ASSET PURCHASE AGREEMENT dated as of [__________], 2006 among GENERAL ELECTRIC CAPITAL CORPORATION, THE OTHER SELLERS LISTED ON SCHEDULE 1 HERETO and GENESIS FUNDING LIMITED
dated as
of [__________], 2006
among
GENERAL
ELECTRIC CAPITAL CORPORATION,
THE
OTHER SELLERS LISTED ON SCHEDULE 1 HERETO
and
GENESIS
FUNDING LIMITED
TABLE
OF CONTENTS
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Page
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1.
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INTERPRETATION
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1
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2.
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SALE AND
XXXXXXXX |
00
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0.
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DELIVERY
AND ACCEPTANCE |
16
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4.
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SUBSTITUTE
AND UNDELIVERED AIRCRAFT |
20
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5.
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PAYMENTS
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22
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6.
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CONDITIONS
PRECEDENT - SELLER |
26
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7.
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CONDITIONS
PRECEDENT - PURCHASER |
29
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8.
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REPRESENTATIONS
AND WARRANTIES OF GECC AND EACH OTHER SELLER |
41
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9.
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REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER |
56
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10.
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INDEMNITY
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58
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11.
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TAXES
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59
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12.
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WARRANTIES
AND DISCLAIMERS |
63
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13.
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ASSIGNMENT
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64
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14.
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MISCELLANEOUS
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64
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15.
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SUBROGATION
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67
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16.
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LIMITED
RECOURSE |
67
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EXHIBIT
A-1 |
-
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Form of
Assignment of Beneficial Interest |
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EXHIBIT
A-2 |
-
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Form of
Trust Assignment and Assumption Agreement |
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EXHIBIT
A-3 |
-
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Form of
Irish Law Share Transfer Form |
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EXHIBIT
B |
-
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Form of
Xxxx of Sale |
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EXHIBIT
C |
-
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Form of
Acknowledgement of Delivery |
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EXHIBIT
D |
-
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Form of
Guaranty |
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EXHIBIT
E-1 |
-
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Conditions
Precedent - Aircraft Delivery (BI Aircraft) |
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EXHIBIT
E-2 |
-
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Conditions
Precedent - Aircraft Delivery (Independent Aircraft) |
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EXHIBIT
F |
-
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Form of
Servicing Agreement |
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EXHIBIT
G |
-
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Form of
Management Agreement |
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SCHEDULE
1 |
-
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Sellers
and Related Aircraft |
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SCHEDULE
2 |
-
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Aircraft
Information |
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SCHEDULE
3 |
-
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Documents
and Conditions - Delivery |
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SCHEDULE
4 |
-
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Documents
and Conditions - Post-Delivery |
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SCHEDULE
5 |
-
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Jurisdiction
of Incorporation or Organization |
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-
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Genesis
Funding Entities |
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SCHEDULE
7 |
-
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Debt
Allocation Amounts and Equity Allocation Amounts |
ii
For good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
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1.
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INTERPRETATION
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1.1
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For all
purposes of this Agreement, the following terms shall have the following
meanings: |
“Acknowledgement
of Delivery”
means, for any Aircraft title to which passes as a result of being physically
delivered pursuant to the terms and conditions of this Agreement, an executed
acknowledgement of delivery from the Purchaser thereof to the Seller thereof
substantially in the form of Exhibit C.
“Additional
Rent”
means rent (whether called additional rent, supplemental rent, utilization
rent, maintenance reserve or any similar term) that is in addition to a base
rent for the Aircraft (regardless of how such base rent is calculated) payable
under a Lease based on hours or cycles of operation of the airframe, engines,
life-limited engine parts, landing gear and/or auxiliary power unit of an
Aircraft, with respect to maintenance of which the lessor under the Lease
customarily has a maintenance contribution obligation measured in part by or
with reference to such additional rent.
“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; provided,
however, that
Genesis Funding and its Subsidiaries, on the one part, and GECC and its
Subsidiaries, on the other part, shall not be considered to be Affiliates of
each other.
“Agreed
Form”
means, when used in relation to any draft certificate, document, agreement or
opinion referred to in this Agreement, (a) substantially in the form agreed
between GECC and Genesis Funding on or before the AP Closing Date with such
changes thereto as may subsequently be agreed between GECC and Genesis Funding
and (b) in the case of any opinion, such form as each of the Rating Agencies
and the Policy Provider shall approve.
“Air
Authority”
means each Person who is vested with the control and supervision of, or has
jurisdiction over, the registration, airworthiness and operation of aircraft
and other matters relating to civil aviation in the State of Registration of
the relevant Aircraft.
“Aircraft”
means each aircraft listed on Schedule 1 and described in further detail in
Schedule 2 or, where any such aircraft has become a Remaining Aircraft pursuant
to Section 4.1(a), and unless the context otherwise requires, any Substitute
Aircraft designated in lieu thereof pursuant to Sections 4.1(b) and (c) and
described in the
“Aircraft
Documents”
means, for any Aircraft, all records, logs, technical data, manuals and any
other documents defined as “Aircraft Documents” or any similar term
under the relevant Lease therefor, title to which is vested in the owner of
such Aircraft at Delivery.
“Aircraft
No.”
means, for any Aircraft, the reference number assigned to such Aircraft in
Schedule 2 or the Substitute Aircraft Supplement, as applicable.
“Aircraft
Purchase Price”
means (i) on the AP Closing Date, in respect of all of the Aircraft, the
aggregate “Aircraft Purchase Price” as set forth in Schedule 2, and
(ii) on any date, in respect of any Aircraft (other than a Substitute
Aircraft), the “Aircraft Purchase Price” for such Aircraft as set
forth in Schedule 2, and for any Substitute Aircraft, as may be mutually agreed
between the Purchaser and GECC, subject always to receipt of a Rating Agency
Confirmation and the prior written consent of the Policy Provider, provided,
however, that
the consent of the Policy Provider shall not be required if the Rating Agencies
have confirmed that such arrangement will not result in an adverse change to
the Policy Provider’s capital charge associated with the Class G-1
Notes.
“Aircraft
Refund Amount”
means, in respect of any Aircraft, an amount equal to (a) the sum of (i) the
Debt Allocation Amount for such Aircraft, together with interest thereon at a
rate per annum equal to the Debt Rate plus (ii) the Equity Allocation Amount
for such Aircraft, together with the related yield amount at a rate per annum
of [__]%, plus (b)
Negative Hedge Breakage Costs, if any, for such Aircraft, minus (c)
Positive Hedge Breakage Costs, if any, for such Aircraft, plus (if
such amount is a negative number) or minus (if
such amount is a positive number) the absolute value of (d) the Non-Delivered
Aircraft Adjustment Amount for such Aircraft, minus (e) any
Basic Rent received by or on behalf of Genesis Funding in respect of such
Aircraft attributable to the period from and after the AP Closing
Date.
“Aircraft
Value”
means, in respect of any Aircraft, the product of (i) the Aircraft Purchase
Price of such Aircraft and (ii) the quotient obtained by dividing
(A) the Depreciation Factor applicable to such Aircraft as of the Delivery
Date for such Aircraft or in the case of any Aircraft to which the payment
provisions of Section 4.2 applies, the Delivery Expiry Date by (B) the
Depreciation Factor applicable to such Aircraft on the AP Closing
Date.
“AP
Closing Date”
means [__________], 2006.
“Appraisers”
means Aircraft Information Services, Inc., Airclaims Limited and BK Associates,
Inc. or such other appraisers as are reasonably acceptable to Genesis Funding
Limited.
2
“Assigned
Lease”
means, for any Lease the subject of an Assignment of Lease, such Lease as
assigned to the relevant Purchaser or relevant Genesis Funding Entity
(“New
Lessor”),
and as amended by the applicable Assignment of Lease.
“Assigned
Property”
has the meaning specified in Section 2.1.
“Assignment
of Beneficial Interest”
means an assignment of ownership interest in a Genesis Funding Entity from a BI
Seller to a Purchaser substantially in the form of Exhibit X-0, X-0 or A-3, as
applicable, hereto or in the Agreed Form.
“Assignment
of Lease”
means, for any Aircraft, a lease assignment and assumption agreement in the
Agreed Form to be entered into between the Seller thereof or an Affiliate of
such Seller (“Existing
Lessor”),
the Purchaser and/or New Lessor thereof and the relevant Lessee, under which
the relevant Lease will be assigned, assumed and/or amended so that such
Purchaser or New Lessor (as appropriate) will be substituted as lessor of such
Aircraft in place of Existing Lessor.
“Assignment
of Warranties”
means, for any Aircraft, an assignment in the Agreed Form between the Seller
thereof or an Affiliate of such Seller and the Purchaser, Genesis Funding
Entity or New Lessor thereof, and consented to by the Manufacturer, of such
Seller’s right, title and interest in the Manufacturer’s warranties
in respect of such Aircraft, subject to the interests of the relevant
Lessee.
“Average
Base Value”
means, for any Aircraft, the lesser of the mean and median of the “Base
Values” in respect of such Aircraft rendered by each of the Appraisers,
provided, that, for any Substitute Aircraft, such appraisals shall be dated
less than six months prior to the expected Delivery Date for such Substitute
Aircraft.
“Basic
Rent”
means, for any Lease, any scheduled rent thereunder, whether denominated as
“Basic Rent”, “Rent” or otherwise, including any rent based
on hours or cycles of operation of an Aircraft or Engine such as
“power-by-the-hour amounts” and any payments for “excess hour or
cycle amounts”, whether or not in addition to a base rent (which, for the
avoidance of doubt, shall not include any Additional Rent).
“Beneficial
Interest”
means, for any Genesis Funding Entity, 100% of the equity interest, both
beneficial and of record, in such Genesis Funding Entity whether such be in the
form of shares of a corporation, membership in a limited liability company or
beneficial interest in a trust.
“BI
Aircraft”
means any Aircraft title to which is held by (or, in the case of the Skymark
Aircraft, the beneficial interest in which is held by) any Genesis Funding
Entity on the AP Closing Date (subject to Section 3.1).
“BI
Seller”
means either GECC, or any other entity designated as a “BI Seller” on
Schedule 1 hereof, as a Seller of the Beneficial Interest in a Genesis Funding
Entity.
3
“Xxxx
of Sale”
means, for any Aircraft, an executed xxxx of sale from the Seller thereof to
the Purchaser or relevant Genesis Funding Entity substantially in the form of
Exhibit B (with such modifications as counsel to any Seller in any Delivery
Location may advise as necessary or desirable) and, as necessary, any FAA Xxxx
of Sale executed by the Seller thereof.
“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.
“Cargo
Door Rent Balance”
means an amount equal to the “Cargo Door” Rent (in the amount of
$20,000 per rental period) paid by ABX Air, Inc., under the Lease in respect of
Aircraft No. ___ (MSN 23022) or Aircraft No. __ (MSN 23140) received by the
lessor thereof during the period from the commencement of either such Lease and
prior to the AP Closing Date (to the extent that such amount has not been paid
to such Lessee pursuant to such Lease).
“CDEC”
has the meaning specified in Section 13.2.
“Code”
mean the Internal Revenue Code of 1986, as amended from time to
time.
“Contracts”
has the meaning specified in Section 8.3.
“Debt
Allocation Amount”
means, in respect of an Aircraft, the amount set forth for such Aircraft under
the heading “Debt Allocation Amount” on Schedule 7.
“Debt
Rate”
means the rate per annum equal to sum of (a) the Applicable Rate of Interest
with respect to the Class G-1 Notes and (b) the Policy Percentage (as defined
in the Policy Fee Letter).
“Delivery”
means, (a) for any Independent Aircraft, transfer of title (or the beneficial
interest in the case of the Skymark Aircraft) to such Aircraft from the Seller
thereof to Genesis Funding or any other Subsidiary of Genesis Funding, in
accordance with Section 3.4(b) and the other provisions of this Agreement, and
(b) for any BI Aircraft, Transfer of the Beneficial Interest of the Genesis
Funding Entity that has title (or the beneficial interest in the case of the
Skymark Aircraft), or holds the Beneficial Interest in another Genesis Funding
Entity that has title (or the beneficial interest in the case of the Skymark
Aircraft), to such BI Aircraft in accordance with Section 3.4(a) and the other
provisions of this Agreement.
“Delivery
Date”
means, for any Aircraft, the date on which Delivery therefor occurs in
accordance with this Agreement.
“Delivery
Expiry Date”
means the date that is 210 days after the AP Closing Date.
4
“Designated
Jurisdiction”
means a jurisdiction in which there is no adverse Tax consequence from a
delivery or transfer of an Aircraft or a beneficial interest therein as a
result of the Aircraft being located in such jurisdiction at the time of
such delivery or transfer.
“Disclosure
Letter”
means the First Disclosure Letter or a Supplemental Disclosure
Letter.
“Dollars”
and “$”
mean the lawful currency for the time being of the United States of
America.
“Engine”
means, in respect of any Aircraft, each engine for such Aircraft as described
in Schedule 2 or the Substitute Aircraft Supplement, as applicable, concerning
such Aircraft or, where any such engine has been replaced under the terms of
the relevant Lease and title to the replacement engine has passed to the owner
of such replaced Engine, such replacement engine as described in the relevant
Xxxx of Sale or Acknowledgement of Delivery, as the case may be, together with
all equipment, parts and accessories belonging to, installed in or appurtenant
to such engine and includes, where the context permits, a separate reference to
the Aircraft Documents concerning such engine.
“Equity
Allocation Amount”
means, in respect of an Aircraft, the amount set forth for such Aircraft under
the heading “Equity Allocation Amount” on Schedule 7.
“Event”
has the meaning specified in Section 11(e).
“Event
of Default”
means, for any Aircraft, any event defined as such or as “Termination
Event” or the like in the relevant Lease.
“Event
of Loss”
means, for any Aircraft, any event defined as such or as “Casualty
Occurrence” or “Total Loss” or the like in the relevant
Lease.
“Existing
Lessor”
has the meaning ascribed thereto in the definition of “Assignment of
Lease” herein.
“FAA
Xxxx of Sale”
means, with respect to any Aircraft the State of Registration of which is the
United States of America, a Federal Aviation Administration Xxxx of Sale (AC
Form 8050-2) to be executed by the Seller in favor of the Purchaser or Genesis
Funding Entity, and upon Delivery, filed with the Air Authority of the United
States of America.
“Final
Determination”
means (i)(A) a decision, judgment, decree or other order by any court of
competent jurisdiction, which decision, judgment, decree or other order has
become final after all appeals allowable by law by either party to the action
have been exhausted or the time for filing such appeals has expired or (B) in
any case involving United States federal income taxes where judicial review
shall at the time be unavailable because the proposed adjustment involves a
decrease in net operating loss carry forwards
5
“First
Disclosure Letter”
means a letter from GECC or the applicable Seller to the Purchaser dated the
date hereof setting out certain information as at the date hereof.
“Formation
Agreement”
means, for each Genesis Funding Entity, the formation document or trust
agreement pursuant to which such Genesis Funding Entity was created, as amended
or supplemented to the date of determination.
“GECAS”
means GE Commercial Aviation Services Limited, an Irish
corporation.
“GE
Group”
has the meaning specified in Section 11(c).
“GECC”
means General Electric Capital Corporation, a Delaware
corporation.
“Genesis
Funding”
means Genesis Funding Limited, a Bermuda exempted company.
“Genesis
Funding Corporate Entity”
means any Genesis Funding Entity designated as a Genesis Funding Corporate
Entity in Schedule 6 hereto.
“Genesis
Funding Entity”
means any of the entities listed in Schedule 6 hereto.
“Genesis
Funding Non-Corporate Entity”
means any Genesis Funding Entity designated as a Genesis Funding Non-Corporate
Entity Partnership in Schedule 6 hereto.
“Genesis
Funding State Corporate Entity”
has the meaning set forth in Section 8.6.
“Government
Entity”
means:
|
(1)
|
any
national government, political sub-division thereof, or local jurisdiction
therein; |
|
(2)
|
any
instrumentality, board, commission, department, division, organ, court,
exchange control authority, or agency of any thereof, however constituted;
or |
|
(3)
|
any
association, organization, or institution of which any of the above is a member
or to whose jurisdiction any thereof is subject or in whose activities any
thereof is a participant. |
6
“Guaranty”
means the Guaranty of GECC in respect of the transactions contemplated hereby
in substantially the form of Exhibit D hereto.
“Indenture”
means the Indenture dated as of the date hereof between Genesis Funding, as the
Issuer, Deutsche Bank Trust Company Americas, as the Trustee, the Operating
Bank and the Cash Manager, PK AirFinance US, Inc., as the Initial Liquidity
Facility Provider, and the Policy Provider.
“Indenture
Trustee”
means Deutsche Bank Trust Company Americas, as the trustee under the
Indenture.
“Independent
Aircraft”
means each Aircraft listed on Schedule 1 (other than any BI Aircraft but
subject to Section 3.1) and, in each case, any Substitute Aircraft substituted
therefor pursuant to Section 4.1.
“Independent
Seller”
means each Independent Seller listed on Schedule 1.
“Intercompany
Lease”
means, for any Aircraft, any lease therefor in the Agreed Form between the
applicable Genesis Funding Entities.
“International
Interest”
has the meaning given to such term in the Cape Town Convention.
“International
Registry”
means the registry established pursuant to the Cape Town
Convention.
“Lease”
means, for any Aircraft, the aircraft lease agreement (as amended,
supplemented, novated or assigned by any relevant Lease Document) between the
Existing Lessor thereof and the relevant Lessee identified as such in Schedule
2 or the Substitute Aircraft Supplement, as applicable, concerning such
Aircraft.
“Lease
Assignment Documents”
has the meaning ascribed thereto in the Security Trust Agreement.
“Lease
Documents”
means, for any Aircraft, all agreements identified as such in Schedule 2 or the
Substitute Aircraft Supplement, as applicable, concerning such Aircraft,
including any applicable Lease Novation or Assignment of Lease, as such may be
amended by any Disclosure Letter the contents of which have been agreed to by
Genesis Funding, and any Intercompany Lease.
“Lease
Novation”
means, for any Independent Aircraft, a lease novation or assignment and
amendment agreement therefor in the Agreed Form, to be entered into between the
Purchaser thereof and/or the New Lessor, the Existing Lessor thereof as lessor
and the relevant Lessee, under which the relevant Lease will be novated or
assigned and amended so that such Purchaser or New Lessor (as appropriate) will
be substituted as lessor of such Aircraft in place of such Existing
Lessor.
7
“Lessee
Encumbrance”
means, for any Aircraft, any Encumbrance which is created by or is attributable
to the acts, omissions, debts or liabilities of the applicable Lessee or its
Affiliates.
“Lessee
Furnished Equipment”
means, for any Aircraft, those appliances, parts, accessories, instruments,
navigational and communications equipment, furnishings modules, components and
other items of equipment installed in or furnished with such Aircraft at
Delivery and ownership of which is not required pursuant to the relevant Lease
to vest in or be transferred to the lessor or owner of such Aircraft, as the
case may be.
“Liabilities”
means any and all debts, liabilities and obligations, whether accrued or fixed,
absolute or contingent, matured or unmatured or determined or determinable,
including, without limitation, those arising under any Applicable Law
(including, without limitation, any environmental law), and those arising under
any contract, agreement, arrangement, commitment or undertaking.
“Losses”
has the meaning specified in Section 10.1.
“Manufacturer”
means, for any Aircraft, the manufacturer thereof as identified in Schedule 2
or the Substitute Aircraft Supplement, as applicable, and includes where the
context permits a separate reference to the manufacturer of each Engine as
identified in Schedule 2 or the Substitute Aircraft Supplement, as
applicable.
“Material
Damage”
means, for any Aircraft, damage to such Aircraft in excess of 25% of the
applicable Aircraft Value.
“Material
Default”
means, for any Lease:
|
(1)
|
an Event
of Default consisting of failure to pay Rent or Additional Rent when due if
such delinquency is in excess of thirty days from the due date (a
“Payment
Default”)
or any non-payment Event of Default; or |
|
(2)
|
any
insurance default under such Lease known to GECC or any applicable Seller;
|
unless,
in any such case, such Event of Default, Payment Default or insurance default
has been disclosed to each Rating Agency and the Policy Provider prior to the
AP Closing Date.
“Negative
Hedge Breakage Costs”
means, in respect of any Aircraft, an amount equal to the amount allocable to
such Aircraft that is payable by any Issuer Group Member to a Hedge Provider
due to an early termination of any Hedge Agreement resulting from the
non-delivery of, or deemed rescission of the transfer in respect of, such
Aircraft.
8
“Non-Delivered
Aircraft Adjustment Amount”
means, with respect to any Aircraft to which the payment provisions of Section
4.2 applies, the remainder, which may be a negative number, of (A) all
Additional Rent received by or on behalf of the relevant lessor under the Lease
of such Aircraft and paid to Genesis Funding pursuant to Section 5.3 hereof,
minus (B) the
amount of maintenance contributions, airworthiness directive cost sharing
payments and other similar payments made by or on behalf of Genesis Funding for
such Aircraft on or after the AP Closing Date.
“Novated
Lease”
means, for any Lease subject to a Lease Novation, such Lease as novated to the
Purchaser or New Lessor (as appropriate) of the Aircraft the subject of such
Lease, and as amended by the applicable Lease Novation.
“Operative
Documents”
means, for any Aircraft, (a) this Agreement, (b) the Guaranty, (c) the Xxxx of
Sale or Acknowledgement of Delivery therefor, as applicable, (d) either
(i) the Lease Novation or (ii) the Assignment of Lease therefor, and (e) in the
case of any BI Aircraft, the Assignment of Beneficial Interest together with,
in case of Beneficial Interests consisting of capital stock or equity interest,
certificates representing such Beneficial Interest duly issued and registered
in the name of Genesis Funding.
“Order”
means any writ, judgment, decree, injunction or similar order of any
governmental or regulatory authority (in each case whether preliminary or
final).
“Parts”
shall mean any part, component, appliance, accessory, instrument or other item
of equipment (other than any of the Engines) installed in or furnished with or
attached to any of the Aircraft at Delivery (or part thereof) except Lessee
Furnished Equipment.
“Paying
Party”
has the meaning specified in Section 5.7.
“Payment
Default”
has the meaning ascribed thereto in the definition of “Material
Default” herein.
“Permits”
has the meaning specified in Section 8.3.
“Permitted
Encumbrance”
means:
|
(1)
|
any
Purchaser Encumbrance; |
|
(2)
|
the
rights conferred by the Lease Documents (including Encumbrances under the
Skymark Head Lease, the Skymark Participation Agreement, the SC Air Conditional
Sale Agreement, and related documents, including the interest held by SC Air);
and |
|
(3)
|
any
Lessee Encumbrances. |
“Policy
Provider”
means Financial Guaranty Insurance Company.
9
“Pre-Closing
Taxes”
has the meaning specified in Section 11(d)(iv).
“Pre-Closing
Tax Returns”
has the meaning specified in Section 11(d)(iii).
“Priority
Search Certificate”
shall have the meaning set forth in the regulations adopted pursuant to the
Cape Town Convention.
“Purchaser”
means, for any Asset, the purchaser of such Asset pursuant to this Agreement,
which shall be Genesis Funding or, in the case of any Independent Aircraft, any
of Genesis Funding or any Subsidiary of Genesis Funding as designated in
writing by Genesis Funding at least three Business Days (or such shorter period
as may be agreed) prior to the relevant Delivery Date.
“Purchaser
Encumbrance”
means any Encumbrance which is created by or results from debts or liabilities
or actions or omissions of any Purchaser of an Asset or its
Affiliates.
“Purchaser
Indemnitees”
means Genesis Funding, any Subsidiary of Genesis Funding, each other Purchaser,
the Security Trustee, the Trustee, the Directors, the holders of the Class A
Shares, the Policy Provider and any of their respective successors and assigns,
shareholders (except in the case of the shareholders of the holders of the
Class A Shares), subsidiaries, Affiliates, directors, trustees, servants,
agents and employees.
“Receiving
Party”
has the meaning specified in Section 5.7.
“Remaining
Aircraft”
has the meaning specified in Section 4.1(a).
“Retained
Rights”
has the meaning specified in Section 2.1.
“SC
Air”
means SC Air 737H Co. Ltd., a
Japanese limited liability company.
“SC
Air Conditional Sale Agreement”
means
the Conditional
Sale Agreement dated December 20, 2005 between SC Air, as seller, and Celestial
Aviation Trading 63 Limited, as buyer, as amended, modified and supplemented
from time to time and as further novated and amended by a Conditional Sale
Assignment and Amendment Agreement among Celestial Aviation Trading 63 Limited,
as existing buyer, the Skymark Beneficial Owner, as new buyer, and SC Air, as
seller.
“SC
Air Mortgage”
means the First
Priority Aircraft Mortgage Agreement dated December 21, 2005 between the
Celestial Aviation Trading 63 Limited, as mortgagee, and SC Air, as
mortgagor, amended,
modified and supplemented from time to time and as
further assigned and amended by a Mortgage Assignment and Amendment Agreement
among SC
Air, as
mortgagor, Celestial
Aviation Trading 63 Limited, as existing mortgagee and the Skymark Beneficial
Owner, as new mortgagee,
securing
the prompt
10
“Security
Deposit”
means, for any Aircraft, the amount (whether in the form of cash, a letter of
credit, guarantee, promissory note or otherwise) set forth opposite the term
“Security Deposit” in respect of such Aircraft on Schedule 2 or the
Substitute Aircraft Supplement, as applicable, in each case paid to the
applicable lessor and not applied or repaid as of the AP Closing Date, together
with any interest thereon required under the terms of the applicable Lease to
be paid to or to accrue in favor of the Lessee thereunder to the AP Closing
Date.
“Seller”
means with respect to any Asset, the BI Seller or the Independent Seller, as
the case may be, selling such Asset. For the avoidance of doubt, Seller shall
not mean any seller of aircraft or any other asset to any of the Purchasers
other than pursuant to this Agreement.
“Seller
Indemnitees”
means, for any Aircraft, the Seller thereof (and each party named as an
Indemnitee with respect to the Lease of such Aircraft prior to amendment
thereof by an Assignment of Lease or Lease Novation, as the case may be), GECC
and any of their respective successors and assigns, shareholders, subsidiaries,
Affiliates, directors, trustees, servants, agents, and employees.
“Skymark
Aircraft”
means the Boeing 737-800 aircraft bearing manufacturer’s serial number
34247.
“Skymark
Beneficial Owner”
means Xxxxx Fargo Bank Northwest, National Association, as owner
trustee.
“Skymark
Head Lease”
means the Head Lease Agreement between the Skymark Beneficial Owner, as lessor,
and Genesis Funding France 2 S.à x.x., as lessee.
“Skymark
Lease”
means the Aircraft Specific Lease Agreement dated June 9, 2004 between AFS
Investments 63 LLC, as lessor, and Skymark Airlines Co., Ltd., as lessee,
incorporating the terms of the Aircraft Lease Common terms agreement dated
April 4, 2004 between Aviation Financial Services Inc., as lessor, and Skymark
Airlines Co., Ltd., as lessee; as amended, modified and supplemented from time
to time and as further novated and amended by a Deed of Amendment and Novation
dated October 18, 2005 between AFS Investments 63 LLC, as existing lessor,
GECAS Aircraft Leasing Norway AS, as new lessor, and Skymark Airlines Co.,
Ltd., as lessee; and by a Deed of Amendment and Novation among GECAS Aircraft
Leasing Norway AS, as existing lessor, Genesis Funding France 2 S.à
x.x., as new lessor, and Skymark Airlines Co., Ltd., as lessee.
“Skymark
Participation Agreement”
means the Participation Agreement dated December 20, 2005 among SC Air,
Celestial Aviation Trading 63 Limited, GECAS Aircraft Leasing Norway AS and
Skymark Airlines Co., Ltd., as amended, modified and supplemented from time to
time and as further assigned and amended by a Participation Agreement
Assignment and Amendment Agreement among SC Air, Celestial Aviation Trading 63
11
“State
of Registration”
means, for any Aircraft, the country identified in Schedule 2 or the Substitute
Aircraft Supplement, as applicable, concerning such Aircraft.
“Subsidiary”
of any Person means a corporation, company 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 now or hereafter
owned or controlled, directly or indirectly, by such Person, 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; provided,
however, that
in each case, such corporation, company or other entity shall be deemed to be a
Subsidiary only so long as such ownership or controls exists.
“Substitute
Aircraft”
has the meaning specified in Section 4.1(b).
“Substitute
Aircraft Adjustment Amount”
means, with respect to a Substitute Aircraft and the related Remaining
Aircraft, the sum of (a) the difference (whether positive or negative) obtained
by subtracting (i) the amount obtained by subtracting (u) the amount
of maintenance contributions, airworthiness directive cost sharing payments and
other similar payments made by or on behalf of the relevant lessor under the
Lease for such Substitute Aircraft on or after the AP Closing Date from
(v) the amount of Additional Rent received by or on behalf of the relevant
lessor under the Lease for such Substitute Aircraft on or after the AP Closing
Date, from (ii) the amount obtained by subtracting (x) the amount of
maintenance contributions, airworthiness directive cost sharing payments and
other similar payments made by or on behalf of Genesis Funding for such
Remaining Aircraft after the AP Closing Date from (y) the amount of
Additional Rent received by Genesis Funding for such Remaining Aircraft after
the AP Closing Date and (b) the difference (whether positive or negative)
obtained by subtracting (i) the sum of the portions of any Basic Rent under the
Lease for such Substitute Aircraft received (and any amounts debited from the
Security Deposit relating to such Substitute Aircraft due to the nonpayment of
such Basic Rent) by or on behalf of the related Seller or relevant Lessor, as
applicable, related to the period subsequent to the AP Closing Date from (ii)
the sum of the portions of any Basic Rent under the Lease for such Remaining
Aircraft received (and any amounts debited from the Security Deposit relating
to such Remaining Aircraft due to the nonpayment of such Basic Rent) by or on
behalf of Genesis Funding, related to the period subsequent to the AP Closing
Date.
“Substitute
Aircraft Supplement”
means, for any Substitute Aircraft, a supplement to this Agreement in the
Agreed Form which, among other things, sets forth such matters as GECC and
Genesis Funding shall agree apply specifically to such Substitute Aircraft, as
provided in Section 4.1(c).
“Sumitomo”
means Sumitomo Corporation, a Japanese corporation.
12
“Supplemental
Disclosure Letter”
means, (a) for any Independent Aircraft, a letter from GECC or the applicable
Seller to Genesis Funding setting out certain information as of the Delivery
Date for such Aircraft and (b) for any BI Aircraft, a letter from GECC or the
applicable Seller to Genesis Funding setting out certain information as of the
relevant BI Transfer Date.
“Taxes”
means any and all present and future sales, use, personal property, customs, ad
valorem, value added, turnover, franchise, windfall or other profits, payroll,
capital stock, employment, social security, workers’ compensation,
unemployment compensation, stamp, transfer, excise, interest equalization,
income, gross receipts, limited liability company minimum, limited partnership
minimum or other taxes, fees, withholdings, imposts, duties, deductions,
levies, or other charges of any nature, together with any penalties, fines, or
interest thereon, imposed, levied, or assessed by, or otherwise payable to, any
Government Entity.
“Tax
Return”
with respect to any entity means a report, return or other information
(including any amendments) required to be supplied to a Government Entity with
respect to Taxes of such entity including, information returns and, where
permitted or required, combined or consolidated returns for any group of
entities that include the entity.
“Tax
Sharing Agreement”
has the meaning specified in Section 11(d)(i).
“Transfer”
means the sale, conveyance and transfer of any Beneficial
Interest.
“Treasury
Regulations”
means proposed, temporary or final regulations promulgated under the Code by
the United States Treasury Department.
|
1.2
|
In
addition to the terms defined in Section 1.1, and for all purposes of this
Agreement, all capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to such terms in the
Indenture. |
| 1.3 | (a) |
In this
Agreement, unless the contrary intention is stated, a reference
to: |
|
(i)
|
each of
“GECC”, any “Seller”, “Genesis Funding”, any
“Purchaser” or any other Person includes without prejudice to the
provisions of this Agreement any successor in title to it or any permitted
assignee; |
|
(ii)
|
words in
the plural include the singular and vice versa; |
|
(iii)
|
any
document includes that document as amended, novated or supplemented, in each
case in accordance with its terms; |
13
|
(iv)
|
a law
(1) includes any statute, decree, constitution, regulation, order, judgment or
directive of any Government Entity; (2) includes any treaty, convention, pact,
compact or other agreement to which any Government Entity is a signatory or
party; (3) includes any judicial or administrative interpretation or
application thereof; and (4) is a reference to that provision as amended,
substituted or re-enacted; |
|
(v)
|
a
Section, an Exhibit or a Schedule is a reference to a section of or an exhibit
or a schedule to this Agreement; and |
|
(vi)
|
references
to the beneficial interest in the Skymark Aircraft mean the interest of the
purchaser pursuant to the SC Air Conditional Sale Agreement. |
|
(b)
|
The
headings in this Agreement are to be ignored in construing this
Agreement. |
|
2.
|
SALE
AND PURCHASE |
|
2.1
|
On the
AP Closing Date, or as promptly thereafter as practical (but no later than the
Delivery Expiry Date), and upon the satisfaction of all of the conditions
precedent by the BI Seller in Sections 6 and 7 with respect to all of the BI
Aircraft then owned by each Genesis Funding Entity (each such date, the
“BI
Transfer Date”
for such Genesis Funding Entity), the Purchaser will purchase from Seller and
concurrently therewith, the BI Seller will sell to the Purchaser, the
Beneficial Interest in such Genesis Funding Entity by delivery to the Purchaser
of an Assignment of Beneficial Interest in the form of Exhibit X-0, X-0 or A-3,
as applicable, hereto, dated such BI Transfer Date, and in the case of a
Beneficial Interest consisting of capital stock or equity interest
certificates, certificates (with all required stock transfer tax having been
paid) evidencing such Beneficial Interest, conveying to the Purchaser outright
and unconditionally all of the BI Seller’s right, title and interest in,
to and under such Beneficial Interest of such Genesis Funding Entity,
including, without limitation, all of the BI Seller’s rights as
shareholder, member or beneficiary, as the case may be, of such Genesis Funding
Entity, any applicable Security Deposit or Additional Rent but excluding any
Additional Rent paid on or prior to the AP Closing Date, together with all
other agreements, contracts, documents and instruments evidencing any of such
right, title and interest as well as the proceeds of all thereof, in each case
free from any Encumbrances other than Permitted Encumbrances (individually or
collectively, the “Assigned
Property”
for such Genesis Funding Entity) on, and subject to, the terms and conditions
contained in this Agreement; reserving,
however, to
such Seller all claims for indemnities payable to such Seller (or the
applicable Genesis Funding Entity) under the related Lease(s) in respect of any
act or omission or events occurring prior to the later of the (i) AP Closing
Date and (ii) Delivery Date for such Genesis Funding Entity (the
“Retained
Rights”
for the Aircraft relating to or for such Genesis Funding Entity). For the
avoidance of doubt, except in the case of a Substitute Aircraft or an
undelivered Aircraft as provided in Section 4, all Basic Rent and Additional
Rent paid on
or prior
to the AP Closing
Date shall be retained by or paid over to, as the case may be, the applicable
BI Seller and all Basic Rent and Additional Rent paid after the AP Closing Date
shall be credited to or retained by or paid over to, as the |
14
|
2.2
|
With
respect to each Independent Aircraft, on or after the AP Closing Date (but no
later than the Delivery Expiry Date), and upon the satisfaction of all of the
conditions precedent by any Independent Seller in Sections 6 and 7 with respect
to any Independent Aircraft owned by such Independent Seller, the Purchaser
will purchase from such Independent Seller and concurrently therewith, such
Independent Seller will sell to the Purchaser, such Independent Aircraft,
including, without limitation, the Aircraft Documents and any applicable
Security Deposit or Additional Rent, but excluding any Additional Rent paid on
or prior to the AP Closing Date and Retained Rights, on and subject to the
terms and conditions contained in this Agreement (including, without
limitation, the execution of a Lease Novation or Assignment of Lease (as the
case may be) in respect of such Independent Aircraft and delivery of the Lease
Documents therefor), each in its “AS IS” and “WHERE IS”
condition at the relevant Delivery Location, free from any Encumbrances other
than Permitted Encumbrances. For the
avoidance of doubt, except in the case of a Substitute Aircraft or an
undelivered Aircraft as provided in Section 4, all Basic Rent paid or to be
payable in respect of the
period prior to, and all Additional Rent paid on or prior to, the
AP Closing
Date shall be retained by or paid over to, as the case may be, the applicable
Seller and all Basic Rent and Additional Rent paid in respect of the period
after the AP Closing Date shall be credited to or retained by or paid over to,
as the case may be, the applicable Purchaser. Each
Purchaser or Genesis Funding with respect to a Retained Right shall take such
actions or pursue such claims as reasonably requested to by the Seller;
provided, (i)
all costs incurred by the Purchaser and Genesis Funding shall be for the
Seller’s account, (ii) the Seller agrees to indemnify the Purchaser and
Genesis Funding for any costs or liabilities incurred in connection with such
action or pursuit of claim and (iii) such action or pursuit of claim shall not
be inconsistent with a Purchaser’s or Genesis Funding’s obligations
under any of the Operative Documents |
|
2.3
|
The
parties hereto acknowledge, consent and agree that from and after the AP
Closing Date, each of the Aircraft shall be subject to the Management Agreement
as attached as Exhibit G hereto and the Servicing Agreement as attached as
Exhibit F hereto on the terms and conditions provided herein and therein
whether or not such Aircraft shall have
|
15
been
delivered hereunder or any Delivery Date shall have occurred, provided always
that (without prejudice to the terms of the Management Agreement or the
Servicing Agreement) from and after the Delivery Expiry Date an Aircraft shall
cease to be subject to the Management Agreement and the Servicing Agreement
upon payment by GECC of the amount specified in Section 4.2 in respect of such
Aircraft. Each party hereto further agrees that from and after the AP Closing
Date it shall reasonably cooperate with, and take such action as may be
reasonably requested by, the Servicer in connection with the performance of the
Servicer’s obligations under the Servicing Agreement.
|
2.4
|
In
consideration of Genesis Funding agreeing to purchase the Aircraft, GECC and
the applicable Sellers agree to pay to Citibank, N.A., on behalf of Genesis
Funding, an amount equal to the premium, if any [($__________)]1 payable
by Genesis Funding to Citibank, N.A. in connection with entering into the
Initial Hedge Agreements on the AP Closing Date. |
|
3.
|
DELIVERY
AND ACCEPTANCE |
|
3.1
|
Each of
the relevant BI Seller and the Purchaser shall use commercially reasonable
efforts to cause the Transfer of the Beneficial Interest for each Genesis
Funding Entity to occur on or as soon as reasonably practicable after the AP
Closing Date, and each of GECC and each of the Independent Sellers and the
Purchaser shall use commercially reasonable efforts to cause Delivery of each
Independent Aircraft to occur on or as soon as reasonably practicable after the
AP Closing Date, in each case subject to the other terms and conditions of this
Agreement, but in no event later than the Delivery Expiry Date. Delivery of the
Independent Aircraft need not take place concurrently or in the order set out
in Schedule 2. If the failure to satisfy one or more conditions precedent with
respect to any BI Aircraft (but less than all the BI Aircraft) owned by any
Genesis Funding Entity is the sole reason preventing the Transfer of the
Beneficial Interest of such Genesis Funding Entity to occur prior to the
Delivery Expiry Date, GECC may, following notice to Genesis Funding, cause such
Genesis Funding Entity first to effect delivery of such BI Aircraft to one of
the Sellers (or other entity designated in writing by GECC at least three
Business Days (or such shorter period as may be agreed) prior to the date of
such delivery) prior to the Delivery Expiry Date (whereupon such BI Aircraft
shall be an Independent Aircraft for purpose of this Agreement), and promptly
thereafter on or prior to the Delivery Expiry Date to Transfer the Beneficial
Interest of such Genesis Funding Entity to Genesis Funding. |
|
3.2
|
GECC and
any other Seller of any Independent Aircraft shall cause the Delivery Location
for such Aircraft to be in a jurisdiction: |
|
(a)
|
where
GECC has determined, in its sole discretion, that there are no Taxes (other
than income taxes imposed on the Seller thereof) that would be imposed upon
such Seller, the Purchaser thereof or the Aircraft as a result of the transfer
of title to the applicable Aircraft to such Purchaser, provided that the Seller
may (but shall not be obligated to) complete any sale where such Taxes would be
imposed |
| 1 |
To be
determined and inserted at closing, if a positive number. |
16
on such
Seller and, with the prior written consent of the Purchaser thereof, such
Seller may (but shall not be obligated to) complete any sale where such Taxes
would be imposed on such Purchaser; and
|
(b)
|
where
the security, if any, contemplated by the applicable Assignment of Lease, Lease
Novation or any related Lease Document to be granted to the Purchaser or New
Lessor thereof would be effective relative to such Aircraft; and
|
|
(c)
|
where
the security contemplated by the Security Trust Agreement with respect to the
applicable Lease, and, in the case of Aircraft registered in the United States
or Ireland, the Aircraft, would be effective under the governing law of the
Security Trust Agreement. |
In the
case of any BI Aircraft, the relevant BI Seller shall use reasonable efforts to
cause the Delivery Location for such Aircraft to be in a jurisdiction where
such BI Seller has determined, in its sole discretion that there are no Taxes
(other than income taxes imposed on the Seller thereof) that would be imposed
upon such Seller, the Purchaser thereof, the Genesis Funding Entity or the
Aircraft as a result of the Transfer of Beneficial Interest relating to such BI
Aircraft to Genesis Funding subject in all cases to the proviso set forth in
Section 3.2(a) above.
|
3.3
|
GECC
shall use reasonable efforts to keep Genesis Funding advised as to any
information of which GECC becomes aware as to the intended whereabouts of each
Independent Aircraft on the expected Delivery Date therefor and of each BI
Aircraft on the expected BI Transfer Date relating to such BI Aircraft. Each
Purchaser shall, subject to the terms and conditions of this Agreement and
using reasonable efforts, cooperate with the Seller of each Aircraft (at such
Seller’s cost) so as to allow the Delivery relating to such Independent
Aircraft, as the case may be, to occur when such Aircraft is at the Delivery
Location therefor. In the event that GECC or the relevant Seller reasonably
believes that the jurisdiction of the Delivery Location is a jurisdiction where
there may be Taxes imposed upon any Seller Indemnitee or any Purchaser
Indemnitee as a result of the transfer of the Seller’s interest in the
applicable Aircraft or Genesis Funding Entity to the Purchaser or for which the
Seller would otherwise be liable under Section 11 hereof, the Seller may, to
the extent a favorable Delivery Location cannot be arranged, elect to treat
such Aircraft as a Remaining Aircraft. |
| 3.4 | (a) |
For each
BI Aircraft, on the Delivery Date therefor, subject to the satisfaction of the
conditions precedent set out in Section 7.1 and Exhibit E-1 applicable thereto,
the Seller thereof shall be deemed to have tendered such BI Aircraft for
Delivery. On each BI Transfer Date, subject to the satisfaction of the
conditions precedent set out in Sections 6 and 7 applicable thereto, the BI
Seller shall execute an Assignment of Beneficial Interest in the form of
Exhibit X-0, X-0 or A-3, as applicable, attached hereto, and in the case of a
Beneficial Interest consisting of capital stock or equity interest certificates
cause the certificates representing the Beneficial Interest to be duly
registered in the name of Genesis Funding. |
|
(b)
|
For each
Independent Aircraft, on the Delivery Date therefor, subject to satisfaction of
the conditions precedent set out in Sections 6 and 7 applicable
|
17
thereto,
the Seller thereof shall tender such Independent Aircraft for Delivery.
Delivery and acceptance of any Independent Aircraft hereunder shall take place
while such Independent Aircraft is located at the Delivery Location therefor,
by such Seller either (i) subject to Section 3.4(c), delivering physical
possession of such Independent Aircraft to the Purchaser thereof or (ii)
executing and delivering to such Purchaser a Xxxx of Sale. Thereupon, full
legal and beneficial title to such Independent Aircraft, free from Encumbrances
other than Permitted Encumbrances, shall pass from the Seller thereof to the
Purchaser thereof. Simultaneously with physical delivery of any Independent
Aircraft or delivery to the Purchaser of the Xxxx of Sale (as the case may be),
title to the Aircraft Documents therefor shall pass as provided in the Lease
Novation or the Assignment of Lease, as applicable, and the Lease related
thereto shall be novated or assigned (as the case may be) upon the Delivery of
such Independent Aircraft. Where Delivery is effected by delivering physical
possession of any Independent Aircraft, the Purchaser thereof shall execute and
deliver to the Seller thereof an Acknowledgement of Delivery and, at any time
after Delivery upon reasonable request of the Purchaser, the Seller thereof
shall deliver to the Purchaser thereof a confirmatory xxxx of sale
substantially in the form of the Xxxx of Sale, mutatis mutandis;
notwithstanding the foregoing, the parties hereto agree that each Seller may
refuse any such request of any Purchaser to deliver a confirmatory xxxx of sale
if such delivery would result in the imposition of any Taxes, including without
limitation, documentary taxes on such Seller, such Purchaser or the Independent
Aircraft.
|
(c)
|
Each
Seller of an Independent Aircraft agrees that it will elect to Deliver such
Aircraft to the Purchaser thereof pursuant to a Xxxx of Sale unless such
Delivery will result in any documentary Taxes or other Taxes being imposed upon
such Seller or Purchaser or the Aircraft that would not otherwise be imposed as
a result of such Delivery and/or the opinion delivered in accordance with
Section 7.2(g)(i) states that such Delivery is not a valid transfer of
title. |
|
3.5
|
Subject
to the provisions of Section 5.3 hereof with respect to Material Damage and
Event of Loss in respect of any Aircraft, the risk of the existence of any
unrepaired Material Damage or the occurrence of an Event of Loss with respect
to an Aircraft shall be retained by the applicable Seller thereof until the
applicable BI Transfer Date in the case of any BI Aircraft or the applicable
Delivery Date in the case of any Independent Aircraft. All other risk of loss
of, or damage to, each Aircraft (other than a Substitute Aircraft) and the
Aircraft Documents relating thereto shall pass from the Seller thereof to the
Purchaser thereof on the AP Closing Date (provided that if Delivery in respect
of any such Aircraft shall not occur on or before the Delivery Expiry Date such
risk of loss or damage with respect to such undelivered Aircraft (and the
Aircraft Documents relating thereto) shall return to the Seller thereof), and
the risk of loss of, or damage to, each Substitute Aircraft and the Aircraft
Documents related thereto shall pass from the Seller thereof to the Purchaser
thereof upon physical delivery of the Substitute Aircraft to such Purchaser or
upon delivery of the Xxxx of Sale for such Aircraft to such Purchaser by such
Seller, as the case may be, or upon transfer of the Beneficial Interest in
respect thereof, as the case may be, pursuant to Section 3.4(a) or (b). If an
Event of Loss has occurred on or |
18
prior
to, or any unrepaired Material Damage with respect to any Aircraft (other than
a Substitute Aircraft) is in existence on the applicable BI Transfer Date in
the case of any BI Aircraft or the applicable Delivery Date in the case of any
Independent Aircraft and is not waived as a failed condition precedent to the
occurrence of such Delivery Date or BI Transfer Date by GECC, the applicable
Seller and the Purchaser with a Rating Agency Confirmation and the consent of
the Policy Provider, then upon notification of the existence of such unrepaired
Material Damage or the occurrence of an Event of Loss on such Delivery Date or
BI Transfer Date by any party hereto to the other parties hereto within six (6)
months from such BI Transfer Date or Delivery Date, the sale of such Beneficial
Interest or Independent Aircraft shall be deemed rescinded automatically and
Section 5.3 shall apply thereto.
|
3.6
|
Each
Aircraft to be sold hereunder shall be delivered to the Purchaser (or in the
case of the BI Aircraft, deemed delivered on the applicable BI Transfer Date to
Genesis Funding) “AS IS” and “WHERE IS”, at the Delivery
Location and SUBJECT TO EACH AND EVERY DISCLAIMER OF WARRANTY AND
REPRESENTATION AS SET OUT IN SECTION 12 but without limiting any
representation, warranty or covenant of GECC or any other Seller expressly set
forth herein and/or in the Xxxx of Sale or Acknowledgement of Delivery (as the
case may be) and/or Assignment of Beneficial Interest for, or in respect of,
such Aircraft (together with, in the case of any Beneficial Interest consisting
of capital stock or equity interest, the certificate representing the same)
delivered pursuant to this Agreement. Subject to receipt or satisfaction or
waiver of the conditions precedent referred to in Section 7 applicable thereto
and the other provisions of this Agreement, each Purchaser of an Aircraft or of
the related Beneficial Interest shall unconditionally accept such Aircraft or
Beneficial Interest for all purposes hereunder upon tender of a Xxxx of Sale or
an Acknowledgement of Delivery or of an Assignment of Beneficial Interest
(together with, in the case of any Beneficial Interest consisting of capital
stock or equity interest certificates representing the same), as the case may
be, in accordance with Section 3.4 and the other provisions of this Agreement
in the condition in which such Aircraft exists on the Delivery Date (or in the
case of any BI Aircraft, on the applicable BI Transfer Date). Acceptance by any
Purchaser of a Xxxx of Sale or of physical delivery as set forth in an
Acknowledgement of Delivery in respect of any Aircraft or of an Assignment of
Beneficial Interest in respect of any Aircraft then owned by any Purchaser
thereof shall constitute an acknowledgement by such Purchaser for the purposes
of this Agreement that such Aircraft is in every respect satisfactory to such
Purchaser, provided that the foregoing is not intended nor shall the same be
construed as a waiver by such Purchaser of any claim that it may have against
GECC or any other Seller for breach of any representation, warranty or covenant
expressly contained in this Agreement. |
|
3.7
|
Prior to
the Delivery of any Aircraft, the relevant Purchaser and/or its agents,
representatives and designees shall have the right, on reasonable prior notice
and at such Purchaser’s cost and expense, to inspect such Aircraft on and
subject to the terms of the applicable Lease. |
19
|
4.
|
SUBSTITUTE
AND UNDELIVERED AIRCRAFT |
| 4.1 | (a) |
If any
Seller is unable to effect Delivery of, or Transfer with respect to, any
Aircraft at any time prior to the 30th day
before the Delivery Expiry Date for any reason (including, without limitation,
the failure of one or more of the conditions set forth in Exhibit E-2 or
Section 7.2 but excluding an Event of Loss or Material Damage in respect of
such Aircraft), then, in each such case, such Aircraft shall become a
“Remaining Aircraft” and the provisions of Section 4.1(b) and (c) and
Section 4.2 shall apply. |
|
(b)
|
If an
Aircraft becomes a Remaining Aircraft, then GECC shall promptly inform Genesis
Funding and the Policy Provider thereof specifying the reason therefor and
shall use reasonable commercial efforts to designate in lieu thereof one or
more substitute aircraft that is reasonably acceptable to the Purchaser to be
delivered on or before the Delivery Expiry Date that (i) is subject to an
operating lease contract containing the Core Lease Provisions, (ii) has the
same or greater Average Base Value as of the date of Delivery thereof as such
undelivered Remaining Aircraft as of the Delivery of the Substituted Aircraft,
(iii) does not result in a Concentration Default under the Indenture, (iv) is
subject to an operating lease contract or contracts providing for a similar
rent profile and term as such undelivered Remaining Aircraft, (v) has a similar
remaining useful life as such undelivered Remaining Aircraft, (vi) such
Substitute Aircraft is not a cargo or regional jet aircraft or, if such
Substitute Aircraft is a cargo or regional jet aircraft, it is being
substituted for an Aircraft of the same category and (vii) in respect of which
GECC shall have obtained a Rating Agency Confirmation and the prior written
consent of the Policy Provider with respect to the substitution of such
Remaining Aircraft (each, a “Substitute
Aircraft”),
provided,
however, that
the consent of the Policy Provider shall not be required for such substitution
if the Rating Agencies have confirmed that such substitution will not result in
an adverse change to the Policy Provider’s capital charge associated with
the Class G-1 Notes or the ratings assigned to the Class G-1 Notes by each
Rating Agency (without regard to the Policy). |
|
(c)
|
At least
three Business Days but not more than five Business Days prior to the Delivery
Date of a Substitute Aircraft, (i) GECC shall provide Genesis Funding, the
Indenture Trustee and the Manager a certification of the amount of maintenance
contributions made and Additional Rent received by the relevant lessor for such
Substitute Aircraft after the AP Closing Date, and (ii) Genesis Funding shall
provide GECC, the Indenture Trustee and the Manager a certification of the
amount of maintenance contributions made by or on behalf of Genesis Funding and
Additional Rent received from the applicable Seller or GECC for the related
Remaining Aircraft after the AP Closing Date, and on such Delivery Date, each
of GECC and Genesis Funding shall confirm such amounts to the Indenture Trustee
and the Manager. Upon the Delivery of a Substitute Aircraft, the Remaining
Aircraft which was replaced by such Substitute Aircraft shall cease to be
subject to this Agreement and all rights and obligations of the parties
hereunder concerning such Remaining Aircraft shall cease, and such
|
20
Substitute
Aircraft shall become and thereafter be subject to the terms and conditions of
this Agreement to the same extent as such Remaining Aircraft, except as to any
matters (other than the matters referred to in Section 4.1(b)) which may be
agreed as to such Substitute Aircraft, which shall be set forth in a Substitute
Aircraft Supplement, except that the substitution of any Aircraft shall not
effect GECC’s obligations under Section 4.2 (provided always that, for the
avoidance of doubt, until a Substitute Aircraft is so delivered for a Remaining
Aircraft, such Remaining Aircraft shall continue to be subject to this
Agreement). On the Delivery Date of a Substitute Aircraft, GECC shall pay or
cause the Seller thereof to pay to the Purchaser thereof, an amount, or, if
such amount is a negative number, Genesis Funding shall pay or cause the
Purchaser thereof to pay to GECC, the Substitute Aircraft Adjustment Amount.
Genesis Funding shall promptly thereafter repay to GECC the amount of the cash
Security Deposits, if any, Genesis Funding then holds for such Remaining
Aircraft and GECC shall promptly pay to Genesis Funding the amount of the cash
Security Deposits, if any, GECC or the Existing Lessor then holds for such
Substitute Aircraft.
|
(d)
|
If an
Aircraft (including a BI Aircraft) shall have suffered an Event of Loss or
Material Damage, the applicable Seller may, but shall not be obligated to,
designate a Substitute Aircraft in respect of such Aircraft, and, if no
Substitute Aircraft shall have been designated therefor as provided above, then
the Seller shall have no obligation to deliver and the Purchaser shall have no
obligation to accept delivery of such Aircraft hereunder. |
|
4.2
|
If any
Aircraft shall not have been delivered on or prior to the Delivery Expiry Date
for any reason (whether as a result of an Event of Loss or otherwise), or if
the Beneficial Interest of any Genesis Funding Entity is not transferred on or
prior to the Delivery Expiry Date for any reason, and provided no Substitute
Aircraft shall have been delivered in substitution therefor on or prior to the
Delivery Expiry Date then (unless such Aircraft shall have suffered an Event of
Loss or Material Damage in respect of which GECC shall be obligated to account
to the Purchaser in accordance with the provisions of Section 5.3 hereof) on
such date GECC irrevocably and unconditionally agrees to pay, or cause the
Seller thereof to pay, and, without duplication thereof, the Seller thereof
irrevocably and unconditionally agrees to pay, to Genesis Funding an amount
equal to the Aircraft Refund Amount with respect to such Aircraft. In addition,
Genesis Funding shall promptly thereafter repay to GECC the amount of the cash
Security Deposits, if any, Genesis Funding then holds for such Aircraft. If on
the Delivery Expiry Date the Lessee of any such Aircraft is then in default in
the payment of basic rent under its Lease of such Aircraft in respect of the
period on or after the AP Closing Date and prior to the Delivery Expiry Date,
Genesis Funding agrees to pay promptly following its or another Genesis Funding
Entity’s receipt thereof, the amount of any such basic rent thereafter
received by or on behalf of the Lessor of such Aircraft in respect of the
period from and including the AP Closing Date to but excluding the Delivery
Expiry Date. |
|
4.3
|
Except
as otherwise expressly provided in Sections 4.1, 4.2 and 5.3, if Delivery of an
Aircraft (or Beneficial Interest pertaining thereto) under this Agreement is
delayed or does not occur for any reason outside the control of the Seller of
such Aircraft, including |
21
by
reason of the lack of cooperation of any Lessee or other person (other than
such Seller or any of its Affiliates), neither GECC nor the Seller thereof will
be responsible for any damages, losses, including loss of profit, costs,
expenses, liabilities, demands, payments, claims or action arising from or in
connection with the delay or failure suffered or incurred by the
Purchaser.
|
5.
|
PAYMENTS
|
|
5.1
|
Genesis
Funding shall pay, for the account of the Purchaser of each Independent
Aircraft or BI Aircraft, as the case may be, to GECC for the account of the
Seller thereof, on each date on or after the AP Closing Date as GECC notifies
Genesis Funding that the applicable Independent Aircraft or BI Aircraft, as the
case may be, is in a Designated Jurisdiction, the Aircraft Purchase Price for
such Independent Aircraft or BI Aircraft (as such Aircraft Purchase Price shall
be adjusted upwards by an amount equal to the investment proceeds allocable in
respect of such Aircraft Purchase Price as provided in Section 3.04(j) of
the Indenture), subject only to the receipt by Genesis Funding of each of the
following: |
|
(a)
|
the
rents attributable to the period after the AP Closing Date referred to in
Section 5.2 hereof together with a statement addressed to Genesis Funding
identifying the same; |
|
(b)
|
the
Security Deposits referred to in Section 5.4 hereof; |
|
(c)
|
an
opinion of independent and in-house counsel as applicable to GECC in the Agreed
Form as to the due execution and delivery of the Guaranty and as to such other
matters relating thereto as Genesis Funding may reasonably request;
|
|
(d)
|
the
Guaranty duly executed and delivered by GECC; |
|
(e)
|
a
certification in the Agreed Form from a duly authorized officer of GECC and
each other Seller to the effect that the representations and warranties of GECC
and each other Seller set forth herein are true and correct as of the AP
Closing Date; |
|
(f)
|
a copy,
certified by a duly authorized officer of GECC to be a true, complete and
up-to-date, of the certificate of incorporation and by-laws of
GECC; |
|
(g)
|
a copy,
certified by a duly authorized officer of GECC and each other Seller to be a
true, complete and up-to-date, of the resolutions of the Board of Directors (or
duly authorized committee thereof) of GECC and each other Seller,
(i) approving the transactions contemplated by this Agreement, the
Guaranty and the other Operative Documents to which GECC and each other Seller
is a party, and (ii) authorizing a Person or Persons to sign and deliver
on behalf of GECC and each other Seller, this Agreement, the Guaranty and the
other Operative Documents to which GECC and each other Seller is a party and
any notices or other documents to be given pursuant hereto or thereto;
|
22
|
(h)
|
certified
copies of organizational documents (including certificates or articles of
incorporation, by-laws, limited liability company agreements, Formation
Agreements and documents of a similar nature) of such Genesis Funding Entity
(if then in existence); and |
|
(i)
|
the
First Disclosure Letter. |
|
5.2
|
If, on
or before the AP Closing Date (and, for the avoidance of doubt, irrespective of
whether or not the Delivery Date for any Asset shall have occurred), GECC, any
Seller or any Existing Lessor shall have received from any Lessee any rent
(which, for avoidance of doubt, shall not include any Additional Rent) under
any Lease in respect of the period subsequent to the AP Closing Date, then on
the AP Closing Date GECC shall pay or cause the Seller of the Asset subject to
such Lease to pay to Genesis Funding (for account of the Purchaser thereof) an
amount equal to the portion of any rent received by or on behalf of such Seller
or Existing Lessor, as applicable which relates to the period subsequent to the
AP Closing Date less any Taxes that GECC or the applicable Seller of the
Aircraft is required by law to withhold. In respect of the Aircraft bearing
manufacturer’s serial numbers 29547 (AA), 30097 (AA), 1586 (UAL) and 1617
(UAL), any payment of rent received in arrears by Genesis Funding which relates
to the period prior to the AP Closing Date shall paid over by Genesis Funding
to GECC less any Taxes that GECC or the applicable Seller of the Aircraft is
required by law to withhold. Additional Rent paid after the AP Closing Date
shall be paid to or retained by Genesis Funding. |
|
5.3
|
From and
after the AP Closing Date and to and including the earlier to occur of the
Delivery Expiry Date and the Delivery Date for any Aircraft (if other than the
AP Closing Date), GECC shall cause the Servicer to perform rent collection
services under the Servicing Agreement on behalf of the relevant Purchaser and
shall cause any and all rent and other sums paid by the Lessees under the
Leases (except loss proceeds in respect of Material Damage or an Event of Loss
in respect of an Aircraft) and received by or on behalf of the relevant
Existing Lessor under the related Lease in respect of any period from and after
the AP Closing Date, and with respect to amounts received in payment of rent
under such Lease, in respect of any period from and after the AP Closing Date,
in each instance, to be paid to Genesis Funding Limited (for account of the
relevant Purchaser) within two Business Days of receipt thereof and each such
payment to be accompanied by a statement identifying the Lease under which such
payment was received and the nature of the payment whether constituting basic
rent, Additional Rent or otherwise. From and after the AP Closing Date, all
maintenance contribution obligations, airworthiness directive cost sharing
obligations and similar obligations of a lessor in respect of the Aircraft in
respect of any claim therefor under a Lease made after the AP Closing Date
shall be the obligation of the Seller if the applicable maintenance was
completed prior to the AP Closing Date and the obligation of Genesis Funding if
the applicable maintenance was completed on or after the AP Closing Date and
will be paid in accordance with the terms of the Indenture and the Servicing
Agreement. Notwithstanding the foregoing, (i) if an Aircraft suffers an
Event of Loss or unrepaired Material Damage prior to its Delivery, neither GECC
nor the Seller shall be obligated to pay to the Purchaser thereof any loss
proceeds received in respect thereof and (ii) in |
23
respect
of any Aircraft which suffers an Event of Loss or unrepaired Material Damage
after the AP Closing Date but prior to the Delivery Expiry Date and in respect
of which no Substitute Aircraft has been designated pursuant to the terms of
this Agreement, on the Delivery Expiry Date or, in the case of a deemed
rescission of the sale of any Beneficial Interest or Independent Aircraft
pursuant to Section 3.5, on the date of such deemed rescission, GECC shall pay,
or cause the Seller thereof to pay, and, without duplication thereof, the
Seller shall pay, to Genesis Funding the Aircraft Refund Amount with respect to
such Aircraft. In addition, Genesis Funding shall promptly thereafter repay to
GECC the amount of the cash Security Deposits, if any, Genesis Funding then is
deemed to hold for such Aircraft. If the applicable BI Transfer Date or
Delivery Date occurs while unrepaired Material Damage or an Event of Loss is in
existence with respect to any Aircraft but not waived as provided in Section
3.5 and is thereafter notified to the parties hereto, Genesis Funding shall
promptly retransfer to the Seller, at a time and place determined by Genesis
Funding, the applicable Beneficial Interest or Independent Aircraft, and the
related Lease, in the same manner mutatis
mutandis as by
the applicable Seller hereunder, and with the same warranties and
representations mutatis
mutandis given
by the applicable Seller hereunder (but only in respect of the period on and
after the AP Closing Date) and the applicable Seller shall be entitled to the
benefits of, and shall assume, such rights, duties, obligations and liabilities
of the applicable Genesis Funding Entity (including to reimburse such Genesis
Funding Entity for out of pocket costs paid by such Genesis Funding Entity
during such period with respect to such Aircraft that are not otherwise
accounted for in the Aircraft Refund Amount) in respect of the applicable
Beneficial Interest or Independent Aircraft, and the related Lease, as were
previously transferred to or assumed by such Genesis Funding Entity in respect
of the applicable Beneficial Interest or Independent Aircraft, plus all loss
proceeds received by the Purchaser in respect thereof, whereupon GECC and
Genesis Funding shall make the payments described above. If the Delivery Expiry
Date has not occurred when such unrepaired Material Damage or Event of Loss
becomes known to a party hereto, the Substitute Aircraft provisions hereof
shall be applicable to the extent provided above in respect of an Aircraft that
has suffered an Event of Loss.
|
5.4
|
On the
AP Closing Date, GECC shall cause an amount equal to the Security Deposit held
by or on behalf of each Existing Lessor in cash (if any) for each Aircraft to
be paid and delivered by the Seller thereof to Genesis Funding (for account of
the Purchaser thereof). |
|
5.5
|
Each
relevant Seller shall (a) on the AP Closing Date, on the BI Transfer Date for
each BI Aircraft and the Delivery Date for each Independent Aircraft deliver to
Genesis Funding a certification in the Agreed Form from a duly authorized
officer of such Seller setting forth in reasonable detail (i) the amounts of
Basic Rent in respect of such Aircraft (and, if such Aircraft is a Substitute
Aircraft, the corresponding amounts relating to the related Remaining Aircraft)
received (and any amounts applied from the Security Deposit relating to such
Aircraft due to non-payments of amounts owing by the Lessee) by or on behalf of
the related Seller or Existing Lessor, as applicable, which relates in each
case to the period subsequent to the AP Closing Date, (ii) on the AP Closing
Date only, the amount of the maximum maintenance contribution obligation
calculated with reference to Additional Rent with respect to each Aircraft
which could be payable by the related Seller or Existing Lessor, as applicable,
as of the AP Closing Date, (iii) the amount (the |
24
“SR
Transfer Amount”)
of any Additional Rent with respect to such Aircraft paid to the related Seller
or Existing Lessor, as applicable, with respect to the period from (and
including) the AP Closing Date to (and including) such BI Transfer Date (in the
case of a BI Aircraft) or such Delivery Date (in the case of an Independent
Aircraft), and (iv) a description of any Security Deposit (separately setting
forth the amount of any thereof in cash) for such Aircraft deemed held by or on
behalf of the related Seller or Existing Lessor, as applicable, as of the AP
Closing Date (in the case of all Aircraft) and as of such BI Transfer Date (in
the case of a BI Aircraft) or Delivery Date (in the case of an Independent
Aircraft) and (b) during the period from the AP Closing Date to the relevant BI
Transfer Date (in the case of a BI Aircraft) or the relevant Delivery Date (in
the case of an Independent Aircraft), promptly notify Genesis Funding, the
Indenture Trustee and the Manager of the receipt by the relevant Seller or
Existing Lessor, as applicable, of any Basic Rent payment in respect of each
Aircraft (including any Substitute Aircraft and its related Remaining Aircraft)
relating to the period subsequent to the AP Closing Date and the amount thereof
(or if such payment has not been made as scheduled, the amount, if any, applied
from the related Security Deposit due to such non-payment and whether such
applied amount has been replenished to the Security Deposit).
|
5.6
|
All
amounts payable under this Agreement will be made for value on the due date in
Dollars in immediately available funds (and to the extent not expressly
provided herein) to such account as (in the case of any payment due to GECC or
any Seller) GECC or as (in the case of any payment due to Genesis Funding or
any Purchaser) Genesis Funding Limited may notify Genesis Funding or GECC, as
the case may be, from time to time (upon three Business Days’ prior
written notice). In furtherance of the foregoing, each Purchaser hereby
instructs GECC and each Seller to make each payment due to Genesis Funding or
any other Purchaser hereunder to the Collections Account with advice of credit
to the Manager and in sufficient detail to enable the Manager to determine the
Lease under or in respect of which such payment is being made and the nature
thereof. |
|
5.7
|
If the
party making payment (the “Paying
Party”)
fails to pay any amount payable under this Agreement on the due date, the
Paying Party will pay on demand from time to time to the other party (the
“Receiving
Party”)
interest (both before and after judgment) on that amount, from the due date to
the date of payment in full by the Paying Party to the Receiving Party, at the
rate of LIBOR. All such interest will be compounded monthly and calculated on
the basis of the actual number of days elapsed and a 360 day year.
|
|
5.8
|
Each
Purchaser and Genesis Funding irrevocably and unconditionally:
|
|
(i)
|
guarantees,
as a primary obligation, to each Seller and GECC the due and punctual payment
to such Seller or GECC, as the case may be, by each other Purchaser of all
monies due from such other Purchaser hereunder and will pay to such Seller from
time to time, on the first Payment Date falling at least five Business Days
after written demand therefor, any and every sum of money which such other
Purchaser shall at any time be liable to pay to such Seller
hereunder; |
|
(ii)
|
undertakes
as a primary obligation to indemnify each Seller and GECC from time to time on
demand from and against any loss incurred by such Seller or GECC, as
|
25
the case
may be, as a result of any obligation of any other Purchaser to pay to such
Seller or GECC, as the case may be, any amounts hereunder being or becoming
void, voidable, unenforceable or ineffective as against such other Purchaser,
for any reason (whether or not known to any Seller or GECC), the amount of such
loss being the amount which such Seller would otherwise have been entitled to
recover from such other Purchaser; and
|
(iii)
|
authorizes
each Seller and GECC (in their sole discretion by notice to Genesis Funding)
from time to time to set off, apply or combine all or any amounts for the time
being due from any Seller or GECC, as the case may be, to any Purchaser towards
the repayment or discharge of any amount for the time being due to a Seller or
GECC from Genesis Funding pursuant to the above. |
Each
Purchaser acknowledges that:
|
(a)
|
neither
its above-described liability nor the rights, powers and remedies conferred on
a Seller or GECC by this Section or by law shall be discharged, impaired or
otherwise affected by any act, event or omission which would otherwise operate
to discharge, impair or otherwise affect such liability or such rights, powers
or remedies, and |
|
(b)
|
so long
as it is under the above-described liability, it shall not exercise any rights
or remedies which it may at any time have to be indemnified by or claim any
contribution from any other Purchaser. |
|
5.9
|
GECC
authorizes Genesis Funding (in its sole discretion by notice to GECC) from time
to time to set off, apply or combine all or any amounts for the time being due
from Genesis Funding or any other Purchaser to GECC or any other Seller towards
the repayment or discharge of any and all amounts for the time being due to
Genesis Funding or any other Purchaser from GECC or any other Seller hereunder
or under the Guaranty. |
|
6.
|
CONDITIONS
PRECEDENT - SELLER |
|
6.1
|
The
obligations of any Seller to sell, transfer or deliver any Aircraft or
Beneficial Interest of any Genesis Funding Entity hereunder are subject to the
satisfaction of the following express conditions precedent on or prior to the
applicable BI Transfer Date in the case of any Beneficial Interest or the
applicable Delivery Date in the case of any Independent Aircraft, as the case
may be: |
|
(a)
|
the
relevant Operative Documents for such Aircraft have been entered into by the
parties thereto (other than GECC and any Seller); |
|
(b)
|
the
Servicing Agreement shall have been entered into by the parties thereto (other
than GECC and any other Seller); |
|
(c)
|
GECC
shall be satisfied that the Delivery Location does not give rise to any Taxes;
and |
26
|
(d)
|
Seller
thereof shall have received payment of all amounts due by the Purchaser of such
Aircraft. |
|
6.2
|
The
obligation of the BI Seller to sell, transfer or deliver any Beneficial
Interest hereunder is further subject to the condition that such BI Seller has
received on or prior to the AP Closing Date or, in the case of subsections (c)
through (h) below, the applicable BI Transfer Date: |
|
(a)
|
a copy
of the constitutional documents of the Purchaser and any other Affiliate of
such Purchaser which is a party to any Operative Document in respect of such
Aircraft, certified, or subject to a certificate confirming no change thereto,
such certification to be dated not more than ten days prior to the expected
Delivery Date for such Aircraft to be a true, complete and up-to-date
copy; |
|
(b)
|
a copy
of resolutions of the directors or other applicable governing body of such
Purchaser and any other Affiliate of such Purchaser which is a party to any
Operative Document in respect of the related Aircraft certified, or subject to
a certificate confirming no change to such resolutions, such certification to
be dated not more than ten days prior to the expected BI Transfer Date for such
Beneficial Interest to be a true, complete and up-to-date copy:
|
|
(i)
|
approving
the transactions contemplated by this Agreement and the other Operative
Documents to which such Purchaser is or is to be a party; and
|
|
(ii)
|
authorizing
a Person or Persons to execute and deliver on behalf of such Purchaser this
Agreement and the other Operative Documents to which it is or is to be a party
and any notices or other documents to be given pursuant hereto or
thereto; |
|
(c)
|
evidence
that all governmental and other licenses, approvals, certificates, exemptions,
consents, registrations and filings necessary in the relevant State of
Registration and any other relevant jurisdiction (including the domicile of the
Lessee of the related Aircraft) for any matter or thing contemplated by this
Agreement and the other applicable Operative Documents for the related
Aircraft, and any notices or other documents to be given pursuant hereto or
thereto and for the legality, validity, enforceability, admissibility in
evidence and effectiveness hereof and thereof have been obtained or effected on
an unconditional basis and remain in full force and effect (or in the case of
effecting any licenses, approvals, consents, certificates, exemptions,
registrations and filings, that arrangements reasonably satisfactory to such
Seller have been made for the effectiveness of the same within any applicable
time limit); |
|
(d)
|
a
favorable opinion of independent counsel to such Purchaser dated as of such BI
Transfer Date reasonably acceptable to such Seller in the Agreed Form as to (1)
certain of the matters set out in Section 9 and (2) such other matters as such
Seller may reasonably request with regard to the subject matter contemplated
herein or in each case such Aircraft; |
27
|
(e)
|
a quiet
enjoyment letter with respect to the related Aircraft and the Lease thereof
from the Security Trustee, and, if requested by the Seller, from Genesis
Funding addressed to the relevant Lessee (and, if applicable, the relevant
sublessee) in substantially the form attached to the relevant Operative
Document; |
|
(f)
|
a
certification from Genesis Funding that its representations and warranties in
Section 9.1 are true and correct as of such BI Transfer Date;
|
|
(g)
|
if
requested by the Seller, a guaranty from Genesis Funding to the Lessee;
and |
|
(h)
|
the
insurance certificate described in Section 7.1(g)(xi). |
|
6.3
|
The
obligations of any Independent Seller to deliver any Independent Aircraft
hereunder are further subject to the condition that on or prior to the AP
Closing Date or, in the case of subsections (c) through (h) below, the Delivery
Date for any Independent Aircraft, such Seller has received:
|
|
(a)
|
a copy
of the constitutional documents of the Purchaser and any other Affiliate of
such Purchaser which is a party to any Operative Document in respect of such
Aircraft, certified, or subject to a certificate confirming no change thereto,
such certification to be dated not more than ten days prior to the expected
Delivery Date for such Aircraft to be a true, complete and up-to-date
copy; |
|
(b)
|
a copy
of resolutions of the directors or other applicable governing body of such
Purchaser and any other Affiliate of such Purchaser which is a party to any
Operative Document in respect of such Aircraft certified, or subject to a
certificate confirming no change to such resolutions, such certification to be
dated not more than ten days prior to the expected Delivery Date for such
Aircraft to be a true, complete and up-to-date copy: |
|
(i)
|
approving
the transactions contemplated by this Agreement and the other Operative
Documents to which such Purchaser is or is to be a party; and
|
|
(ii)
|
authorizing
a Person or Persons to execute and deliver on behalf of such Purchaser this
Agreement and the other Operative Documents to which it is or is to be a party
and any notices or other documents to be given pursuant hereto or thereto;
|
|
(c)
|
evidence
that all governmental and other licenses, approvals, certificates, exemptions,
consents, registrations and filings necessary in the relevant State of
Registration and any other relevant jurisdiction (including the domicile of the
Lessee of such Aircraft) for any matter or thing contemplated by this Agreement
and the other applicable Operative Documents for such Aircraft, and any notices
or other documents to be given pursuant hereto or thereto and for the legality,
validity, enforceability, admissibility in evidence and effectiveness hereof
and thereof have been obtained or effected on an unconditional basis and remain
in full force and effect (or in the case of effecting any licenses, approvals,
consents, certificates, exemptions, registrations and filings, that
arrangements reasonably |
28
satisfactory
to such Seller have been made for the effectiveness of the same within any
applicable time limit);
|
(d)
|
a
favorable opinion of independent counsel to such Purchaser dated as of such
Delivery Date reasonably acceptable to such Seller in the Agreed Form as to (1)
certain of the matters set out in Section 9 and (2) such other matters as such
Seller may reasonably request with regard to the subject matter contemplated
herein or in each case such Aircraft; |
|
(e)
|
a quiet
enjoyment letter with respect to such Aircraft and the Lease thereof from the
Security Trustee, and, if requested by the Seller, from Genesis Funding
addressed to the relevant Lessee (and, if applicable, the relevant sublessee)
in substantially the form attached to the relevant Operative
Document; |
|
(f)
|
a
certification from Genesis Funding that its representations and warranties in
Section 9.1 are true and correct as of the Delivery Date; |
|
(g)
|
if
requested by the Seller, a guaranty from Genesis Funding to a Lessee;
and |
|
(h)
|
the
insurance certificate described in Section 7.1(g)(xi). |
|
7.
|
CONDITIONS
PRECEDENT - PURCHASER |
|
7.1
|
The
obligation of Genesis Funding to purchase the Beneficial Interest of any
Genesis Funding Entity on the applicable BI Transfer Date is subject to
satisfaction of the following express conditions precedent on such BI Transfer
Date, subject to the right of Genesis Funding to waive any condition pursuant
to Section 7.4(a): |
|
(a)
|
Except
in respect of transfers on the AP Closing Date, Genesis Funding shall have
received notice of the expected BI Transfer Date at least four Business Days
prior thereto; |
|
(b)
|
Genesis
Funding shall have received (i) the documents referred to in Section 2.1 and
the documents referred to in Exhibit E-1 in connection with the Deliveries of
the related BI Aircraft (other than as listed on Schedule 4) and (ii) a
certificate from a duly authorized officer of GECC dated such BI Transfer Date
stating that (A) the conditions set forth in Exhibit E-1 with respect to the
Delivery of such BI Aircraft have been satisfied or otherwise disclosed in the
First Disclosure Letter and such documents are unchanged and are in full force
and effect as of such BI Transfer Date (except for amendments and terminations
permitted under the Servicing Agreement), (B) the representations and
warranties of the Seller (or its Affiliate) of such BI Aircraft and of such
Genesis Funding Entity contained in the Assignment of Lease or Lease Novation,
as applicable, for such BI Aircraft were true and correct as of the date of
such Assignment of Lease or Lease Novation, as applicable, and (C) except
in the case of the Skymark Aircraft, the xxxx of sale for, or physical delivery
of (as acknowledged in the acknowledgement of delivery pertaining thereto), as
applicable, such BI Aircraft was effective to convey irrevocably full legal
and, subject to any Formation Agreement, beneficial title to
|
29
the
Purchaser thereof on the relevant delivery date of transfer to the Genesis
Funding Entity;
|
(c)
|
no
Material Default shall have occurred and be continuing as of the AP Closing
Date with respect to such BI Aircraft; |
|
(d)
|
Genesis
Funding shall have received payment of all amounts due by the Seller thereof or
GECC in respect of such BI Aircraft; |
|
(e)
|
Genesis
Funding shall have received a certification from the BI Seller dated such BI
Transfer Date to the effect that (i) the representations and warranties of such
BI Seller hereunder are true and correct as of the AP Closing Date or such BI
Transfer Date, as the case may be, and (ii) such Genesis Funding Entity (except
with respect to the Skymark Aircraft) has full legal and, subject to any
Formation Agreement, beneficial title to such BI Aircraft, free from
Encumbrances other than Permitted Encumbrances; |
|
(f)
|
unless
and to the extent Genesis Funding shall otherwise agree, or a Rating Agency
Confirmation and the prior written consent of the Policy Provider shall have
been obtained with respect thereto, all the conditions precedent to the
effectiveness of the Assignment of Lease or Lease Novation, as applicable, for
such BI Aircraft shall have been satisfied and Genesis Funding shall have
received a certification from the BI Seller and GECC to such
effect; |
|
(g)
|
receipt
of the following documents by Genesis Funding: |
|
(i)
|
a list
from GECC specifying the BI Aircraft then owned by such Genesis Funding
Entity; |
|
(ii)
|
a
certificate of solvency dated as of such BI Transfer Date in the Agreed Form
relating to the BI Seller issued by a director or authorized officer thereof
and if such Seller is other than GECC, a certificate of solvency dated as of
such date in the Agreed Form relating to GECC issued by a director or
authorized officer of GECC; |
|
(iii)
|
a
favorable opinion of independent counsel to the BI Seller, dated as of the AP
Closing Date, reasonably acceptable to such Purchaser in the Agreed Form, that
the sale of such Beneficial Interest constitutes, or will constitute, a
“true-sale” and a valid transfer of title to such Beneficial Interest
and that after the Transfer of such Beneficial Interest such Seller retains, or
will retain, no interest in such Beneficial Interest and as to such other
matters as Genesis Funding may reasonably request with regard to the subject
matter contemplated herein; |
|
(iv)
|
to the
extent applicable, opinions dated as of such BI Transfer Date in the Agreed
Form from independent counsel to the BI Seller in each Delivery Location,
covering, without limitation, that, except if the Delivery Location is in the
United States or international airspace, the Transfer of |
30
such
Beneficial Interest will not result in the imposition of any Tax in such
jurisdiction on Genesis Funding, any Subsidiary of Genesis Funding, such BI
Aircraft, the related Leases or otherwise in respect of such
Transfer;
|
(v)
|
for such
BI Aircraft, an opinion dated as of such BI Transfer Date in the Agreed Form
from counsel to the relevant Seller in the relevant State of Registration or,
if applicable, the relevant jurisdiction of the Lessee to the effect that (A)
except if the State of Registration is the United States, the terms of the
relevant Lease or Novated Lease or Assigned Lease and the relevant Operative
Documents and the other Lease Documents are legal, valid, binding and
enforceable under the laws of such country to the extent necessary to enable
the applicable Genesis Funding Entity to receive the practical benefits of its
rights thereunder, (B) except in the case of the Skymark Aircraft, such Genesis
Funding Entity is the owner of record of such Aircraft in the registry or
otherwise shall be recognized as the legal owner of such Aircraft under the
applicable laws of such jurisdiction, (C) except if the State of Registration
is the United States, it is not necessary for such Genesis Funding Entity as a
result of its ownership of such Aircraft to qualify to do business in such
jurisdiction as a result of its ownership of such Aircraft and it is not
necessary for such Genesis Funding Entity to qualify to do business in such
jurisdiction, for the purpose of exercising any remedies under any Lease
Document relating to such Aircraft or otherwise, (D) except if the State of
Registration is the United States, payments of rent under the Lease are not
subject to withholding under the applicable laws of such jurisdiction or, if
subject to withholding, the gross up provisions of such Lease will be
enforceable, (E) the interest of such Genesis Funding Entity in such BI
Aircraft has been properly registered in the relevant State of Registration (to
the extent applicable), (F) the Security Trust Agreement, to the extent
required, has been or is in the process of being duly recorded in any relevant
registry and, if such opinion is reasonably practicable to obtain, that the
lien created thereunder will be recognized as constituting a first priority
perfected security interest in and to the related Leases in favor of the
Security Trustee, (G) if provided for by the Cape Town Convention, if as of
such BI Transfer Date the International Registry reflects the registration of
the transfer of such BI Aircraft and related Engines to such Genesis Funding
Entity, then the International Registry does not reflect the registration of
any subsequent transfer of such BI Aircraft or any related Engine or the
registration of any other International Interest in such BI Aircraft or any
related Engine (other than those in respect of Permitted Encumbrances), which
opinion shall be supported in each case by a Priority Search Certificate and
(H) if the relevant jurisdiction of the Lessee or the relevant State of
Registration has ratified the Cape Town Convention, but not otherwise, the
International Registry does not reflect the registration of any International
Interest in such BI Aircraft or any related Engine other than (w) the
registration in the name of the Security Trustee of the International Interest
provided for under the Security Trust |
31
|
(vi)
|
evidence
that all governmental and other licenses, approvals, consents, certificates,
exemptions, registrations and filings necessary in the jurisdiction of
incorporation or organization of GECC, any Seller of a BI Aircraft or such
Genesis Funding Entity and any other relevant jurisdiction (including the
domicile of the Lessee) and the relevant State of Registration of such BI
Aircraft for any matter or thing contemplated by this Agreement and the other
applicable Operative Documents for such BI Aircraft, the bank accounts provided
for under the Cash Management Agreement, the Servicing Agreement, the Security
Trust Agreement and the Indenture and any notices or other documents to be
given pursuant hereto or thereto and for the legality, validity,
enforceability, admissibility in evidence and effectiveness hereof and thereof
(including, to the extent reasonably practicable in such jurisdiction, the
establishment of a first priority perfected security interest in and to the
related Leases in favor of the Security Trustee) have been obtained or effected
on an unconditional basis and remain in full force and effect (or in the case
of effecting any certificates, exemptions, registrations and filings, that
arrangements satisfactory to Genesis Funding have been made for the
effectiveness of the same within any time limit provided therefor under
applicable law and a Rating Agency Confirmation and the prior written consent
of the Policy Provider have been received with respect thereto);
|
|
(vii)
|
a draft
of the certificate required to be delivered pursuant to Section 5.5 shall have
been provided at least three Business Days but not more than five Business Days
prior to such BI Transfer Date; |
|
(viii)
|
a
certificate of GECC or the applicable Seller confirming that so far as is known
to it, no Event of Loss has occurred and no unrepaired Material Damage is in
existence with respect to such BI Aircraft; |
|
(ix)
|
each of
the documents required to be delivered on or prior thereto pursuant to Section
5; |
|
(x)
|
a copy
of the currently valid certificate of airworthiness for such Aircraft issued by
the appropriate Air Authority or other reasonably satisfactory evidence
thereof; |
32
|
(xi)
|
for such
BI Aircraft, originals, or certified copies, of certificates evidencing the
insurance required to be maintained pursuant to the relevant Assigned Lease or
the Novated Lease, as appropriate, for such Aircraft together, if applicable,
with a letter or report from an independent firm of insurance brokers; and
|
|
(xii)
|
the
report of Genesis Funding’s and/or such Purchaser’s insurance advisor
in substantially the Agreed Form; |
|
(h)
|
the
matters disclosed in the First Disclosure Letter, if any, and any Supplemental
Disclosure Letter delivered on or prior to such BI Transfer Date shall be in
substance satisfactory to Genesis Funding and the Policy Provider;
|
|
(i)
|
subject
to Section 7.4(b), on such BI Transfer Date, if the Security Deposit held under
the Lease for any such BI Aircraft is in the form of a letter of credit,
guarantee, promissory note or other instrument, and not already issued in the
name of GECAS as servicer or manager, GECC shall cause such letter of credit,
guarantee or other instrument to be duly endorsed, amended or reissued in favor
of such Genesis Funding Entity (or the relevant Affiliate of such Genesis
Funding Entity) and GECC shall have taken such other actions as may be
necessary to effectuate the assignment of all right, title and interest of the
Existing Lessor in and to such letter of credit, guarantee, promissory note or
instrument to such Genesis Funding Entity; |
|
(j)
|
GECC
shall have provided to Genesis Funding a confirmation from GECAS that such BI
Aircraft has, as of the AP Closing Date, become an “Aircraft Asset”
under and as defined in the Servicing Agreement; |
|
(k)
|
the
tangible chattel paper original of the Lease (or if an original was never so
designated or such original has been lost, a certificate from GECC to such
effect) and the Assignment of Lease or Lease Novation, as applicable, for such
BI Aircraft shall have been delivered to the Security Trustee on such BI
Transfer Date; |
|
(l)
|
for such
BI Aircraft, (A) an original of the applicable Lease (together with the related
Lease Assignment Documents) and (B) an original of each other Lease Document
(or otherwise a copy certified to be true and correct) shall be delivered to
the Security Trustee on or prior to the AP Closing Date (except that with
respect to Substitute Aircraft, such originals shall be delivered on the
Delivery Date therefor); provided that, if any such Lease Document contains a
material right for the benefit of the lessor thereunder and the Genesis Funding
Entity and/or the Seller thereof does not have an original of such Lease
Document in its possession, GECC and each such Seller shall provide such other
assurances as to the enforceability and admissibility of such Lease Document in
any court in the State of New York as Genesis Funding may reasonably request;
|
33
|
(m)
|
the
Formation Agreement for such Genesis Funding Entity shall be in form and
substance satisfactory to Genesis Funding and the Policy Provider;
|
|
(n)
|
Genesis
Funding shall have received a certificate of good standing for each Genesis
Funding Entity which is the subject of a Transfer, provided such certificate is
provided by such Genesis Funding Entity’s jurisdiction of organization for
entities of the same type as such Genesis Funding Entity; |
|
(o)
|
there
shall not be in effect on the BI Transfer Date any Order restraining, enjoining
or otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement, the other applicable Operative
Agreements, the Servicing Agreement, the Security Trust Agreement and the
Indenture, or which could reasonably be expected to otherwise result in a
material diminution of the benefits of the transactions contemplated by this
Agreement, the other applicable Operative Agreements, the Servicing Agreement,
the Security Trust Agreement and the Indenture to Purchaser, and there shall
not be pending or threatened on the BI Transfer Date any action or proceeding
in, before or by any governmental or regulatory authority which could
reasonably be expected to result in the issuance of any such Order;
and |
|
(p)
|
if such
BI Transfer Date is in respect of either Aircraft No. ___(MSN 23022) or
Aircraft No. __ (MSN 23140) (both leased as of the date hereof to ABX Air,
Inc.), the Seller thereof shall have paid or be in the process of paying the
Cargo Door Rent Balance in respect of such Aircraft (and, for purposes of
clarification, (i) the applicable Seller shall be liable to make the payment to
the Lessee in respect thereof under the Leases for such Aircraft to the extent
of the Cargo Door Rent Balance until the BI Transfer Date, (ii) from the AP
Closing Date to the Delivery Date, the Purchaser shall be liable to make the
payments to the Lessee in respect thereof under the Leases to the extent of the
“cargo door” rent received under the Lease for such period and (iii)
thereafter, the Purchaser shall be liable to make all of the payments to the
Lessee in respect thereof under the Leases for such Aircraft).
|
|
7.2
|
The
obligation of any Purchaser to purchase any Independent Aircraft on any
Delivery Date hereunder is subject to satisfaction of the following express
conditions precedent on the Delivery Date for such Independent Aircraft,
subject to the right of the relevant Purchaser to waive any condition pursuant
to Section 7.4(a): |
|
(a)
|
Except
in respect of transfers on the AP Closing Date, Genesis Funding shall have
received notice of the expected Delivery Date at least four Business Days prior
thereto; |
|
(b)
|
Genesis
Funding shall have received (i) the documents referred to in Exhibit E-2 in
connection with the Delivery of such Independent Aircraft (other than as listed
on Schedule 4) and (ii) a certificate from a duly authorized officer of GECC
dated such Delivery Date stating that (A) the conditions set forth in Exhibit
E-2 with |
34
respect
to the Delivery of such Independent Aircraft have been satisfied or otherwise
disclosed in the First Disclosure Letter and such documents are unchanged and
are in full force and effect as of such Delivery Date (except for amendments
and terminations permitted under the Servicing Agreement), (B) the
representations and warranties of the Seller (or its Affiliate) of such
Independent Aircraft contained in the Assignment of Lease or Lease Novation, as
applicable, for such Independent Aircraft are true and correct as of such
Delivery Date, and (C) except in the case of Skymark Aircraft, the xxxx of sale
for, or physical delivery of (as acknowledged in the acknowledgement of
delivery pertaining thereto), as applicable, such Independent Aircraft is
effective to convey irrevocably full legal and, subject to any Formation
Agreement, beneficial title to the Purchaser thereof on such Delivery
Date;
|
(c)
|
no
Material Default shall have occurred and be continuing as of the AP Closing
Date with respect to such Independent Aircraft; |
|
(d)
|
Genesis
Funding shall have received payment of all amounts due by the Seller thereof or
GECC in respect of such Independent Aircraft; |
|
(e)
|
Genesis
Funding shall have received a certification from the Seller dated such Delivery
Date to the effect that the representations and warranties of such Seller
hereunder are true and correct as of the AP Closing Date or such Delivery Date,
as the case may be; |
|
(f)
|
unless
and to the extent Genesis Funding shall otherwise agree, or a Rating Agency
Confirmation and the prior written consent of the Policy Provider shall have
been obtained with respect thereto, all the conditions precedent to the
effectiveness of the Assignment of Lease or Lease Novation, as applicable, for
such Independent Aircraft shall have been satisfied and Genesis Funding shall
have received a certification from the Seller and GECC to such
effect; |
|
(g)
|
receipt
of the following documents by Genesis Funding: |
|
(i)
|
to the
extent applicable, an opinion dated as of such Delivery Date in the Agreed Form
from independent counsel to the Seller in the Delivery Location, covering,
without limitation, that, except if the Delivery Location is in the United
States or international airspace, the transfer of title to such Independent
Aircraft will be effective under the laws of such jurisdiction and the Delivery
of such Independent Aircraft will not result in the imposition of any Tax in
such jurisdiction on Genesis Funding, any Subsidiary of Genesis Funding, such
Independent Aircraft, the related Lease or otherwise in respect of such
Transfer; |
|
(ii)
|
for such
Independent Aircraft, an opinion dated as of such Delivery Date in the Agreed
Form from counsel to the relevant Seller in the relevant State of Registration
or, if applicable, the relevant jurisdiction of the Lessee to the effect that
(A) except if the State of Registration is the |
00
Xxxxxx
Xxxxxx, the terms of the relevant Lease or Novated Lease or Assigned Lease and
the relevant Operative Documents and the other Lease Documents are legal,
valid, binding and enforceable under the laws of such country to the extent
necessary to enable the Purchaser to receive the practical benefits of its
rights thereunder, (B) following the Delivery of such Independent Aircraft, the
Purchaser shall be the owner of record of such Independent Aircraft in the
registry or otherwise shall be recognized as the legal owner of such
Independent Aircraft under the applicable laws of such jurisdiction, (C) except
if the State of Registration is the United States, it is not necessary for such
Purchaser as a result of its ownership of such Independent Aircraft to qualify
to do business in such jurisdiction as a result of its ownership of such
Independent Aircraft and it is not necessary for such Purchaser to qualify to
do business in such jurisdiction, for the purpose of exercising any remedies
under any Lease Document relating to such Independent Aircraft or otherwise,
(D) except if the State of Registration is the United States, payments of rent
under the Lease are not subject to withholding under the applicable laws of
such jurisdiction or, if subject to withholding, the gross up provisions of
such Lease will be enforceable, (E) the interest of such Purchaser in such
Independent Aircraft has been properly registered in the relevant State of
Registration (to the extent applicable), (F) the Security Trust Agreement, to
the extent required, has been or is in the process of being duly recorded in
any relevant registry and, if such opinion is reasonably practicable to obtain,
that the lien created thereunder will be recognized as constituting a first
priority perfected security interest in and to the related Leases in favor of
the Security Trustee and (G) if provided for by the Cape Town Convention, if as
of such Delivery Date the International Registry reflects the registration of
the transfer of such Independent Aircraft and related Engines to such
Purchaser, then the International Registry does not reflect the registration of
any subsequent transfer of such Independent Aircraft or any related Engine or
the registration of any other International Interest in such Independent
Aircraft or any related Engine (other than those in respect of Permitted
Encumbrances), which opinion shall be supported in each case by a Priority
Search Certificate and (H) if the relevant jurisdiction of the Lessee or the
relevant State of Registration has ratified the Cape Town Convention, but not
otherwise, the International Registry does not reflect the registration of any
International Interest in such Independent Aircraft or any related Engine other
than (w) the registration in the name of the Security Trustee of the
International Interest provided for under the Security Trust Agreement, (x) the
registration in the name of such Purchaser of the International Interest
provided for under the relevant Lease, Assigned Lease or Novated Lease (y) the
registration of the assignment of such International Interest in favor of the
Security Trustee (it being understood that such registrations shall not be
conditions precedent to the Delivery of such Aircraft) and (z) other Permitted
36
Encumbrances,
which opinion shall be supported in each case by a Priority Search
Certificate;
|
(iii)
|
evidence
that all governmental and other licenses, approvals, consents, certificates,
exemptions, registrations and filings necessary in the jurisdiction of
incorporation or organization of GECC, the Seller of such Independent Aircraft
or such Purchaser and any other relevant jurisdiction (including the domicile
of the Lessee) and the relevant State of Registration of such Aircraft for any
matter or thing contemplated by this Agreement and the other applicable
Operative Documents for such Independent Aircraft, the bank accounts provided
for under the Cash Management Agreement, the Servicing Agreement, the Security
Trust Agreement and the Indenture and any notices or other documents to be
given pursuant hereto or thereto and for the legality, validity,
enforceability, admissibility in evidence and effectiveness hereof and thereof
(including, to the extent reasonably practicable in such jurisdiction, the
establishment of a first priority perfected security interest in and to the
related Leases in favor of the Security Trustee) have been obtained or effected
on an unconditional basis and remain in full force and effect (or in the case
of effecting any certificates, exemptions, registrations and filings, that
arrangements satisfactory to Genesis Funding have been made for the
effectiveness of the same within any time limit provided therefor under
applicable law and a Rating Agency Confirmation and the prior written consent
of the Policy Provider have been received with respect thereto);
|
|
(iv)
|
a
certificate of GECC or the applicable Seller confirming that so far as is known
to it, no Event of Loss has occurred and no unrepaired Material Damage is in
existence with respect to such Independent Aircraft; |
|
(v)
|
each of
the documents required to be delivered on or prior thereto pursuant to Section
5; |
|
(vi)
|
a copy
of the currently valid certificate of airworthiness for such Aircraft issued by
the appropriate Air Authority or other reasonably satisfactory evidence
thereof; |
|
(vii)
|
for such
Independent Aircraft, originals, or certified copies, of certificates
evidencing the insurance required to be maintained pursuant to the relevant
Assigned Lease or the Novated Lease, as appropriate, for such Independent
Aircraft together, if applicable, with a letter or report from an independent
firm of insurance brokers; and |
|
(viii)
|
the
report of Genesis Funding’s and/or such Purchaser’s insurance advisor
in substantially the Agreed Form; |
37
|
(h)
|
the
matters disclosed in the First Disclosure Letter, if any, and any Supplemental
Disclosure Letter delivered on or prior to such Delivery Date shall be in
substance satisfactory to Genesis Funding and the Policy Provider;
|
|
(i)
|
subject
to Section 7.4(b), on such Delivery Date, if the Security Deposit held under
the Lease for such Independent Aircraft is in the form of a letter of credit,
guarantee, promissory note or other instrument, and not already issued in the
name of GECAS as servicer or manager, GECC shall cause such letter of credit,
guarantee or other instrument to be duly endorsed, amended or reissued in favor
of such Purchaser and GECC shall have taken such other actions as may be
necessary to effectuate the assignment of all right, title and interest of the
Existing Lessor in and to such letter of credit, guarantee, promissory note or
instrument to such Purchaser; |
|
(j)
|
GECC
shall have provided to Genesis Funding a confirmation from GECAS that such
Independent Aircraft has, as of the AP Closing Date, become an “Aircraft
Asset” under and as defined in the Servicing Agreement; |
|
(k)
|
the
tangible chattel paper original of the Lease (or if an original was never so
designated or such original has been lost, a certificate from GECC to such
effect) and the Assignment of Lease or Lease Novation, as applicable, for such
Independent Aircraft shall have been delivered to the Security Trustee on such
Delivery Date; |
|
(l)
|
for such
Independent Aircraft, (A) an original of the applicable Lease (together with
the related Lease Assignment Documents) and (B) an original of each other Lease
Document (or otherwise a copy certified to be true and correct) shall be
delivered to the Security Trustee on or prior to the AP Closing Date (except
that with respect to Substitute Aircraft, such originals shall be delivered on
the Delivery Date therefor); provided that, if any such Lease Document contains
a material right for the benefit of the lessor thereunder and the Genesis
Funding Entity and/or the Seller thereof does not have an original of such
Lease Document in its possession, GECC and each such Seller shall provide such
other assurances as to the enforceability and admissibility of such Lease
Document in any court in the State of New York as Genesis Funding may
reasonably request; |
|
(m)
|
there
shall not be in effect on the Delivery Date any Order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement, the other applicable Operative
Agreements, the Servicing Agreement, the Security Trust Agreement and the
Indenture, or which could reasonably be expected to otherwise result in a
material diminution of the benefits of the transactions contemplated by this
Agreement, the other applicable Operative Agreements, the Servicing Agreement,
the Security Trust Agreement and the Indenture to Purchaser, and there shall
not be pending or threatened on the Delivery Date any action or proceeding in,
before or by any governmental or regulatory authority which could reasonably be
expected to result in the issuance of any such Order; and |
38
|
(n)
|
if such
Delivery Date is in respect of either Aircraft No. ___ (MSN 23022) or Aircraft
No. __ (MSN 23140) (both leased as of the date hereof to ABX Air, Inc.), the
Seller thereof shall have paid or be in the process of paying the Cargo Door
Rent Balance in respect of such Aircraft (and, for purposes of clarification,
(i) the applicable Seller shall be liable to make the payment to the Lessee in
respect thereof under the Leases for such Aircraft to the extent of the Cargo
Door Rent Balance until the Delivery Date thereof, (ii) from the AP Closing
Date to the Delivery Date, the Purchaser shall be liable to make the payments
to the Lessee in respect thereof under the Leases to the extent of the
“cargo door” rent received under the Lease for such period, and (iii)
thereafter, the Purchaser shall be liable to make all of the payments to the
Lessee in respect thereof under the Leases for such Aircraft).
|
|
7.3
|
In
addition to the conditions precedent listed in Section 7.1, the obligation of
Genesis Funding to purchase the Skymark Beneficial Owner on the related BI
Transfer Date or Independent Aircraft Delivery Date is subject to satisfaction
of the following express conditions precedent on such BI Transfer Date or
Independent Aircraft Delivery Date, subject to the right of Genesis Funding to
waive any condition pursuant to Section 7.4: |
|
(a)
|
Genesis
Funding shall have received: |
|
(i)
|
a fully
executed copy of the SC Air Conditional Sale Agreement; |
|
(ii)
|
a fully
executed copy of the Skymark Head Lease; |
|
(iii)
|
a fully
executed copy of the Skymark Lease; |
|
(iv)
|
a fully
executed copy of the SC Air Aircraft Mortgage; |
|
(v)
|
a fully
executed copy of the Skymark Participation Agreement; |
|
(vi)
|
a fully
executed copy of the Sumitomo Share Pledge Agreement; and |
|
(vii)
|
one or
more legal opinions reasonably satisfactory to the Purchaser from counsel
reasonably acceptable to the Purchaser in Japan and any other relevant
jurisdiction regarding (A) the
enforceability of each of the SC Air Mortgage, the SC Air Conditional Sale
Agreement and the Sumitomo Share Pledge Agreement , (B) the effect of SC Air
being subject to a bankruptcy or insolvency proceeding under applicable
Japanese law (whether arising as a result of a consolidation of the assets of
SC Air and Sumitomo following a Sumitomo bankruptcy or insolvency proceeding or
otherwise), recognizing that the SC Air Mortgage will not have been
registered, and
(C)
termination of the Skymark Lease (if the conditions precedent thereto have been
fulfilled). |
|
7.4
|
(a)
|
Any
Purchaser of an Asset or Aircraft, as the case may be, may, at the request of
the Seller thereof, in its absolute discretion agree to waive satisfaction of
one or |
39
more
conditions precedent set out in this Section 7 (and in the event of any such
waiver such Purchaser may impose such conditions as are reasonably acceptable
to the BI Seller to such waiver as it reasonably thinks fit), provided, that
(i) such waiver is disclosed in reasonable detail in the First Disclosure
Letter, or (ii) such waiver is disclosed in reasonable detail in the
Supplemental Disclosure Letter with respect to such Aircraft and a Rating
Agency Confirmation and the prior written consent of the Policy Provider have
been obtained with respect thereto on or prior to the Delivery Date for, or BI
Transfer Date in respect of, such Aircraft; and
|
(b)
|
In the
event that any letter of credit or guarantee to be issued on behalf of the
relevant Lessee pursuant to the relevant Operative Documents has not been
delivered (and letters of credit initially issued under the applicable Lease in
the name of GECAS as manager or servicer shall be deemed so delivered for
purposes hereof), the Seller of the Aircraft, or the Beneficial Interest in the
Genesis Funding Entity directly or indirectly holding title to such Aircraft,
in respect of such Lease may at such Seller’s own election:
|
|
(i)
|
subject
to a Rating Agency Confirmation and the prior written consent of the Policy
Provider (but only if the aggregate amount of such substitute letters of
credit, guarantees or cash, when added together with the substitute letters of
credit or guarantees provided under clause (ii) below or held as provided under
clause (iii) below exceeds $5,000,000), deliver a letter of credit from GECC or
other issuer in lieu (and until delivery) of any letter of credit or guarantee
to be issued on behalf of the relevant Lessee pursuant to the Operative
Documents, so long as the issuer thereof is rated at least the same as the
issuer (or, if higher, any confirming bank) of the undelivered letter of credit
or guarantee, or deliver cash to the Trustee (to be held in the Security
Deposit Account) in lieu (and until delivery) of such letter of credit or
guarantee, such letter of credit to be on substantially the same terms as the
undelivered letter of credit or guarantee; |
|
(ii)
|
subject
to a Rating Agency Confirmation and the prior written consent of the Policy
Provider (but only if the aggregate amount of such substitute letters of credit
or guarantees, when added together with the substitute letters of credit,
guarantees or cash provided under clause (i) above or held as provided under
clause (iii) below exceeds $5,000,000), have the relevant Lessee deliver to the
Purchaser thereof (or the relevant Affiliate of such Purchaser) acting as
lessor under an Assigned Lease or Novated Lease therefor a letter of credit or
guarantee or cash (in Dollars) to the Trustee (to be held in the Security
Deposit Account) in lieu of and in the amount of any letter of credit or
guarantee set out in Schedule 3 or the Substitute Aircraft Supplement, as
applicable, in each case so long as such letter of credit or guarantee is on
substantially the same terms as the undelivered letter of credit or guarantee;
or |
40
|
(iii)
|
subject
to a Rating Agency Confirmation and the prior written consent of the Policy
Provider (but only if the aggregate amount of such letters of credit and
guarantees so held, when added together with the substitute letters of credit,
guarantees or cash of GECC provided under clauses (i) and (ii) above, exceeds
$5,000,000), the Seller of such Aircraft or Beneficial Interest shall have
agreed (and GECC shall have confirmed its guarantee of such obligation of such
Seller) to hold such letter of credit or guarantee for the sole benefit of the
Purchaser and act on its instructions (provided that the Seller must provide
the substitute letter of credit or guarantee as required within 90 days after
the applicable Delivery Date). |
|
7.5
|
Each
Seller of the relevant Aircraft or Asset hereby agrees to use its reasonable
commercial efforts to satisfy each of the conditions, if any, set forth in
Schedule 4 with respect to the Delivery or Transfer of such Aircraft or Asset
within the period therein specified therefor. |
|
8.
|
REPRESENTATIONS
AND WARRANTIES OF GECC AND EACH OTHER SELLER |
|
8.1
|
Each of
GECC and each other Seller (in respect of itself only in the case of each
Seller other than GECC) represents and warrants to each Purchaser as of the
date of this Agreement, each BI Transfer Date and on each Delivery Date of an
Independent Aircraft as follows: |
|
(a)
|
each of
GECC and each other Seller is a company or trust duly established and validly
existing under the laws of its jurisdiction of formation and has the corporate
or other power to own its assets and carry on its business as it is
contemplated herein; |
|
(b)
|
each of
GECC and each other Seller has the corporate power to enter into and perform,
and has taken all necessary corporate or other action to authorize the entry
into, performance and delivery of, this Agreement and each other Operative
Document to which it is a party; |
|
(c)
|
the
relevant Operative Documents to which GECC and each other Seller is a party
have been, or when executed and delivered will have been, duly entered into by
GECC and each other Seller party thereto and delivered by GECC and each other
Seller party thereto and constitute or, in the case of any Operative Document
to be executed on or about the applicable Delivery Date, will constitute on
such Delivery Date, the legal, valid and binding obligation of GECC and each
other Seller party thereto, enforceable in accordance with their terms (subject
to customary qualifications in any relevant legal opinion); |
|
(d)
|
the
entry into and performance by GECC and each other Seller of, and the
transactions contemplated by, the relevant Operative Documents to which it is a
party do not and will not: |
41
|
(i)
|
breach
any laws binding on GECC or any other Seller or any of their respective assets
to be transferred to the relevant Purchaser hereunder; or |
|
(ii)
|
result
in any breach of, or constitute a default under the constitutional documents of
GECC or any other Seller; or |
|
(iii)
|
result
in any breach of, or constitute a default under any agreement, instrument or
other document which is binding upon GECC or any other Seller or any of their
respective assets nor result in the creation of any Encumbrance (other than the
Novated Lease or the Assigned Lease as the case may be) over any of their
respective assets to be transferred to the relevant Purchaser
hereunder; |
|
(e)
|
the
provisions of Section 14 concerning applicable law, service of process and
jurisdiction are valid and binding on GECC and each other Seller under the laws
of its jurisdiction of organization, and no provision purporting to be binding
on GECC or any other Seller of this Agreement or any of the other applicable
Operative Documents is prohibited, unlawful or unenforceable under the laws of
its state of incorporation; |
|
(f)
|
no
liquidator, provisional liquidator or analogous or similar officer has been
appointed in respect of all or any material part of the assets of GECC (or, to
its knowledge, any non-material part of the assets of GECC which would, if it
were subject to a liquidator, provisional liquidator or analogous or similar
officer, have a material adverse effect on GECC’s financial condition or
its ability to perform its obligations hereunder or under the Guaranty) or all
or any part of the assets of any other Seller nor has any application been made
to a court which is still pending for an order for, or any act, matter or thing
been done which with the giving of notice, lapse of time or satisfaction of
some other condition (or any combination thereof) will lead to, the appointment
of any such officers or equivalent in any jurisdiction; and it is not entering
into this Agreement with the intent to hinder, defraud or delay any
creditor; |
|
(g)
|
except
if and as advised by GECC to the relevant Purchaser in a Disclosure Letter, no
litigation, arbitration or claim before any court, arbitrator, governmental or
administrative agency or authority which would have a material adverse effect
on the ability of GECC or any other Seller to observe or perform their
respective obligations under this Agreement or any other applicable Operative
Documents to which GECC or such Seller is a party is in progress, or to the
knowledge of GECC, threatened against GECC or any other Seller;
|
|
(h)
|
if
applicable, its jurisdiction of incorporation or organization is as specified
on Schedule 5; and |
|
(i)
|
to
GECC’s knowledge, the Appraisals of the Appraisers delivered to the
Purchaser on the AP Closing Date were true and complete copies
thereof. |
42
|
8.2
|
Each of
GECC and each other Seller (in respect of itself only in the case of each
Seller other than GECC) of an Aircraft further represents and warrants on the
Delivery Date with respect to each Independent Aircraft as
follows: |
|
(a)
|
except
if and as advised by GECC to the Purchaser thereof in a Disclosure Letter, so
far as concerns the obligations of GECC and any such Seller (and except for the
registration of particulars of the relevant Lease Novation or Assignment of
Lease with the appropriate Air Authority or other actions referred to therein
or herein, if applicable) all authorizations, consents, registrations and
notifications required in connection with the entry into, performance, validity
and enforceability of, this Agreement, the transactions contemplated by this
Agreement and the other applicable Operative Documents to which it is a party,
have been (or will on or before the Delivery Date of such Aircraft have been)
obtained or effected (as appropriate) and are (or will on their being obtained
or effected be) in full force and effect; |
|
(b)
|
except
if and as advised by GECC to the Purchaser thereof in a Disclosure Letter, the
Lease Documents listed in Schedule 2 or the Substitute Aircraft Supplement, as
applicable, constitute the whole agreement between the relevant lessor and the
relevant Lessee as of Delivery (and pertaining to the period on and after
Delivery) relating to such Aircraft and includes a complete list (other than
the Operative Documents) of all amendments, supplements, novations, and written
consents, approvals and waivers relevant to the Lease with respect to the
period on and after Delivery, and there are no oral waivers in effect that
would modify or amend the terms thereof in any material respect with respect to
the period on and after Delivery; |
|
(c)
|
except
if and as advised by GECC to the Purchaser thereof in the First Disclosure
Letter, to GECC’s or the applicable Seller’s knowledge no Material
Default has occurred and is continuing under the relevant Lease on and as of
the AP Closing Date; |
|
(d)
|
except
if and as advised by GECC to the Purchaser thereof in the First Disclosure
Letter, there are no outstanding claims which have been asserted by the Lessee
against GECC or any other Seller arising out of the relevant Lease (other than
claims constituting Permitted Encumbrances and other than claims for
maintenance contribution payments that will be the responsibility of the Seller
or for other payments that will be the responsibility of the Seller) on and as
of the AP Closing Date; |
|
(e)
|
except
in the case of the Skymark Aircraft, the applicable Seller has, or at Delivery
will have, full legal and, subject to a Formation Agreement, beneficial title
to such Aircraft, free from Encumbrances other than Permitted Encumbrances and
the Xxxx of Sale or physical delivery (as acknowledged in the Acknowledgement
of Delivery pertaining thereto), as applicable, is effective to convey
irrevocably title to the Purchaser thereof and the transfer of such Aircraft is
not avoidable or otherwise subject to rescission by reason of any lawful claim
|
43
of any
other Person by or through such Seller (including any prior transferor thereof
or any Person acting on behalf of or claiming through any such transferor)
(other than a Permitted Encumbrance);
|
(f)
|
to
GECC’s or the applicable Seller’s knowledge, and except if and as
advised by GECC or such Seller to the Purchaser thereof in the First Disclosure
Letter, there are no Lessee Encumbrances on and as of the AP Closing Date which
are not permitted pursuant to the terms of the relevant Lease
Document; |
|
(g)
|
(i) to
GECC’s or the applicable Seller’s knowledge, such Aircraft has not,
except if and as advised by GECC or such Seller to the Purchaser thereof in the
First Disclosure Letter, been involved in any incident on or before the AP
Closing Date which caused damage in excess of the amount required to be
disclosed to the relevant lessor under the relevant Lease, and (ii) the
summary technical information provided by GECC and its representatives to the
Appraisers with respect to such Aircraft and on which the Appraisers relied in
making their Appraisals is true and correct in all material respects and there
are no facts or circumstances known to the applicable Seller or GECC as of the
AP Closing Date which would render any of the technical specifications with
respect to such Aircraft assumptions contained in the Appraisals for such
Aircraft to be materially inaccurate (and for the avoidance of doubt, neither
GECC nor the applicable Seller makes any representation or warranty concerning,
and has not investigated in any respect, the valuations or financial
adjustments contained in the Appraisals or of any industry data, aircraft or
Aircraft data (except solely the summary technical data provided by GECC),
methodologies, assumptions or conclusions contained in the
Appraisals); |
|
(h)
|
to
GECC’s or the applicable Seller’s knowledge, except if and as
disclosed by GECC or such Seller to the Purchaser thereof in the First
Disclosure Letter, no compulsory airworthiness directives are outstanding on
and as of the AP Closing Date against such Aircraft which will require, as of
the AP Closing Date based on the estimated cost of such work as of the AP
Closing Date, GECC or any other Seller or such Purchaser to make contributions
to the cost of compliance therewith as required under the provisions of the
Leases as in effect on the AP Closing Date in excess of $1,250,000 in the
aggregate for all Aircraft during the terms of the Leases (excluding any
extension or renewal thereof) for all Aircraft as in effect on the AP Closing
Date; |
|
(i)
|
to
GECC’s or the applicable Seller’s knowledge, except if and as
disclosed by GECC or such Seller to the Purchaser thereof in the First
Disclosure Letter, no options to purchase such Aircraft, extend or terminate
the relevant Lease have been exercised on or before the AP Closing Date by the
relevant Lessee under the relevant Lease Documents; |
|
(j)
|
the
information set forth in each of the Disclosure Letters with respect to such
Aircraft is or will be when issued true and accurate in all material respects
as of its date; |
44
|
(k)
|
except
if and as advised by GECC or such Seller to the Purchaser thereof in the First
Disclosure Letter, to GECC’s or the applicable Seller’s knowledge, as
of the AP Closing Date, the provisions of each Lease relating to the granting
of any Security Deposit thereunder remain in full force and
effect; |
|
(l)
|
to
GECC’s or the applicable Seller’s knowledge and except if and as
advised by GECC or such Seller to the Purchaser thereof in the First Disclosure
Letter, as of the AP Closing Date, no event has occurred or act or thing done
or omitted to be done by GECC or any other Seller (excluding however from this
representation and warranty acts or things done or omitted to be done after the
AP Closing Date on the instructions of the Servicer acting on behalf of Genesis
Funding) pursuant to which or as a result of which the relevant Lease can be
terminated by the applicable Lessee in accordance with the terms of the
relevant Lease or the obligations of any such party thereunder would be
rendered invalid or unenforceable; |
|
(m)
|
to
GECC’s or the applicable Seller’s knowledge, except if and as advised
by GECC or such Seller to the Purchaser thereof in the First Disclosure Letter,
such Aircraft is not as of the AP Closing Date subject to any sub-lease
(exclusive of “wet-leases”) from the relevant Lessee;
|
|
(n)
|
to
GECC’s or the applicable Seller’s knowledge, the information provided
by GECC to the Purchaser thereof prior to the Delivery Date as to the
identities of all of such Seller’s predecessors in title to such Aircraft
thereof is complete and accurate in all material respects; |
|
(o)
|
to
GECC’s or the applicable Seller’s knowledge, except if and as advised
by GECC or such Seller to the Purchaser thereof in a Disclosure Letter, such
Aircraft has been accepted by the relevant Lessee under the Lease thereof
without qualification or exception or to the extent that any such acceptance
was given subject to any qualification or exception or subject to any liability
on the part of such Seller or relevant Affiliate of the Seller to pay or
reimburse any costs or expenses or to undertake any repairs or modifications at
the expense of such Seller, such qualifications and exceptions have been
discharged or waived by the Lessee and have ceased to apply and no such costs
or expenses remain to be reimbursed and all defects referred to therein have
been duly rectified or waived by such Lessee, or GECC or the applicable
Seller/lessor Affiliate of GECC has retained the rectification or payment
obligations associated therewith; |
|
(p)
|
except
for documents or provisions that will be inapplicable to the relevant Genesis
Funding Entity on and after the Delivery Date therefor, the information and
statements as to and relating to the relevant Lease and the Lease Documents set
forth in Schedule 2 as of the AP Closing Date or the Substitute Aircraft
Supplement, as applicable, are true and complete in all material
respects; |
|
(q)
|
the sale
of such Aircraft contemplated hereby constitutes a valid and irrevocable
transfer of all of the Seller’s right, title and interest in and to such
Aircraft to the |
45
Purchaser
thereof and after Delivery of such Aircraft such Seller shall retain no right,
title or interest in such Aircraft;
|
(r)
|
on and
as of the AP Closing Date the lessor under the relevant Lease pertaining to
such Aircraft shall have paid to the relevant Lessee all amounts then due and
payable on and as of the AP Closing Date by such lessor to such Lessee in
respect of maintenance theretofore performed on such Aircraft as required by
the Lease Documents; and |
|
(s)
|
GECC
represents and warrants that the representations and warranties made by the
Sellers herein are true and correct. |
|
8.3
|
Each BI
Seller further represents and warrants on each BI Transfer Date with respect to
the Transfer of the Beneficial Interest of the relevant Genesis Funding Entity
as follows: |
|
(a)
|
except
if and as advised by GECC to the Purchaser thereof in a Disclosure Letter, so
far as concerns the obligations of GECC and any such BI Seller (and except for
the registration of particulars of the relevant Lease Novation or Assignment of
Lease with the appropriate Air Authority or other actions referred to therein
or herein, if applicable) all authorizations, consents, registrations and
notifications required in connection with the entry into, performance, validity
and enforceability of, this Agreement, the transactions contemplated by this
Agreement and the other applicable Operative Documents to which it is a party,
have been (or will on or before the Delivery Date of such Aircraft have been)
obtained or effected (as appropriate) and are (or will on their being obtained
or effected be) in full force and effect; |
|
(b)
|
except
if and as advised by GECC to the Purchaser thereof in a Disclosure Letter, the
Lease Documents listed in Schedule 2 or the Substitute Aircraft Supplement, as
applicable, constitute the whole agreement between the relevant lessor and the
relevant Lessee as of Delivery (and pertaining to the period on and after
Delivery) relating to such Aircraft and includes a complete list (other than
the Operative Documents) of all amendments, supplements, novations, and written
consents, approvals and waivers relevant to the Lease with respect to the
period on and after Delivery, and there are no oral waivers in effect that
would modify or amend the terms thereof in any material respect with respect to
the period on and after Delivery; |
|
(c)
|
except
if and as advised by GECC to the Purchaser thereof in the First Disclosure
Letter, to GECC’s or the applicable BI Seller’s knowledge no Material
Default has occurred and is continuing under the relevant Lease on and as of
the AP Closing Date; |
|
(d)
|
except
if and as advised by GECC to the Purchaser thereof in the First Disclosure
Letter, there are no outstanding claims which have been asserted by the Lessee
against GECC or any other BI Seller arising out of the relevant Lease (other
than claims constituting Permitted Encumbrances and other than claims for
|
46
maintenance
contribution payments that will be the responsibility of the BI Seller or for
other payments that will be the responsibility of the BI Seller) on and as of
the AP Closing Date;
|
(e)
|
the
applicable BI Seller has, or at such BI Transfer Date will have, full legal and
beneficial title to such Beneficial Interest, free from Encumbrances other than
Permitted Encumbrances, and such Genesis Funding Entity (except with respect to
the Skymark Aircraft) will at such date have full legal and beneficial title to
the related Aircraft, free from Encumbrances other than Permitted Encumbrances
and the transfer of such Beneficial Interest is not avoidable or otherwise
subject to rescission by reason of a lawful claim of any other Person by or
through the applicable BI Seller (including a prior transferor thereof or of
the related Aircraft acting on behalf of or claiming through such BI Seller)
(other than a Permitted Encumbrance); |
|
(f)
|
with
respect to the Skymark Aircraft, SC Air has full legal title to the Skymark
Aircraft and the Skymark Beneficial Owner is in substance the beneficial owner
of the Skymark Aircraft, free from Encumbrances other than Permitted
Encumbrances; |
|
(g)
|
to
GECC’s or the applicable BI Seller’s knowledge, and except if and as
advised by GECC or such BI Seller to the Purchaser thereof in the First
Disclosure Letter, there are no Lessee Encumbrances on and as of the AP Closing
Date which are not permitted pursuant to the terms of the relevant Lease
Document; |
|
(h)
|
(i) to
GECC’s or the applicable BI Seller’s knowledge, such Aircraft has
not, except if and as advised by GECC or such BI Seller to the Purchaser
thereof in the First Disclosure Letter, been involved in any incident on or
before the AP Closing Date which caused damage in excess of the amount required
to be disclosed to the relevant lessor under the relevant Lease, and
(ii) the summary technical information provided by GECC and its
representatives to the Appraisers with respect to such Aircraft and on which
the Appraisers relied in making their Appraisals is true and correct in all
material respects and there are no facts or circumstances known to the
applicable BI Seller or GECC as of the AP Closing Date which would render any
of the technical specifications with respect to such Aircraft assumptions
contained in the Appraisals for such Aircraft to be materially inaccurate (and
for the avoidance of doubt, neither GECC nor the applicable BI Seller makes any
representation or warranty concerning, and has not investigated in any respect,
the valuations or financial adjustments contained in the Appraisals or of any
industry data, aircraft or Aircraft data (except solely the summary technical
data provided by GECC), methodologies, assumptions or conclusions contained in
the Appraisals); |
|
(i)
|
to
GECC’s or the applicable BI Seller’s knowledge, except if and as
advised by GECC or such BI Seller to the Purchaser thereof in the First
Disclosure Letter, no compulsory airworthiness directives are outstanding on
and as of the AP Closing Date against such Aircraft which will require, as of
the AP Closing Date based on the estimated cost of such work as of the AP
Closing Date, GECC or any other BI |
47
Seller
or such Purchaser to make contributions to the cost of compliance therewith as
required under the provisions of the Leases as in effect on the AP Closing Date
in excess of $1,250,000 in the aggregate for all Aircraft during the terms of
the Leases (excluding any extension or renewal thereof) for all Aircraft as in
effect on the AP Closing Date;
|
(j)
|
to
GECC’s or the applicable BI Seller’s knowledge, except if and as
disclosed by GECC or such BI Seller to the Purchaser thereof in the First
Disclosure Letter, no options to purchase such Aircraft, extend or terminate
the relevant Lease have been exercised on or before the AP Closing Date by the
relevant Lessee under the relevant Lease Documents; |
|
(k)
|
the
information set forth in each of the Disclosure Letters with respect to such
Aircraft is or will be when issued true and accurate in all material respects
as of its date; |
|
(l)
|
except
if and as advised by GECC or such BI Seller to the Purchaser thereof in the
First Disclosure Letter, to GECC’s or the applicable BI Seller’s
knowledge, as of the AP Closing Date, the provisions of each Lease relating to
the granting of any Security Deposit thereunder remain in full force and
effect; |
|
(m)
|
to
GECC’s or the applicable BI Seller’s knowledge and except if and as
advised by GECC or such BI Seller to the Purchaser thereof in the First
Disclosure Letter, as of the AP Closing Date, no event has occurred or act or
thing done or omitted to be done by GECC or any other BI Seller (excluding
however from this representation and warranty acts or things done or omitted to
be done after the AP Closing Date on the instructions of the Servicer acting on
behalf of Genesis Funding) pursuant to which or as a result of which the
relevant Lease can be terminated by the applicable Lessee in accordance with
the terms of the relevant Lease or the obligations of any such party thereunder
would be rendered invalid or unenforceable; |
|
(n)
|
to
GECC’s or the applicable BI Seller’s knowledge, except if and as
advised by GECC or such BI Seller to the Purchaser thereof in the First
Disclosure Letter, such Aircraft is not as of the AP Closing Date subject to
any sub-lease (exclusive of “wet-leases”) from the relevant
Lessee; |
|
(o)
|
to
GECC’s or the applicable BI Seller’s knowledge, the information
provided by GECC to the Purchaser thereof prior to the Delivery Date as to the
identities of all of such BI Seller’s predecessors in title to such
Aircraft thereof is complete and accurate in all material
respects; |
|
(p)
|
to
GECC’s or the applicable BI Seller’s knowledge, except if and as
advised by GECC or such BI Seller to the Purchaser thereof in a Disclosure
Letter, such Aircraft has been accepted by the relevant Lessee under the Lease
thereof without qualification or exception or to the extent that any such
acceptance was given subject to any qualification or exception or subject to
any liability on the part of |
48
such BI
Seller or relevant Affiliate of the BI Seller to pay or reimburse any costs or
expenses or to undertake any repairs or modifications at the expense of such BI
Seller, such qualifications and exceptions have been discharged or waived by
the Lessee and have ceased to apply and no such costs or expenses remain to be
reimbursed and all defects referred to therein have been duly rectified or
waived by such Lessee, or GECC or the applicable Seller/lessor Affiliate of
GECC has retained the rectification or payment obligations associated
therewith;
|
(q)
|
except
for documents or provisions that will be inapplicable to the relevant Genesis
Funding Entity on and after the Delivery Date therefor, the information and
statements as to and relating to the relevant Lease and the Lease Documents set
forth in Schedule 2 as of the AP Closing Date or the Substitute Aircraft
Supplement, as applicable, are true and complete in all material
respects; |
|
(r)
|
on and
as of the AP Closing Date the lessor under the relevant Lease pertaining to
such BI Aircraft shall have paid to the relevant Lessee all amounts then due
and payable on and as of the AP Closing Date by such lessor to such Lessee in
respect of maintenance theretofore performed on such BI Aircraft as required by
the Lease Documents; |
|
(s)
|
the sale
of such Beneficial Interest contemplated hereby constitutes a valid and
irrevocable transfer of such Beneficial Interest and such BI Seller shall
retain no right, title or interest in such Beneficial Interest;
|
|
(t)
|
neither the
BI Seller nor anyone acting on its behalf has offered such Beneficial Interest
or any similar securities for sale to, or solicited any offer to buy any of the
same from, any person in a manner which would violate the Securities Act, and
neither the BI Seller nor anyone acting on their behalf have taken, or will
take, any action that would subject the issuance or sale of such Beneficial
Interest to the registration requirements of Section 5 of the Securities
Act; |
|
(u)
|
with
respect to each Genesis Funding Entity, except as set forth in the Formation
Agreements, there are no voting trusts, membership agreements, proxies or other
agreements or understandings in effect with respect to (i) the voting of the
Beneficial Interest or (ii) other than those contained in the Operative
Documents, the Lease Documents or the Formation Agreement, the Transfer of the
Beneficial Interest and, that no Formation Agreement contains any provision
that would prohibit or impair the Transfer of the applicable Beneficial
Interest in accordance with this Agreement; |
|
(v)
|
complete
and accurate copies of any membership register, minute book or stock register
with respect to the relevant Genesis Funding Entity have been provided to
Genesis Funding; |
|
(w)
|
to the
extent such exist, the books of account and other financial records of the
relevant Genesis Funding Entity accurately reflect all items of income and
expense and all assets and liabilities required to be reflected therein in
accordance |
49
with and
applied on a basis consistent with the past practices of such Genesis Funding
Entity;
|
(x)
|
except
to the extent that same is the responsibility of the Lessee under a Lease, the
relevant Genesis Funding Entity has obtained and is maintaining all permits,
licenses, authorizations, certifications, exemptions and approvals necessary to
enable it to carry on its business as presently conducted (collectively, the
“Permits”),
and all such Permits are in full force and effect; and |
|
(y)
|
full and
accurate particulars of all material contracts or agreements (collectively, the
“Contracts”)
to which the relevant Genesis Funding Entity is a party at the AP Closing Date
that do not consist of the Formation Agreements, the Lease Documents, the
Operative Documents or other documents described herein and that do not pertain
to the Genesis Funding Entities’ ordinary course of business and that will
continue in effect after the Delivery Date have been disclosed to Genesis
Funding Limited in the First Disclosure Letter and each Contract including the
Formation Agreement, the Lease Documents and the Operative Documents (i) is
legal, valid and binding on the relevant Genesis Funding Entity and is in full
force and effect in accordance with its terms with respect to such Genesis
Funding Entity and (ii) upon completion of the transactions contemplated by the
Operative Documents, shall continue in full force and effect with respect to
such Genesis Funding Entity, without penalty or adverse consequence. To the
knowledge of GECC and the BI Sellers after due inquiry, neither the BI Sellers
nor the relevant Genesis Funding Entity is in breach of, or default under, any
Contract to which it is a party. |
|
8.4
|
GECC
with respect to each Genesis Funding Entity, and each BI Seller with respect to
such Genesis Funding Entity the Beneficial Interests of which such BI Seller
will Transfer, further represents and warrants on each BI Transfer Date as
follows: |
|
(a)
|
such
Genesis Funding Entity is duly organized, validly existing and, to the extent
applicable, in good standing under the laws of the jurisdiction of its
organization and has full corporate, company, trust or other power and
authority to conduct its business as and to the extent now conducted and to
own, use and lease its assets. Such Genesis Funding Entity is duly qualified,
licensed or admitted to do business and is in good standing in those
jurisdictions in which the ownership, use or leasing of its assets, or the
conduct or nature of its business, makes such qualification, licensing or
admission necessary, except for those jurisdictions in which the adverse
effects of all such failures by such Genesis Funding Entity to be qualified,
licensed or admitted and in good standing can in the aggregate be eliminated
without material cost or expense by such Genesis Funding Entity, as the case
may be, becoming qualified or admitted and in good standing. GECC has, prior to
the execution of this Agreement, delivered to Purchaser true and complete
copies of such Genesis Funding Entity’s organizational documents
(including any limited liability company agreements, limited partnership
agreements or Formation Agreements) as in effect on the date
hereof. |
50
|
(b)
|
the
Beneficial Interests of such Genesis Funding Entity are duly authorized,
validly issued, outstanding, fully paid and nonassessable. Seller owns the
Beneficial Interests, beneficially and of record, free and clear of all
Encumbrances (other than Permitted Encumbrances), and there are no other
Beneficial Interests of such Genesis Funding Entity issued and outstanding.
Except for this Agreement, there are no outstanding options to acquire the
Beneficial Interests or any other equity interest with respect to such Genesis
Funding Entity. Such Beneficial Interests are or will be represented by
certificates, and the delivery of a certificate or certificates at the Closing
representing the Beneficial Interests in the manner provided in Section 2.1
together with the Assignment of Beneficial Interest contemplated hereunder and
any recording thereof in the books and records of such Person will transfer to
Purchaser full legal and beneficial title to the Beneficial Interests, free and
clear of all Encumbrances (other than Permitted Encumbrances). In the case of
Beneficial Interests not represented by certificates, delivery of the
Assignment of Beneficial Interest and recording of Purchaser’s ownership
of such Beneficial Interests in the books and records of the Genesis Funding
Entity will transfer to Purchaser full legal and beneficial title to the
Beneficial Interests, free and clear of all Encumbrances (other than Permitted
Encumbrances). |
|
(c)
|
such
Genesis Funding Entity has no Subsidiaries except as disclosed in the First
Disclosure Letter. |
|
(d)
|
on or
prior to the BI Transfer Date, the Assignment of Lease or Lease Novation, as
the case may be, has been duly executed and delivered by all parties
thereto. |
|
(e)
|
except
for (i) the Aircraft listed on Schedule 1 for such Genesis Funding Entity, (ii)
cash or other property held for the account of any Lessee as Security Deposit,
(iii) any rights arising under the Operative Documents to which it is a party
and the Lease, other Lease Documents and any Intercompany Lease, (iv) any
Subsidiary disclosed in the First Disclosure Letter and (v) any receivables
disclosed in the First Disclosure Letter, such Genesis Funding Entity has no
other Assets. |
|
(f)
|
except
for the Formation Agreement, the Lease, the Lease Documents and the Assignment
of Lease or Lease Novation, as the case may be, there are no Encumbrances
(other than Permitted Encumbrances) on any of the assets or properties of such
Genesis Funding Entity and the Transfer of the Beneficial Interests in the
manner contemplated by this Agreement will not create any Encumbrances (other
than Permitted Encumbrances referenced in clause (1) or (2) of the definition
of such term) on the assets or properties of such Genesis Funding
Entity. |
|
(g)
|
such
Genesis Funding Entity has no employees, except as may be required by
Applicable Law. |
51
|
(h)
|
to
GECC’s knowledge and such BI Seller’s knowledge, there are no Orders
outstanding against such Genesis Funding Entity. |
|
(i)
|
such
Genesis Funding Entity is not and has not at any time since its organization as
an entity been, or has received any notice that it is or has at any time since
its organization as an entity been, in violation of or in default under, in any
material respect, Applicable Law or Order applicable to such Genesis Funding
Entity or any of its assets or properties. |
|
(j)
|
no
liquidator, provisional liquidator, analogous or similar officer has been
appointed in respect of all or any part of the assets of such Genesis Funding
Entity nor has any application been made to a court which is still pending for
an Order for, or any act, matter or thing been done which with the giving of
notice, lapse of time or satisfaction of some other condition (or any
combination thereof) will lead to, the appointment of any such officers or
equivalent in any jurisdiction. |
|
(k)
|
as of
such BI Transfer Date, the entry into and performance by such Genesis Funding
Entity of, and the transactions contemplated by, the relevant Operative
Documents to which it is a party, on such BI Transfer Date while such
Beneficial Interest is owned by the BI Seller thereof, do not and will
not: |
(i) breach
any laws, rules, regulations, orders, judgments or decrees binding on such
Genesis Funding Entity or any of their respective assets on such BI Transfer
Date while such Beneficial Interest is owned by the BI Seller thereof;
or
(ii) result
in any breach of, or constitute a default under the constitutional documents of
such Genesis Funding Entity on such BI Transfer Date while such Beneficial
Interest is owned by the BI Seller thereof; or
(iii) result
in any breach of, or constitute a default under any agreement, document or
instrument which is binding upon such Genesis Funding Entity or any of its
respective assets on such BI Transfer Date while such Beneficial Interest is
owned by the BI Seller thereof or result thereunder in the creation of any
Encumbrance (other than the Novated Lease or the Assigned Lease as the case may
be or other Permitted Encumbrance) over any of its respective assets to be
transferred to the relevant Purchaser hereunder.
|
(l)
|
except
if and as advised by GECC or any BI Seller, as applicable, to the Purchaser in
a Disclosure Letter, no litigation, arbitration or claim before any court,
arbitrator, governmental or administrative agency or authority to which such
Genesis Funding Entity is a party which would have a material adverse effect on
the ability of such Genesis Funding Entity to observe or perform its respective
obligations under any applicable Operative Documents to which such Genesis
Funding Entity is a party on such BI Transfer Date while such Beneficial
Interest is owned by the BI Seller thereof is in progress, or to the knowledge
of GECC, or any BI Seller, as applicable, threatened against such Genesis
Funding Entity; |
52
|
(m)
|
since
its acquisition of its interest in the applicable Aircraft such Genesis Funding
Entity has been covered by aviation liability insurance policies in such types
and amounts and covering such risks and with such insurers as are substantially
consistent with GECAS’s customary practices and such aviation liability
insurance remains in effect as to such Genesis Funding Entity on such BI
Transfer Date; and |
|
(n)
|
there
are no Liabilities of the relevant Genesis Funding Entity other than
Liabilities arising under the Lease Documents, the Formation Agreements or the
Operative Documents, Liabilities incurred in the ordinary course of business or
Liabilities disclosed in a Disclosure Letter or contemplated hereby.
|
|
8.5
|
Except
if and as advised by GECC to the Purchaser thereof in a Disclosure Letter, each
BI Seller of a Genesis Funding Non-Corporate Entity further represents and
warrants on the AP Closing Date with respect to the Transfer of the Beneficial
Interest of the relevant Genesis Funding Non-Corporate Entity as
follows: |
|
(a)
|
such
Genesis Funding Non-Corporate Entity is and has been at all time from its
organization an entity taxable as a disregarded entity for Federal income tax
purposes and the relevant BI Seller has made an election, where it is required,
to treat the Genesis Funding Non-Corporate Entity at all time from its
organization as an entity taxable either as a grantor trust or as a disregarded
entity for Federal, foreign, state and local income tax purposes;
|
|
(b)
|
such
Genesis Funding Non-Corporate Entity has paid all Taxes that are due or claimed
or asserted by any taxing authority to be due from such Genesis Funding
Non-Corporate Entity on or prior to the AP Closing Date and there are no Tax
liens upon the assets of the Genesis Funding Non-Corporate Entity except liens
for Taxes not yet due; and |
|
(c)
|
such
Genesis Funding Non-Corporate Entity has complied with all applicable laws,
rules, and regulations relating to the payment and withholding of Taxes
(including withholding and reporting requirements under Code Sections 1441
through 1464, 3401 through 3406, 6041 and 6049 and similar provisions under any
other applicable laws) and has, within the time and in the manner prescribed by
law, withheld from employee wages and paid over to the proper governmental
authorities all required amounts. |
|
8.6
|
Except
if and as advised by GECC to the Purchaser thereof in a Disclosure Letter, each
BI Seller of (i) a Genesis Funding Corporate Entity and (ii) of a
Genesis Funding Non-Corporate Entity to the extent such Genesis Funding
Non-Corporate Entity is not treated as a disregarded entity for foreign, state
or local income tax purposes (a “Genesis
Funding State Corporate Entity”)
further represents and warrants on the AP Closing Date with respect to the
Transfer of the Beneficial Interest of the relevant Genesis Funding Corporate
Entity or Genesis Funding State Corporate Entity as follows: |
53
|
(a)
|
such
Genesis Funding Corporate Entity or such Genesis Funding State Corporate Entity
has filed (or has had filed on its behalf) all material Tax Returns required to
be filed by applicable law prior to the date hereof and all Tax Returns were
materially true, complete and, to the extent material, correct and filed on a
timely basis; |
|
(b)
|
such
Genesis Funding Corporate Entity or such Genesis Funding State Corporate Entity
has paid all material Taxes that are due, or claimed or asserted by any taxing
authority to be due, from the Genesis Funding Corporate Entity or such Genesis
Funding State Corporate Entity on or prior to the AP Closing Date and there are
no Tax liens upon such assets of the Genesis Funding Corporate Entity or such
Genesis Funding State Corporate Entity except liens for Taxes not yet
due; |
|
(c)
|
such
Genesis Funding Corporate Entity or such Genesis Funding State Corporate Entity
has complied with all applicable laws, rules, and regulations relating to the
payment and withholding of Taxes (including withholding and reporting
requirements under Code Sections 1441 through 1464, 3401 through 3406, 6041 and
6049 and similar provisions under any other applicable laws) and has, to the
extent material, within the time and in the manner prescribed by law, withheld
from employee wages and paid over to the proper governmental authorities all
required amounts; |
|
(d)
|
such
Genesis Funding Corporate Entity or such Genesis Funding State Corporate Entity
has not requested (and no request has been made on its behalf) any extension of
time within which to file any Tax Return; |
|
(e)
|
such
Genesis Funding Corporate Entity or such Genesis Funding State Corporate Entity
has not executed any outstanding waivers or comparable consents regarding the
application of the statute of limitations for any Taxes or Tax Returns (and no
extensions have been executed on its behalf); |
|
(f)
|
no
audits or other administrative proceedings or court proceedings are presently
pending with regard to any Taxes or Tax Returns of such Genesis Funding
Corporate Entity or such Genesis Funding State Corporate Entity;
|
|
(g)
|
such
Genesis Funding Corporate Entity or such Genesis Funding State Corporate Entity
has not received any written ruling of a taxing authority relating to Taxes, or
any other written and legally binding agreement with a taxing authority
relating to Taxes; |
|
(h)
|
such
Genesis Funding Corporate Entity has not filed (and will not file prior to the
AP Closing Date) a consent pursuant to Code Section 341(f) or any analogous
state or local Tax provision or agreed to have Code Section 341(f)(2) apply to
any disposition of a subsection (f) asset, as defined in Code Section
341(f)(4); |
|
(i)
|
such
Genesis Funding Corporate Entity is not required to include in income any
adjustment pursuant to Code Section 481(a) by reason of a voluntary change in
|
54
accounting
method initiated by the Genesis Funding Corporate Entity and the Internal
Revenue Service has not proposed an adjustment or change in accounting method;
|
(j)
|
such
Genesis Funding Corporate Entity is not a party to any agreement, contract, or
arrangement that would result, separately or in the aggregate, in the payment
of any “excess parachute payments” within the meaning of Code Section
280G; |
|
(k)
|
on or
before the AP Closing Date, such Genesis Funding Corporate Entity or such
Genesis Funding State Corporate Entity had no United States state or local, or
foreign Tax Return filing obligations in respect of income, franchise, doing
business or similar Taxes, other than, in the case of a Genesis Funding
Corporate Chinese Entity, its obligation for Delaware corporate income or
franchise tax; and |
|
(l)
|
GECC or
the relevant BI Seller has paid or will pay all Taxes with respect to the
operations of the Genesis Funding Corporate Entity or Genesis Funding State
Corporate Entity, for all such taxable periods ending on or before the AP
Closing Date and that portion of such taxable period that includes the AP
Closing Date (calculated as if the AP Closing Date were the end of a taxable
period). |
|
8.7
|
GECC
represents, warrants and covenants as follows: |
|
(a)
|
following
the Delivery Date for any Aircraft and unless as a result of a Final
Determination, neither GECC nor any of its Affiliates will claim for United
States federal, state or local or for foreign tax purposes to be the owner of
such Aircraft; and |
|
(b)
|
prior to
the AP Closing Date, GECC or its Affiliates treated itself as the owners of the
Aircraft for United States federal, state and local income tax
purposes. |
|
8.8
|
GECC
further represents and warrants to Genesis Funding that, as of the date hereof
and as of the BI Transfer Date with respect to the Skymark Aircraft and after
giving effect to the novations, assignments and amendments contemplated
thereby, each of the Operative Documents related to the Skymark Aircraft is
legal, valid and binding on the Skymark Beneficial Owner and is in full force
and effect in accordance with its terms, and (b) upon completion of the
transactions contemplated by the Operative Documents, the Operative Documents
shall continue in full force and effect, without penalty or adverse
consequence, as to the Skymark Beneficial Owner. To GECC’s or the
applicable BI Seller’s knowledge, neither the Skymark Beneficial Owner nor
the applicable BI Seller is in breach of, or default under, any of the
Operative Documents to which it is a party. |
|
8.9
|
As used
herein “to GECC’s knowledge” and “to the Seller’s
knowledge” means the awareness of facts or other information by any person
at GECC or GECAS or the Seller, as the case may be, actively involved in the
transactions contemplated by this Agreement or (in respect of any Aircraft or
any Beneficial Interest related thereto), the leasing of |
55
such
Aircraft and something being “known to GECC” or being “known to
the Seller” shall be construed accordingly.
|
8.10
|
GECC and
each other Seller acknowledges that each Purchaser is entering into this
Agreement and the other Operative Documents in reliance upon the accuracy of
each of the representations and warranties, which representations and
warranties have been given by GECC and the other Sellers so as to induce each
Purchaser to enter into this Agreement and the other Operative
Documents. |
|
8.11
|
The
representations and warranties may at the sole discretion of the relevant
Purchaser be waived by such Purchaser with or without conditions acceptable to
the Sellers, subject to in each case, the relevant Purchaser first obtaining
the prior written consent of the Policy Provider to any such
waiver. |
|
8.12
|
Subject
to Section 8.13, the benefit of the representations and warranties shall run to
the Security Trustee. |
|
8.13
|
The
representations and warranties in respect of any Aircraft shall continue and
survive in full force and effect after the Delivery Date therefor for a period
ending on the earlier of (x) the date of the payment in full of the Class G-1
Notes and all obligations owing to the Policy Provider and (y) six years after
the AP Closing Date, after which period no claim in respect thereof, pursuant
to an indemnity contained herein or otherwise, may be brought against a party
hereto except if notice of a claim of inaccuracy thereof has been given prior
to the close of such period. |
|
8.14
|
Each of
the representations and warranties shall be construed as a separate and
independent representation and warranty and shall not be limited or restricted
by reference to the terms of any other provision of this Agreement, the other
Operative Documents or any other representation or warranty. |
|
9.
|
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER |
|
9.1
|
Genesis
Funding hereby represents and warrants to GECC and each Seller as of the date
of this Agreement and on each subsequent Delivery Date that: |
|
(a)
|
Genesis
Funding is duly incorporated and validly existing under the laws of Bermuda,
and each other Purchaser of any Asset is a company or trust duly established
and validly existing under the laws of its jurisdiction of organization, and
each has the trust or corporate power (as the case may be) to own its assets
and carry on its business as it is being conducted; |
|
(b)
|
Genesis
Funding and each other Purchaser of any Asset has the trust or corporate power
(as the case may be) to enter into and perform, and has taken all necessary
action to authorize the entry into, performance and delivery of, this Agreement
and the other applicable Operative Documents to which it is a
party; |
|
(c)
|
this
Agreement and the other applicable Operative Documents to which it is a party
have been, or when executed and delivered will have been, duly entered into
|
56
and
delivered by Genesis Funding and each other Purchaser of any Asset and
constitute or, in the case of any Operative Document to be executed on or about
the applicable Delivery Date, will constitute on such Delivery Date, each such
Person’s legal, valid and binding obligations;
|
(d)
|
the
entry into and performance by Genesis Funding and any other Purchaser of any
Asset of, and the transactions contemplated by, this Agreement and the other
applicable Operative Documents to which it is a party do not and will
not: |
|
(i)
|
conflict
with any laws binding on Genesis Funding or any other Purchaser of any Asset;
or |
|
(ii)
|
result
in any breach of, or constitute a default under the constitutional documents of
Genesis Funding or any other Purchaser of any Asset; or |
|
(iii)
|
result
in any breach of, or constitute a default under or result in default under any
document which is binding upon Genesis Funding or any other Purchaser of any
Asset or any of their respective assets; |
|
(e)
|
so far
as concerns the obligations of Genesis Funding and any other Purchaser of any
Asset, all authorizations, consents, registrations and notifications required
in connection with the entry into, performance, validity and enforceability of,
this Agreement and the other applicable Operative Documents to which any such
Person is a party and the Servicing Agreement and the transactions contemplated
by this Agreement and the other applicable Operative Documents to which any
such Person is a party, have been obtained or effected (as appropriate) and are
(or will on their being obtained or effected be) in full force and
effect; |
|
(f)
|
the
provisions of Section 14 concerning applicable law, service of process and
jurisdiction are valid and binding on Genesis Funding and each other Purchaser
under the laws of the State of New York, and no provision purporting to be
binding on Genesis Funding or any other Purchaser of any Asset, this Agreement
or any of the other applicable Operative Documents is prohibited, unlawful or
unenforceable under the laws of the State of New York; |
|
(g)
|
no
liquidator, provisional liquidator, official manager, trustee, Irish law
examiner, receiver or receiver and manager or similar officer has been
appointed in respect of all or any part of the assets of Genesis Funding or any
other Purchaser of any Asset nor has any application been made to a court which
is still pending for an order for, or any act, matter or thing been done which
with the giving of notice, lapse of time or satisfaction of some other
condition (or any combination thereof) will lead to the appointment of any such
officers; |
|
(h)
|
no
litigation, arbitration or claim before any court, arbitrator, governmental or
administrative agency or authority which would have a material adverse effect
on the ability of Genesis Funding or any other Purchaser of any Asset to
observe or perform its obligations under this Agreement is in progress, or to
the knowledge of any such Person, threatened against any such
Person; |
57
|
(i)
|
Genesis
Funding and each other Purchaser of any Asset intends for the sale of any
Aircraft contemplated hereby to constitute a valid transfer of such Aircraft to
the relevant Purchaser and intends that after Delivery of such Aircraft the
Seller thereof shall retain no right, title or interest in such Aircraft;
and |
|
(j)
|
Genesis
Funding represents and warrants that the Beneficial Interest of any Genesis
Funding Entity purchased by Genesis Funding is being acquired for investment
for Genesis Funding’s own account, not as a nominee or agent, and not with
a view to the resale or distribution of any part thereof, and that Genesis
Funding has no intent of selling, granting any participation in, or otherwise
distributing the same in violation of the Securities Act. |
|
10.
|
INDEMNITY
|
|
10.1
|
Each
Purchaser of an Asset or Aircraft agrees to indemnify the Seller on its behalf
and on behalf of each other Seller Indemnitee from and against any claims,
damages, losses, costs, expenses, fees, payments, demands, liabilities,
actions, proceedings, penalties or fines (“Losses”)
(other than, in each case, on account of any Taxes resulting from any Delivery)
which any Seller Indemnitee may incur in relation to such Asset or Aircraft to
the extent it arises (A) out of an event that occurs on or after the AP Closing
Date and (B) in connection with any of the Retained Rights. |
|
10.2
|
Without
derogation to the disclaimer in Section 12, each Seller of an Aircraft agrees
to indemnify the Purchaser thereof on its behalf and on behalf of each
Purchaser Indemnitee from and against any Losses which any Purchaser Indemnitee
may incur in relation to such Asset or Aircraft to the extent it arises out of
an event (which term shall exclude when used in this Section 10.2 anything
related to or connected with the design, manufacture, maintenance, repair,
rebuilding, overhaul, refurbishment or similar activity with respect to any
Aircraft (including any engine or part)) that occured prior to the AP Closing
Date. |
|
10.3
|
If a
written claim is made against a party (the “first
party”)
for any sum which is the subject of an indemnity by the other party (the
“indemnifying
party”)
under this Section 10, the first party will promptly notify the indemnifying
party. If reasonably requested by the indemnifying party in writing within 30
days following receipt by the indemnifying party of such notice, and provided
the first party is indemnified by the indemnifying party against costs and
expenses, the first party will in good faith contest in its name (or, at the
indemnifying party’s election if such contest may be undertaken by the
indemnifying party in its own name or on behalf of the indemnifying party,
permit the indemnifying party to contest) the validity, applicability and
amount of such claim in appropriate administrative and judicial proceedings;
provided that the first party shall have no such obligation if any such contest
would expose the first party itself to an indemnifiable liability
claim. |
|
10.4
|
The
relevant Seller or GECC shall pay, within 45 days after receipt of an approved
invoice therefor, costs and expenses, including reasonable legal fees and
disbursements, |
58
which
the relevant Purchaser incurs as a result of (but subject to the provisions of
Section 4.3 in the case of clauses (ii) and (iii) below):
|
(i)
|
the
application of Section 4.1 (including, without limitation, costs incurred in
arranging or taking steps to arrange the preparation, execution and delivery of
any documents in anticipation of Delivery of a Substitute Aircraft);
or |
|
(ii)
|
any of
the documents or conditions referred to in Schedule 3 not being satisfied on or
before Delivery of the relevant Aircraft or Transfer of the Beneficial Interest
of the relevant Aircraft or any of the documents or conditions referred to in
Schedule 4 not being satisfied within the period specified therein;
or |
|
(iii)
|
any
condition referred to in Section 7.2(a) or (b) not being satisfied on or before
Delivery of the relevant Aircraft or Beneficial Interest. |
|
10.5
|
If and
to the extent that any sums constituting (directly or indirectly) an indemnity
to the first party but paid by the indemnifying party pursuant to this
Agreement are treated as taxable in the hands of the first party, the
indemnifying party will pay to the first party such sums as will after the tax
liability has been fully satisfied indemnify the first party to the same extent
as it would have been indemnified in the absence of such liability together
with interest on the amount payable by the indemnifying party under this
sub-clause at the rate of interest stated in Section 5.7 in respect of the
period commencing on the date on which the payment of taxation is finally due
until payment by the indemnifying party (both before and after judgment), but
the indemnifying party will be under no liability to make any payment under
this Section 10.5 to the first party to the extent the first party would be in
a better position than if no payment by way of indemnity had needed to have
been made. |
|
11.
|
TAXES
|
|
(a)
|
GECC and
each Seller of an Asset hereby covenants to pay all Taxes imposed on the
Purchaser of an Aircraft or a Beneficial Interest thereof, on Genesis Funding
(or any assignee or successor thereto) or on any Aircraft, any Beneficial
Interest, the Lease Documents or the Operative Documents as a result of (i) the
execution of, delivery of or performance under this Agreement, (ii) the
Delivery of any Aircraft or Transfer of the Beneficial Interest in a Genesis
Funding Entity that holds title to any Aircraft, (iii) any required
re-registration of title to or the lease of any Aircraft with any Government
Entity that is necessary or advisable to reflect or record the Operative
Documents or the events occurring pursuant to the Operative Documents, (iv) the
purchase by such Purchaser of any Aircraft or Beneficial Interest hereunder,
(v) such Purchaser’s entering into of the Lease Documents and the
Operative Documents, (vi) without regard to clause (y) of this Section 11(a),
the inaccuracy of such Seller’s representation or warranty or the breach
by such Seller of any covenant, or (vii) an Aircraft being located in an
Transfer Tax Jurisdiction at any time whether before or after the moment of
Delivery on the Delivery Date for such Aircraft or on the AP Closing Date,
other than (v) Taxes in respect of events occurring after, but not on, the
Delivery Date |
59
unless
arising as a result of events described in clause (iii) or (vi) above, (w) in
the case of clause (vii), Taxes imposed by a Jurisdiction other than the
Transfer Tax Jurisdiction, (x) Taxes that the relevant Lessee is liable to pay
or reimburse under the relevant Lease and/or the Operative Documents, (y) any
Taxes (other than sales, use and similar Taxes and Taxes which are imposed as a
result of an event described in clause (vi) of this Section 11(a)) imposed on
the Purchaser of such Aircraft or any other Purchaser that are based on or
measured by gross or net income or receipts (including, without limitation,
withholding and Taxes on tax preference items) of such Purchaser or any other
Purchaser or that are capital, doing business, accumulated earnings, personal
holding company, excess profits, successor, estate or net worth Taxes of such
Purchaser (including interest, additions to Tax, penalties, or other charges in
respect thereof), in each case to the extent imposed on the Purchaser or any
other Purchaser by reason of such Purchaser or an Affiliate thereof being
organized in the jurisdiction imposing such Taxes or conducting activities in
such jurisdiction unrelated to the transactions contemplated by the Operative
Documents or (z) Taxes resulting from the gross negligence or willful
misconduct of such Purchaser.
As used herein, “Transfer Tax Jurisdiction” means a jurisdiction that imposes Tax on an Asset or any Person directly or indirectly holding an interest in the Asset by reason of a transfer of the Asset or a beneficial interest in the Asset as a result of the applicable Aircraft being located in that jurisdiction.
|
(b)
|
Each
Purchaser covenants not to bring into the United Kingdom any document held by
it subject to stamp duty in the United Kingdom and covered by the indemnity in
Section 11(a) above unless it is necessary to do so to enforce the same,
whereupon such Purchaser shall notify the relevant Seller that it has brought
such a document into the United Kingdom and such Seller shall be responsible
for the payment of such duty. |
|
(c)
|
Each BI
Seller of each Genesis Funding Entity hereby covenants to pay and to indemnify
and hold harmless such Genesis Funding Entity and its Affiliates (and their
direct and indirect beneficial interest holders) from any and all claims,
actions, causes of action, liabilities, losses, damages, and reasonable
out-of-pocket expenses and costs resulting from, arising out of or relating to
(i) all Taxes imposed on the Genesis Funding Entity or the Purchaser thereof
related to the activity of the Genesis Funding Entity for all taxable periods
ending on or before the AP Closing Date, (ii) all Taxes imposed on the Genesis
Funding Entity or Purchaser thereof for such portion of any taxable period
including the AP Closing Date as ends on the AP Closing Date, (calculated as if
the AP Closing Date had been the last day of a taxable period and the books of
the Genesis Funding Entity had been closed on such day (it being understood
that Taxes other than income Taxes for which the last day of a taxable period
is not the AP Closing Date are to be allocated in a manner that fairly reflects
(and is no less favorable to the Purchaser than pro rata per day) the period
ending on the AP Closing Date and the period commencing after the AP Closing
Date)) and (iii) any Tax liability that |
60
arises
solely by reason of the Genesis Funding Entity being severally liable for any
Tax of the consolidated group (or combined group pursuant to Treasury
Regulation Section 1.1502-6 or any analogous state or local Tax provisions) of
which GECC or a BI Seller is a member (the “GE
Group”)
other than, in the case of clauses (i), (ii) and (iii) Taxes that the relevant
Lessee is liable to pay or reimburse under the relevant Lease and/or the
Operative Documents; provided,
however, in the
case of clauses (i) and (ii) above, Taxes imposed with respect to the
activities of a Genesis Funding Entity or the Purchaser after the time the sale
contemplated by this Agreement is effective shall be subject to indemnification
only to the extent (A) (I) set forth in Section 11(a)(vi) or (vii) or (II) such
Taxes arise in connection with the sale on the AP Closing Date of any direct or
indirect beneficial interest in the Genesis Funding Entities, and (B) such
Taxes do not arise as a result of an election under Section 338 of the Code or
similar election under Tax laws of any jurisdiction outside of the United
States provided,
further, that
the BI Seller shall not be responsible for Taxes measured by net income
attributable to any Rent received by Genesis Funding solely allocable to the
period on and after the AP Closing Date or for Taxes fully provided for as
set forth in the First Disclosure Letter. In the case of Taxes payable by GECC
and a BI Seller pursuant to clause (ii), the amount of such Taxes, as
reasonably computed by the Purchaser, will be remitted to the Purchaser at
least three business days prior to the due date of the relevant Tax Return
(with interest being imposed at a rate equal to Purchaser’s or its
Affiliate’s cost of funds (as documented by the Purchaser or its Affiliate
in a reasonable manner) for any late payment.
|
(d)
|
Each BI
Seller of a Genesis Funding Corporate Entity or a Genesis Funding State
Corporate Entity hereby covenants: |
|
(i)
|
any tax
sharing agreements, tax settlement agreements, arrangements, policies or
guidelines, formal or informal, express or implied that may exist between any
Genesis Funding Corporate Entity or Genesis Funding State Corporate Entity and
GECC, any Seller or any Affiliate of GECC or any Seller (other than the Genesis
Funding Corporate Entity or Genesis Funding State Corporate Entity) (a
“Tax
Sharing Agreement”)
shall terminate as of the AP Closing Date and, except as specifically provided
herein, any obligation to make payments under any Tax Sharing Agreement shall
be cancelled as of the AP Closing Date; |
|
(ii)
|
if any
Genesis Funding Corporate Entity or Genesis Funding State Corporate Entity has
been a member of a United States consolidated federal income tax return or any
foreign, state or local consolidated or combined income or franchise tax
returns, the BI Seller shall cause such Genesis Funding Corporate Entity, to
the extent permitted by law, to continue to join in such returns through the AP
Closing Date; |
|
(iii)
|
the GE
Group shall timely prepare and file (or cause to be so prepared and filed) all
Tax Returns required by law, covering any Genesis Funding |
61
Corporate
Entity or Genesis Funding State Corporate Entity for all taxable periods ending
on or before the AP Closing Date (“Pre-Closing
Tax Returns”);
|
(iv)
|
the GE
Group shall timely pay or cause to be paid or fully provide for as set forth in
the First Disclosure Letter all Taxes related to Pre-Closing Tax Returns
(“Pre-Closing
Taxes”)
of such Genesis Funding Corporate Entity or Genesis Funding State Corporate
Entity; |
|
(v)
|
GECC or
the relevant Seller will, to the extent permitted by applicable law, elect, or
assist Purchaser to elect, with the relevant foreign United States state and
local taxing authorities to close the taxable period of each Genesis Funding
Corporate Entity or Genesis Funding State Corporate Entity on the AP Closing
Date, however, in any
case, where applicable law does not permit such Genesis Funding Corporate
Entity or such Genesis Funding State Corporate Entity to close its taxable year
on the AP Closing Date, the Purchaser will be responsible for and will cause to
be prepared and duly filed all Tax Returns relating to Taxes of such Genesis
Funding Corporate Entity for any taxable period which includes and ends after
the AP Closing Date; and |
|
(vi)
|
after
the AP Closing Date, GECC and the relevant Seller of each Genesis Funding
Corporate Entity will cooperate in the preparation of all Tax Returns of such
Genesis Funding Corporate Entity and Genesis Funding State Corporate Entity and
will provide (or cause to be provided) any records and other information the
Purchaser requests that are reasonably necessary for the preparation of such
Tax Returns and GECC and the relevant Seller will cooperate with the Purchaser
in connection with any Tax investigation, audit or other proceeding related to
such Genesis Funding Corporate Entity; provided that if any of the information
requested is contained in tax returns or other documents involving matters
unrelated to the Genesis Funding Corporate Entity or Genesis Funding State
Corporate Entity or it otherwise confidential information, then GECC and the
relevant Seller will be required to provide such information only to a
nationally recognized firm of independent accounts selected by the Purchaser
and reasonably satisfactory to GECC which independent accounting firm will
prepare such Tax Returns without disclosure of the confidential information to
the Genesis Funding Corporate Entity or the Genesis Funding State Corporate
Entity; provided, further, however, that nothing in the preceding proviso will
prevent the Genesis Funding Corporate Entity or the Genesis Funding State
Corporate Entity from reviewing its Tax Returns. |
|
(e)
|
GECC and
the relevant Seller of each Genesis Funding Corporate Entity shall have the
right to control any audit or examination relating to Taxes by any taxing
authority, initiate any claim for refund, file any amended return, contest,
resolve and defend against any assessment, notice of deficiency or other
adjustment or |
62
proposed
adjustment relating or with respect to any Taxes of any Genesis Funding
Corporate Entity or Genesis Funding State Corporate Entity for all taxable
periods ending prior to or on the AP Closing Date and for that portion of any
taxable period that includes the AP Closing Date that ends on the AP Closing
Date (an “Event”),
and shall be entitled to all refunds with respect to such taxable periods or
portions thereof; however, to the
extent that an Event could result in liability for the Purchaser pursuant to
this Agreement, GECC or the Seller shall notify the Purchaser of such Event,
and shall consult with the Purchaser with respect to the resolution of any
issue relating to Taxes arising as a result of or in connection with such
Event.
|
(f)
|
In the
event that there are or may be Taxes that GECC or a Seller is or will be
obligated to pay under this Section 11, Genesis Funding and its Subsidiaries
will take such steps as may be reasonable and appropriate or requested by GECC
or such applicable Seller and at the expense of GECC or such Seller to mitigate
such Taxes or to recover such Taxes or to obtain a refund or credit of such
Taxes but only to the extent that Genesis Funding or its applicable Subsidiary
can lawfully do so and without material prejudice to its tax position or
otherwise to it. |
|
12.
|
WARRANTIES
AND DISCLAIMERS
|
|
12.1
|
WITHOUT
PREJUDICE TO THE EXPRESS TERMS AND CONDITIONS STATED HEREIN AND IN THE OTHER
OPERATIVE DOCUMENTS, EACH AIRCRAFT WILL BE DELIVERED AND SOLD (OR IN THE CASE
OF THE BI AIRCRAFT, DEEMED DELIVERED AND SOLD ON THE RELEVANT BI TRANSFER DATE
TO GENESIS FUNDING ) IN ITS “AS IS, WHERE IS” CONDITION, AND EXCEPT
AS EXPRESSLY STATED IN SECTION 8 OF THIS AGREEMENT AND AS OTHERWISE REPRESENTED
AND WARRANTED HEREIN, IN THE OTHER OPERATIVE DOCUMENTS AND/OR IN THE XXXX OF
SALE OR ACKNOWLEDGEMENT OF DELIVERY AND/OR ASSIGNMENT OF BENEFICIAL INTEREST
(AS THE CASE MAY BE) FOR OR IN RESPECT OF SUCH AIRCRAFT OR ANY CERTIFICATE
DELIVERED PURSUANT TO THIS AGREEMENT, THE SELLER (AND THE APPLICABLE GENESIS
FUNDING ENTITY) MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY OF THE
AIRCRAFT. |
|
12.2
|
EACH
PURCHASER WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES (EXCEPT AS OTHERWISE
EXPRESSLY REPRESENTED AND WARRANTED BY GECC OR ANY SELLER IN THIS AGREEMENT,
ANY XXXX OF SALE OR ACKNOWLEDGMENT OF DELIVERY, ANY ASSIGNMENT OF BENEFICIAL
INTEREST OR IN ANY OTHER OPERATIVE DOCUMENT OR CERTIFICATE DELIVERED
HEREUNDER), OBLIGATIONS AND LIABILITIES OF ANY SELLER (OR GENESIS FUNDING
ENTITY) INCLUDING BUT NOT LIMITED TO (1) ANY IMPLIED WARRANTY AS TO THE
DESCRIPTION, AIRWORTHINESS, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, VALUE,
CONDITION, DESIGN, DATA PROCESSING, USE OR OPERATION OF |
63
THE
AIRCRAFT OR ANY PAST PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE OR
OTHERWISE, (2) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT
(INCLUDING STRICT LIABILITY), AND (3) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM
OR REMEDY FOR LOSS OF OR DAMAGE TO THE AIRCRAFT, FOR LOSS OF USE, REVENUE OR
PROFIT WITH RESPECT TO THE AIRCRAFT, FOR ANY LIABILITY OF ANY LESSEE TO ANY
THIRD PARTY, FOR ANY LIABILITY OF THE PURCHASER TO ANY THIRD PARTY, OR FOR ANY
OTHER DIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; AND ALL SUCH
WARRANTIES, GUARANTEES, REPRESENTATIONS, OBLIGATIONS, LIABILITIES, RIGHTS,
CLAIMS OR REMEDIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARE EXPRESSLY
EXCLUDED.
|
12.3
|
THIS
SECTION 12 SHALL NOT BE MODIFIED EXCEPT BY A WRITTEN AGREEMENT SIGNED ON BEHALF
OF THE SELLER AND THE PURCHASER BY THEIR RESPECTIVE DULY AUTHORIZED
REPRESENTATIVES. |
|
13.
|
ASSIGNMENT
|
|
13.1
|
No
Purchaser of an Asset or Aircraft shall assign, transfer or otherwise convey
this Agreement or all or any part of its rights hereunder to any Person without
the prior written consent of the Seller of such Asset or Aircraft other than in
favor of the Security Trustee under the Security Trust Agreement, to which the
Seller hereby consents. |
|
13.2
|
Neither
GECC nor any Seller of an Asset or Aircraft shall assign, transfer or otherwise
convey this Agreement or all or any part of its rights hereunder to any Person
without the prior written consent of the Purchaser of such Asset or Aircraft
other than so far as concerns assignments to existing owners or financiers or
Affiliates of such Seller of amounts or its rights to receive amounts payable
to such Seller hereunder on terms and conditions which do not increase any
obligation of such Purchaser hereunder or otherwise expose such Purchaser to
any increased liability, cost or expense. Notwithstanding the foregoing, the
Seller may at any time and from time to time assign its rights under this
Agreement (but not its obligations) with respect to one or more of the Aircraft
to Chicago Deferred Exchange Corporation (“CDEC”)
and CDEC may subsequently reassign such rights to the Seller, in each case
without having to obtain the prior written consent of the Purchaser but in each
case giving the Purchaser written notice of such assignment and in the exercise
of such rights, CDEC shall be bound by the terms and provisions of Section 14.2
hereof. |
|
14.
|
MISCELLANEOUS
|
|
14.1
|
Subject
to Sections 8.13 and 12.2, GECC shall indemnify, hold harmless and defend
Genesis Funding, each other Purchaser and in connection with Section 8.7 hereof
only any holders of Class A and/or B Shares in Genesis Funding and Affiliates
thereof and their respective successors and assigns from and against all
liabilities, obligations, claims, demands, judgments, causes of action,
damages, costs, losses and expenses (including reasonable legal fees, costs)
resulting from or arising out of or pertaining to any claim |
64
which
results from any breach by GECC or any other Seller of any of its obligations,
representations, warranties or covenants under this Agreement, any Assignment
of Beneficial Interest, any Acknowledgement of Delivery or any Xxxx of Sale and
solely in respect of any claim that arises with respect to any holders of
beneficial interest in Genesis Funding and Affiliates thereof, GECC shall have
the rights set forth in Sections 10.3 and 11(e) in respect of such
claim.
|
14.2
|
None of
GECC or any other Seller shall take any steps for the purpose of procuring the
appointment of any administrative receiver or the making of any administrative
order or for instituting any bankruptcy, reorganization, arrangement,
insolvency, winding up, liquidation, composition or any like proceedings under
the laws of any jurisdiction in respect of Genesis Funding or any other
Purchaser or in respect of any of their respective liabilities, including,
without limitation, as a result of any claim or interest of any of GECC or any
other Seller. |
|
14.3
|
No
amendment or waiver of any provision of this Agreement, and no consent to any
departure herefrom by any party hereto, shall in any event be effective unless
the same shall be in writing and signed by each party hereto and the Policy
Provider, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No failure on
the part of any party hereto to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or
the exercise of any other right. |
|
14.4
|
In the
event that any provision of this Agreement or the application thereof to any
party hereto or to any circumstance or in any jurisdiction governing this
Agreement shall, to any extent, be invalid or unenforceable under any
applicable statute, regulation or rule of law, then such provision shall be
deemed inoperative to the extent that it is invalid or unenforceable and the
remainder of this Agreement, and the application of any such invalid or
unenforceable provision to the parties, jurisdictions or circumstances other
than to whom or to which it is held invalid or unenforceable, shall not be
affected thereby nor shall the same affect the validity or enforceability of
this Agreement. |
|
14.5
|
All
notices and other communications provided for hereunder shall be in writing
(including telecopier) and mailed, telecopied or delivered to the intended
recipient at its address specified in Section 12.05 of the Indenture or, in the
case of GECC or any Seller, as follows: |
General
Electric Capital Corporation
000 Xxxx
Xxxxx Xxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000-0000
|
Attention:
|
Senior
Vice President-Corporate Treasury and |
Global
Funding Operation of GE Capital
|
Facsimile:
|
(000)
000-0000 |
With a
copy to:
65
GE
Commercial Aviation Services Limited
Aviation
House
Shannon,
Co. Clare
Ireland
Attention:
Contracts Leader
Facsimile:
x000 00-000000
and, in
the case of any Purchaser, as follows:
Genesis
Funding Limited
c/o
A&L Goodbody
00/00
Xxxxx Xxxx Xxxx
Xxxxxx
0
Xxxxxxx
Attention:
The Company Secretary
Facsimile:
[__________]
or, as
to each party, at such other address as shall be designated by such party in a
written notice to each other party complying as to delivery with the terms of
this Section 14.5. Each such notice shall be effective (a) upon receipt when
sent through the mails, registered or certified mail, return receipt requested,
postage prepaid, with such receipt to be effective the date of delivery
indicated on the return receipt, or (b) one Business Day after delivery to an
overnight courier, or (c) on the date personally delivered to an authorized
officer of the party to which sent, or (d) on the date transmitted by legible
telecopier transmission with a confirmation of receipt.
|
14.6
|
(a)
|
THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, BUT WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISION
THEREOF (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK). |
|
(b)
|
Each
party hereto hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
State court sitting in New York County for the purposes of all legal
proceedings arising out of or relating to this agreement and each other
operative document or the transactions contemplated hereby or thereby. GECC and
each other Seller irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
Each of GECC and each other Seller hereby irrevocably consents to the service
of any and all process in any such action or proceeding by the mailing of
copies to it as set forth in Section 14.5 or in any other manner permitted by
Applicable Law. |
66
|
(c)
|
To the
extent permitted by Applicable Law, each of the parties hereto hereby
irrevocably waives the right to demand a trial by jury, in any such suit,
action or other proceeding arising out of this Agreement, the other Operative
Documents, or the subject matter hereof or thereof or the overall transaction
brought by any of the parties hereto or their successors or
assigns. |
|
14.7
|
Nothing
in Section 14.6 limits the right of Genesis Funding or any other Purchaser to
bring proceedings against GECC or any other Seller in connection with this
Agreement: |
|
(i)
|
in any
other court of competent jurisdiction; or |
|
(ii)
|
concurrently
in more than one jurisdiction. |
|
14.8
|
Each
party hereto will promptly and duly execute and deliver such further documents
to make such further assurances for and take such further action reasonably
requested by any party to whom such first party is obligated, all as may be
reasonably necessary to carry out more effectively the intent and purpose of
this Agreement and the other Operative Documents. |
|
14.9
|
This
Agreement may be executed in any number of counterparts and by any party hereto
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which, when taken together, shall constitute one and the
same agreement. |
|
14.10
|
GECC,
each Seller and each Purchaser agree to treat sale hereunder as occurring on
the Delivery Date for U.S. and Irish tax purposes. |
|
15.
|
SUBROGATION
|
|
15.1
|
Upon the
provision of substitute collateral by GECC or any other Seller pursuant to
Section 7.4(b), and upon any claim being made against GECC or any other Seller
for breach of any representation or warranty (other than a representation or
warranty contained in Section 8.1), GECC or such other Seller, as the case may
be, shall be subrogated to all rights, remedies and claims of Genesis Funding
and each other Purchaser against the Lessee or any Affiliate of the Lessee
under the applicable Novated Lease or Assigned Lease, the Operative Documents,
the Lease Documents and otherwise, with respect to such provision of substitute
collateral or such claim, and Genesis Funding shall cooperate, and shall cause
each other Purchaser of any Asset to cooperate, in taking such action as GECC
or such other Seller may reasonably request in connection with exercising any
such right, remedy or claim (and the reasonable costs and expenses thereof
shall be paid by GECC). |
|
16.
|
LIMITED
RECOURSE |
|
16.1
|
In the
event that the direct or indirect assets of Genesis Funding and its
Subsidiaries are insufficient, after payment of all other claims, if any,
ranking in priority to the claims of any Seller hereunder pursuant to the
Indenture, to pay in full such claims of such Seller, |
67
then
such Seller shall have no further claim against Genesis Funding and its
Subsidiaries in respect of any such unpaid amounts.
|
16.2
|
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 (not including Genesis Funding as a shareholder of any other
Purchaser hereunder), 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 and no personal liability shall
attach to or be incurred by the shareholders (not including Genesis Funding as
a shareholder of any other Purchaser hereunder), officers or directors of the
relevant party as such, or any of them under or by reason of any of the
obligations, covenants or agreements of such relevant party contained in this
Agreement, or implied therefrom, and that any and all personal liability for
breaches by such party of any of such obligations, covenants or agreements,
either at law or by statute or constitution, of every such shareholder (not
including Genesis Funding as a shareholder of any other Purchaser hereunder),
officer or director is hereby expressly waived by the other parties as a
condition of and consideration for the execution of this
Agreement. |
68
IN
WITNESS WHEREOF, the parties hereto have entered into this Asset Purchase
Agreement the day and year first above written.
|
GENERAL
ELECTRIC CAPITAL
CORPORATION
|
||
| |
|
|
| By | ||
|
Name:
|
||
|
Title:
|
||
|
GENESIS
FUNDING LIMITED |
||
| |
|
|
| By | ||
|
Name:
|
||
|
Title:
|
||
|
[OTHER
SELLERS] |
||
| |
|
|
| By | ||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
A-1
FORM OF
ASSIGNMENT OF BENEFICIAL INTEREST2
The
undersigned, [BI SELLER] (the “Seller”),
as [record and beneficial owner of the [beneficial interest in the Trust Estate
under and as defined in the Trust Agreement [MSN__] (the “Trust
Agreement”)
dated as of [__________]] (the “Beneficial
Interest”)
in [Name] (the “Entity”),
hereby sells, assigns, conveys, transfers and sets over to Genesis Funding
Limited, a [Bermuda exempted company] (the “Purchaser”),
all of the Seller’s right, title and interest in and to the Beneficial
Interest, including, without limitation, the Trust Estate (as defined in the
Trust Agreement), other than the Retained Rights (as such term is defined in
that certain Asset Purchase Agreement dated as of [__________], 2006 (the
“Purchase
Agreement”)
among the parties hereto and others). The Seller hereby warrants to the
Purchaser, its successors and assigns, that (i) there is hereby irrevocably
conveyed to the Purchaser full legal and, subject to the Trust Agreement,
beneficial title to the Beneficial Interest, free and clear of all Encumbrances
(other than Permitted Encumbrances) and (ii) the Entity holds full legal and
beneficial title to each of the Aircraft listed in Schedule I hereto exclusive
of Lessee Furnished Equipment (the “BI
Aircraft”)
free and clear of all Encumbrances (other than Permitted Encumbrances). The
Seller agrees with the Purchaser, and its successors and assigns, that the
Seller will warrant and defend such title to the Entity and such title of the
Entity in each BI Aircraft forever against all such claims and demands
whatsoever (other than Permitted Encumbrances). This Assignment of Beneficial
Interest is being made and entered into pursuant to the Purchase Agreement and
shall be governed by and construed in accordance with the laws of the State of
New York. Except as otherwise provided in the Purchase Agreement, the
Beneficial Interest (and the Entity’s interest in each BI Aircraft) is
sold “AS IS” and “WHERE IS”. Capitalized terms used herein
and not otherwise defined shall have the meanings attributed thereto in the
Purchase Agreement.
|
[BENEFICIAL
INTEREST SELLER] |
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
The
above and foregoing Assignment of Beneficial Interest is hereby accepted and
agreed to this ___ day of [________], 2006.
|
GENESIS
FUNDING LIMITED |
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
| 2 |
To be
used for all entities other than Owner Trusts and Irish companies.
|
EXHIBIT
A-2
FORM OF
TRUST ASSIGNMENT AND ASSUMPTION
AGREEMENT (MSN[ ])3
THIS
TRUST ASSIGNMENT AND ASSUMPTION AGREEMENT (MSN [_]) (this “Assignment”)
is dated as of [__________] by and between [BI SELLER] (“Assignor”),
and GENESIS FUNDING LIMITED, a [Bermuda exempted company] (“Assignee”).
WITNESSETH
:
WHEREAS,
Assignor and Xxxxx
Fargo Bank Northwest, National Association, in its individual
capacity has
entered into the trust agreement, dated as of [__________] (as assigned,
amended and restated to date, the “Trust
Agreement”)
Except as otherwise defined herein, capitalized terms used herein shall have
the meanings set forth in the Trust Agreement;
WHEREAS,
Assignor desires to assign all of its rights, obligations and ownership in and
to the Trust to Assignee; and
WHEREAS,
Assignee desires to accepts all of Assignor’s rights, obligations and
ownership in and to the Trust.
NOW,
THEREFORE, the undersigned, in consideration of the premises, the payment of
Ten Dollars ($10.00) and the covenants and agreements contained herein, do
hereby agree as follows:
1. Assignment.
Assignor
does hereby sell, convey, assign, transfer and set over unto Assignee, as of
the date hereof, all of its present and future right, title and interest in, to
and under the following (collectively, the “Assigned
Rights”):
(i) the Trust, (ii) the Trust Estate, and (iii) the Trust Agreement
and the Trust Documents described in the Trust Agreement, as “Owner
Participant” thereunder (together with the Trust Documents collectively,
the “Assigned
Agreements”),
and any proceeds therefrom. Assignor hereby transfers and delegates to Assignee
all of Assignor’s obligations and liabilities as “Owner
Participant” under the Assigned Agreements occurring from and after the
date hereof (collectively, the “Assumed
Obligations”).
2. Assumption.
Assignee hereby: (a) accepts the assignment, transfer, conveyance and
delegation set forth in Section 1 hereof; (b) from and after the date
hereof, assumes and undertakes all of the Assumed Obligations; and
(c) confirms that it shall be deemed a party to the Trust Agreement and
each other Assigned Agreement, and shall be bound by all of the terms of each
Assigned Agreement as if named therein.
3. Release
of Assignor. From
and after the date hereof, Assignor shall be released from all of its duties,
obligations and liabilities under the Trust Agreement and the other Assigned
Documents.
|
3 |
To be
used for Owner Trusts, except where a different form is called for by the Lease
Documents or has otherwise been proposed by the Lessee. |
4. Other
Actions.
Assignee is concurrently entering into an amended and restated Trust
Agreement.
5. Amendment. The
Trust Agreement is hereby amended to reflect the foregoing, and all references
in the Trust Agreement to Assignor are hereby amended to refer to
Assignee.
6. Further
Assurances.
Assignor and Assignee each agree to execute and deliver such further documents,
and to do such further things, as the other party may reasonably request, in
order to more fully effect the transfer of the Assigned Rights pursuant to this
Assignment.
7. Binding
Effect. This
Assignment shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and assigns.
8. Execution
in Counterparts. This
Assignment may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
9. Agreement
in Effect. Except
as hereby amended, the Trust Agreement shall remain in full force and
effect.
10. Governing
Law.
THIS
ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF [NEW YORK].
11.
Owner
Trustee Authorization and Direction.
Assignor and Assignee each authorizes and directs the Owner Trustee to execute
and deliver this Assignment as provided below.
SIGNATURE
PAGE FOLLOWS
2
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly executed as of the day and year first above written.
|
GENESIS
FUNDING LIMITED |
||
| |
|
|
| By | ||
|
Name:
|
||
|
|
Title:
|
|
|
[BI
SELLER]
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
|
Title:
|
|
3
|
THE
UNDERSIGNED, XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, hereby confirms
receipt of a copy of, and hereby acknowledges and consents to the assignment
and assumption pursuant to, the foregoing Trust Assignment and Assumption
Agreement: |
||||
|
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, in its individual capacity and,
with respect to the Trust Agreement, as Owner Trustee under the Trust
Agreement |
||||
|
By:
|
|
|||
|
Name:
Title:
|
||||
EXHIBIT A-3
FORM OF
IRISH LAW SHARE TRANSFER FORM4
|
4 |
To be
used for Irish companies. |
|
STOCK
|
||||||||||
|
TRANSFER
|
||||||||||
|
FORM
|
(Above
this line for Registrar’s use only) |
|||||||||
|
SCHEDULE
1 |
Certificate
lodged with the Register |
|||||||||
|
Consideration
|
(For
completion by the Registrar/Stock Exchange) |
|||||||||
|
Name of
Undertaking |
||||||||||
|
Description
of Security |
Ordinary
Shares |
|||||||||
|
Number
or amount of Shares, Stock or other security and, in figures column only,
number and denomination of units, if any. |
Words
|
Figures
|
||||||||
|
Name(s)
of registered holder(s) should be given in full; the address should be given
where there is only one holder.
If the
transfer is not made by the registered holder(s) insert also the name(s) and
capacity (e.g., Executor(s) of the person(s) making the transfer.
|
In the
name(s) of
|
|||||||||
|
I/We
hereby transfer the above security out of the name(s) aforesaid to the
person(s) named below or
to the several persona named in Parts 2 of Brokers
Transfer
Forms relating to the above security: |
Stamp of
Selling Broker(s) or, for transactions which are not stock exchange
transactions of Agent(s), if any, acting for the Transferor(s).
|
|||||||||
|
Delete
words in italics except for stock exchange transactions. |
||||||||||
|
Signature(s)
of transferor(s) |
||||||||||
|
1.
|
||||||||||
|
2.
|
||||||||||
|
3.
|
||||||||||
|
4.
|
||||||||||
|
A body
corporate should execute this Transfer under its common seal or otherwise in
accordance with applicable statutory requirements. |
Date
|
|||||||||
|
Full
name(s) and full postal address(es) (including County or, if applicable, Postal
District number) of the person(s) to whom the security is
transferred. |
||||||||||
|
Please
state title, if any, or whether Mr., Mrs., or Miss. |
||||||||||
|
Please
complete in type or in Block Capitals. |
||||||||||
|
I/We
request that such entries be made in the register as are necessary to give
effect to this transfer. |
||||||||||
|
Stamp of
Buying Broker(s) (if any) |
Stamp or
name and address of person lodging this form
(if
other than the Buying Broker(s)) |
|||||||||
(Endorsement
for use only in Stock Exchange Transactions)
The
security represented by the transfer overleaf has been sold as
follows:-
|
Shares/Stock
|
Shares/Stock
|
||||
|
Shares/Stock
|
Shares/Stock
|
||||
|
Shares/Stock
|
Shares/Stock
|
||||
|
Shares/Stock
|
Shares/Stock
|
||||
|
Balance
(if any) due to Selling Broker(s) |
|||||
|
Amount
of Certificate(s) |
|||||
|
Brokers
Transfer Forms for above amounts certified |
|||||
|
Stamp
of Certifying Stock Exchange |
Stamp
of Selling Broker(s) |
||||
FORM
OF CERTIFICATE REQUIRED WHERE TRANSFER IS NOT
LIABLE
TO AD
VALOREM
STAMP DUTY
I/We
hereby certify that the transaction in respect of which this transfer is made,
and under which the fixed Duty of ten punts is payable, falls within the
following description:-
| (a) |
Vesting
the property in trustees on the appointment of a new Trustee of a pre-existing
Trust, or on the retirement of a Trustee; |
| (*) | (b) |
A
transfer, where no beneficial interest in the property passes, (i) to a mere
nominee of the Transferor, (ii) from a mere nominee of the Transferee, (iii)
from one nominee to another nominee of the same beneficial owner.
|
| (*) | (c) |
A
transfer by way of security for a loan; or re-transfer to the original
Transferor on repayment of a loan. |
| (d) |
A
transfer to a residuary legatee of Shares, etc., which forms part of the
residue divisible under a Will. |
| (e) |
A
transfer to a beneficiary under a Will of a specific
legacy of
Shares, etc. |
| (f) |
A
transfer of Shares, etc., being the property of a person dying intestate, to
the person or persons entitled thereto. |
| (g) |
A
transfer to a beneficiary under a settlement on distribution of the trust
funds, of Shares, etc., forming the share, or part of the share of those funds
to which the beneficiary is entitled in accordance with the terms of the
settlement. |
| (h) |
A
transfer on the occasion of a marriage to trustees of the shares, etc., to be
held on the terms of a settlement made in consideration of
marriage. |
| (i) |
A
transfer by the liquidator of a Company of Shares, etc., forming part of the
assets of the Company, to which the Transferee is entitled in satisfaction or
part satisfaction of his rights as a Shareholder of the Company.
|
|
Here set
out concisely the facts, explaining the transaction in cases falling within (b)
and (c) or in any case which does not clearly fall within any one of the
clauses (a) to (g). Adjudication in any case may be required.
|
to
Date |
|
{
|
{
|
||||
| *Transferors |
|
*Transferees |
|
||
|
|
|
||||
|
|
|
||||
|
|
|
||||
| Signature
|
|||||
| Description
|
|
*
|
Note:-
The above Certificate must be signed in the case of (b) and (c), either by (1)
all the transferors and the transferees, or (2) a member of a Stock Exchange or
a Solicitor acting for one or other of the parties, or (3) an accredited
representative of a Bank. Where the Bank or its official nominee is a party to
the transfer, the Certificate may be to the effect that “the transfer is
excepted from Section 74 of the Finance (1909-10) Xxx, 0000.” The above
Certificate in other cases should be signed by a Solicitor or other person
(e.g. a Bank acting as Trustee or Executor) having a full knowledge of the
facts. |
2
EXHIBIT
B
FORM
OF XXXX OF SALE
For
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, [_______________], a corporation organized and existing under the
laws of [_______________] and having its registered office at [_______________]
(the “Seller”),
owner of the full legal and beneficial title (subject to the Aircraft Lease
Agreement referred to below) to the aircraft, engines, equipment and documents
described below (hereinafter referred to as the “Aircraft”):
|
1.
|
one (1)
[_______________] aircraft bearing manufacturer’s serial no.
[_______________] and registration xxxx [_______________]; and
|
|
2.
|
[_______________]
[_______________] engines bearing the following manufacturer’s serial
nos.: [_______________], [_______________], [_______________];
|
|
3.
|
all
equipment, accessories and parts belonging to, installed in or appurtenant to
such Aircraft or Engines to the extent title thereto has been vested in the
Seller under the Aircraft Lease Agreement referred to below; and
|
|
4.
|
all
Aircraft Documents relating to the Aircraft and such Engines;
|
but for
the avoidance of doubt excluding Lessee Furnished Equipment;
does
hereby sell, grant, transfer and deliver all its right, title and interest in
and to the Aircraft (subject to the Aircraft Lease Agreement dated as of
[_______________], between [_______________] and [______________]) unto
[_______________] (the “Purchaser”)
and its successors and assigns, to have and to hold the Aircraft
forever.
The
Seller hereby warrants to the Purchaser, its successors and assigns, that there
is hereby conveyed the full legal and, subject to the Formation Agreement,
beneficial title to the Aircraft, free and clear of all Encumbrances (other
than Permitted Encumbrances). The Seller agrees with the Purchaser, and its
successors and assigns, that the Seller will warrant and defend such title
forever against all claims and demands (other than Permitted Encumbrances)
whatsoever. Except as otherwise provided herein or in the Asset Purchase
Agreement, the Aircraft is sold “AS IS” and “WHERE
IS.”
This
Xxxx of Sale shall be governed by and construed in accordance with the laws of
the State of New York. Capitalized terms used but not otherwise defined herein
shall have the same meanings as used in the Asset Purchase
Agreement.
IN
WITNESS WHEREOF, the Seller has caused this Xxxx of Sale to be duly executed as
of this [__] day of [__________], 2006.
|
By
|
|||||
|
Name:
Title:
|
|||||
|
The
representation, warranties, and covenants
of the above named Seller under
this Xxxx of Sale are hereby irrevocably
and unconditionally guaranteed
and confirmed: |
||||
|
GENERAL
ELECTRIC CAPITAL CORPORATION
|
||||
|
By
|
||||
|
Name:
|
||||
|
Title:
|
||||
2
EXHIBIT
C
FORM
OF ACKNOWLEDGEMENT OF DELIVERY
This
Acknowledgement of Delivery is given in connection with the Asset Purchase
Agreement as amended, modified or otherwise supplemented (the
“Agreement”)
dated as of [________] __, 2006 among, inter alia, [_______________], a
corporation organized and existing under the laws of [_______________] and
having its registered office at [_______________] (the “Seller”),
[______________], a [company/trust] duly established and existing pursuant to
the laws of [_______________] and having its principal place of business at
_______________ (the “Purchaser”)
and the other parties thereto.
The
Seller hereby acknowledges to the Purchaser that the full legal and beneficial
title (subject to the Aircraft Lease Agreement referred to below) to the
aircraft, engines, equipment and documents described below (hereinafter
referred to as the “Aircraft”):
|
1.
|
one (1)
[_______________] aircraft bearing manufacturer’s serial no.
[_______________] and registration xxxx [_______________]; and
|
|
2.
|
[_______________]
[_______________] engines bearing the following manufacturer’s serial
nos.: [_______________], [_______________], [_______________];
|
|
3.
|
all
equipment, accessories and parts belonging to, installed in or appurtenant to
such Aircraft or Engines to the extent title thereto has been vested in the
Seller in under the Aircraft Lease Agreement referred to below;
and |
|
4.
|
all
Aircraft Documents relating to the Aircraft and such Engines;
|
but for
the avoidance of doubt excluding Lessee Furnished Equipment;
has
passed by physical delivery from the Seller to the Purchaser in accordance with
the terms of the Agreement (subject to the Aircraft Lease Agreement dated as of
[_______________], between [_______________] and
[_______________]).
The
Seller hereby warrants to the Purchaser, its successors and assigns, that there
was conveyed to the Purchaser full legal and, subject to the Formation
Agreement, beneficial title to the Aircraft, free and clear of all Encumbrances
(other than Permitted Encumbrances). The Seller agrees with the Purchaser, and
its successors and assigns, that the Seller will warrant and defend such title
forever against all claims and demands whatsoever (other than Permitted
Encumbrances). Except as otherwise provided herein and in the Agreement, the
Aircraft was sold “AS IS” and “WHERE IS”.
This
Acknowledgement of Delivery shall be governed by and construed in accordance
with the laws of the State of New York. Capitalized terms used but not
otherwise defined herein shall have the same meanings as used in the
Agreement.
IN
WITNESS WHEREOF, the Seller has caused this Acknowledgement of Delivery to be
duly executed as of this [__] day of [__________], 2006.
|
By
|
|||||
|
Name:
Title:
|
|||||
|
The
representation, warranties, and covenants
of the above named Seller
under
this Acknowledgement of Delivery
are hereby irrevocably and
unconditionally
guaranteed and confirmed:
|
||||
|
GENERAL
ELECTRIC CAPITAL CORPORATION
|
||||
|
By
|
||||
|
Name:
|
||||
|
Title:
|
||||
2
EXHIBIT
D
FORM
OF GUARANTY
GUARANTY
(the “Guaranty”) dated as of [__________], 2006 of General Electric
Capital Corporation, a Delaware corporation (“GECC”) in favor of
Genesis Funding Limited (“Genesis Funding”).
Reference
is made to that certain Asset Purchase Agreement dated as of [__________], 2006
(the “Asset Purchase Agreement”) among GECC, the other Sellers named
therein and Genesis Funding and the other Purchasers. All capitalized terms
used but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Asset Purchase Agreement. To induce the
Purchasers to acquire the Aircraft or the Beneficial Interest in a Genesis
Funding Entity under the Asset Purchase Agreement and to pay the purchase price
thereof on the AP Closing Date in advance of the Delivery of the Aircraft or
the Beneficial Interest in a Genesis Funding Entity and to otherwise perform
their respective obligations thereunder, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
GECC is willing to execute and deliver this Guaranty to the Purchasers and
accordingly GECC does hereby agree as follows:
Section
1. Guaranty
by GECC. (a)
From and after the date hereof, GECC hereby irrevocably and unconditionally
guarantees to the Purchasers the payment and performance in full when due of
each of the obligations of each of the Sellers under the Asset Purchase
Agreement and each Assignment of Beneficial Interest, Xxxx of Sale,
Acknowledgment of Delivery, Lease Novation and/or Assignment of Lease delivered
pursuant thereto (collectively, the “Guaranteed Obligations”), in
each case after any applicable grace periods or notice requirements, according
to the terms of the Asset Purchase Agreement; provided,
however, that
with respect to any payment obligation of any Seller thereunder, GECC shall not
be liable to make any such payment until 15 Business Days (as used herein, a
“Business Day” shall refer to a day other than a Saturday or a Sunday
on which commercial banks are open for business in New York City) following
receipt by GECC of a written demand for payment from Genesis Funding. GECC
hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of (i) the validity, regularity or enforceability
of the Asset Purchase Agreement, any other Operative Document or any other
agreement or instrument referred to herein or therein, any change therein or
amendment thereto, the absence of any action to enforce the same, any waiver or
consent by the Purchasers with respect to any provision thereof, the recovery
of any judgment against any of the Sellers or any action to enforce the same,
or any other circumstances which may otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor and (ii) any difference between
the law selected as the governing law of the Asset Purchase Agreement or the
other Operative Documents and the law selected as the governing law of this
Guaranty; provided,
however, that
nothing contained herein shall be construed to be a waiver by GECC of the
foregoing demand for payment. GECC covenants that this Guaranty will not be
discharged except by complete and final performance of the Guaranteed
Obligations.
(b) GECC
shall be subrogated to all rights of the Purchasers in respect of any amounts
paid by GECC pursuant to the provisions of this Guaranty; provided, however,
that GECC shall be entitled to enforce, or to receive any payments arising out
of or based upon, such right of subrogation only after all of the Guaranteed
Obligations have been finally paid in full.
(c) This
Guaranty is a guaranty of payment and not of collection only.
(d) This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by any Purchaser upon the insolvency, bankruptcy or
reorganization of any Seller or otherwise, all as though such payment had not
been made.
Section
2.1. Notices. All
notices to GECC under this Guaranty and copies of all notices to the Sellers
under the Asset Purchase Agreement shall, until GECC furnishes written notice
to the contrary, be in writing and mailed, faxed or delivered to GECC at 000
Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, and directed to the
attention of the Senior Vice President-Corporate Treasury and Global Funding
Operation of GE Capital (facsimile no. (000) 000-0000).
Section
2.2. Governing
Law. This
Guaranty shall be construed and enforced in accordance with, and governed by,
the laws of the State of New York, United States of America.
Section
2.3. Interpretation. The
headings of the sections and other subdivisions of this Guaranty are inserted
for convenience only and shall not be deemed to constitute a part
hereof.
Section
2.4. Attorney’s
Cost. GECC
agrees to pay all reasonable attorney’s fees and disbursements and all
other reasonable and actual costs and expenses which may be incurred by the
Purchasers in the enforcement of this Guaranty.
Section
2.5 Currency
of Payment. Any
payment to be made by GECC shall be made in the same currency as designated for
payment in the Asset Purchase Agreement and such designation of the currency of
payment is of the essence.
2
Section
2.6 No
Set-Off. By
acceptance of this Guaranty, Genesis Funding and each of the other Purchasers
shall be deemed to have waived any right to set-off, combine, consolidate or
otherwise appropriate and apply (i) any assets of GE Capital at any time held
by any Purchaser or (ii) any indebtedness or other liabilities at any time
owing by any Purchaser to GECC, as the case may be, against, or on account of,
any obligations or liabilities owed by GECC to the Purchasers under this
Guaranty.
|
GENERAL
ELECTRIC CAPITAL CORPORATION
|
|||||
|
By:
|
|||||
|
Senior
Vice President
Corporate
Treasury and
Global
Funding Operation |
|||||
ACKNOWLEDGMENT
AND AGREEMENT
Genesis
Funding Limited for and on behalf of itself and each of the Purchasers does
hereby acknowledge and consent to the provisions of the foregoing
Guaranty.
|
GENESIS
FUNDING LIMITED |
|||||
|
By:
|
|||||
|
Title:
|
|||||
|
Name:
|
|||||
3
EXHIBIT
E-1
CONDITIONS
PRECEDENT – AIRCRAFT
DELIVERY (BI AIRCRAFT)
With
respect to the Delivery of each BI Aircraft to Genesis Funding on the relevant
Delivery Date:
|
(a)
|
the
relevant Operative Documents for such Aircraft, as the case may be, have been
entered into by the parties thereto; |
|
(b)
|
receipt
of the following documents by such Purchaser: |
|
(i)
|
a copy
of the constitutional documents of such Seller and any other Affiliate of such
Seller which is a party to any Operative Document in respect of such Aircraft,
certified as of such Delivery Date to be a true, complete and up-to-date copy
of the constitutional documents of such Seller, or if a certified copy of such
documents has previously been delivered to such Purchaser hereunder, a
certificate dated such Delivery Date confirming no changes to such documents;
and |
|
(ii)
|
a copy
of resolutions of the Board of Directors (or duly authorized committee thereof)
of such Seller: |
|
(A)
|
approving
the transactions contemplated by the Operative Documents to which such Seller
is a party; and |
|
(B)
|
authorizing
a Person or Persons to sign and deliver on behalf of such Seller or, as the
case may be, authorizing the execution by the relevant Person of the Operative
Documents to which it is a party and any notices or other documents to be given
pursuant hereto or thereto, |
certified
as of such Delivery Date to be a true copy of such resolutions and as being in
full force in effect and not amended or rescinded or, if a certified copy of
such resolutions has previously been delivered to such Purchaser hereunder, a
certificate dated such Delivery Date confirming no changes to such
resolutions;
|
(c)
|
no Event
of Loss shall have occurred or unrepaired Material Damage shall be in existence
with respect to such Aircraft; and |
|
(d)
|
delivery
of the following documents: |
|
(i)
|
copies
of all notices, consents or acknowledgements of such Seller or the applicable
Lessee as are required under the terms of the Operative Documents;
|
|
(ii)
|
the
documents or satisfaction of the conditions listed in Schedule 3 relevant to
such Aircraft; |
|
(iii)
|
a copy
of the currently valid Certificate of Registration for such Aircraft, issued by
the appropriate Air Authority; and |
|
(iv)
|
if
applicable, a copy of the Assignment of Warranties with respect to such
Aircraft executed by each of the parties thereto (provided that such Assignment
of Warranties may be delivered as soon as reasonably practicable after the
relevant BI Transfer Date). |
2
EXHIBIT E-2
CONDITIONS
PRECEDENT – AIRCRAFT DELIVERY (INDEPENDENT AIRCRAFT)
With
respect to the Delivery of each Independent Aircraft to Genesis Funding or a
Subsidiary of Genesis Funding:
|
(a)
|
the
relevant Operative Documents for such Aircraft, as the case may be, have been
entered into by the parties thereto (other than Genesis Funding or any
Affiliate thereof); |
|
(b)
|
Genesis
Funding shall have received payment in full of any Security Deposit and the
relevant amount of Additional Rent with respect to such Aircraft;
|
|
(c)
|
the
relevant Purchaser shall have received a certification dated such Delivery Date
from GECC and such Seller to the effect that (i) the representations and
warranties of GECC and such Seller set forth herein are true and correct as of
such Delivery Date and (ii) the Seller has full legal title to such Aircraft,
free from Encumbrances other than Permitted Encumbrances; |
|
(d)
|
unless
and to the extent Genesis Funding shall otherwise agree, or a Rating Agency
Confirmation and the prior written consent of the Policy Provider shall have
been obtained with respect thereto, all the conditions precedent to the
effectiveness of the Assignment of Lease or Lease Novation, as applicable, for
such Aircraft shall have been satisfied and Genesis Funding shall have received
a certification from GECC and such Seller to such effect; |
|
(e)
|
receipt
of the following documents by such Purchaser: |
|
(i)
|
a copy
of the constitutional documents of such Seller and any other Affiliate of such
Seller which is a party to any Operative Document in respect of such Aircraft,
certified as of such Delivery Date to be a true, complete and up-to-date copy
of the constitutional documents of such Seller, or if a certified copy of such
documents has previously been delivered to such Purchaser hereunder, a
certificate dated such Delivery Date confirming no changes to such documents;
and |
|
(ii)
|
a copy
of resolutions of the Board of Directors (or duly authorized committee thereof)
of such Seller: |
|
(A)
|
approving
the transactions contemplated by this Agreement and the other Operative
Documents to which such Seller is a party; and |
|
(B)
|
authorizing
a Person or Persons to sign and deliver on behalf of such Seller or, as the
case may be, authorizing the execution by the relevant Person of this Agreement
and the other Operative Documents to which it is a party and any notices or
other documents to be given pursuant hereto or thereto, |
certified
as of such Delivery Date to be a true copy of such resolutions and as being in
full force in effect and not amended or rescinded or, if a certified copy of
such resolutions has previously been delivered to such Purchaser hereunder, a
certificate dated such Delivery Date confirming no changes to such
resolutions;
|
(f)
|
no Event
of Loss shall have occurred or unrepaired Material Damage shall be in existence
with respect to such Aircraft; |
|
(g)
|
delivery
of the following documents: |
|
(i)
|
a
certificate of solvency dated as of such Delivery Date in the Agreed Form
relating to such Seller issued by a director or authorized officer thereof and
a certificate of solvency dated as of such Delivery Date in the Agreed Form
relating to GECC issued by a director or authorized officer of
GECC; |
|
(ii)
|
a
favorable opinion of counsel to such Seller, dated as of the AP Closing Date,
reasonably acceptable to Genesis Funding in the Agreed Form, that the sale of
such Aircraft constitutes, or will constitute, a “true-sale” and a
valid transfer of title to such Aircraft and that after the Delivery of such
Aircraft such Seller retains, or will retain, no interest in such Aircraft and
as to such other matters as such Purchaser may reasonably request with regard
to the subject matter contemplated herein and a letter from counsel to such
Seller, dated as of such Delivery Date, confirming such opinion;
|
|
(iii)
|
copies
of all notices, consents or acknowledgements of such Seller or the applicable
Lessee as are required under the terms of the Operative Documents;
|
|
(iv)
|
the
documents or satisfaction of the conditions listed in Schedule 3 relevant to
such Aircraft; |
|
(v)
|
a copy
of the currently valid Certificate of Registration for such Aircraft, issued by
the appropriate Air Authority; and |
|
(vi)
|
if
applicable, a copy of the Assignment of Warranties with respect to such
Aircraft executed by each of the parties thereto (other than Genesis Funding
Limited, the relevant Purchaser or any Affiliate of such Purchaser) (provided
that such Assignment of Warranties may be delivered as soon as reasonably
practicable after the relevant Delivery Date); |
2
|
(h)
|
originals,
or certified copies, of certificates evidencing the insurance required to be
maintained pursuant to the relevant Assigned Lease or the Novated Lease, as
appropriate, for such Aircraft together, if applicable, with a letter or report
from an independent firm of insurance brokers in a form reasonably acceptable
to Genesis Funding; and |
|
(i)
|
the
report of Genesis Funding’s and/or such Purchaser’s insurance advisor
in substantially the Agreed Form. |
3
EXHIBIT
F
FORM
OF SERVICING AGREEMENT
4
EXHIBIT
F
FORM
OF MANAGEMENT AGREEMENT
5
SCHEDULE
1
SELLERS
AND RELATED AIRCRAFT
|
Seller
|
Asset
–
Beneficial Interest |
Aircraft
MSN |
Lessee
|
|||
SCHEDULE
2
AGGREGATE
AIRCRAFT PURCHASE PRICE
The
aggregate Aircraft Purchase Price for all of the Aircraft is $___________,
which is an amount equal to the sum of:
|
(a)
|
the net
proceeds of $___________ from the issuance of the Class G-1 Notes, after
deducting the Initial Expenses and the Required Expense Amount for the initial
Interest Accrual Period, plus
|
|
(b)
|
the
Initial Equity Amount of $___________, consisting of the net proceeds (less
related expenses and retained cash) from the sale of shares of Genesis Lease
Limited, the holder of the Class A Shares, and based upon a price per share of
$____. |
AIRCRAFT
INFORMATION
[[
] to provide information for each Schedule 2]
Aircraft
No. 1
|
Aircraft:
|
|
|
Engines:
|
|
|
Lessee:
|
|
|
State of
Registration: |
|
|
Security
Deposit (specify whether
cash,
letter of credit, guaranty or
other
instrument): |
|
|
Delivery
Date (under Lease): |
|
|
Expiry
Date (of Lease): |
|
|
Aircraft
Purchase Price: |
|
|
Lease
Documents: |
SCHEDULE
3
DOCUMENTS
AND CONDITIONS – DELIVERY
[[
] to provide]
|
1.
|
|
Aircraft
No. 1; msn [______]
|
All
documents and conditions listed in Section __ of the Lease Novation for
aircraft msn [______], except
as listed in Schedule 4.
SCHEDULE
4
DOCUMENTS
AND CONDITIONS – POST-DELIVERY
The
information set out in this Schedule 4 may be amended from time to time by a
Disclosure Letter acceptable to the Purchaser.
[[
] to provide]
SCHEDULE
5
JURISDICTION
OF INCORPORATION OR ORGANIZATION
|
Name of
Seller |
Jurisdiction
of
Incorporation
or Organization |
|
|
General
Electric Capital Corporation |
Delaware
|
SCHEDULE
6
GENESIS
FUNDING ENTITIES
Genesis
Funding Non-Corporate Entities
Genesis
Funding Corporate Entities
SCHEDULE
7
DEBT
ALLOCATION AMOUNTS AND EQUITY ALLOCATION AMOUNTS
