of
Schedule 2.02(a) to the Servicing Agreement.
“Expense
Account”
has the meaning assigned to such term in Section 3.01(a) of the
Indenture.
“Fee
Period”
has the meaning assigned to such term in Section 9.03(a)(i) of the
Servicing Agreement.
“Final
Prospectus”
has the meaning assigned to such term in Section 2.03(a)(ii) of the
Servicing Agreement.
“Financing
Agreement”
means any Credit Agreement, Indenture, Security Agreement or other agreement
providing for the financing of an Aircraft Asset that has been approved by the
Servicer for purposes of this Agreement.
“Former
Aircraft Asset”
has the meaning assigned to such term in Section 2.04(b) of the Servicing
Agreement.
“GE”
means General Electric Company, a New York corporation.
“GE
Capital”
means General Electric Capital Corporation, a Delaware
corporation.
“GECAS”
means GE Commercial Aviation Services Limited, a company incorporated under the
laws of Ireland.
“GE
Policy”
has the meaning assigned to such term in Section 2.04(a) of the Servicing
Agreement.
“Genesis”
means Genesis Lease Limited, a limited liability company incorporated under the
laws of Bermuda.
“Genesis
Group”
has the meaning assigned to such term in Section 2.01(a) of the Servicing
Agreement.
APPENDIX A-8
APPENDIX
A TO THE
SERVICING
AGREEMENT
“Genesis
Group Guarantees”
means each Guarantee, in the form set forth as Appendix B to the Servicing
Agreement, issued by each Person within the Genesis Group (other than Genesis)
pursuant to Section 6.13 of the Servicing Agreement.
“Genesis
Group Liabilities”
means any obligations or liabilities of any Person within the Genesis Group
(whether accrued, absolute, contingent, unasserted, known or unknown or
otherwise).
“Genesis
Pro Forma Lease”
has the meaning assigned to such term in Section 3(b)(iii) of Schedule 2.02(a)
to the Servicing Agreement.
“Governmental
Authority”
means any court, administrative agency or commission or other governmental
agency or instrumentality (or any officer or representative thereof) domestic,
foreign or international, of competent jurisdiction including the
EU.
“Gross
Proceeds”
has the meaning assigned to such term in Section 9.04(b) of the Servicing
Agreement.
“GFL”
means Genesis Funding Limited, a Bermuda company.
“GFL
Servicing Agreement”
means the Servicing Agreement dated ________, 2006 among GFL, GECAS and the
“Policy Provider” named therein.
“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,
however, that
the term Guarantee shall not include (x) endorsements for collection or
deposit, in either case in the ordinary course of business, (y) any
guarantee by any Person within the Genesis Group of the obligations of another
Person within the Genesis Group in respect of such Person’s obligations in
connection with any Aircraft Assets, whether as lessor, seller or otherwise, or
(z) the delivery of a bond or similar instrument by or on behalf of any
Person within the Genesis Group in connection with the detention or
repossession of any Aircraft Assets or enforcement of a Lease or removal of an
encumbrance.
“Indebtedness”
means, with respect to any Person at any date of determination (without
duplication), (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (c) all obligations of such Person in
respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto), (d) 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, (e) 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, (f) all Indebtedness of other Persons secured
by a lien on any asset of such Person, whether or not such Indebtedness is
assumed by such Person, and (g) all Indebtedness of other Persons
Guaranteed by such Person.
APPENDIX A-9
SERVICING
AGREEMENT
“Indemnified
Parties”
means the Servicer and its respective Affiliates and each of the
Servicer’s and its respective Affiliates’
Representatives.
“Independent
Representative”
has the meaning assigned to such term in Section 3.02(c) of the Servicing
Agreement.
“International
Interest”
has the meaning given such term in the Cape Town Convention.
“International
Registry”
has the meaning given such term in the Cape Town Convention.
[“Initial
Offer”
means __________.]
“Lease”
means any lease or other agreement or arrangement pursuant to which any Person
(other than a Person within the Genesis Group) has the right to possession and
use of any Aircraft Asset.
“Lease
Operating Budget”
has the meaning assigned to such term in Section 7.03(a) of the Servicing
Agreement.
“Lessee”
means the lessee (or equivalent Person) in respect of a Lease.
“Lessee
Contact”
has the meaning assigned to such term in Section 2.01(a) of the Servicing
Agreement.
“Lessee
Funded Account”
has the meaning assigned to such term in the applicable Financing
Agreements.
“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, charge International Interest, Prospective International
Interest or security interest in or on such asset, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.
“Losses”
means any and all liabilities (including liabilities arising out of the
doctrine of strict liability), obligations, losses, damages, penalties, Taxes,
actions, suits, judgments, costs, fees, expenses (including reasonable legal
fees, expenses and related charges and costs of investigation) and
disbursements, of whatsoever kind and nature; provided,
however, the
term “Losses” shall not include any Indemnified Party’s
management time or overhead expenses.
“Material
Adverse Effect”
means an event, condition, matter, change or effect that impacts or, insofar as
reasonably can be foreseen, in the future is likely to impact, in a material
adverse manner, (a) with respect to any Person other than the Servicer,
the condition (financial or otherwise), properties, assets, liabilities,
earnings, capitalization, shareholders’ equity, licenses or franchises,
businesses, operation or prospects of such Person or the ability of such Person
to perform fully any of its obligations under any of the Operative Agreements,
and (b) with respect to the Servicer, the Servicer’s liabilities,
obligations, rights or benefits under the Servicing Agreement or the
Servicer’s ability to perform fully any of the Services.
“Monthly
Base Fee”
has the meaning assigned to such term in Section 9.01(a) of the Servicing
Agreement.
APPENDIX A-10
SERVICING
AGREEMENT
“Monthly
Payment Period”
has the meaning assigned to such term in Section 7.3(a) of
Schedule 2.02(a) to the Servicing Agreement.
“MSA
Aircraft Assets”
and “MSA
Person”
have the meanings assigned to such terms in Section 2.01(c) of the
Servicing Agreement.
“Net
Proceeds”
has the meaning assigned to such term in Section 2.03(g) of the Servicing
Agreement.
“New
Accounts”
has the meaning assigned to such term in Section 7.1(b) of
Schedule 2.02(a) to the Servicing Agreement.
“Non-Curable
Termination Event”
has the meaning assigned to such term in Section 10.02(c)(ii) of the Servicing
Agreement.
“Nonterminating
Party”
has the meaning assigned to such term in Section 10.02(c)(i) of the
Servicing Agreement.
“Notice
of Termination”
means a Termination Notice.
“OFAC
Designated Person”
means a Person: (a) listed in the annex to, or otherwise subject to the
provisions of, the Executive Order; (b) named as a specially designated
national and blocked Person” on the most current list published by the
Office of Foreign Asset Control of the United States Department of the
Treasury; or (c) owned or controlled by, or acting for on behalf of, any
Person referred to in clause (a) or (b) above.
“Offering”
has the meaning assigned to such term in Section 2.03(a)(i) of the
Servicing Agreement
“Officer’s
Certificate”
means, as to any Person, a certificate of the President, any Vice President or
Assistant Vice President, the Treasurer or any Assistant Treasurer, the
Secretary or any Assistant Secretary, or any Director.
“Operative
Agreements”
means the Servicing Agreement, the Genesis Group Guarantees and all other
agreements, instruments or other documents which are required by the terms of
any thereof to be delivered in connection with any of the foregoing
documents.
“Original
Aircraft”
means any “Aircraft” (as defined in the Asset Purchase Agreement);
provided,
however, that
Original Aircraft shall not include any “Aircraft” (x) which shall
have suffered an “Event of Loss” (as defined in the Asset Purchase
Agreement) or (y) with respect to which a payment has been made pursuant
to Section 4.2 or 5.3 of the Asset Purchase Agreement.
“Other
Assets”
has the meaning assigned to such term in Section 3.02(a) of the Servicing
Agreement.
“Overhead
Expenses”
has the meaning assigned to such term in Section 9.06(a) of the Servicing
Agreement.
“Partial
Termination”
has the meaning assigned to such term in Section 10.02(a)(ii) of the
Servicing Agreement.
APPENDIX A-11
APPENDIX
A TO THE
SERVICING
AGREEMENT
“Payment
Date”
means the 15th day of each month, commencing on _____ __, 2006; provided,
however, that,
if any Payment Date would otherwise fall on a day that is not a Business Day,
the relevant Payment Date shall be the first following day which is a Business
Day.
“Person”
means any individual, firm, corporation, limited liability company,
partnership, trust, body of persons, joint venture, governmental authority or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
“Precedent
Lease”
has the meaning assigned to such term in Section 3(b) of
Schedule 2.02(a) to the Servicing Agreement.
“Prime
Rate”
means the rate of interest per annum publicly announced from time to time by
Deutsche Bank Trust Company Americas as its prime rate in effect at its
principal office in New York City; each change in the “Prime Rate”
shall be effective on the date such change is announced.
“Prospective
International Interest”
has the meaning given to such term in the Cape Town Convention.
“Prospectus”
has the meaning assigned to such term in Section 2.03(a)(i) of the
Servicing Agreement.
“Rating
Agencies”
means each of Standard & Poor’s Ratings Group, a division of the
XxXxxx-Xxxx Companies, Inc. and Xxxxx’x Investors Service, Inc. and any
successors to either of the foregoing.
“Ratings”
means the then current rating assigned by a Rating Agency in respect of the
Notes.
“Rent
Collected Fee”
has the meaning assigned to such term in Section 9.03(a)(ii) of the
Servicing Agreement.
“Rent
Fees”
has the meaning assigned to such term in Section 9.01 of the Servicing
Agreement.
“Rent
Payable Fee”
has the meaning assigned to such term in Section 9.03(a)(i) of the
Servicing Agreement.
“Rents”
means the basic rent payable pursuant to a Lease, and in the event that the
agreement or arrangement pursuant to which possession of any Aircraft Asset is
given is other than as a lease, amounts equivalent to any basic rent, and, in
the event that there is a negotiated or non-consensual termination of a Lease
prior to the scheduled expiry date of the term thereof or the exercise of a
termination right by the Lessee under a Lease, all amounts payable by the
Lessee in connection therewith other than amounts that are expressly
denominated as payable in connection with the condition of the Aircraft under
the Lease.
“Replacement
Servicer”
means a replacement servicer to perform some or all of the Services under the
Servicing Agreement formerly performed by the Servicer.
“Representatives”
with respect to any Person means the officers, directors, employees, advisors
and agents of such Person.
“Required
Expenses Amount”
has the meaning assigned to such term in the applicable Financing
Agreements.
APPENDIX A-12
APPENDIX
A TO THE
SERVICING
AGREEMENT
“Restricted
Lessee Contact”
has the meaning assigned to such term in Section 2.01 of the Servicing
Agreement.
“Sales
Fee”
has the meaning assigned to such term in Section 9.01 of the Servicing
Agreement.
“Securitization
Servicing Agreement”
has the meaning assigned to such term in Section 2.01(c) of the Servicing
Agreement.
“Securitization
Vehicle”
means GFL or any similar bankruptcy remote special purpose vehicle which
directly or indirectly owns Aircraft Assets and finances such Aircraft Assets
with Indebtedness placed in the capital markets and rated by the Rating
Agencies (excluding, however, WHCO while the WHCO Servicing Agreement is in
full force and effect).
“Security
Trustee”
means the secured party (as agent, trustee or otherwise) under a Financing
Agreement approved by the Servicer for purposes of this Agreement.
“Servicer”
means GECAS.
“Servicer
Delegate”
has the meaning assigned to such term in Section 12.01 of the Servicing
Agreement.
“Servicer
Disclosure”
has the meaning assigned to such term in Section 2.03(a)(i) of the
Servicing Agreement.
“Servicer
Information”
has the meaning assigned to such term in Section 2.03(m) of the Servicing
Agreement.
“Services”
has the meaning assigned to such term in Section 2.02(a) of the Servicing
Agreement.
“Servicing
Agreement”
or “Agreement”
means the Servicing Agreement dated as of _________, 2006, between Genesis and
the Servicer.
“Servicing
Fees”
means the Monthly Base Fee, the Sales Fee and the Rent Fees and any other fees
payable to the Servicer under the Servicing Agreement.
“Shadow
Director/Related Company Claims”
has the meaning assigned to such term in Section 11.04 of the Servicing
Agreement.
“Significant
Subsidiary”
means any Person within the Genesis Group that has title to, or any other
indicia of ownership in, any Aircraft Assets.
“Standard
of Care”
has the meaning assigned to such term in Section 3.01 of the Servicing
Agreement.
“Standard
of Liability”
has the meaning assigned to such term in Section 3.03 of the Servicing
Agreement.
“Stated
Services Obligation”
has the meaning assigned to such term in Section 7.3(a) of
Schedule 2.02(a) to the Servicing Agreement.
APPENDIX A-13
APPENDIX
A TO THE
SERVICING
AGREEMENT
“Stipulated
Interest Rate”
means, for any period, a rate per annum equal to the Prime Rate in effect
during such period plus 2 percent per annum.
“Subsidiary”
of any Person means a corporation, company, common law or statutory trust or
other entity (i) more than 50% of whose outstanding shares or securities
(representing the right to vote for the election of directors or other managing
authority) are, or (ii) which does not have outstanding shares or
securities (as may be the case in a partnership, joint venture or
unincorporated association), but more than 50% of whose ownership interest
representing the right to make decisions for such other entity is, now or
hereafter owned or controlled, directly or indirectly, by such Person, but such
corporation, company, common law or statutory trust or other entity shall be
deemed to be a Subsidiary only so long as such ownership or control
exists.
“Tax”
or “Taxes”
means all fees (including documentation, license and registration fees), taxes,
assessments, levies, impositions, duties, withholdings and other charges of any
nature whatsoever (including taxes based upon or measured by gross receipts,
income, profits, sales, use or occupation, and value added, ad valorem,
transfer, franchise, withholding, payroll, social security, employment, excise,
documentary, stamp, corporation, corporation profits, advance corporation,
capital duty, capital gains, capital acquisitions, wealth, vehicle
registration, social insurance, and property taxes) asserted or imposed by any
Governmental Authority, together with all interest, fines, penalties and
additions imposed with respect to such amounts.
“Taxpayer”
means any Person within the Genesis Group or any predecessor of any Person
within the Genesis Group, or any successor to any Person within the Genesis
Group (but not including the Servicer or any of its Affiliates).
“Terminating
Party”
has the meaning assigned to such term in Section 10.02(c)(i) of the
Servicing Agreement.
“Termination
Notice”
has the meaning assigned to such term in Section 10.02(c)(i) of the
Servicing Agreement.
“Third
Party Claim”
means a claim by a third party arising out of a matter for which an Indemnified
Party is entitled to be indemnified pursuant to the indemnity provisions of the
Servicing Agreement.
“Transaction
Approval Requirements”
has the meaning assigned to such term in Section 7.04(c) of the Servicing
Agreement.
“U.S.
GAAP”
means generally accepted accounting principles in the United
States.
“Utilization
Rent”
means the utilization rent, supplemental rent, and other similar payments
(including payments analogous to or consisting of maintenance reserves) under
each of the Leases.
“WHCO”
means ___________________.
“WHCO
Servicing Agreement”
means the Servicing Agreement dated _________, 2006 between WHCO and
GECAS.
“Year”
means each fiscal year ending December 31.
APPENDIX A-14
APPENDIX B
TO THE
SERVICING
AGREEMENT
GUARANTEE
dated as of [insert date]
made by
[insert name] (“Guarantor”) in favor of GE COMMERCIAL AVIATION
SERVICES LIMITED (the “Servicer”) and its Affiliates relating to the
Servicing Agreement dated as of _________ __, 2006 (the
“Agreement”), between the Servicer and
_________________(“Genesis”).
WHEREAS
pursuant to the Agreement, the Servicer has agreed to provide Services to each
Person within the Genesis Group in accordance with and to the extent set forth
in the Agreement;
WHEREAS
the Obligor is a party to the Agreement and is liable for any and all amounts
due and owing to the Servicer and any of its Affiliates under the Agreement;
and
WHEREAS
each Person within the Genesis Group is a direct or indirect beneficiary of the
Services performed by the Servicer pursuant to the Agreement.
NOW,
THEREFORE, in consideration of the premises and to induce the Servicer to enter
in the Agreement and to perform the Services thereunder, Guarantor hereby
agrees, for the benefit of the Servicer and its Affiliates, as
follows:
1. Guarantor
unconditionally and irrevocably guarantees to the Servicer and its Affiliates
(a) the due and punctual payment of all amounts due to the Servicer and
its Affiliates from the Obligor under the Agreement, whether now existing or
hereafter incurred, and (b) the due and punctual performance of all other
obligations of the Obligor to the Servicer and its Affiliates under the
Agreement (all the foregoing being hereinafter collectively called the
“Obligations”) and any and all fees and expenses (including, without
limitation, reasonable attorneys’ fees and expenses) incurred by the
Servicer and its Affiliates in enforcing any rights under this Guarantee, all
without regard to any counterclaim, set-off, deduction or defense of any kind
which the Obligor or Guarantor may have or assert, and without abatement,
suspension, deferment or diminution on account of any event or condition
whatsoever. In case of failure of the Obligor punctually to pay any of the
amounts referred to in clause (a) above, Guarantor hereby agrees to cause
such amounts to be paid punctually when and as the same shall become due and
payable as if such payment were made by the Obligor. Guarantor further agrees
that this Guarantee constitutes a guarantee of payment when due and not of
collection.
2. The
liability of the undersigned under this Guarantee shall, to the fullest extent
permitted by Applicable Law, be unconditional irrespective of (i) any lack
of enforceability against the Obligor of any Obligation, (ii) any change
of the time, manner or place of payment, or any other term, of any Obligation,
(iii) any exchange, release or nonperfection of any collateral securing
payment of any Obligation or any other guarantee in respect thereof,
(iv) any law, regulation or order of any jurisdiction affecting any term
of any Obligation or the Servicer’s or any of its Affiliates’ rights
with respect thereto and (v) any other circumstance which might vary the
risk of or otherwise constitute a defense available to, or a discharge of, the
Obligor, Guarantor or any surety. The Guarantor waives, to the fullest extent
permitted by Applicable Law, promptness, diligence and notices with respect to
any Obligation and this Guarantee and any requirement that the Servicer or any
of its Affiliates exhaust any right or take any action against the Obligor, any
collateral security or any other guarantor.
3. In the
event that the Guarantor is required by any applicable law to make any
deduction or withholding for or on account of Taxes from any payment to be made
by it hereunder, then it shall (i) pay over to the government or taxing
authority imposing such Tax the full amount required to be deducted or withheld
(including the full amount required to be deducted or withheld from the
additional amounts required to be paid pursuant to clause (ii) below),
(ii) pay to the Servicer or its Affiliates, as the
APPENDIX X-00
SERVICING
AGREEMENT
case may
be, together with such payment such additional amounts as may be necessary in
order that the net amount received by the Servicer or its Affiliates, as the
case may be, will be not less than the full amount of such payment which would
otherwise have been receivable had no such deduction or withholding been
required and (iii) forward to the Servicer as soon as possible such tax
receipts or other official documentation with respect to the payment of the
Taxes so deducted or withheld as may be issued from time to time by such
government or taxing authority.
4. Guarantor
further 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 Obligation or interest thereon is rescinded or must otherwise be restored
by the Servicer upon the bankruptcy or reorganization of the Obligor, Guarantor
or otherwise.
5. Upon
payment by Guarantor of any sums to the Servicer or its Affiliates under this
Guarantee, all rights of Guarantor against the Obligor arising as a result
thereof by way of right of subrogation or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full of all the obligations of the Obligor under the Agreement.
6. The
Guarantor represents and warrants as of the date hereof to the Servicer and its
Affiliates that:
(a) the
Guarantor is a [corporation or business trust duly organized and validly
existing and, if relevant, in good standing under the laws of the jurisdiction
in which it is legally organized], [national banking association duly organized
and validly existing in good standing under the laws of the United States] and
has full power, authority and legal right to execute and deliver, and to
perform its obligations under, this Guarantee;
(b) the
Guarantor has taken all necessary corporate and legal action to authorize the
guarantee hereunder on the terms and conditions of this Guarantee and to
authorize its execution, delivery and performance;
(c) this
Guarantee has been duly executed and delivered by a duly authorized officer or
Representative of the Guarantor, and constitutes the legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with its terms;
(d) the
execution, delivery and performance of this Guarantee will not constitute a
default under or violate any provision of any law or regulation, or any
judgment or order of any court, arbitrator or governmental authority, in each
case applicable to the Guarantor, constituent documents of the Guarantor, or
any agreement to which the Guarantor is a party; and
(e) no
consent of any other Person, and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any Governmental Authority, is required in connection with
the execution delivery, performance, validity or enforceability with respect to
the Guarantor of this Guarantee.
7. This
Guarantee shall remain in full force and effect and be binding in accordance
with its terms upon the Guarantor and shall inure to the benefit of the
Servicer and its Affiliates until all the Obligations and the obligations of
the Guarantor under this Guarantee shall have been satisfied by indefeasible
payment in full.
8. The
obligations of Guarantor under this Guarantee may not be assigned or delegated
without the prior written consent of the Servicer.
APPENDIX X-00
SERVICING
AGREEMENT
[9. The
liability of the Guarantor under this Guarantee 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.]
[10.
This
Guarantee shall be governed by the Documentary Conventions, and all capitalized
terms used but not defined herein have the meanings assigned to such terms in
Appendix A to the Agreement. The construction and usage set forth in such
Appendix A are incorporated herein by reference.]
[11. All of
the statements, representations, covenants and agreements made by Guarantor
contained in this Guarantee are made and intended only for the purpose of
binding the Trust Estate (as such expression is defined in the Trust Agreement)
and establishing the existence of rights and remedies which can be exercised
and enforced against the Trust Estate. Therefore, anything contained in this
Guarantee to the contrary notwithstanding, no recourse shall be had with
respect to this Guarantee against Guarantor in its individual capacity or
against any institution or person which becomes a successor trustee or
co-trustee or any officer, director, trustee, servant or direct or indirect
parent or controlling person or persons of any of them; provided, however, that
this Section 11 shall not be construed to prohibit any action or
proceeding against any party hereto for its own willful misconduct or grossly
negligent conduct for which it would otherwise be liable; and provided,
further, that nothing contained in this Section 11 shall be construed to
limit the exercise and enforcement in accordance with the terms of this
Guarantee or such other agreements of rights and remedies against the Trust
Estate.]
IN
WITNESS WHEREOF, Guarantor has executed this Guarantee as of the date first
above written.
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[Insert
Name of Guarantor] |
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|
Name:
Title: |
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APPENDIX B-17
SERVICING
AGREEMENT
Notices
GE
Commercial Aviation Services Limited
Aviation
House
Shannon,
County Clare
Ireland
Attention:
Company Secretary
Fax:
(000) 00-000000
Telephone:
(000) 00-000000
with a
copy to:
GE
Commercial Aviation Services LLC
000 Xxxx
Xxxxx Xxxx (Xxxxxx Xxxxx)
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
General Counsel
Fax:
(000) 000-0000
Telephone:
(000) 000-0000
APPENDIX C
