SERVICING AGREEMENT among GE COMMERCIAL AVIATION SERVICES LIMITED, GENESIS FUNDING LIMITED and FINANCIAL GUARANTY INSURANCE COMPANY
among
GE
COMMERCIAL AVIATION SERVICES LIMITED,
GENESIS
FUNDING LIMITED
and
FINANCIAL
GUARANTY INSURANCE COMPANY
TABLE
OF CONTENTS
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Page
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ARTICLE
I |
Definitions
|
1
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Section
1.01. |
Definitions
|
1
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Section
1.02. |
Construction
and Usage |
1
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|
ARTICLE
II |
Appointment;
Services |
1
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Section
2.01. |
Appointment
|
1
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|
Section
2.02. |
Aircraft
Asset Services |
3
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|
Section
2.03. |
Offerings
|
5
|
|
Section
2.04. |
Compliance
with Applicable Laws and GE Policies |
9
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Section
2.05. |
Limitations
|
10
|
|
ARTICLE
III |
Standard
of Care; Conflicts of Interest; Standard of Liability |
11
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|
Section
3.01. |
Standard
of Care |
11
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Section
3.02. |
Conflicts
of Interest |
11
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|
Section
3.03. |
Standard
of Liability |
13
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|
Section
3.04. |
Waiver
of Implied Standard |
14
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ARTICLE
IV |
Representations
and Warranties |
14
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Section
4.01. |
Aircraft
Assets |
14
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Section
4.02. |
Aircraft
Assets Related Documents |
14
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|
Section
4.03. |
Accounts
and Cash Flow |
15
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|
Section
4.04 |
Organization
and Standing |
15
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|
Section
4.05. |
Authority
|
15
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Section
4.06. |
No
Conflicts |
15
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Section
4.07. |
Compliance
with Applicable Laws |
16
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Section
4.08. |
Litigation;
Decrees |
16
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Section
4.09. |
Appointments
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16
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Section
4.10. |
Authority
|
16
|
i
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Page
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Section
4.11. |
No
Conflicts |
17
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Section
4.12. |
Compliance
with Applicable Laws of Ireland |
17
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|
Section
4.13 |
Litigation;
Decrees |
17
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ARTICLE
V |
Servicer
Undertakings |
17
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|
Section
5.01. |
Access
|
17
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|
Section
5.02. |
Compliance
with Law |
18
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|
Section
5.03. |
Commingling
|
18
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Section
5.04. |
Restrictions
on Exercise of Certain Rights |
18
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|
Section
5.05. |
Coordination
with GFL Group |
18
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|
Section
5.06. |
Corporate
Formalities |
18
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ARTICLE
VI |
Undertakings
of GFL |
18
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|
Section
6.01. |
Cooperation
|
18
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|
Section
6.02. |
No
Representation with Respect to Third Parties |
18
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|
Section
6.03. |
Related
Document Amendments |
19
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|
Section
6.04. |
Exclusivity
|
19
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Section
6.05. |
Communications
|
19
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Section
6.06. |
Ratification
|
19
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Section
6.07. |
Additional
Aircraft Assets |
19
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|
Section
6.08. |
Execution,
Amendment, Modification or Termination of Aircraft Assets Related
Documents |
19
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|
Section
6.09. |
Access
to GFL Group Information |
20
|
|
Section
6.10. |
GFL
Group Accounts and Cash Arrangements |
20
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|
Section
6.11. |
[Intentionally
Left Blank] |
21
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Section
6.12. |
Further
Assurances |
21
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Section
6.13. |
Guarantees
|
21
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ii
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Page
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Section
6.14. |
Transfers
of Funds |
21
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ARTICLE
VII |
GFL
Group Responsibility |
21
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|
Section
7.01. |
GFL
Group Responsibility |
21
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|
Section
7.02. |
Performance
with Respect to Aircraft Assets |
22
|
|
Section
7.03. |
Lease
Operating Budget; Aircraft Asset Expenses Budget |
22
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|
Section
7.04. |
Transaction
Approval Requirements |
24
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|
Section
7.05. |
Approved
Budgets and Transaction Approval Requirements |
26
|
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ARTICLE
VIII |
Effectiveness
|
26
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Section
8.01. |
Effectiveness
|
26
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ARTICLE
IX |
Servicing
Fees; Expenses; Taxes; Priority of Servicing Fees |
26
|
|
Section
9.01. |
Servicing
Fees |
26
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|
Section
9.02. |
Monthly
Base Fee |
27
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|
Section
9.03. |
Rent
Fees |
27
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Section
9.04. |
Sales
Fee |
28
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|
Section
9.05. |
Fees in
Bankruptcy |
28
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Section
9.06. |
Expenses
|
28
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|
Section
9.07. |
Taxes
|
28
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|
Section
9.08. |
Priority
of Payments to Servicer |
31
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ARTICLE
X |
Term;
Right to Terminate; Resignation; Consequences of Expiration, Termination,
Resignation or Removal; Certain Tax Matters; Survival |
31
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Section
10.01. |
Term
|
31
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|
Section
10.02. |
Right to
Terminate |
31
|
|
Section
10.03. |
Resignation
or Removal |
35
|
|
Section
10.04. |
Consequences
of Expiration, Termination, Resignation or Removal |
36
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Section
10.05. |
Survival
|
37
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iii
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Page
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ARTICLE
XI |
Indemnification
|
37
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Section
11.01. |
Indemnity
|
37
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|
Section
11.02. |
Procedures
for Defense of Claims |
38
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Section
11.03. |
Reimbursement
of Costs |
39
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|
Section
11.04. |
Waiver
of Certain Claims; Special Indemnity |
39
|
|
Section
11.05. |
Waiver
of Certain Accounting Claims; Special Indemnity |
39
|
|
Section
11.06. |
Continuing
Liability under Other Agreements |
40
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ARTICLE
XII |
Assignment
and Delegation |
40
|
|
Section
12.01. |
Assignment
and Delegation |
40
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ARTICLE
XIII |
Miscellaneous
|
41
|
|
Section
13.01. |
Documentary
Conventions |
41
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|
Section
13.02. |
Power of
Attorney |
41
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|
Section
13.03. |
Reliance
|
41
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|
Section
13.04. |
Certain
Information |
41
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|
Section
13.05. |
Original
Aircraft |
42
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|
Section
13.06. |
Relationship
to Master Servicing Agreement |
42
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|
Section
13.07. |
Limited
Recourse |
42
|
|
Section
13.08. |
GFL
Group Members |
42
|
iv
Schedules
|
Schedule
2.02(a) |
Aircraft
Assets Services |
|
Schedule
2.02(a)(i) |
Applicable
Indenture Covenants |
|
Schedule
2.02(a)(ii) |
Form of
Officer’s Certificate |
|
Schedule
4.01 |
Aircraft
Assets |
|
Schedule
4.02 |
Aircraft
Assets Related Documents |
|
Schedule
4.03 |
Bank
Accounts |
|
Schedule
4.04(a) |
List of
Persons within the GFL Group and Jurisdictions |
|
Schedule
7.01 |
Responsibilities
of GFL Group |
|
Schedule
7.04 |
Liabilities
Incurred in Ordinary Course of Business |
|
Schedule
8.01 |
Conditions
to Execution |
|
Schedule
9.06(a) |
Overhead
Expenses |
|
Schedule
9.06(b) |
Categories
of Aircraft Asset Expenses |
|
Schedule
13.02 |
Management
Services Power of Attorney of [Grantor] |
|
Annexes
|
|
|
Annex
1 |
Insurance
Guidelines |
|
Annex
2 |
Concentration
Limits |
|
Appendices
|
|
|
Appendix
A |
Construction
and Usage; Definitions |
|
Appendix
B |
Form of
Guarantee |
|
Appendix
C |
Notices
|
|
Exhibits
|
|
|
Exhibit
A |
Monthly
Report Form |
|
Exhibit
B-1 |
Quarterly
Report Form for GFL |
|
Exhibit
B-2 |
Quarterly
Report Form for Policy Provider |
v
SERVICING
AGREEMENT dated as of _______ __, 2006, among GE COMMERCIAL AVIATION SERVICES
LIMITED, a company incorporated under the laws of Ireland (the
“Servicer”),
GENESIS FUNDING LIMITED, a limited liability company incorporated under the
laws of Bermuda (“GFL”),
and Financial Guaranty Insurance Company, a New York stock insurance company
(the “Policy
Provider”).
For the consideration set forth herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Servicer and
GFL agree as follows:
ARTICLE
I
Definitions
Section
1.01. Definitions. Unless
otherwise defined herein, all capitalized terms used but not defined herein
have the meanings assigned to such terms in Appendix A.
Section
1.02. Construction
and Usage. The
conventions of construction and usage set forth in Appendix A are incorporated
by reference herein.
ARTICLE
II
Appointment;
Services
Section
2.01. Appointment.
(a) GFL appoints the Servicer as the exclusive provider of the Services
(as defined in Section 2.02(a)) to (1) GFL, (2) Subsidiaries of GFL and
(3) Affiliates of GFL in which GFL or any of its Subsidiaries has a direct or
indirect ownership interest (collectively, the “GFL
Group”,
and which term, for purposes of clarification, does not include Affiliates of
GFL which are not direct or indirect Subsidiaries of GFL) in respect of the
Aircraft Assets on the terms and subject to the conditions set forth in this
Agreement. In furtherance of the foregoing, the parties hereto acknowledge and
agree that, notwithstanding any other provision of this Agreement, without the
consent of the Servicer, GFL shall not, and shall not permit any Person within
the GFL Group or any agent of any thereof, including the Manager or the Cash
Manager, to, contact directly or otherwise have any direct dealings with any
Lessee or any relevant third party with respect to any Aircraft Asset (which,
as provided in the definition of “Aircraft Assets”, the parties
understand shall not include any Aircraft Asset (x) that shall have ceased to
be an Aircraft Asset in accordance with the provisions of Sections 2.04(b) or
3.02(d), but shall include any Former Aircraft Asset that shall have become an
Aircraft Asset pursuant to Section 6.07 of the Servicing Agreement or (y) in
respect of which the obligation of the Servicer to provide Services shall have
been terminated in accordance with Article X) (such contact or other direct
dealing, a “Lessee
Contact”)
to the extent that such Lessee Contact constitutes, or involves taking any
action that constitutes, the provision or performance of any Services (to such
extent, a “Restricted
Lessee Contact”).
Notwithstanding the foregoing, in the event that GFL or any other member of the
GFL Group or, in the case of clause (iv) or (v) below only, Genesis, reasonably
believes that it shall be necessary or, in the case of clause (iv) or (v) below
only, desirable, for there to be a Restricted Lessee Contact under
circumstances in which one of the following clauses is applicable:
(i) during
the period (x) commencing on the occurrence of an Event of Default under
Section 4.01 of the Indenture in respect of the payment of interest on any Note
(as defined in the Indenture) due to an insufficiency of funds in the
Collection Account on the relevant date, which Event of Default (1) shall have
occurred on a date on which no amount is available for drawing under any
Eligible Credit Facility (as defined in the Indenture) in respect thereof and
(2) shall have continued unremedied for 60 days after the date of the
occurrence of such Event of Default and (y) ending after such date upon
the remedying of such Event of Default;
(ii) following
the occurrence and during the continuance of an Event of Default (other than
one referred to in clause (i) of this Section 2.01(a)) under the Indenture and,
other than in respect of an Event of Default under Sections 4.01(e) or 4.01(f)
of the Indenture, the issuance of a Default Notice (pursuant to which the
Outstanding Principal Balance of the Notes and all accrued and unpaid interest
thereon shall become due and payable) in accordance with the terms of the
Indenture, and provided that at
the time of such Event of Default at least 15% of the number of Aircraft Assets
shall not be subject to Leases and each such Aircraft Asset shall have been
off-lease and reasonably available for re-lease (which, for purposes of
clarification, shall mean that such Aircraft Asset shall be in the possession
or under the unfettered control of the Servicer, together with the related
Aircraft Documents, shall be free of any legal prohibition on the re-leasing
thereof, shall be free of Liens (other than Liens, if any, created pursuant to
the “Related Documents” as defined in the Indenture or created by or
at the instruction of the Servicer) and shall be in a condition which should be
reasonably acceptable to a potential lessee) during the three-month period
ending on the date of such Event of Default;
(iii) in
respect of any claim for indemnification made by the Servicer under this
Agreement in respect of a Loss incurred by the Servicer related to a
Lessee;
(iv) to
discharge GFL’s, or Genesis’, or any of their officer’s or
director’s as the case may be, obligations under Applicable Law (including
under United States’ securities laws and under United States and European
“know your customer” laws) including any requirement to obtain
information, to file any report with any governmental authority, to fulfill
their fiduciary duties or other obligations under Applicable Laws or to respond
to any court order or to prosecute or defend any suit;
(v) to
respond to requests from GFL’s or Genesis’, as the case may be,
auditors reasonably related to the filing of any tax return or the conduct of
any audit of GFL or Genesis and/or their Subsidiaries;
(vi) to
enable GFL to discharge its obligations under Article VII;
(vii) to
enable the Cash Manager to monitor the Servicer’s performance under this
Agreement in accordance with the express terms of the Cash Management
Agreement;
(viii) to
enable GFL to perform its express obligations under the Indenture and Security
Trust Agreement including, without limitation, GFL’s obligations under
Sections 5.02 and 5.03 of the Indenture and Sections 2.06 and 3.01 of the
Security Trust Agreement; or
(ix) the
Servicer’s material failure to perform a Service which involves a Lessee
and necessitates a Lessee Contact, which material failure continues unremedied
for 30 days after the Servicer’s receipt of written notice of such
material failure from GFL or the Policy Provider and which if left unremedied
would have a Material Adverse Effect on the GFL Group taken as a
whole;
then GFL
or another Person within the GFL Group, or in the case of clause (iv) or (v)
above, Genesis, shall deliver a written notice to the Servicer setting forth in
reasonable detail the reasons for such Restricted Lessee Contact (including
which of the foregoing clauses (i) through (ix) is applicable thereto) and the
specifics of such Restricted Lessee Contact. In the case of clauses (i) and
(ii) and (iv) through (viii) above, after receipt of such notice, the Servicer
shall promptly notify GFL whether the Servicer will itself make such Restricted
Lessee Contact, or whether a Person within the GFL Group or agent of any
thereof, including the Manager or the Cash Manager, should make such Restricted
Lessee Contact. In the case of clauses (iii) and (ix) above, after delivering
such notice to the Servicer, any Person within the GFL
2
Group
shall be permitted to make such Restricted Lessee Contact directly itself or
through any agent, including the Manager. In making any Restricted Lessee
Contact GFL shall not, and shall not permit any Person within the GFL Group or
any agent of any thereof, including the Manager or the Cash Manager, to
interfere with the Servicer’s performance of any Services. For purposes of
clarification, the parties agree that GFL or any agent thereof, including the
Manager, may contact a Lessee for the purpose of purchasing from such Lessee
Aircraft that are not Aircraft Assets hereunder or “Aircraft Assets”
as defined under the Master Servicing Agreement or for the purpose of selling
or leasing to such Lessee Aircraft that are not Aircraft Assets hereunder or
“Aircraft Assets” as defined under the Master Servicing Agreement,
and such contact shall not be considered a Restricted Lessee Contact, so long
as in no event shall GFL or any agent thereof, including the Manager or the
Cash Manager, interfere with the Servicer’s performance of any
Services.
(b) The
Servicer hereby accepts its appointment pursuant to the first sentence of
Section 2.01(a) and agrees to perform the Services on the terms and subject to
the conditions set forth in this Agreement.
Section
2.02. Aircraft
Asset Services.
(a) The Services to be provided by the Servicer in respect of the Aircraft
Assets are as set forth in Schedule 2.02(a) (the “Services”),
the provisions of which Schedule 2.02(a) are hereby incorporated herein by
reference.
(b) GFL has
advised the Servicer that each Person within the GFL Group has appointed GFL to
act as its representative with respect to any matter in respect of which GFL or
any other Person within the GFL Group is required or permitted to take any
action pursuant to the terms of this Agreement. Accordingly, in connection with
the performance of the Services, the Servicer shall in all cases be entitled to
rely on the instructions (or other actions) of GFL as representative of each
Person within the GFL Group. The Servicer shall not be liable to any Person
within the GFL Group or any other Person for any act taken or omission to act
in accordance with such instructions (or other actions), except to the extent
otherwise provided in Section 3.03 and Article XI. The Servicer shall in all
cases be entitled to rely upon the instructions (or other actions) of GFL and
upon notices, reports or other communications (whether written or oral) made by
any Lessee or any other Person (other than any Affiliate of the Servicer) in or
concerning any Aircraft Assets, Aircraft Assets Related Document or any
document in connection therewith and shall not be responsible for the accuracy
or completeness of any such notices, reports or other
communications.
(c) GFL has
advised the Servicer that it has appointed the Manager and the Cash Manager, on
a revocable basis, to, among other things, act on its behalf in connection with
any actions required or permitted to be taken by GFL on its own behalf or on
behalf of any other Person within the GFL Group (including as provided in
Section 2.02(b)) pursuant to the terms of this Agreement. Accordingly, in
connection with the performance of the Services, unless earlier notified in
writing by GFL that the Manager’s or Cash Manager’s appointment to
act on behalf of GFL has been revoked or terminated, or by the Security Trustee
that all of the GFL Group’s rights hereunder shall be exercisable by the
Security Trustee as provided in Section 12.01, the Servicer shall in all cases
be entitled to rely on the instructions (or other actions) of the Manager and
of the Cash Manager; provided,
however, that
the Servicer shall not be obliged to act upon the instructions of, or with
respect to, or provide any information to, the Manager or Cash Manager, as the
case may be, if Competitor Control is in existence with respect to the Manager
or Cash Manager, as the case may be, or with respect to a Manager or Cash
Manager, as the case may be, which is appointed hereafter unless the Servicer
consented to the appointment of such Manager or such Cash Manager in writing,
which consent shall not be unreasonably withheld (it being understood that the
Servicer may consider, among other factors, whether the proposed Manager or
Cash Manager, as the case may be, is a Competitor). Subject to the absence of
Competitor Control with respect thereto, the Servicer hereby consents to the
appointment of Genesis as the initial Manager and to Deutsche Bank Trust
Company Americas as initial Cash Manager. The appointment of the Manager and
3
of the
Cash Manager to act on behalf of the GFL shall in no way limit or otherwise
derogate from the Servicer’s right to rely on the instructions (or other
actions) of GFL as set forth in Section 2.02(b). Without limiting the
foregoing, until such time as the Servicer has been notified in writing by GFL
that the Manager’s or the Cash Manager’s, as the case may be,
appointment has been revoked or terminated, or by the Security Trustee that all
of the GFL Group’s rights hereunder shall be exercisable by the Security
Trustee as provided in Section 12.01, in all circumstances requiring the
direction, consent or approval of, or the delivery of any notices or other
communications to, GFL hereunder, the Servicer shall only be required to seek
the direction, consent or approval of, or deliver any such notices or other
communications to, the Manager or the Cash Manager, as the case may be. The
Servicer shall not be liable to any Person within the GFL Group or any other
Person for any act taken or omission to act in accordance with the instructions
(or other actions) of the Manager or the Cash Manager, as the case may be,
except to the extent otherwise provided in Section 3.03 and Article XI. GFL
agrees with the Servicer that the Management Agreement and the Cash Management
Agreement shall not be amended by the parties thereto in any manner that may,
directly or indirectly, affect the Servicer’s rights, obligations or
liabilities (or potential liabilities) under this Agreement or with respect to
the Management Agreement or the Cash Management Agreement or otherwise without
the Servicer’s prior written consent. Without limiting the foregoing, GFL
represents and warrants to the Servicer that Competitor Control with respect to
the Manager shall automatically result in a replacement of the Manager under
the Management Agreement. Immediately upon Competitor Control occurring with
respect to the Manager, GFL agrees that the Manager under the Management
Agreement shall be replaced and another Person shall be appointed as Manager in
compliance with the foregoing provisions of this Section. The Servicer hereby
consents to Phoenix American Financial Services, Inc., as a replacement under
the Management Agreement for the initial Manager.
(d) Except
as otherwise provided in Sections 2.04(b), 3.02(c), 3.02(d) and 10.04, GFL
agrees not to (and not to permit any other Person within the GFL Group to)
appoint any third party service provider (whether an Affiliate or otherwise)
with respect to any Aircraft Asset without the prior written consent of the
Servicer; provided,
however, that
the Servicer’s prior written consent is not required with respect to the
appointment by any Person within the GFL Group of any legal, accounting,
insurance, valuation or other similar service providers to perform services not
included within the Services and, provided further,
however, that
the foregoing shall not be construed as prohibiting actions permitted under the
Master Servicing Agreement with respect to Aircraft that are not Aircraft
Assets hereunder.
(e) The
Servicer shall in all cases be entitled to rely on the instructions (or other
actions) of any Person that the Servicer reasonably believes to be authorized
to act on behalf of GFL (or any other Person within the GFL Group) or the
Manager or the Cash Manager and shall not be liable to any Person within the
GFL Group for any act taken or omission to act in accordance with such
instructions (or other actions), except to the extent otherwise provided in
Section 3.03 and Article XI.
(f) Notwithstanding
anything contained in this Agreement to the contrary, the Servicer shall not be
required to perform any Service (or any other service) with respect to any
Aircraft Asset unless and until a true and complete copy of all Aircraft Assets
Related Documents has been delivered to the Servicer or other written notice
thereof has been provided to the Servicer. Without limiting the foregoing, the
Servicer acknowledges that, in connection with its provision of services with
respect to the Original Aircraft, it is in possession of various Aircraft
Assets Related Documents that were received by the Servicer prior to the date
hereof.
(g) GFL
agrees not to (and not to permit any other Person within the GFL Group to)
enter into any agency, finders’ or brokerage agreements (whether with an
Affiliate or otherwise) relating to the procurement of lessees or purchasers
for the Aircraft Assets (or agreements similar thereto) without the prior
written consent of the Servicer; provided,
however, that
the foregoing shall not be construed as
4
prohibiting
actions permitted under the Master Servicing Agreement with respect to Aircraft
that are not Aircraft Assets.
Section
2.03. Offerings.
(a) (i) In connection with the public or private offering and sale
(whether within the United States, outside of the United States or both within
and outside of the United States) of any Notes or other equity or debt
securities or the obtaining of loans (including lines of credit, but excluding
individual aircraft financings of five or fewer aircraft) by (x) Genesis,
(y) GFL, or (z) any other Person, pursuant to which any Person within the GFL
Group is required to file, or assist in the filing of, any registration
statement with the United States Securities and Exchange Commission or prepare
and distribute, or assist in the preparation and distribution of, a
registration statement, prospectus, offering memorandum, a private placement
memorandum, lender group memorandum or other securities or loan offering
document (any such offering and sale, including, without limitation, the
Initial Offer, being hereinafter referred to herein as an “Offering”),
GFL will provide (or cause its advisors to provide, as the case may be) the
Servicer and its advisors drafts of, and a reasonable time to review, each
registration statement, prospectus, offering memorandum, private placement
memorandum, lender group memorandum or other securities or loan offering
document, as the case may be, and each amendment or supplement to any thereof
relating to any such Offering (a “Prospectus”)
and will use its best efforts to incorporate the comments, if any, provided by
the Servicer with respect to the Servicer or any of its Affiliates or their
respective roles in connection with any such Offering including under this
Agreement, the Master Servicing Agreement or the Business Opportunities
Agreement (the “Servicer
Disclosure”,
which term shall include the Servicer Information) (it being understood that
the Servicer and its Affiliates have the right, but not the obligation, to
comment thereon). GFL will not, and will not permit any Person within the GFL
Group to, file, or assist in the filing of, any such Prospectus with any
governmental agency or otherwise publicly disclose or distribute to potential
purchasers or lenders the contents of such Prospectus without the
Servicer’s prior consent (which consent must be written only with respect
to, in the case of any Prospectus that is filed with the United States
Securities and Exchange Commission, the last Prospectus filed prior to or
concurrently with the filing of a request for acceleration of effectiveness of
the related registration statement or post-effective amendment thereto or, in
the case of any Prospectus that is not filed with the United States Securities
and Exchange Commission, the version of the Prospectus to be delivered in
connection with the sale, or confirmation of sale, of any Notes or other debt
or equity securities or the making of any loans, as the case may be) as to
those portions of any such Prospectus relating to Servicer Disclosure, which
consent shall not be unreasonably withheld or determination
delayed.
(ii) GFL
understands and agrees that the Servicer has the right to approve any and all
Servicer Disclosure, including the context thereof, and that GFL will not
permit the inclusion in any Prospectus of (x) any financial statements or
financial data relating to the Servicer or any Affiliate thereof,
(y) performance or related data with respect to the Servicer’s
servicing of aircraft directly or indirectly owned by any Person within the GFL
Group or directly or indirectly owned by Genesis or any of its Affiliates or
any other Person’s aircraft or other assets or (z) information
relating to aircraft owned or managed by the Servicer or any of its Affiliates
that do not comprise Aircraft Assets or “Aircraft Assets” as defined
in the Master Servicing Agreement (except and to the extent that the quantities
and types of aircraft currently owned or managed by the Servicer are disclosed
in a form and substance substantially similar to that set forth under the
caption “The Parties—Servicer” in the final offering circular
dated _____ ___, 2006 relating to GFL and the Notes (the “Final
Prospectus”)).
For the avoidance of doubt, however, if such information and the context of its
disclosure are approved by the Servicer in writing, then GFL shall have the
right to include such information in such Prospectus. Notwithstanding the
foregoing, the Servicer agrees (A) that, subject to its prior review and
updating, any Prospectus may include Servicer Disclosure substantially
identical to that contained in the Final Prospectus and (B) to respond with any
comments it may have on any Servicer Disclosure reasonably promptly following
GFL’s delivery of drafts of the entire Prospectus,
5
including
any Servicer Disclosure, to the Servicer. GFL will also provide (or cause its
Affiliates or advisors to provide, as the case may be) the Servicer with copies
of, and an opportunity to review, any marketing and marketing related materials
produced in connection with any Offering. GFL will not distribute any such
marketing materials (or disseminate, or permit the dissemination of, the
information contained therein) including information relating to the Servicer
or any of its Affiliates without the Servicer’s prior written consent,
which consent shall not be unreasonably withheld, as to those portions of any
such marketing materials relating to the Servicer or any of its Affiliates. The
Servicer agrees to respond with any comments it may have on any such marketing
materials reasonably promptly following GFL’s delivery of copies thereof
to the Servicer.
(iii) GFL
agrees that it will use commercially reasonable efforts to cause its legal,
accounting and other technical advisors to include the Servicer and such
Affiliates of the Servicer as the Servicer designates as addressees of any
opinions and/or comfort letters being provided to any Person within the GFL
Group and/or any underwriters in connection with any Offering.
(iv) GFL
agrees that each Prospectus will include disclosure, in form and substance
satisfactory to the Servicer, of all disclaimers, the Standard of Care,
Standard of Liability and Conflicts Standard, waivers of liability and
indemnification pertaining to the Servicer or any of its Affiliates or their
respective roles in connection with this Agreement and any related
Offering.
(b) Subject
to Section 2.03(g) below, if GFL reasonably requests that the Servicer or
its Affiliates be present on a reasonable basis at customary marketing
activities (including a so-called “road show”) related to any
Offering, the Servicer and its Affiliates shall be present at such marketing
activities, but solely in the Servicer’s capacity as Servicer with respect
to the Aircraft Assets pursuant to this Agreement. GFL agrees that on any such
marketing activities the Servicer’s only obligation shall be, to the
extent necessary, to discuss the factual matters relating to its role as
servicer hereunder and the Aircraft Assets which are the subject hereof (and,
if applicable, its role under the Master Servicing Agreement, the
“Aircraft Assets” as defined therein and the Business Opportunities
Agreement), including discussing information contained in the Prospectus with
respect to such assets relating to types of aircraft, aircraft maintenance and
aircraft leases. Notwithstanding the foregoing, the Servicer shall not be
required to make any presentations with respect to, or to comment upon, its
views of future trends in the aviation industry, including future trends
relating to types of aircraft, particular lessees or expected aircraft lease
rates or values, or to provide opinions, forecasts, predictions or prospects
relating thereto (or to the Aircraft Assets or any other Aircraft). GFL agrees
that no more than two (2) members of the Servicer’s management, the
identity of which members and the schedule of any activities in which such
members are to participate are to be mutually agreed upon by GFL and the
Servicer from time to time, shall be required to be present at any marketing
activities related to any Offering (it being understood that if reasonably
requested by GFL, the Servicer will provide, subject to availability, up to an
aggregate of four (4) members of its management). In no event shall a
representative of the Servicer be required to attend any marketing activities
without representatives of GFL or Genesis, as the case may be, the Manager and
the underwriters.
(c) GFL will
invite the Servicer to attend, on reasonable prior notice, all meetings (or
portions thereof) with rating agencies relating to any Offering of any Person
in the GFL Group, will provide the Servicer a reasonable period of time to
review and comment upon any written materials relating to the Servicer or any
of its Affiliates prior to submission thereof to any Rating Agency and will
provide the Servicer with copies of all documents or other written materials
received from any Rating Agencies relating to the Servicer or any of its
Affiliates. GFL agrees that, in furtherance of the foregoing, it will not
submit or permit Genesis to submit any materials to any Rating Agency relating
to the Servicer
6
or any
of its Affiliates or their respective roles without the Servicer’s prior
consent, which consent shall be in writing and not unreasonably withheld or
delayed.
(d) GFL
understands, acknowledges and agrees that the Servicer will not be a party to
any underwriting, securities purchase or similar agreement or any letter to,
representation to or indemnity or other agreement with, any underwriter or
initial purchaser, in connection with any Offering, and, except as set forth in
Section 2.03(m), shall not assume responsibility for any information set forth
in any Prospectus related thereto.
(e) (i) Subject
to executing confidentiality agreements satisfactory in form and substance to
GFL, GFL agrees to use its commercially reasonable efforts to provide the
Servicer or any of its Affiliates and/or advisors with an opportunity, at the
Servicer’s election, to conduct customary due diligence with respect to
any Offering of Genesis or any Person in the GFL Group, including with respect
to any matters disclosed in any Prospectus.
(ii)
Subject to executing confidentiality agreements satisfactory in form and
substance to the Servicer, and subject to Section 2.03(g) below, the
Servicer agrees to provide GFL, Genesis, underwriters, Rating Agencies and/or
advisors with reasonable opportunities to conduct due diligence with respect to
information pertaining to the Servicer and the provision of Services pursuant
to this Agreement with respect to the Aircraft Assets; provided,
however, that,
if it is established to the Servicer’s reasonable satisfaction that any
Rating Agency does not execute confidentiality agreements as a matter of
policy, the Servicer will waive such requirement with respect to such Rating
Agency so long as such Rating Agency establishes to the Servicer’s
reasonable satisfaction that any information made available to it will be held
confidential.
(f) Except
to the extent required by law, GFL agrees not to (and not to permit any other
Person within the GFL Group to) make, directly or indirectly, any press release
or other public announcement by any means (including by making disclosures to
financial analysts or other members of the financial community that are
intended to be or could reasonably be expected to be publicly disclosed)
relating to Servicer Disclosure without the Servicer’s prior written
consent. In the event a press release or other public announcement is
recommended by securities counsel or required by law, GFL shall consult with
the Servicer prior to making (or permitting to be made) any such press release
or public announcement to the extent that such press release or public
announcement relates to the Servicer (or any of its Affiliates) or their
respective involvement in any Offering. Promptly after GFL’s request
therefor, the Servicer agrees to provide GFL with the Servicer’s
pre-approved customary disclosure concerning the Servicer or any of its
Affiliates and their roles pursuant to this Agreement, the Master Servicing
Agreement and the Business Opportunities Agreement for inclusion in GFL’s
quarterly and annual public reporting disclosure documents to be filed with the
Securities and Exchange Commission; provided,
however, that
the context of such disclosure in such documents shall be subject to the prior
consent of the Servicer.
(g) Upon the
closing of any Offering (other than the Initial Offer) by any Person in the GFL
Group, or any Offering by Genesis or any of its Subsidiaries (that constitutes
a refinancing of the Notes or with respect to which GFL has requested
participation from the Servicer as provided above in this Section 2.03),
GFL shall pay, or cause another Person to pay, the Servicer fees in such amount
as the Servicer and GFL shall agree. In addition to such agreement on such
fees, GFL and the Servicer hereby agree that additional fees shall be paid to
the Servicer in connection with the Servicer’s involvement with the
solicitation of, or otherwise any action to obtain, any lessee consents and/or
novations in connection with any Offering. Such additional fees to be paid to
the Servicer shall consist of $6,000 per applicable Aircraft.
7
(h) Notwithstanding
the foregoing, (i) and except as otherwise expressly agreed by an Affiliate of
the Servicer in a separate agreement in the case of this clause (i), neither
the Servicer nor any of its Affiliates shall be obligated to underwrite or
purchase any securities to be issued by GFL or any other Person within the GFL
Group; (ii) neither the Servicer nor any of its Affiliates shall be obligated
to issue any Guarantees or otherwise to provide any credit enhancement or
support or incur any obligations or liabilities to provide any credit
enhancement or support or incur any other obligations or liabilities in
connection with any Offering; (iii) neither the Servicer nor any of its
Affiliates shall be required to sign any registration statement (or any similar
document) in connection with any Offering (as “registrant”,
“issuer” or in any other capacity) or take any other action that
could, in the Servicer’s sole determination, result in the Servicer or any
of its Affiliates being (or being deemed to be) a “control person”
with respect to the applicable issuer of any securities issued in connection
with any such financing transaction under applicable securities laws in
connection with any such financing or an “underwriter” of any such
securities; and (iv) the obligations of the Servicer under this Section 2.03
shall be subject to the reasonable satisfaction of the Servicer with all the
terms and conditions of the applicable Offering that relate to the Servicer or
any of its Affiliates or their respective roles (including the indemnities in
favor of the Servicer and its Affiliates).
(i) In the
case of any Offering, the Indemnified Parties shall have no liability for, and
GFL shall hold, and shall cause each other Person, if any, for whom a Offering
was conducted to hold, each Indemnified Party harmless from, and indemnify on
an After-Tax Basis each Indemnified Party against, any and all Losses that may
be imposed on, incurred by or asserted against (including with respect to any
such claims, suits, actions or proceedings by third parties, including the
applicable underwriters and purchasers of any securities issued in connection
with any such Offering) such Indemnified Party, directly or indirectly, arising
out of, in connection with or related to the Servicer’s performance of the
obligations set forth in this Section 2.03 with respect to any Offering;
provided,
however, that
such indemnity shall not apply to the extent that, if GFL had suffered such
Losses, the Servicer would have been required to indemnify GFL pursuant to the
terms of Section 2.03(m). The obligation of GFL under this Section 2.03(i)
shall be in addition to any liability that GFL may otherwise have to the
Indemnified Parties and shall not be limited or reduced with respect to the
Indemnified Parties by any other rights to indemnification that may be
available to such Indemnified Parties.
(j) GFL
agrees to reimburse the Servicer, on a monthly basis, for all out-of-pocket
expenses incurred directly or indirectly by the Servicer or any of its
Affiliates in connection with any Offering with respect to which the Servicer
shall provide services pursuant to this Section 2.03, including any outside
advisor fees and expenses (including travel and lodgings), including legal,
accounting, investment banking, consulting and other similar advisors retained
by the Servicer or any of its Affiliates in connection with any
Offering.
(k) For the
avoidance of doubt, but without derogating from any of the Servicer’s
rights hereunder, the Servicer shall continue to act as the primary servicer
for each Aircraft Asset, following the financing or refinancing thereof
pursuant to a public or private aircraft financing transaction, so long as any
Person within the GFL Group or Genesis or any of its Affiliates owns or leases
in such Aircraft Asset, on the terms provided in this Agreement. In addition,
the Servicer shall continue to act as the primary servicer for any Aircraft
Assets that are financed or refinanced pursuant to a public or private aircraft
financing transaction (including a public or private securitization financing
transaction) under circumstances in which, following such financing or
refinancing, (i) GFL or any Person in the GFL Group has (individually or in the
aggregate) a direct or indirect interest in such Aircraft Assets or in any
securities representing the residual or equity interest in such Aircraft
Assets, and (ii) such Aircraft Assets are to be managed pursuant to a servicing
agreement or other arrangement other than this Agreement, (x) on a basis
substantially the same as the basis upon which the Servicer provides the
Services pursuant to this Agreement (including for the fees provided for herein
to be paid to the Servicer and in accordance with the Standard of Care and the
Conflicts Standard and subject to the Standard of Liability and Article
8
XI) and
(y) otherwise on such commercially reasonable terms as shall be agreed.
For purposes of clarification, after giving effect to any such offering or
refinancing, regardless of the form or structure thereof, all Aircraft that
were at one time Original Aircraft owned or leased in by any Person in the GFL
Group or by Genesis or any of its Affiliates shall continue to be serviced by
the Servicer pursuant to this Agreement or a servicing agreement substantially
the same as this Agreement unless such Original Aircraft has become a Former
Aircraft Asset.
(l) Notwithstanding
any provision to the contrary in this Agreement, GE Capital or any Affiliate of
GE Capital may, in its sole discretion, at any time and from time to time enter
into and effectuate, directly or indirectly, public or private financing
transactions with respect to Aircraft other than the Aircraft
Assets.
(m) The
Servicer shall indemnify and hold harmless GFL and its trustees, officers and
employees from and against any and all Losses that may be imposed on, incurred
by or asserted against GFL or any such other Person insofar as any such Loss
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Servicer Information (as
defined below) contained in any final or preliminary Prospectus or in any
amendment thereof or supplement thereto or in any other document filed with the
United States Securities and Exchange Commission or (ii) the omission or
alleged omission to state in the Servicer Information included in any final or
preliminary Prospectus a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that
the Servicer shall not be liable to GFL under the indemnity set forth in this
Section 2.03(m) (x) unless the Servicer shall have consented in writing to the
text of the Servicer Information in such final or preliminary Prospectus and
(y) if the relevant Loss results from an untrue statement or omission contained
in a preliminary Prospectus that was delivered to a person that was sold a
security described in such preliminary Prospectus and if the Servicer shall
have provided to GFL prior to the investment decisions of the applicable buyer
asserting such Loss information correcting such untrue statement or omission
and GFL shall have failed to deliver or cause to be delivered such correcting
information to such person. “Servicer
Information”
shall mean the information set forth in the section of the Final Prospectus
captioned “The Parties - Servicer” and the comparable sections (or
comparable disclosure in comparable portions thereof) contained in any other
preliminary or final Prospectus. In connection with any Offering, upon the
request and at the expense of GFL, the Servicer shall make a good faith effort
to obtain from one of its regular outside legal counsel, selected by the
Servicer, a customary securities law disclosure letter related solely to the
Servicer Information included in the relevant Prospectus and addressed to the
underwriters or initial purchasers in respect of the Notes being offered under
such Prospectus (such underwriters and initial purchasers not, however,
constituting third party beneficiaries of this Agreement).
Section
2.04. Compliance
with Applicable Laws and GE Policies.
(a) Notwithstanding anything to the contrary in this Agreement, the
Servicer shall not be obligated to take or refrain from taking any action at
any time that the Servicer believes, in good faith but sole discretion, is
reasonably likely to (i) violate any Applicable Law with respect to the
Servicer or its Affiliates or any GE Policy or (ii) lead to an investigation by
any Governmental Authority, directly or indirectly, of or relating to the
Servicer, any of its Affiliates or the Services. “GE
Policy”
means each of the established written policies of GE applicable to GE and its
controlled affiliates related to business practices with respect to legal,
ethical and social matters, which policies are currently embodied in the
pamphlet The
Spirit & The Letter, a copy
of which has been provided to GFL, as the same may be amended and in effect
from time to time. The Servicer shall provide GFL with a copy of all amendments
and updates to The
Spirit & The Letter.
(b) If
pursuant to paragraph (a) above, the Servicer shall have determined not to take
any action with respect to any transaction or potential transaction (whether or
not any such transaction or a similar transaction has previously been entered
into) relating to any Aircraft Asset and as a consequence thereof any Person
within the GFL Group shall be denied the opportunity to participate in any
transaction
9
or
potential transaction in which it would otherwise be able to participate in
accordance with Applicable Law, then, notwithstanding the provisions of Section
2.01, any such Person within the GFL Group may enter into, or engage another
Person to arrange on its behalf, such transaction or potential transaction with
respect to such Aircraft Asset; provided,
however, that
such Person within the GFL Group may not enter into any such transaction or
potential transaction if at or about the same time a substantially similar
transaction (with at least as favorable or the same economic terms) could be
arranged by the Servicer with respect to such Aircraft Asset in a manner that
is not reasonably likely to violate GE Policy or lead to an investigation by
any Governmental Authority, directly or indirectly, of or relating to the
Servicer, any of its Affiliates or the Services; provided further,
however, that
(i) the Aircraft Asset that is the subject of such transaction or potential
transaction or the subject of a resignation or removal as provided in Section
3.02(d) (a “Former
Aircraft Asset”)
shall cease to be an Aircraft Asset (including for the purposes of calculating
the Servicing Fees) on the date that such transaction or potential transaction
is entered into, (ii) from and after such date (unless and until such Former
Aircraft Asset becomes an Aircraft Asset pursuant to Section 6.07) no further
Services shall be provided with respect to such Former Aircraft Asset and (iii)
the Servicer shall not have any obligation or liability with respect to such
Former Aircraft Asset or such transaction or potential
transaction.
(c) Notwithstanding
anything to the contrary set forth in paragraph (b) above, no Person
within the GFL Group shall be entitled to enter into, or engage any other
Person to arrange on its behalf, any transaction or potential transaction with
respect to any Aircraft Asset if the Servicer shall have made a determination
regarding that transaction or potential transaction pursuant to paragraph (a)
above because it reasonably believed that a party to such transaction or
potential transaction is an OFAC Designated Person or that such transaction or
potential transaction was reasonably likely to violate the United States
Foreign Corrupt Practices Act (or any similar or successor statute), any of the
Anti-Terrorism laws or any similar or successor statutes or orders applicable
to entities organized under the laws of the United States (or any state or
political subdivision thereof) or applicable to any Person within the GFL Group
or otherwise applicable to such transaction or potential
transaction.
Section
2.05. Limitations.
(a) Notwithstanding any other provision of this Agreement which could be
construed to the contrary, neither the Servicer nor any of its Affiliates shall
assume any Indebtedness of any Person within the GFL Group or of Genesis or any
of its other Affiliates (whether consisting of the Notes, under the Indenture
or otherwise) nor shall any provision of this Agreement or any other Operative
Agreement be construed so as to imply that the parties intended any such
assumption.
(b) In
addition to Section 2.04, the Servicer shall not, and shall not be obligated
to, act in a manner inconsistent with the rights, obligations or undertakings
of the “Lessor” under any Lease, the “seller” under a sale
contract or any other Person party to any other contract for the benefit of any
Person in the GFL Group or otherwise in any manner that is illegal or
prohibited by Applicable Law or any applicable contract.
(c) Notwithstanding
any other provision of this Agreement (but without limiting its obligation to
provide Genesis with certain offers of aircraft for sale, and certain
information related thereto, as and to the extent provided in the Business
Opportunities Agreement), the Servicer shall not be obligated either initially
or on a continuing basis to provide any Person within the GFL Group or any of
its Representatives or Genesis or any of its other Affiliates any confidential
or proprietary information regarding the Servicer’s or any of its
Affiliates’ business or the business or finances of any Person, other than
information regarding any Person within the GFL Group, whose assets it manages
from time to time.
(d) The
Servicer shall not be liable or accountable for (i) the failure by a Lessee,
any buyer or any other Person to perform any of its obligations under any
Lease, sale contract or any other contract including the payment of amounts
payable under any Lease or any other contract or (ii) the accuracy or
completeness of any notices, reports or other communications (whether written
or oral) made
10
by any
Lessee, any buyer or any Person other than the Servicer in or concerning any
Lease or any other contract or any document in connection therewith and shall
be entitled to rely upon all such notices, reports and communications except to
the extent that the Servicer has actual notice of any matter to the
contrary.
(e) The
Servicer may rely on any Adviser, Broker, law firm or other professional
adviser appointed by the Servicer or GFL and shall not be liable for any claim
by any Person within the GFL Group or any other Person to the extent that it
was acting in good faith upon the advice of such Adviser, Broker, law firm or
other professional adviser.
(f) The
relationship between the Servicer and GFL is an agency relationship, however,
except in relation to any money erroneously received by the Servicer or any of
its Affiliates into any of the Servicer’s or any of its Affiliates’
bank accounts on behalf of any Person within the GFL Group, which the Servicer
will hold in trust for such Person and deposit into the Collection Account as
soon as reasonably practicable, neither the Servicer nor any of its
Representatives shall be under any fiduciary duty or other implied obligation
or duty to any Person within the GFL Group or to Genesis or any Affiliate of
any such Person or any holder of any equity or debt security issued by or
lender to any Person within the GFL Group or by Genesis or any of its
Affiliates, or to any Lessee, the Manager, [the Policy Provider,] or any other
Person arising out of this Agreement; it being agreed that the rights and
obligations of the parties hereto shall only be those expressly provided for in
this Agreement.
(g) Without
prejudice to the Standard of Care, the Servicer shall not be imputed with the
knowledge of any of its employees other than its directors, officers and those
employees involved in the performance of the Services relevant to such
knowledge responsible for the day-to-day administration of this Agreement. The
Servicer shall be deemed to have actual notice of any matter only upon the
receipt of written notice describing any such matter in reasonable detail or to
the extent that one of the foregoing Persons has actual knowledge of any such
matter or which one of such Persons ought to have known if the Servicer had
acted in accordance with the Standard of Care.
(h) The
Servicer shall not be obligated to assume, or engage in activities which could
reasonably be expected to subject the Servicer to, any liability as a related
company or shadow director of any Person within the GFL Group or under any
similar legal concept. GFL and each other party hereto understands,
acknowledges and agrees that the intent of the parties hereunder is that the
Servicer will not be subject to any obligations or liabilities whatsoever other
than as and to the extent that any obligations or liabilities arise pursuant to
the express terms of this Agreement.
ARTICLE
III
Standard
of Care; Conflicts of Interest; Standard of Liability
Section
3.01. Standard
of Care. The
Servicer shall use reasonable care and diligence at all times in the
performance of the Services (the “Standard
of Care”).
Section
3.02. Conflicts
of Interest.
(a) GFL, Policy Provider and each other party hereto acknowledges and
agrees that (i) in addition to managing the Aircraft Assets under this
Agreement, the Servicer may manage, and shall be entitled to manage, from time
to time the separate assets and businesses of (r) Pegasus Aviation Finance
Company and its Affiliates, (s) Export Development Canada, (t) Genesis and its
Affiliates, (u) GE Capital and its Affiliates, (v) Commercial Aircraft Leasing
Ltd. and its Affiliates, (w) Lease Investment Flight Trust and its
Affiliates, (x) Airplanes U.S. Trust and Airplanes Limited and their respective
Affiliates (y) Aircraft Finance Trust and its Affiliates and (z) other third
parties (the assets of the parties described in clauses (r), (s), (t),
(u), (v), (w), (x), (y) and (z) are collectively hereinafter referred to as the
“Other
Assets”);
(ii) in the course of conducting such activities,
11
the
Servicer may from time to time have conflicts of interest in performing its
duties on behalf of the various entities to whom it provides management
services and with respect to the various assets in respect of which it provides
management services; and (iii) Policy Provider, Genesis and the board of
directors of GFL have approved the transactions contemplated by this Agreement
and the other Operative Agreements and desire that such transactions be
consummated and in giving such approval Policy Provider, Genesis and the board
of directors of GFL have expressly recognized that such conflicts of interest
may arise and that when such conflicts of interest arise the Servicer shall
perform the Services hereunder in accordance with the Standard of Care and, to
the extent applicable, the Conflicts Standard.
(b) If
conflicts of interest arise regarding the management of (i) a particular
Aircraft Asset, on the one hand, and another Aircraft Asset, on the other hand,
or (ii) any Aircraft Asset, on the one hand, and any Other Asset, on the other
hand, the Servicer shall perform the Services in good faith and, without
prejudice to the generality of the foregoing, to the extent (i) such Aircraft
Assets or (ii) such Aircraft Asset and such Other Asset are substantially
similar in terms of objectively identifiable characteristics relevant for
purposes of the particular Services to be performed, the Servicer shall not
discriminate among such Aircraft Assets or between such Aircraft Asset and such
Other Asset, respectively, on an unreasonable basis (the standard set forth in
this Section 3.02(b) shall be referred to collectively as the
“Conflicts
Standard”).
(c) Notwithstanding
any provision herein to the contrary, if, in connection with the provision of
Services with respect to an Aircraft Asset or Lease, a conflict of interest
shall exist that, in the good faith opinion of the Servicer, requires an
arm’s-length negotiation between the Servicer or an Affiliate of the
Servicer, on the one hand, and any Person within the GFL Group, on the other
hand, and the Servicer believes it would not be appropriate for the Servicer to
act on behalf of such Person within the GFL Group in connection with such
negotiation (whether or not the Servicer shall propose to act on behalf of
itself or one of its Affiliates in connection with such negotiation), then the
Servicer shall withdraw from acting as Servicer with respect to such Aircraft
Asset or Lease in connection with the negotiation of the issue giving rise to
such conflict of interest. The Servicer shall provide written notice to GFL not
more than ten Business Days after it has made a determination that an
arm’s-length negotiation is necessary with respect to such conflict of
interest and it would not be appropriate for the Servicer to act on behalf of
such Person within the GFL Group in connection with such negotiation. Not more
than seven Business Days after receipt of such notice from the Servicer, GFL
shall appoint an independent representative (which may be Genesis, any Person
within the GFL Group or the Manager, but otherwise not a Competitor listed in
clause (ii) of the definition of such term or any of its Affiliates so
long as no Event of Default has occurred and is continuing, and if an Event of
Default has occurred and is continuing, may be a Competitor listed in clause
(ii)(b) or (ii)(i) of the definition of such term (or, if the Servicer believes
negotiation with such Person could result in a risk of a violation of
Applicable Law or GE Policy, such other Person that is not the largest
Competitor, either in terms of aircraft value or number of aircraft, of those
named in such clause (ii) as the Policy Provider shall propose from the Persons
listed in such clause (ii)) (the “Independent
Representative”)
to act on behalf of such Person within the GFL Group to which such Aircraft
Asset or Lease and conflict of interest relates. Any such Independent
Representative so appointed shall act on behalf of the relevant Person within
the GFL Group for purposes of such negotiation relating to such Aircraft Asset
or Lease and the Servicer shall have no responsibility or liability to any
Person within the GFL Group with respect to such negotiation relating to such
Aircraft Asset or Lease. In any event, the Servicer shall be entitled to act on
behalf of itself or its Affiliate with respect to such negotiation. During the
period of such Independent Representative’s appointment, the Servicer
shall continue to perform its ordinary functions as Servicer with respect to
such Aircraft Asset or Lease to the extent that the performance of the Servicer
does not directly or indirectly affect the negotiation of the issue giving rise
to such conflict of interest. To the extent, if any, the Servicer cannot
continue to perform any Services with respect to such Aircraft Asset or Lease
during such negotiation, such Services shall be performed by the Independent
Representative or any other designee of such Person within the GFL Group.
Except as provided in Section 3.02(d) below, any such Aircraft Asset or
any
12
Aircraft
Assets subject to any such Lease shall continue to be included as an Aircraft
Asset for purposes of calculating the Servicing Fees pursuant to Article IX
during the appointment of an Independent Representative and the fees, if any,
of any such Independent Representative shall be paid by GFL.
(d) If
(i) the Servicer reasonably determines that directions given by any Person
to the Servicer in accordance with this Agreement or Services required to be
performed under this Agreement (other than any Service involving an
arm’s-length negotiation between the Servicer or an Affiliate of the
Servicer, on the one hand, and any Person within the GFL Group, on the other
hand) would, in either case, if carried out, place the Servicer in a conflict
of interest with respect to which, in the Servicer’s good faith opinion,
the Servicer cannot continue to perform its obligations hereunder within the
requirements set forth in Section 3.02 with respect to all Aircraft Assets or
any affected Aircraft Assets, as the case may be, or (ii) there is a
conflict of interest of the type described in Section 3.02(c) above which
results in the Independent Representative being required to perform
substantially all of the Services described in Sections 1 through 3 of
Schedule 2.02(a) of this Agreement on a long-term basis in respect of an
affected Aircraft Asset, the Servicer shall give GFL prompt written notice
thereof and thereafter the Servicer may resign as Servicer with respect to the
affected Aircraft Assets or Aircraft Asset, or GFL may elect to remove the
Servicer with regard to the affected Aircraft Assets or Aircraft Asset, as
provided in Article X, with the result that each affected Aircraft Asset shall
cease to be an Aircraft Asset hereunder.
Section
3.03. Standard
of Liability.
Notwithstanding any other provision of this Agreement which could be construed
to the contrary, the Servicer shall not be liable or accountable to any Person
including, without limitation, GFL or any Subsidiary or Affiliate of GFL (other
than GFL to the extent set forth in the next following sentence), Policy
Provider or Genesis or any Affiliate thereof or any other Person, under any
circumstances for any Losses directly or indirectly arising out of, in
connection with or related to, the management by the Servicer of Aircraft
Assets or Other Assets. The Servicer shall not be liable or accountable to GFL
or any other Person in the GFL Group, Genesis or any Affiliate thereof [,
Policy Provider] or any other Person under any circumstances for, and GFL shall
indemnify the Servicer on an After-Tax Basis in accordance with the provisions
of Article XI for, any Losses, directly or indirectly, arising out of, in
connection with or related to, the management by the Servicer of Aircraft
Assets or Other Assets, unless such Losses are finally adjudicated to have
resulted directly from (x) the Servicer’s (or any Servicer
Delegate’s) gross negligence or willful misconduct (including willful
misconduct that constitutes fraud) in respect of its obligation to apply the
Standard of Care or the Conflicts Standard in respect of its performance of the
Services or (y) any representation or warranty by the Servicer to such Person
set forth in Sections 4.10 or 4.11 having proven to be false on the date hereof
(the liability standards set forth in this Section 3.03, the “Standard
of Liability”).
For the avoidance of doubt, but without limiting the provisions of Section
9.07, the provisions of this Section 3.03 shall not give rise to any
obligation on the part of the Servicer to indemnify GFL for any Taxes. Without
limiting the foregoing, the Servicer shall not be directly or indirectly liable
or accountable to GFL or any Person in the GFL Group or Genesis or any of its
other Affiliates or the Policy Provider under any circumstances for any Losses
directly or indirectly arising out of, in connection with or related to, (i)
the direct or indirect transfer of any Aircraft Assets or Leases related
thereto or any other assets to any Person within the GFL Group or outside of
the GFL Group, (ii) the adequacy of the terms of any Lease or other contract
relating to any Aircraft Assets, (iii) the reliability or creditworthiness of
any Lessee or other party to a contract with respect to its obligations under
any Lease or any other contract relating to the Aircraft Assets, (iv) the
adequacy of the lease payments derived from the Leases related to any Aircraft
Assets to support various obligations of the Persons within the GFL Group or of
Genesis, (v) the adequacy of any utilization rents or other payments or
security deposits relating to the Aircraft Assets, (vi) the terms and
conditions of the Notes or other securities or instruments being offered and
sold by GFL or any of its Affiliates as of the Closing Date (or thereafter) or
pursuant to any Offering, (vii) the ability of GFL or any other Person to
comply with the terms and conditions of such Notes or such securities or other
instruments and (viii) the structuring and implementation of any aspect of the
various transactions contemplated by any Offering, including the Final
Prospectus.
13
Section
3.04. Waiver
of Implied Standard. Except
as expressly stated above in this Article III, ALL OTHER WARRANTIES, CONDITIONS
AND REPRESENTATIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARISING UNDER
U.S. FEDERAL, DELAWARE, IRISH, CAYMAN ISLANDS, BERMUDAN OR OTHER LAW IN
RELATION TO THE SKILL, CARE, DILIGENCE OR OTHERWISE IN RESPECT OF ANY SERVICE
TO BE PERFORMED HEREUNDER OR TO THE QUALITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OR MERCHANTABILITY OF ANY GOODS OR SERVICES ARE HEREBY EXCLUDED AND
WAIVED BY GFL AND EACH OTHER PERSON IN THE GFL GROUP, THE POLICY PROVIDER,
GENESIS, THE MANAGER AND THE SERVICER SHALL NOT BE LIABLE TO GFL OR ANY OTHER
PERSON WITHIN THE GFL GROUP, THE POLICY PROVIDER, GENESIS, THE MANAGER OR ANY
OTHER PERSON IN CONTRACT, TORT OR OTHERWISE UNDER U.S. FEDERAL, DELAWARE,
IRISH, CAYMAN ISLANDS, BERMUDAN OR OTHER LAW FOR ANY LOSS, DAMAGE, EXPENSE OR
INJURY OF ANY KIND WHATSOEVER, CONSEQUENTIAL OR OTHERWISE, ARISING OUT OF OR IN
CONNECTION WITH EITHER THE SERVICES TO BE SUPPLIED PURSUANT TO THIS AGREEMENT
OR ANY GOODS TO BE PROVIDED OR SOLD IN CONJUNCTION WITH SUCH SERVICES OR ANY
DEFECT IN EITHER SUCH GOODS OR SERVICES OR FROM ANY OTHER CAUSE, WHETHER OR NOT
ANY SUCH MATTER AMOUNTS TO A FUNDAMENTAL BREACH OF A FUNDAMENTAL TERM OF THIS
AGREEMENT. Nothing in this Article III should be taken as in any way limiting
or excluding any liability which the Servicer may have to GFL under Section 2
of the Irish Liability for Defective Products Act, 1991.
THE
CONTRACTUAL RIGHTS, IF ANY, WHICH THE GFL GROUP ENJOYS BY VIRTUE OF SECTIONS
12, 13, 14 AND 15 OF THE SALE OF GOODS ACT, 1893 (AS AMENDED) AND SECTION 39 OF
THE SALE OF GOODS AND SUPPLY OF SERVICES ACT, 1980 ARE IN NO WAY PREJUDICED BY
ANYTHING CONTAINED IN THIS AGREEMENT SAVE TO THE EXTENT PERMITTED BY
LAW.
ARTICLE
IV
Representations
and Warranties
GFL
represents and warrants to, and agrees with, the Servicer as
follows:
Section
4.01. Aircraft
Assets.
Schedule 4.01 contains a true and complete list of all Aircraft Assets
constituting Aircraft Assets as of the Closing Date and each Person within the
GFL Group, if any, that owns such Aircraft Assets as of the Closing Date.
Except as otherwise set forth therein, on the Delivery of each Aircraft Asset
listed in Schedule 4.01, each Person within the GFL Group listed as an
owner of an Aircraft Asset on such Schedule will have such title to such
Aircraft Asset as was conveyed to such Person on its Delivery, free and clear
of all Liens created by or through such Person.
Section
4.02. Aircraft
Assets Related Documents.
(a) The Servicer shall not be required to perform any service provided for
in or in connection with any Aircraft Assets Related Documents not in its
possession (all such Aircraft Assets Related Documents listed in Schedule 4.02
being in its possession) or delivered to it, and, to the extent that the
failure to provide such service results in any Losses to the Servicer, GFL
shall indemnify the Servicer for such Losses on an After-Tax Basis, in
accordance with the provisions of Article XI.
(b) Each
Aircraft Assets Related Document is a legal, valid and binding agreement of the
Person within the GFL Group that is a party thereto (including by way of
assignment or novation) and is enforceable against such Person within the GFL
Group that is a party thereto in accordance with its terms.
14
No
Person within the GFL Group has modified, amended or waived any provision of or
terminated any Aircraft Assets Related Document referred to in Schedule 4.02
except as disclosed therein.
Section
4.03. Accounts
and Cash Flow.
Schedule 4.03 sets forth a true and complete list of all bank or other similar
accounts and any other accounts relating to the Aircraft Assets, including wire
transfer instructions, with respect to which any Person within the GFL Group,
the Security Trustee, the Manager or any other agent of any of the foregoing
has authority, and Article III of the Indenture as in effect as of the date of
this Agreement sets forth in reasonable detail a written description of all
material arrangements and procedures relating to the flow of cash related to
the Aircraft Assets.
Section
4.04. Organization
and Standing.
(a) GFL is a
limited liability company duly created under the laws of Bermuda, and each
other Person within the GFL Group is a corporation duly incorporated, a trust
duly created or a limited liability company duly formed and validly existing
and, if relevant, in good standing under the laws of the jurisdiction in which
it is legally incorporated, created or formed, respectively, and possesses all
franchises, licenses, permits, authorizations and approvals necessary to enable
it to use its corporate or trust name and to own, lease or otherwise hold its
properties and assets and to carry on its business as presently conducted and
as proposed to be conducted except for such franchises, licenses, permits,
authorizations and approvals the failure of which to obtain could not,
individually or in the aggregate, have a Material Adverse Effect on the Persons
within the GFL Group, taken as a whole, or on the Servicer. Each of GFL and
each other Person within the GFL Group is in compliance in all material
respects with all terms and conditions of such franchises, licenses, permits,
authorizations and approvals. Schedule 4.04(a) sets forth a true and complete
list of each Person within the GFL Group and the jurisdiction in which each
such Person within the GFL Group is legally organized.
(b) Each of
GFL and each other Person within the GFL Group is duly qualified to do business
as a foreign corporation in each jurisdiction in which the nature of its
business or the ownership, leasing or holding of its properties or assets
requires qualification except for such jurisdictions where the failure to be so
qualified could not, individually or in the aggregate, have a Material Adverse
Effect on the Persons within the GFL Group, taken as a whole, or on the
Servicer.
Section
4.05. Authority.
(a) Each of GFL and each other Person within the GFL Group which is a
party to an Operative Agreement has all requisite power and authority to
execute each Operative Agreement to which it is or will be a party and to
consummate the transactions and to perform its obligations contemplated
thereby. All corporate acts and other proceedings required to be taken by each
Person within the GFL Group to authorize the execution, delivery and
performance of each Operative Agreement to which it is or will be a party and
the consummation of the transactions and the performance of its obligations
contemplated thereby have been or on or before the date of entering into the
relevant Operative Agreements will have been duly and properly
taken.
(b) Each of
the Operative Agreements to which any Person within the GFL Group is or will be
a party has been or will be duly and validly executed and delivered by such
Person, as applicable, and each such Operative Agreement is or upon such
execution and delivery will be a legal, valid and binding obligation of such
Person, as applicable, enforceable against it in accordance with its
terms.
Section
4.06. No
Conflicts.
Neither the execution and delivery of any Operative Agreement to which any
Person within the GFL Group is a party nor the consummation of the transactions
contemplated thereby nor performance by any Person within the GFL Group of any
of its obligations thereunder will (i) violate any provision of the constituent
documents of any such Person within the GFL Group, (ii) violate any order,
writ, injunction, judgment or decree applicable to any Person within the GFL
Group or any of their respective properties or assets, (iii) violate in any
material respect any
15
Applicable
Law or (iv) result in any conflict with, breach of or default (or give rise to
any right of termination, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, warrant
or other similar instrument or any license, permit, material agreement or other
material obligation to which any Person within the GFL Group is a party or by
which any Person within the GFL Group or any of their respective properties or
assets may be bound. No action, consent or approval by, or filing with, any
Governmental Authority or any other regulatory or self regulatory body, or any
other Person, is required in connection with the execution, delivery or
performance by any Person within the GFL Group of the Operative Agreements to
which it is a party or the consummation by any Person within the GFL Group of
the transactions contemplated thereby.
Section
4.07. Compliance
with Applicable Laws. Each
of GFL and each other Person within the GFL Group is in compliance in all
material respects with all Applicable Laws and any filing requirements relating
thereto.
Section
4.08. Litigation;
Decrees. (a)
Other than in the case of subclause (i) as may exist with respect to the
Original Aircraft on the Closing Date, or other Aircraft Assets which in good
faith are believed by GFL to be fully covered by insurance, there are no
claims, actions, suits, arbitrations or other proceedings or investigations (i)
pending or, to the best knowledge of each of GFL and each other Person within
the GFL Group, threatened, by or against or affecting GFL or any other Person
within the GFL Group, which in any case involves a potential loss exceeding
$1,000,000 and (ii) pending, or to the best knowledge of each of GFL and each
other Person within the GFL Group, threatened, by or against or affecting GFL
or any other Person within the GFL Group, related to the transactions
contemplated by the Operative Agreements.
(b) Each of
GFL and each other Person within the GFL Group is in compliance in all material
respects with each outstanding judgment, order or decree (other than as may
exist with respect to the Aircraft Assets) of any Governmental Authority or
arbitrator applicable to GFL or any other Person within the GFL Group, as the
case may be, and no such judgment, order or decree has or could have a Material
Adverse Effect on GFL or any other Person within the GFL Group, or on the
Servicer.
Section
4.09. Appointments. (a)
Each Person within the GFL Group has appointed GFL, and GFL has accepted such
appointment, to act as representative of each such Person with respect to any
matter in respect of which GFL or any other Person within the GFL Group is
required or permitted to take any action pursuant to the terms of this
Agreement.
(b) GFL has
appointed the Manager to act on its behalf and on behalf of each of its
Subsidiaries pursuant to the terms of the Management Agreement and GFL has
appointed the Manager, on a revocable basis, to act on its behalf in connection
with any action required or permitted to be taken by GFL on its own behalf or
on behalf of any other Person within the GFL Group pursuant to the terms of
this Agreement.
The
Servicer represents and warrants to GFL as follows:
Section
4.10. Authority.
(a) The Servicer is a limited liability company duly created under the
laws of Ireland, and, if relevant, in good standing under the laws of Ireland,
and possesses all franchises, licenses, permits, authorizations and approvals
necessary under the laws of Ireland to enable it to use its corporate name and
to own, lease or otherwise hold its properties and assets and to carry on its
business as presently conducted and as proposed to be conducted except for such
franchises, licenses, permits, authorizations and approvals the failure of
which to obtain could not, individually or in the aggregate, have a Material
Adverse Effect on the Persons within the GFL Group, taken as a whole, or on the
Servicer. The Servicer has all requisite power and authority to execute each
Operative Agreement to which it is or will be a party and to consummate the
transactions and to perform its obligations
16
contemplated
thereby. All corporate acts and other proceedings required to be taken by the
Servicer to authorize the execution, delivery and performance of each Operative
Agreement to which it is or will be a party and the consummation of the
transactions and the performance of its obligations contemplated thereby have
been or on or before the date of entering into the relevant Operative
Agreements will have been duly and properly taken.
(b) Each of
the Operative Agreements to which the Servicer is or will be a party has been
or will be duly and validly executed and delivered by the Servicer, as
applicable, and each such Operative Agreement is or upon such execution and
delivery will be a legal, valid and binding obligation of the Servicer,
enforceable against it in accordance with its terms.
Section
4.11. No
Conflicts.
Neither the execution and delivery of any Operative Agreement to which the
Servicer is a party nor the consummation of the transactions contemplated
thereby nor performance by the Servicer of any of its obligations thereunder
will (i) violate any provision of the constituent documents of the Servicer,
(ii) violate any order, writ, injunction, judgment or decree applicable to the
Servicer or any of its properties or assets, (iii) violate in any material
respect any Applicable Law or (iv) result in any conflict with, breach of or
default (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, warrant or other similar instrument or any license,
permit, material agreement or other material obligation to which the Servicer
is a party or by which the Servicer or any of its properties or assets may be
bound. No action, consent or approval by, or filing with, any Governmental
Authority or any other regulatory or self-regulatory body, or any other Person,
is required in connection with the execution, delivery or performance by the
Servicer of the Operative Agreements to which it is a party or the consummation
by the Servicer of the transactions contemplated thereby.
Section
4.12. Compliance
with Applicable Laws of Ireland. The
Servicer is in compliance in all material respects with all Applicable Laws of
Ireland and any filing requirements in Ireland relating thereto necessary to
perform its obligations under this Agreement.
Section
4.13. Litigation;
Decrees.
(a) There are no claims, actions, suits, arbitrations or other proceedings
or investigations pending, or to the best knowledge of the Servicer,
threatened, by or against or affecting the Servicer related to the transactions
contemplated by this Agreement.
(b) The
Servicer is in compliance in all material respects with each judgment, order or
decree (other than may exist with respect to the Aircraft Assets) of any
Governmental Authority or arbitrator applicable to the Servicer, and no such
judgment, order or decree has or could have a Material Adverse Effect on GFL or
any Person within the GFL Group, or on the Servicer.
ARTICLE
V
Servicer
Undertakings
Section
5.01. Access. The
Servicer at such times as GFL may reasonably request shall grant, and shall
cause any Servicer Delegate to grant, to the Persons within the GFL Group and
their agents (including the Manager and auditors), to the extent party to
confidentiality agreements acceptable to the Servicer, access to the documents
and other records generated by the Servicer (and in its possession) as part of
its performance of the Services (exclusive of internal correspondence, approval
materials, internal evaluations and similar documents or other records
developed by the Servicer or any of its Affiliates for their own use) or by a
Lessee and delivered to the Servicer, and related to the Aircraft Assets
(copies of which GFL shall (at its expense) be entitled to take), to enable the
Persons within the GFL Group and Genesis to monitor the performance by the
Servicer under this Agreement or to otherwise discharge their respective
obligations under Applicable Law (including applicable securities laws). Upon
reasonable
17
prior
written notice and at reasonable times (in any event not more than an
aggregate, with respect to the GFL Group and Genesis taken as a whole, of four
(4) times per Year), the Servicer shall make one or more (such number to be
determined by the Servicer in good faith but sole discretion) members of its
management available to attend (including by telephone) meetings of the board
of directors of GFL, at which a representative of the Policy Provider may be
present. In addition, the Servicer will make one or more members of its
management available to participate in additional meetings of such board of
directors either, in the Servicer’s sole discretion, by participating in
person or by teleconference. Any out-of-pocket expenses incurred by the
Servicer in connection with any such attendance shall be reimbursed by GFL. In
addition to the foregoing, the Servicer shall provide, subject to
Section 13.04, to the Policy Provider the reports described in
Section 9 of Schedule 2.02(a) as to be provided to the Policy
Provider. Unless and until an Event of Default has occurred or is occurring,
none of Genesis, the Manager or any Person in the GFL Group shall provide to
the Policy Provider any information or data given to Genesis, the Manager or
any Person in the GFL Group pursuant to this Servicing Agreement except
information and data to be provided to the Policy Provider as set forth in
Section 9 of Schedule 2.02(a).
Section
5.02. Compliance
with Law. The
Servicer shall, in connection with the performance of the Services, comply in
all material respects with all laws, rules and regulations applicable to the
Servicer.
Section
5.03. Commingling. The
Servicer shall not commingle, with its own funds, or the funds of other Persons
for which it acts as lease servicer or manager, any funds of any Person within
the GFL Group from time to time in its possession.
Section
5.04. Restrictions
on Exercise of Certain Rights.
Without limiting the Servicer’s rights under the Security Trust Agreement,
the Servicer shall not take any steps for the purpose of procuring the
appointment of an administrative receiver or the making of any administrative
order or for instituting any bankruptcy, reorganization, arrangement,
insolvency, winding up, liquidation, composition or any similar proceeding
under the laws of any jurisdiction with respect to any Person within the GFL
Group or any of the Aircraft Assets.
Section
5.05. Coordination
with GFL Group. The
Servicer shall designate an individual who shall be an employee of the Servicer
and who shall be primarily responsible for coordinating with GFL and any other
Person within the GFL Group regarding the Services, and the Servicer may from
time to time change such designation by providing written notice to GFL of such
change.
Section
5.06. Corporate
Formalities. The
Servicer will observe all corporate formalities necessary to remain a legal
entity separate and distinct from, and independent of, each member of the GFL
Group and will maintain its assets, liabilities, funds, records, books and
accounts separate and distinct from those of each member of the GFL
Group.
ARTICLE
VI
Undertakings
of GFL
Section
6.01. Cooperation. GFL
shall, and shall cause each other Person within the GFL Group and their
respective agents (including the Manager and the Cash Manager) to, at all times
cooperate with the Servicer to enable the Servicer to provide the Services,
including providing the Servicer with all powers of attorney as may be
reasonably necessary or appropriate for the Servicer to perform the
Services.
Section
6.02. No
Representation with Respect to Third Parties. GFL
agrees that as between the Servicer, on the one hand, and each of GFL and the
other Persons within the GFL Group and Genesis and
18
its
Affiliates, on the other hand, no representation is made as to the financial
condition and affairs of any Lessee of, or purchaser of, any Aircraft Asset or
any vendor or supplier utilized by or any other Person party to a contract with
the Servicer or any Person within the GFL Group in connection with
Servicer’s performance of the Services.
Section
6.03. Related
Document Amendments. GFL
shall not take, and shall not permit any other Person within the GFL Group or
Genesis or any of its Affiliates to take, any action that would increase in any
respect the scope, nature or level of the Services to be provided under this
Agreement without the Servicer’s express prior written consent, including
by entering into, amending, modifying or supplementing any Aircraft Assets
Related Document (it being understood that (i) the Servicer shall have no
liability to any Person directly or indirectly arising out of, in connection
with or related to, the Servicer’s failure to perform such increased
Service prior to any such amendment, modification or supplement being consented
to in writing by the Servicer and (ii) no Person within the GFL Group or
Genesis or any of its Affiliates shall be permitted to engage another Person to
perform the affected Service without the prior written consent of the
Servicer).
Section
6.04. Exclusivity. Except
as otherwise expressly provided in Sections 2.04(b), 3.02(c) and 10.04 of this
Agreement, GFL shall not, and shall not permit any other Person within the GFL
Group or any agent of any Person thereof (including the Manager or the Cash
Manager) or Genesis or any of its Affiliates to, enter into, or cause or permit
any Person (other than the Servicer or any Person acting for or on its behalf)
to enter into on its behalf, (a) any transaction for the lease or sale of
any Aircraft Asset in respect of which the Servicer is at such time performing
Services or (b) any agreement for the performance by any Person other than the
Servicer of some or all of the Services, in the case of (a) and
(b) without the prior written consent of the Servicer.
Section
6.05. Communications. GFL
shall, and shall cause each other Person within the GFL Group and the Manager
and the Cash Manager to, forward promptly to the Servicer a copy (or, if such
communication is oral and from a Lessee in respect of an Aircraft Asset or
Aircraft Asset purchaser, notify the Servicer by prompt oral or written notice
and, if oral notice, confirmed in writing upon request) of any written
communication received from any Person (including any Person under any Aircraft
Assets Related Document) in relation to any Aircraft Asset or oral
communication received from a Lessee in respect of an Aircraft Asset or
Aircraft Asset purchaser in relation to any Aircraft Asset.
Section
6.06. Ratification. GFL
hereby ratifies and confirms and agrees to ratify and confirm (and shall cause
each other Person within the GFL Group to do the same) (and shall furnish
written evidence thereof upon request of the Servicer) whatever the Servicer
does in accordance with this Agreement in the exercise of any of the powers or
authorities conferred upon the Servicer under the terms of this
Agreement.
Section
6.07. Additional
Aircraft Assets. If any
Aircraft Asset shall become a Former Aircraft Asset pursuant to the provisions
of Section 2.04 and thereafter the condition which caused such Former Aircraft
Asset to cease to be an Aircraft Asset shall no longer exist or the transaction
entered into as contemplated by Section 2.04(b) shall terminate, then GFL
shall, and shall require each other Person within the GFL Group, as
appropriate, to, cause, as and to the extent commercially feasible, such Former
Aircraft Asset to become an Aircraft Asset and the Servicer shall accept such
Aircraft Asset as an Aircraft Asset, such action to be confirmed by an exchange
of correspondence to such effect.
Section
6.08. Execution,
Amendment, Modification or Termination of Aircraft Assets Related
Documents. (a) In
connection with the acquisition of any Aircraft (other than any Former Aircraft
Asset) which becomes an Aircraft Asset other than pursuant to the Asset
Purchase Agreement, no later than ten Business Days prior to such Aircraft
becoming an Aircraft Asset, GFL shall deliver a written notice thereof to the
Servicer setting forth the model type and manufacturer’s serial number of
such Aircraft and
19
the
Person within the GFL Group which will become the owner of such Aircraft upon
its acquisition, together with (x) a true and complete list all documents
related to such Aircraft which will become Aircraft Assets Related Documents
upon the acquisition of such Aircraft and (y) a true and complete copy of each
document which will become an Aircraft Assets Related Document upon the
acquisition of such Aircraft or, to the extent it has yet to be executed, the
most current draft of such document (with a final executed copy to be delivered
as promptly as practicable thereafter). GFL will be deemed to represent and
warrant to, and agree with, the Servicer on the date such Aircraft becomes an
Aircraft Asset that (i) the Person within the GFL Group listed as the owner of
such Aircraft in the written notice provided by GFL will have such title to
such Aircraft as was conveyed to such Person on its acquisition free and clear
of all Liens created by or through such Person, (ii) each Aircraft Assets
Related Document related to such Aircraft is a legal, valid and binding
agreement of the Person within the GFL Group that is a party thereto (including
by way of assignment or novation) and is enforceable against such Person within
the GFL Group that is a party thereto in accordance with its terms and (iii) no
Person within the GFL Group has modified, amended or waived any provision of or
terminated any Aircraft Assets Related Document referred to in such written
notice provided by GFL except as disclosed therein. The Servicer shall not be
required to perform any services provided for in or in connection with any
Aircraft Assets Related Documents not delivered to it, and, to the extent that
the failure to provide such service results in any Losses to the Servicer, GFL
shall indemnify the Servicer for such Losses on an After-Tax Basis, in
accordance with the provisions of Article XI.
(b) No later
than five Business Days after the date that (i) any agreement, instrument or
other document becomes an Aircraft Assets Related Document (other than as
contemplated in Section 6.08(a)) or (ii) any Aircraft Assets Related Document
shall have been amended, modified or terminated, GFL shall deliver written
notice thereof to the Servicer together with (x) in the case of any newly
executed Aircraft Assets Related Document, a true and complete copy of such
Aircraft Assets Related Document, a list of all Aircraft Assets to which it
relates and a description, in reasonable detail, of the relevance of such
Aircraft Assets Related Document to such assets or (y) in the case of any
amendment, modification or termination, a true and complete copy of any related
agreement, instrument or other document; provided,
however, that
such notice or such document shall not be required to be delivered, but shall
be delivered if the Servicer does not have possession of such notice or
document, delivery is so requested by the Servicer and GFL has possession of
such notice or document, if the Servicer was substantially involved in the
preparation and execution of such new, amended, modified or terminated
agreement, instrument or other document.
Section
6.09. Access
to GFL Group Information. At all
such times as the Servicer may reasonably request, GFL shall cause each other
Person within the GFL Group and the Manager to grant, access to the Servicer
and its agents to the books of account, documents and other records of such
Person (including “read only” and reporting access to the management
information systems used by such Persons), and to officers, directors (or
trustees, as applicable) and employees of each Person within the GFL Group,
Genesis or any such agent for the purposes of the Servicer’s performance
of its obligations in respect of Aircraft Assets under this Agreement;
provided,
however, that
Genesis and its Affiliates that are not Persons within the GFL Group shall have
no obligation to provide information that does not relate to an Aircraft Asset
and is confidential or proprietary. GFL will provide the Servicer with copies
of the minutes of the board of directors of GFL and any written materials
presented to the board by any Person, including the Manager.
Section
6.10. GFL
Group Accounts and Cash Arrangements.
(a) GFL shall not, and shall not permit any other Person within the GFL
Group or any agent thereof to, establish any new bank or similar account
relating to the Aircraft Assets or close any bank or similar account relating
to the Aircraft Assets other than in accordance with the terms of the
Indenture, the Security Trust Agreement or the Cash Management
Agreement.
20
(b) No
Person within the GFL Group shall modify any arrangement with respect to any
bank or similar account or the flow of cash in connection with the Aircraft
Assets other than in accordance with the terms of the Indenture, the Security
Trust Agreement or the Cash Management Agreement.
Section
6.11. [Intentionally
Left Blank].
Section
6.12. Further
Assurances. GFL
agrees and shall cause each other Person within the GFL Group and their
respective agents (including the Manager and the Cash Manager) to agree, that,
at any time and from time to time, upon the written request of the Servicer, it
will execute and deliver such further documents and do such further acts and
things, after a reasonable period for review thereof, as the Servicer may
reasonably request in order to effect the purposes of this
Agreement.
Section
6.13. Guarantees. GFL
represents, warrants and agrees that it has full power and authority to bind
each of the Persons within the GFL Group to this Agreement and that each of
such Persons is bound by this Agreement and will perform its obligations
hereunder. In furtherance of the foregoing, but not in limitation thereof, GFL
agrees that it shall cause each other Person within the GFL Group with respect
to which the Servicer so request to execute and deliver an accession agreement,
in form or substance reasonably acceptable to the parties hereto, pursuant to
which such Person becomes a party hereto or to execute and deliver a GFL Group
Guarantee in favor of the Servicer in the form attached hereto as Appendix
B.
Section
6.14. Transfers
of Funds. GFL
agrees and shall cause each other Person within the GFL Group and their
respective agents (including the Manager and the Cash Manager), to cooperate
with the Servicer to the extent necessary to cause funds to be transferred into
or out of the various Bank Accounts in order for the various payments from
Lessees to be applied, or to Lessees to be made, on a basis consistent with the
instructions of such Lessees, subject in each case to the terms of the Leases
and the rights and obligations of the lessors thereunder.
ARTICLE
VII
GFL
Group Responsibility
Section
7.01. GFL
Group Responsibility.
Notwithstanding the appointment of the Servicer to perform the Services and the
related delegation of authority and responsibility to the Servicer pursuant to
this Agreement, each of GFL and each other Person within the GFL Group shall
continue to have and exercise through its board of directors or trustees, as
the case may be, as applicable, real and effective central control and
management of all matters related to its ongoing business, operations, assets
and liabilities, subject to matters that are expressly the responsibility of
the Servicer in accordance with the terms of this Agreement, and each of GFL
and each other Person within the GFL Group shall at all times conduct its
separate ongoing business in such a manner that the same shall at all times be
readily identifiable from the separate business of the Servicer. Matters with
respect to which responsibility is not being delegated to the Servicer shall
include but are not limited to the matters set forth in Schedule 7.01. Without
limiting the generality of the foregoing, each of GFL and each other Person
within the GFL Group agrees as follows:
(a) it will
observe all corporate formalities necessary to remain a legal entity separate
and distinct from, and independent of, the Servicer, and any of its
Affiliates;
(b) it will
maintain its assets and liabilities separate and distinct from those of the
Servicer;
21
(c) it will
maintain records, books, accounts, and minutes separate from those of the
Servicer;
(d) it will
pay its obligations in the ordinary course of business as a legal entity
separate from the Servicer;
(e) it will
keep its funds separate and distinct from any funds of the Servicer, and it
will receive, deposit, withdraw and disburse such funds separately from any
funds of the Servicer;
(f) it will
conduct its business in its own name, and not in the name of the
Servicer;
(g) it will
not agree to pay or become liable for any debt of the Servicer, other than to
make payments in the form of indemnity as required by the express terms of this
Agreement;
(h) it will
not hold out that it is a division of the Servicer, or that the Servicer is a
division of it;
(i) it will
not induce any third party to rely on the creditworthiness of the Servicer in
order that such third party will be induced to contract with it;
(j) it will
not enter into any transactions between it and the Servicer that are more
favorable to either party than transactions that the parties would have been
able to enter into at such time on an arm’s-length basis with a
non-affiliated third party, other than any agreements in effect on the date
hereof (it being understood that the parties hereto do not intend by this
covenant to ratify any self-dealing transactions);
(k) it will
observe all corporate or other procedures required under Applicable Law and
under its constitutive documents; and
(l) it will
observe all corporate formalities necessary to keep its business separate and
readily identifiable from, and independent of, each other Person within the GFL
Group, including keeping the funds, assets and liabilities of each such Person
separate and distinct from those of each other Person within the GFL Group and
by maintaining separate records, books, accounts and minutes for each Person
within the GFL Group.
Section
7.02. Performance
with Respect to Aircraft Assets. GFL
has directed the Servicer to, and the Servicer will, perform the Services in a
manner that is intended to be consistent with maximizing the cash flows derived
from the leases relating to the Aircraft Assets over time, subject to the
constraints imposed by the Indenture and this Agreement and by seeking to
achieve a balanced and diversified portfolio (including with respect to
lessees, geography and lease term lengths), in all cases taking into account
the then-existing and anticipated market conditions affecting the operating
lease of used aircraft and the commercial aviation industry generally. GFL
understands and acknowledges the inherent uncertainty in determining market
conditions at any point in time as well as the inherent limitations in
anticipating market conditions from time to time. It is expressly understood
that this Section 7.02 does not impose any higher or different standard of care
or liability than is set forth in Article III.
Section
7.03. Lease
Operating Budget; Aircraft Asset Expenses Budget.
(a) GFL shall adopt with respect to each year during the term of this
Agreement, in accordance with Sections 7.03(b), (c) and (d), (i) a single
lease operating budget with respect to all Aircraft Assets (the
“Lease
Operating Budget”)
and (ii) a single budget with respect to the Aircraft Asset expenses related to
all Aircraft Assets (the “Aircraft
Asset Expenses Budget”);
provided,
however, that,
with respect to the Year commencing January 1, 2007, GFL shall have adopted the
Lease Operating Budget and the Aircraft Asset Expenses
22
Budget
for such Year that are attached to a certificate delivered by GFL to the
Servicer on the Closing Date.
(b) In
respect of each Year during the term of this Agreement, it is understood that
the Manager shall prepare on behalf of the GFL Group, and not later than the
October 31 immediately preceding the commencement of such Year deliver to the
Servicer (other than with respect to the fiscal year commencing January 1,
2007), a proposed Lease Operating Budget and a proposed Aircraft Asset Expenses
Budget for such Year together with reasonably detailed information regarding
the assumptions underlying such proposed budgets.
(c) In
connection with the preparation of such proposed Lease Operating Budget and
Aircraft Asset Expenses Budget, the Servicer shall provide the Manager, not
later than the September 30 immediately preceding the commencement of such Year
(other than with respect to the fiscal year commencing January 1, 2007),
information in a form to be agreed from time to time relating to
(i) Aircraft Assets lease rates, Utilization Rent, Aircraft redelivery
payments, and Deposits (including interest, if any, thereon), (ii) Aircraft
Assets downtime, (iii) direct technical expenditures (including any costs
to be capitalized) relating to the Aircraft Assets, (iv) indirect costs
relating to insurance, legal, consulting and other similar expenses and
(v) such other Aircraft Assets expense related information as may be
reasonably required to prepare such budgets, in each case including the
assumptions relating thereto. The Servicer shall only be obligated to provide
expense-related information to the Manager pursuant to this Section 7.03(c) to
the extent that such information relates to the Services performed by the
Servicer hereunder. GFL shall ensure that the Manager is instructed to prepare
each such proposed Lease Operating Budget and proposed Aircraft Asset Expenses
Budget on a timely basis and that the Manager cooperates
therewith.
(d) After
the delivery of such proposed Lease Operating Budget and Aircraft Asset
Expenses Budget as described in Sections 7.03(b) and (c), the Servicer and the
Manager shall review and discuss such proposed Lease Operating Budget and
Aircraft Asset Expenses Budget and shall make such adjustments thereto as they
shall deem appropriate, and the revised proposed Lease Operating Budget and
proposed Aircraft Asset Expenses Budget in respect of any Year shall then be
submitted no later than the December 1 preceding such Year to GFL for its
consideration and approval (other than with respect to the fiscal year
commencing January 1, 2007). The approved Lease Operating Budget and Aircraft
Asset Expenses Budget for any Year, as each may be amended or modified from
time to time, shall hereinafter be referred to as the “Approved
Budget”.
Each Approved Budget shall be consistent with, and not in any manner reduce,
limit or circumscribe, the delegation to the Servicer pursuant to this
Agreement (including pursuant to Section 7.04) of a practical and workable
level of autonomy, authority and responsibility with respect to the performance
of the Services.
(e) If GFL
does not adopt any Approved Budget for any Year as contemplated by Section
7.03(d) or if, after an Approved Budget is adopted, GFL shall determine that
any Changed Circumstances have occurred and are continuing, then GFL shall
instruct the Servicer and the Manager, on behalf of the GFL Group, to review
and, to the extent possible, revise the Lease Operating Budget and Aircraft
Asset Expenses Budget in such a manner as to adequately address the concerns of
GFL and/or such Changed Circumstances (it being understood that, subject to the
last sentence of Section 7.03(d), GFL may instruct the Servicer not to proceed
with a Lease Operating Budget and an Aircraft Asset Expenses Budget approved by
GFL if GFL determines that any proposed revisions do not adequately address the
concerns of GFL and/or such Changed Circumstances).
(f) Notwithstanding
any other provision hereof, the Servicer shall have no liability for the
failure of the Approved Budget for any Year to be achieved.
23
Section
7.04. Transaction
Approval Requirements.
(a) The Servicer shall not do any of the following without the express
prior written approval of GFL:
(i) Except
as otherwise required in accordance with the terms of any Lease or the Asset
Purchase Agreement, sell (or enter into any agreement to sell) or otherwise
dispose of any Aircraft (excluding any sale or exchange of any Engine, parts or
components thereof or aircraft or engine spare parts or ancillary equipment or
devices furnished therewith) forming part of the Aircraft Assets; provided,
however, that
the Servicer may transfer title or another interest in an Aircraft, or cause it
to be subject to a lease, (x) to or in favor of a trust or an entity that is
not a Person in the GFL Group for the purpose of registering the Aircraft under
the laws of an applicable jurisdiction or for tax or other regulatory purposes
so long as a Person in the GFL Group retains the beneficial or economic
ownership of the Aircraft (provided that without the consent of GFL at any one
time not more than five Aircraft may be subject to the arrangements described
in this clause or to arrangements in which Persons that are within the GFL
Group hold equity interests in a GFL Group member to the extent they cause
title to more than such number of Aircraft to be held by Persons that are not
Persons in the GFL Group), (y) from such trust or entity to a Person
within the GFL Group or (z) within or among GFL and its Subsidiaries without
limitation, or in any case as required in accordance with the terms of any
Lease in effect on the date hereof.
(ii) Enter
into any new Lease (or any renewal or extension of an existing Lease, unless
any such Lease being renewed or extended had previously been approved pursuant
to this Section 7.04(a) or if any such Lease contains an extension option and
such option is being exercised in accordance with the terms of such Lease) of
Aircraft Assets if the Lease shall not comply with all the applicable
provisions of Sections 5.02 and 5.03 of the Indenture expressly applicable to
the leasing of such Aircraft Assets as set forth in Section 2.1 of Schedule
2.02(a) or if the Lease grants a purchase option in favor of the Lessee (it
being agreed that a right of first refusal or right of first offer is not a
purchase option for purposes hereof).
(iii) Terminate
any Lease or Leases to any single Lessee with respect to any Aircraft Assets
then having an aggregate depreciated net book value on the books of the
applicable Person(s) within the GFL Group in excess of $100,000,000 unless such
Lease or Leases is substituted or replaced by another substantially similar
Lease or Leases with respect to such Aircraft Assets.
(iv) Unless
provided for in the then current Approved Budget (including the provisions of
Section 7.03(e)), enter into any contract to make any capital expenditure for
the purpose of effecting any optional improvement or modification of any
Aircraft Asset, including any optional conversion thereof from passenger to a
freighter or mixed use aircraft, except for capital expenditures made in the
ordinary course of business in connection with the sale or lease of an Aircraft
Asset, or enter into any contract for maintenance of any Aircraft Asset if the
costs to be incurred thereunder by the applicable Person within the GFL Group
exceed the greater of (1) the estimated aggregate cost of the heaviest or most
extensive maintenance check for the airframe and a total refurbishment and full
restoration shop visit of the engines for Aircraft Assets of the type in
question, in each case based on then prevailing industry rates in the United
States or Europe, and (2) the amount of the available utilization rent or other
payments or other collateral under the applicable Lease.
(v) Issue
any Guarantee on behalf of, or otherwise pledge the credit of (other than with
respect to trade payables in the ordinary course of the GFL Group’s
business), any Person within the GFL Group, except for guarantees by GFL or any
other Person within the GFL Group of the obligations of any other Person within
the GFL Group (including in connection with
24
a Lease
or the sale of an Aircraft Asset), and, so long as the out-of-pocket cash
payment or cash collateral deposit in respect thereof does not exceed
$3,000,000 in any individual case (and not in the aggregate), any Lien or
indebtedness created in favor of the issuer of a surety bond, letter of credit
or similar instrument to be obtained by or for the benefit of any Person within
the GFL Group in connection with the detention or repossession of an Aircraft
or enforcement action under a Lease or removal of a Lien.
(vi) Except
as specifically contemplated by Schedule 2.02(a), on behalf of any Person
within the GFL Group, enter into, amend or grant a waiver with respect to, any
transaction with GE Capital or any of its Affiliates (including GE and its
Affiliates), including for the acquisition, sale or lease of any Aircraft
Assets from or to, or the obtaining or provision of services by, any such
Person (except for the acquisition, sale, exchange or lease of or services in
respect of any Engine, parts or components thereof or aircraft or engine spare
parts, components or ancillary equipment or devices furnished
therewith).
(vii) Incur on
behalf of any Person within the GFL Group any liability (actual or contingent)
or cause any such liability to be incurred, except for a liability (A)
contemplated in the then current Approved Budget, (B) arising out of, in
connection with or related to a transaction of a type which is otherwise
subject to approval under this Section 7.04 and is in fact so approved or, due
to the existence of an exception, limitation or other carve out contained
therein or in any definition therein, is not subject to approval under the
relevant provision of this Section 7.04, (C) incurred in the ordinary course of
the GFL Group’s business, including, but not limited to, liabilities
related to such matters specified in Schedule 7.04 so long as no individual
(and not aggregate) net out-of-pocket cash expenditure exceeds $3,000,000, or
(D) incurred pursuant to a Lease or sale of an Aircraft Asset, in entering into
the Lease or sale contract or performing any obligations as lessor or seller
thereunder; provided,
however, that
the exception contained in clause (C) above is not intended to override any
other restriction contained in this Agreement (other than this clause (vii))
relating to the incurrence of any liability referred to in such clause
(C).
(viii) Enter
into on behalf of GFL or any Person within the GFL Group, any order or
commitment to acquire, or acquire on behalf of the GFL Group, aircraft or,
except as otherwise provided in Section 4(e) of Schedule 2.02(a), so long as no
individual (and not aggregate) net (after credit for any exchanges,
replacements or similar items) out-of-pocket cash purchase price exceeds
$3,000,000, aircraft engines, except, in the case of aircraft engines (A) in
accordance with any Lease or for the benefit of a Lessee pursuant to a Lease or
(B) to acquire a replacement engine for an Aircraft so long as the same is
provided for in the then current Approved Budget;
provided,
however, that,
before the Servicer shall effect (or cause to be effected) any optional
improvement or modification of any Aircraft Asset not permitted pursuant to any
of the foregoing clauses (i) through (viii), or effect any optional conversion
of any Aircraft Asset from a passenger aircraft to a freighter or mixed-use
aircraft that is not expressly provided for in the Approval Budget or purchase
or otherwise acquire any Engines or Parts not permitted pursuant to any of the
foregoing clauses (i) through (viii), the Servicer shall request that GFL
deliver to the Servicer a certificate certifying that such action will not
violate Section 5.02(i) of the Indenture, such certificate to be delivered to
the Servicer within seven Business Days after such request therefor, and the
Servicer shall not undertake such action pending receipt of such
certificate.
(b) Any
transaction entered into by the Servicer on behalf of any Person within the GFL
Group (other than with other Persons within the GFL Group), including with GE
or any of its Affiliates,
25
shall be
on an arm’s-length basis and on fair market value terms, unless otherwise
agreed by the Board of Directors of GFL on behalf of any such Person within the
GFL Group.
(c) The
transaction approval requirements (the “Transaction
Approval Requirements”)
set forth in this Section 7.04 may only be amended by mutual agreement of the
parties, and shall not in any event be amended to reduce, or circumscribe the
delegation to the Servicer of, the level of autonomy, authority and
responsibility contemplated by the Transaction Approval Requirements with
respect to the performance of the Services. Any rejection by GFL of any
proposed transaction submitted to it by the Servicer pursuant to the
Transaction Approval Requirements shall only be applicable to such portions of
any such proposed transaction as are specifically required to be approved as
set forth in Section 7.04(a).
(d) GFL
shall provide the Servicer with a response confirming its approval or rejection
of any proposed transaction submitted to it by the Servicer as promptly as
practicable following its receipt of a proposal from the Servicer and in any
event not more than three Business Days after receipt of such a proposal. If
such response is not received by the Servicer within such three Business
Days’ period after GFL’s receipt of such proposal, such proposal
shall be deemed rejected. In the event that the board of directors of GFL, a
duly authorized committee thereof or the Manager fails to approve of any
transaction with respect to which an approval is required pursuant to the
Transaction Approval Requirements and in respect of which the Servicer has
submitted a reasonably detailed written proposal, GFL shall provide a
reasonably detailed written explanation for any such rejection to the Servicer
simultaneously with notifying the Servicer of such rejection. The Servicer is
not required to take any action with respect to any transaction for which
approval was sought pending receipt of such explanation.
Section
7.05. Approved
Budgets and Transaction Approval Requirements. Except
as set forth in Section 7.04(a), no transaction entered into by the Servicer on
behalf of any Person within the GFL Group in connection with the performance by
the Servicer of the Services shall require the approval of any Person within
the GFL Group or its board of directors or trustees, as applicable, or any
committees thereof, or the Manager or the Cash Manager; provided,
however, that
nothing set forth in this Article VII shall prohibit the Servicer from seeking
any approval or direction from GFL with respect to any matter related to the
Services or the Aircraft Assets to the extent that the Servicer believes to be
appropriate and, pending the Servicer’s receipt of any such approval or
direction, the Servicer may refrain from taking any action with respect to the
matter for which the Servicer has sought approval or direction.
ARTICLE
VIII
Effectiveness
Section
8.01. Effectiveness. The
effectiveness of this Agreement and all obligations of the parties hereunder
shall be conditioned upon satisfaction (or waiver by the appropriate party) of
the conditions set forth in Schedule 8.01.
ARTICLE
IX
Servicing
Fees; Expenses; Taxes;
Priority
of Servicing Fees
Section
9.01. Servicing
Fees.
(a) In consideration of the Servicer’s performance of the Services,
GFL agrees to pay to the Servicer servicing fees consisting of (i) the monthly
base fee set forth in Section 9.02 (“Monthly
Base Fee”),
(ii) the rent fees set forth in Section 9.03 (“Rent
Fees”),
and (iii) the sales fee set forth in Section 9.04 (“Sales
Fee”).
26
(b) GFL
agrees to provide the Servicer (with a copy to the Manager) with any
information in a timely manner that the Servicer may reasonably request to
enable the Servicer to determine the timing and amount of any payment that the
Servicer is entitled to receive pursuant to this Agreement.
Section
9.02. Monthly
Base Fee. A
Monthly Base Fee equal to $150,000 shall be payable by GFL to the Servicer in
arrears on each Payment Date during the Term of this Agreement; provided,
however, that
in the event that any Aircraft (other than any Former Aircraft Asset) shall
become an Aircraft Asset after the Closing Date other than pursuant to the
Asset Purchase Agreement, then the Monthly Base Fee will be increased by an
additional amount equal to 0.01% of the Base Value of such additional Aircraft
Asset on the date it becomes an Aircraft Asset to reflect the addition of such
Aircraft.
Section
9.03. Rent
Fees.
(a) Rent Fees shall consist of the Rent Payable Fee and the Rent Collected
Fee. The Rent Fees shall be calculated by the Servicer and payable by GFL as
follows:
(i) A Rent
Payable Fee shall be payable by GFL to the Servicer in arrears for each period
commencing on the Closing Date (or, thereafter, the fourth Business Day prior
to the most recent Calculation Date) and ending on the fourth Business Day
prior to the next succeeding Calculation Date during the term of this Agreement
(each such period, a “Fee
Period”),
such payment to be made no later than the Payment Date immediately following
the end of each such Fee Period.
The
“Rent
Payable Fee”
in respect of any Fee Period shall equal one percent (1.00%) of the aggregate
amount of the Rents due from each Lessee attributable to such Fee Period, or
portion of such Fee Period in which the relevant Aircraft constitutes an
Aircraft Asset; provided,
however, that,
in the event of an early termination of a Lease relating to any Aircraft Asset
for any reason (other than by reason of the occurrence of an event of loss or
exercise of a purchase option), the Rents which would have been payable
pursuant to such Lease but for such early termination will be included in this
calculation of the Rent Payable Fee until the earlier of (a) the date on which
Rents shall become payable in respect of such Aircraft Asset pursuant to
another Lease (the Rents of which shall be included in this calculation of the
Rent Payable Fee) and (b) the day that numerically corresponds to the first
date by which such Aircraft Asset and related Aircraft Documents shall have
been physically repossessed by the Servicer following such early termination in
(or, if no such day exists, the last day of) the calendar month that is the
third month after the month in which such date occurs.
(ii) A Rent
Collected Fee shall be payable by GFL to the Servicer in arrears for each Fee
Period, such payment to be made no later than the Payment Date immediately
following the end of each such Fee Period.
The
“Rent
Collected Fee”
in respect of any Fee Period shall equal one percent (1.00%) of the aggregate
amount of the Rents actually paid by each Lessee and, if any Lessee fails to
pay any Rent when due, amounts applied towards such payment during such Fee
Period or portion of such Fee Period in which the relevant Aircraft constitutes
an Aircraft Asset; provided,
however, that
if any collateral security, including any security deposit, is applied to the
payment of Rent, then, for purposes of calculating the Rent Collected Fee, the
amounts so applied shall not be included as Rent at the time of such
application but shall be so included at such time as any Person within the GFL
Group shall receive substitute collateral security or a payment (whether in the
form of Rent or otherwise) which restores, in whole or in part, such collateral
security.
(b) Not less
than four Business Days prior to each Payment Date immediately following the
end of each Fee Period, the Servicer shall deliver a written notice to GFL
specifying the amount of the Rent Payable Fee and the amount of the Rent
Collected Fee payable in respect of such Fee Period.
27
Section
9.04. Sales
Fee.
(a) A Sales Fee shall be payable with respect to each Fee Period by GFL to
the Servicer, such payment to be made not later than the Payment Date
immediately following the end of each such Fee Period.
(b) The
“Sales
Fee”
in respect of any Fee Period shall equal one and one-half percent (1.50%) of
the Aggregate Gross Proceeds in respect of Dispositions of Aircraft Assets
during such Fee Period. “Aggregate
Gross Proceeds”
for any Fee Period means the sum of the Gross Proceeds for each Disposition of
an Aircraft Asset that is an Aircraft Asset during such Fee Period.
“Disposition”
means, with respect to any Aircraft Asset, the sale (including pursuant to the
exercise of a purchase option), total loss or other event or circumstances
under which such Aircraft Asset ceases to be an Aircraft Asset.
“Gross
Proceeds”
shall be an amount equal to the gross proceeds (including the fair market value
of any non-cash consideration, but excluding any cash added to the purchase
price of the applicable Aircraft Asset in respect of any Utilization Rent or
Deposit) received by any Person within the GFL Group in respect of any
Disposition of an Aircraft Asset.
(c) Not less
than four Business Days prior to each Payment Date immediately following the
end of each Fee Period, the Servicer shall deliver a written notice to GFL
specifying the amount of the Sales Fee payable in respect of such Fee
Period.
Section
9.05. Fees
in Bankruptcy. In the
event that this Agreement is not terminated due to an event described in
Section 10.02(a)(i)(D) or (E), the fees payable to the Servicer after the
occurrence and during the continuance of such an event shall be 120% of the
fees otherwise payable under Sections 9.02, 9.03 and 9.04 above.
Section
9.06. Expenses.
(a) The Servicer shall be responsible for, and shall not be entitled to
reimbursement for, the Servicer’s overhead expenses set forth in Schedule
9.06(a) (“Overhead
Expenses”).
(b) (i) GFL
shall be responsible for all costs and expenses relating to or associated with
the Aircraft Assets other than Overhead Expenses, including those costs and
expenses set forth in Schedule 9.06(b) (“Aircraft
Asset Expenses”).
Nothing contained in this Section 9.06 shall be deemed to impose on the
Servicer any obligation to advance any of its own funds for any Aircraft Asset
Expenses.
(ii) If,
in connection with the performance of Services, and without limiting the GFL
Group’s liability to pay for any goods and services as and when invoiced
by the Servicer that are not required to be so paid in advance by the Servicer,
the Servicer, on behalf of any Person within the GFL Group, proposes to provide
goods and services, or arrange for the provision of goods or services, from any
vendor, supplier, service provider or other Person (A) for a purchase price in
excess of U.S. $1,000,000 (or the equivalent thereof in the currency in which
such obligation is payable) or (B) at any time when a default in respect of the
payment of any amount due under this Agreement shall have occurred and be
continuing, the Servicer may require GFL to pay for such goods or services in
advance or otherwise make the funds for payment of such goods or services
available to the satisfaction of the Servicer. If such advance payment is not
made or such funds are not otherwise made available, notwithstanding any other
provision in this Agreement, the Servicer shall be relieved of its obligation
to provide or arrange for the provision of such goods or services in respect of
the Aircraft Assets for which such goods or services were to be provided but
shall otherwise continue to manage such Aircraft Assets as provided in this
Agreement and shall continue to be entitled to receive the fees specified in
Sections 9.01, 9.02, 9.03 and 9.04 in respect of such Aircraft Assets. In such
case, GFL may provide or arrange for the provision of such goods or services in
respect of such Aircraft Assets.
Section
9.07. Taxes.
(a) GFL agrees to pay and to indemnify and hold harmless the Indemnified
Parties on an After-Tax Basis from and against (i) all liability for Taxes
of or imposed on
28
the
Taxpayers that are imposed on, or asserted to be payable by, any Indemnified
Party as a result of the structuring and implementation of any aspect of the
various transactions contemplated by the Final Prospectus or otherwise,
regardless of whether such Taxes are attributable to a taxable period ending
before, on or after the Closing Date, other than any such Taxes imposed on or
payable by a Taxpayer in its capacity as a withholding agent in respect of
amounts payable pursuant to this Agreement to an Indemnified Party and any
Taxes imposed on or payable by a Taxpayor that, prior to the Closing Date, was
an Affiliate of the Servicer to the extent attributable to the period on or
prior to the Closing Date, and (ii) any liability for out-of-pocket fees, costs
and expenses (including reasonable attorneys’ fees) arising out of or
incident to any Tax indemnified hereunder. If any Taxes for which GFL is to
indemnify any Indemnified Party pursuant to the immediately preceding sentence
are payable after the Closing Date, GFL shall pay or cause to be paid to such
Indemnified Party an amount calculated on an After-Tax Basis equal to the
amount of such Taxes no later than the later of (x) five Business Days after
such Indemnified Party gives notice to GFL that such amount is due and
specifying the date such Taxes are due and payable (the “Due
Date”)
and (y) one Business Day before the Due Date. Amounts described in clause (ii)
shall be reimbursed on an After-Tax Basis not less frequently than quarterly.
Any payment required to be made hereunder and not made at the time specified in
the preceding two sentences shall bear interest at the Stipulated Interest Rate
or such higher rate actually payable by such Indemnified Party on the delayed
payment of the Taxes being indemnified, calculated from the date such payment
was required to be made hereunder to the date such payment is actually received
by the Indemnified Party.
(b) All
amounts payable by or on behalf of GFL pursuant to this Agreement shall be
payable exclusive of any applicable value added tax, which value added tax, if
payable, shall also be payable, upon production of a valid value added tax
invoice by the Servicer. All amounts payable to GFL by an Indemnified Party
pursuant to this Agreement shall be inclusive of value added tax save to the
extent such Indemnified Party is entitled to recover (by way of repayment,
credit or set off) the whole or any part of such value added tax. Where it is
so entitled, at the request of GFL, value added tax shall be payable in
addition thereto on production of a valid value added tax invoice but payment
of the value added tax element shall not fall due until the latest possible
date before the date on which such Indemnified Party shall receive such
repayment, credit or set off (and such Indemnified Party shall be obligated to
use reasonable endeavors (taking into account its overall tax position) to
obtain such repayment, credit or set off as soon as possible); provided,
however, that,
to the extent such payment of the value added tax element shall fall due prior
to such date of receipt pursuant to Applicable Law, GFL shall compensate such
Indemnified Party at the Prime Rate for any resulting loss of the time value of
funds. The Servicer shall act on GFL’s behalf in processing any refund of
value added tax and the Servicer and GFL shall cooperate in good faith to file
an application for relief from value added taxes on VAT form 60A as soon as
practicable after the date of this Agreement.
(c) GFL
shall pay and indemnify and hold the Indemnified Parties harmless, on an
After-Tax Basis, from all Taxes imposed, levied or assessed against or upon the
Person in the GFL Group or any Indemnified Parties by any Governmental
Authority upon or with respect to any of the Operative Agreements or any
payment pursuant thereto or resulting from the matters or activities described
therein, other than (except to the extent required to make any payment on an
After-Tax Basis) (i) payroll, social security and employment Taxes of such
Indemnified Party and any Taxes that are based on or measured by the net
income, net receipts, net profits, net worth, franchise or conduct of business
of such Indemnified Party, (ii) any Taxes payable by such Indemnified Party
pursuant to the controlled foreign corporation provisions or the passive
foreign investment company provisions of the U.S. Internal Revenue Code of
1986, as amended (the “Code”),
or any successor provision, (iii) any Taxes payable by an Indemnified Party
(other than stamp, documentary or other similar taxes), which Taxes are imposed
by Ireland or the United States of America or any political subdivision of
either, or any other jurisdiction, to the extent such Taxes would not have been
imposed but for any connection of the Indemnified Party or any Affiliate
thereof with the jurisdiction imposing such Taxes (other than any such
connection that results from activities of such Indemnified Party or any
Affiliate which activities are located in such
29
jurisdiction
by reason of the location of (x) a specific lessee or sublessee of any Person
within the GFL Group (or, if applicable, with respect to any Original Aircraft,
the owner), (y) an Aircraft or any part thereof or (z) any other Person (other
than any Indemnified Party) with whom any Person within the GFL Group (or, if
applicable, with respect to any Original Aircraft, the owner) may be engaging,
or contemplating engaging, in a commercial relationship), (iv) Taxes
attributable to events or conditions arising after the termination or
expiration of this Agreement and (v) Taxes imposed as a result of the gross
negligence or willful misconduct of any Indemnified Party. All Taxes with
respect to which GFL has an indemnification responsibility under this Section
9.07 shall be paid not later than the date such Taxes shall be due unless and
to the extent, in the case of Taxes that do not burden any of the assets or
property of any Indemnified Party and are assessed solely upon a Person or
Persons within the GFL Group, such Person or Persons within the GFL Group shall
be contesting such Taxes in good faith by appropriate proceedings, in which
case such Taxes, or so much thereof as are being contested and are unpaid,
shall be paid promptly upon a final determination that such Taxes, are due and
payable. In the event any Taxes with respect to which GFL has an
indemnification responsibility under this Section 9.07 are levied on any
Indemnified Party, or any Indemnified Party is required by law or otherwise to
pay any such Taxes in the first instance or as a result of a Person or Persons
within the GFL Group’s failure to comply with, or nonperformance in
relation to, any Applicable Law or regulations governing the payment thereof by
such Person or Persons within the GFL Group, GFL shall pay to such Indemnified
Party the full amount thereof on an After-Tax Basis within five Business Days
after receipt from such Indemnified Party of any written request for such
payment but not later than the due date for such Taxes. Any payment required to
be made hereunder and not made at the time specified under this Section 9.07
shall bear interest at the Stipulated Interest Rate or such higher rate
actually paid by such Indemnified Party on the delayed payment of the Taxes
being indemnified, calculated from the date such payment was required to be
made hereunder to the date such payment is actually received by such
Indemnified Party.
(d) If any
claim or demand is asserted in writing with respect to a Tax indemnified
hereunder, such Indemnified Party shall in good faith notify GFL of such claim
or demand within 10 days of receipt thereof; provided,
however, that
failure to give such notification shall not affect such Indemnified
Party’s entitlement to indemnification hereunder unless such failure shall
materially and adversely prejudice the ability of GFL to defend itself or any
Indemnified Party against any such action, claim, demand, proceeding or suit.
If GFL shall so request within 30 days after receipt of such notice, such
Indemnified Party shall in good faith at GFL’s expense contest the
imposition of such Tax; provided,
however, that
such Indemnified Party may in its sole discretion select any applicable forum
for such contest and determine whether any such contest shall be by (i)
resisting payment of such Tax, (ii) paying such Tax under protest or
(iii) paying such Tax and seeking a refund thereof; provided further,
however, that
at such Indemnified Party’s option such contest shall be conducted by GFL
in the name of such Indemnified Party (subject to the preceding proviso) (it
being understood that GFL shall not be permitted to contest the imposition of
such Tax in the name of such Indemnified Party without the prior written
consent of such Indemnified Party). In no event shall such Indemnified Party be
required or GFL be permitted by such Indemnified Party to contest the
imposition of any Tax for which GFL is obligated to indemnify pursuant to this
Section 9.07 unless (i) such Indemnified Party shall have received from GFL (A)
an indemnity reasonably satisfactory to such Indemnified Party for any
liability, expense or loss arising out of or relating to such contest and (B)
an opinion of tax counsel to GFL furnished at the expense of GFL to the effect
that a reasonable basis exists for contesting such claim; (ii) GFL shall have
agreed to pay such Indemnified Party on demand all reasonable costs and
expenses that such Indemnified Party may incur in connection with contesting
such claim (including all costs, expenses, losses, reasonable legal and
accounting fees, disbursements, penalties, interest and additions to tax);
(iii) GFL shall be in compliance with all of its payment obligations under
this Agreement and shall have acknowledged, in a manner reasonably satisfactory
to the Servicer, its liability hereunder to indemnify the Indemnified Parties
in respect of such Tax; (iv) such Indemnified Party shall have determined that
the action to be taken will not result in a material risk of sale, forfeiture
or loss of, or the creation of any Lien
30
(except
if GFL shall have adequately bonded such Lien or otherwise made provision to
protect the interests of such Indemnified Party in a manner reasonably
satisfactory to such Indemnified Party) on any property or rights of such
Indemnified Party, or any portion thereof or any interest therein; and (v) if
such contest shall be conducted in a manner requiring the payment of the claim,
shall have paid the amount required. Notwithstanding anything contained in this
Section 9.07, an Indemnified Party shall not be required nor shall GFL be
permitted by such Indemnified Party to contest or continue to contest in the
name of an Indemnified Party the imposition of any Tax for which GFL is
obligated to indemnify pursuant to this Section 9.07 if such an Indemnified
Party shall waive in writing its rights to indemnification under this Section
9.07 with respect to such Tax.
(e) If any
Indemnified Party shall obtain a refund of all or any part of any Tax paid by
GFL such Indemnified Party shall, provided no Event of Default, or default by
GFL in the payment of any amount due hereunder, has occurred and is continuing,
pay GFL an amount equal to the amount of such refund, including interest
received or credited and attributable thereto, plus any net Tax benefit (or
minus any net Tax detriment) realized by such Indemnified Party as a result of
a payment made pursuant to this sentence or as a result of the receipt or
accrual of such refund, including interest received or credited and
attributable thereto. If any Indemnified Party shall have paid GFL any refund
of all or part of any Tax paid by GFL and it is subsequently determined that
such Indemnified Party was not entitled to the refund, such determination shall
be treated as the imposition of a Tax for which GFL is obligated to indemnify
such Indemnified Party pursuant to the provisions of Section 9.07
hereof.
Section
9.08. Priority
of Payments to Servicer. Any
and all amounts due and owing to the Servicer or any of its Affiliates
(including any amounts due and owing to the Servicer or any of its Affiliates
with respect to indemnification) pursuant to this Agreement shall be entitled
to the priority established therefor in the Indenture, which priority GFL
agrees not to amend without the consent of the Servicer.
ARTICLE
X
Term;
Right to Terminate; Resignation;
Consequences
of Expiration, Termination,
Resignation
or Removal; Certain Tax Matters; Survival
Section
10.01. Term.
(a) This Agreement shall have a non-cancelable term commencing on the
Closing Date and expiring on the later of (i) the first date on which there
shall have been paid in full all amounts outstanding to be paid under the Notes
and any similar obligations of GFL issued pursuant to any other indenture or
similar agreement, including all obligations then due and payable under the
Indenture and under the Policy Provider Documents (as defined in the Indenture)
(i.e., there
shall be no Notes or similar obligations outstanding under the Indenture and
under the Policy Provider Documents (as defined in the Indenture)) and (ii)
[date of Notes maturity].
During
the term, this Agreement shall not be terminable by either party except as
expressly provided in this Article X.
Section
10.02. Right
to Terminate. (a)
(i) At any time during the term of this Agreement, the Servicer shall in
accordance with Section 10.02(c) be entitled to terminate this Agreement
if:
(A) GFL
shall fail to pay in full when due (1) any Servicing Fees within five days
after the receipt of written notice from the Servicer of such failure or (2)
any other amount payable by GFL hereunder or under any other Operative
Agreement within ten days after the effectiveness of written notice from the
Servicer of such failure; or
31
(B) any
Person within the GFL Group shall fail to perform or observe or shall violate
in any material respect any material term, covenant, condition or agreement to
be performed or observed by it in respect of this Agreement or any other
Operative Agreement (other than with respect to payment obligations of GFL
referred to in clause (a)(i)(A) of this Section 10.02); or
(C) any
material representation or warranty by any Person within the GFL Group made in
this Agreement or any other Operative Agreement or in any report, certificate,
financial statement or other agreement, instrument or document at any time
furnished by or on behalf of any Person within the GFL Group in connection
therewith shall prove to have been false or misleading in any material respect
when made or furnished and such representation or warranty shall remain false
and misleading in any material respect and such misrepresentation or breach of
warranty is reasonably likely to have a Material Adverse Effect on the Servicer
or a material adverse effect on the rights and obligations of the Servicer
under this Agreement (including the Servicer’s compensation hereunder);
or
(D) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking relief in respect of GFL or
any Significant Subsidiary of GFL or of a substantial part of the property or
assets of any of such Persons, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other U.S. Federal or state or
non-U.S. bankruptcy, insolvency, receivership or similar law, and such
proceeding or petition shall continue undismissed for 75 days or an order or
decree approving or ordering any of the foregoing shall be entered or any such
Persons within the GFL Group shall go into liquidation, suffer a receiver or
mortgagee to take possession of all or substantially all of its assets or have
an examiner appointed over it or if a petition or proceeding is presented for
any of the foregoing and not discharged within 75 days; or
(E) GFL or
any Significant Subsidiary of GFL shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other U.S. Federal
or state or non-U.S. bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest the filing of, any
petition described in clause (D) above, (iii) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, or
(iv) make a general assignment for the benefit of its creditors;
or
(F) there
shall cease to be any Aircraft Assets owned by any member of the GFL Group;
or
(G) the
Indenture shall cease to be in full force and effect; or
(H) any
Guarantee issued in favor of the Servicer shall cease to be a legal, valid and
binding agreement of the relevant Person within the GFL Group, enforceable in
accordance with its terms, and such cessation is not cured or remedied within
thirty (30) days of the occurrence thereof;
provided,
however, that
if an event described in Section 10.02(a)(i)(D), (E) or (H) above occurs
and if the Servicer shall have been provided with what in its reasonable
judgment is adequate assurance (including assumption or ratification of this
Agreement approved by the applicable Governmental Authority with such a
priority for performance and with such cash flow and other assets of the GFL
Group being available with respect to such priority so as to assure the GFL
Group’s performance hereunder, or the Policy Provider’s assumption or
guarantee of the GFL Group’s financial obligation hereunder and, if such
is the case, the Policy Provider’s acknowledgement that it is the
Controlling Party under the Indenture and agreement that it will instruct the
Security Trustee accordingly, each in form or substance reasonably satisfactory
to the Servicer) of the GFL Group’s future performance of all of its
obligations hereunder, including the payment of fees as provided in
Section 9.05, performance of indemnities provided herein, payment of
Aircraft Asset Expenses and other Expenses payable by a GFL Group member
hereunder,
32
making
of determinations contemplated hereby and execution and delivery of documents
contemplated hereby, the Servicer agrees solely for the benefit of the Policy
Provider and for so long as it is a party hereto that the Servicer shall not
exercise its rights to terminate due to the occurrence of any such event.
(ii)
Upon the occurrence of an event set forth in clause (i) of this
Section 10.02(a), in addition to the right of the Servicer to terminate
this Agreement in whole pursuant to Section 10.02(a)(i), the Servicer
shall be entitled to terminate its obligations to provide the Services with
respect to one or more specific Aircraft Assets (but less than all the Aircraft
Assets) (any termination with respect to less than all the Aircraft Assets
being a “Partial
Termination”).
If, upon any such Partial Termination, the Servicer shall elect to continue to
provide Services with respect to any Aircraft Asset, the Servicer shall specify
the Aircraft Assets in respect of which it intends to continue to provide
Services in the Termination Notice with respect to the Partial Termination. All
references to the expiration or termination of this Agreement shall mean the
expiration or termination of this Agreement in whole and not to a Partial
Termination unless expressly otherwise stated.
(b) At any
time during the term of this Agreement, GFL (with the prior written consent of
the Policy Provider) or the Policy Provider shall be entitled to terminate this
Agreement if:
(i) neither
GE nor GE Capital shall own directly or indirectly at least 50.01% of the
voting equity of, and economic interest in, the Servicer or any Servicer
Delegate; or
(ii) the
Servicer shall (A) fail in any material respect to perform any material
Services in accordance with the Standard of Care or the Conflicts Standard and
such failure shall have a Material Adverse Effect on the GFL Group taken as a
whole or a Material Adverse Effect on the rights and obligations of the GFL
Group taken as a whole under this Agreement; or (B) fail in any material
respect to perform any material Services which failure results in liability of
the Servicer under its Standard of Liability and such failure shall have a
Material Adverse Effect on the GFL Group taken as a whole or a Material Adverse
Effect on the rights and obligations of the GFL Group taken as a whole under
this Agreement; or
(iii) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking relief in respect of GE, GE
Capital or the Servicer or any Servicer Delegate, or of a substantial part of
the property or assets of the Servicer, under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other U.S. Federal or
state or non-U.S. bankruptcy, insolvency, receivership or similar law, and such
proceeding or petition shall continue undismissed for 75 days or an order or
decree approving or ordering any of the foregoing shall be entered or the
Servicer shall go into liquidation, suffer a receiver or mortgagee to take
possession of all or substantially all of its assets or have an examiner
appointed over it or if a petition or proceeding is presented for any of the
foregoing and not discharged within 75 days; or
(iv) GE, GE
Capital or the Servicer shall (A) voluntarily commence any proceeding or file
any petition seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other U.S. Federal or state or
non-U.S. bankruptcy, insolvency, receivership or similar law, (B) consent
to the institution of, or fail to contest the filing of, any petition described
in clause (iii) above, (C) file an answer admitting the material allegations of
a petition filed against it in any such proceeding, or (D) make a general
assignment for the benefit of its creditors; or
33
(v) there
shall have occurred and be continuing an Event of Default under Section 4.01(a)
of the Indenture in respect of the payment of interest on any Note (as defined
in the Indenture) due to an insufficiency of funds in the Collection Account on
the relevant date, which Event of Default (x) shall have occurred on a date on
which no amount is available for drawing under any Eligible Credit Facility (as
defined in the Indenture) in respect thereof and (y) shall have continued
unremedied for 60 days; or
(vi) an Event
of Default (other than one referred to in clause (v) of this Section 10.02(b))
under the Indenture shall have occurred and, other than in respect of an Event
of Default under Sections 4.01(e) or 4.01(f) of the Indenture, a Default Notice
(pursuant to which the Outstanding Principal Balance of the Notes and all
accrued and unpaid interest thereon shall become due and payable) shall have
been issued in accordance with the terms of the Indenture, and at the time of
such Event of Default at least 15% of the number of Aircraft Assets shall not
be subject to Leases and each such Aircraft Asset shall have been off-lease and
reasonably available for re-lease (which, for purposes of clarification, shall
mean that such Aircraft Asset shall be in the possession or under the
unfettered control of the Servicer, together with the related Aircraft
Documents, shall be free of any legal prohibition on the re-leasing thereof,
shall be free of Liens (other than Liens, if any, created pursuant to the
“Related Documents” as defined in the Indenture or created by or at
the instruction of the Servicer) and shall be in a condition reasonably
acceptable to a potential lessee) during the three-month period ending on the
date of such Event of Default; or
(vii) the
Servicer shall breach Section 5.04 hereof.
(c) (i) Either
party to this Agreement (the “Terminating
Party”)
may, at any time during the term of this Agreement, by written notice (the
“Termination
Notice”)
to the other (the “Nonterminating
Party”),
set forth its determination to terminate this Agreement pursuant to clause (a)
of this Section 10.02 (in the case of the Servicer) or Section 10.01 or clause
(b) of this Section 10.02 (in the case of GFL) or to provide for a Partial
Termination of this Agreement pursuant to clause (a)(ii) of this Section 10.02
(in the case of the Servicer); provided,
however, that
this Agreement shall not terminate until and unless a Replacement Servicer
shall have been appointed and shall have accepted such appointment in
accordance with and if required by Section 10.04(c); provided further that
failure by the Terminating Party to provide such Termination Notice shall not
affect such party’s rights under Section 10.02(a) or Section 10.01 or
Section 10.02(b), as the case may be. Any Termination Notice shall set forth in
reasonable detail the basis for such termination.
(ii) Unless
the Termination Notice is provided by GFL pursuant to Section 10.02(b)(i),
(b)(iii), (b)(iv), (b)(v), (b)(vi) or (b)(vii), or by the Servicer pursuant to
Section 10.02 (a)(i)(D), (a)(i)(E), (a)(i)(F) or (a)(i)(G) (each a
“Non-Curable
Termination Event”),
no later than the fifth day following the effectiveness of the Termination
Notice (the “Effectiveness
Date”),
the Nonterminating Party shall advise the Terminating Party in writing whether
the Nonterminating Party (A) intends to cure the basis for such termination
and, if so, the action it intends to take to effectuate such cure or (B) does
not intend to cure the basis for such termination; provided,
however, that
the failure of the Nonterminating Party to deliver such notice by such day
shall be deemed to constitute notice that it does not intend to cure the basis
for termination. In the event that the Termination Notice is provided for a
Non-Curable Termination Event or the Nonterminating Party notifies (or is
deemed to have notified) the Terminating Party that the Nonterminating Party
does not intend to cure the basis for such termination, then this Agreement
shall terminate or the Partial Termination shall take effect, as the case may
be, immediately or on such later date as the Terminating Party shall have
indicated in the Termination Notice to the Nonterminating Party. In the event
that the Nonterminating Party notifies the Terminating Party by such fifth day
that it intends to cure the basis for such termination, then the Nonterminating
Party or, in the event that the Nonterminating Party is GFL, the Policy
Provider, shall (A) have 15 days from the Effectiveness Date to effectuate
such cure to the reasonable satisfaction of the Terminating Party or (B) if
such cure cannot reasonably be expected to be effectuated within such 15-day
period and it is not a payment default, (1) demonstrate to the reasonable
satisfaction of the Terminating Party that substantial progress is being made
toward the effectuation of such cure and (2) effectuate such cure to the
reasonable satisfaction of the Terminating Party no later than the thirtieth
day following the Effectiveness Date. Upon the failure of the Nonterminating
Party to effectuate a cure in accordance with the immediately preceding
sentence, this Agreement shall terminate or the Partial Termination shall take
effect, as the case may be, on the latest of (A) the day immediately following
the expiration of such 15- or 30-day period, (B) such later date as shall be
indicated in the Termination Notice or (C) the date as of which a Replacement
Servicer has been engaged to perform the Services with respect to the Aircraft
Assets and has accepted such appointment in accordance with and to the extent
required of the provision of Section 10.04(c).
34
Section
10.03. Resignation
or Removal.
(a) If the Servicer reasonably determines that directions given by any
Person to the Servicer in accordance with this Agreement are or would be if
carried out, or Services required to be performed under this Agreement are or
would be if carried out, (i) unlawful under Applicable Law, (ii) in violation
of any GE Policy, (iii) likely to lead to an investigation by any Governmental
Authority, directly or indirectly, of or relating to the Servicer, any of its
Affiliates or the Services, (iv) directions or Services that would expose the
Servicer to any liabilities for which adequate bond or indemnity has not, in
the Servicer’s good faith opinion, been provided or (v) directions or
Services that would place the Servicer in a conflict of interest with respect
to which, in the Servicer’s good faith opinion, the Servicer cannot
continue to perform its obligations hereunder within the requirements set forth
in Article III with respect to all Aircraft Assets or any affected Aircraft
Assets, as the case may be, it may resign as the Servicer for all purposes
under this Agreement in relation to all the Aircraft Assets or, at its
election, any affected Aircraft Assets (but with respect to clause (v) above
the Servicer may resign only with respect to the affected Aircraft) for the
duration of this Agreement, such resignation to become effective upon the
selection by GFL of a Replacement Servicer that has been engaged to perform the
Services with respect to all the Aircraft Assets or any affected Aircraft
Assets, as the case may be, and that has accepted such appointment in
accordance with the provisions of Section 10.04(c) (it being understood
that, notwithstanding any other provision herein to the contrary, the Servicer
shall be under no obligation to follow such directions or perform such
Services, or to provide any such Services, pending the selection of and
acceptance by a Replacement Servicer).
(b) If GFL
shall have received a notice from the Servicer pursuant to Section 3.02(d)
hereof to the effect that the Servicer cannot continue to perform its
obligations hereunder within the requirements set forth in Section 3.02 with
respect to all Aircraft Assets or any affected Aircraft Assets, GFL may remove
the Servicer for all purposes under this Agreement in relation to the affected
Aircraft Assets or, in the event that the Servicer has notified GFL that the
Servicer cannot continue to perform its obligations with respect to all
Aircraft Assets, all the Aircraft Assets for the duration of this Agreement,
such removal to become effective upon the selection by GFL (or, if an Event of
Default has occurred and is continuing, the Policy Provider) of a Replacement
Servicer that has been engaged to perform the Services with respect to any
affected Aircraft Assets or all the Aircraft Assets, as the case may be, and
that has accepted such appointment in accordance with the provisions of
Section 10.04(c) (it being understood that, notwithstanding any other
provision herein to the contrary, the Servicer shall be under no obligation to
perform Services with respect to the affected Aircraft Assets pending the
selection of and acceptance by a Replacement Servicer).
(c) If any
Taxes that are based on or measured by all or a portion of the revenues, rental
income or assets of any Person within the GFL Group (other than (i) any
Taxes payable by any such Person pursuant to the controlled foreign corporation
provisions or the passive foreign investment
35
company
provisions of the Code or (ii) Taxes imposed as a result of the gross
negligence or willful misconduct of any such Person) shall be imposed on or
with respect to the Servicer or any Affiliate thereof, and if such Taxes are
not indemnified by GFL then, provided that
the Servicer shall have undertaken reasonable efforts (that do not involve any
material cost to the Servicer or any Affiliate thereof) to otherwise avoid the
imposition of such Taxes, the Servicer may resign as the Servicer for all
purposes under this Agreement in relation to all the Aircraft Assets or, at its
election, any Aircraft Assets the resignation with respect to which would
reduce or eliminate such Taxes for the duration of this Agreement, such
resignation to become effective upon the selection by GFL of a Replacement
Servicer to perform the Services with respect to all the Aircraft Assets or
such Aircraft Assets as the case may be, that has accepted such appointment in
accordance with the provisions of Section 10.04(c); provided,
however, that
pending the effectiveness of such resignation, GFL shall be required to post a
bond, irrevocable letter of credit or other form of security reasonably
acceptable to the Servicer to be drawn upon by the Servicer in the event that
any such additional Taxes continue to be imposed on or with respect to the
Servicer or any Affiliate thereof during such pendency.
Section
10.04. Consequences
of Expiration, Termination, Resignation or Removal.
(a) Notices. (i)
Upon the expiration or termination of this Agreement in accordance with this
Article X, or upon the resignation by or removal of the Servicer with respect
to the performance of the Services for any or all of the Aircraft Assets, the
Servicer will promptly forward to GFL any notices, reports and communications
received by it from any relevant Lessee during the one year immediately after
expiration, termination, resignation or removal.
(ii) GFL will
notify promptly each relevant Lessee and any relevant third party (with a copy
to each Rating Agency and the Policy Provider) of the termination, resignation
or removal of the Servicer under this Agreement in relation to any of the
Aircraft Assets and will request that all such notices, reports and
communications thereafter be made or given directly to the Replacement Servicer
and GFL.
(b) Accrued
Rights. A
termination, resignation or removal in relation to any or all the Aircraft
Assets shall not affect the respective rights (including as to fees) and
liabilities of either party accrued prior to such termination in respect of any
prior breaches hereof or otherwise.
(c) Replacement
Servicer. (i)
Upon the expiration or termination of this Agreement in accordance with this
Article X, or upon the resignation by or removal of the Servicer with respect
to the performance of the Services for any or all of the Aircraft Assets, the
Servicer will cooperate with any Replacement Servicer, including providing such
Replacement Servicer with all information and documents reasonably
requested.
(ii) Other
than at the expiration of the term as set forth in Section 10.01 or pursuant to
a termination of the Agreement by the Servicer in accordance with Section
10.02(a)(i)(A), the Servicer may not resign or be removed from its obligations
and duties as Servicer hereunder, nor may this Agreement be terminated with
respect to the Servicer, in either case in whole or in part, unless a
Replacement Servicer has been appointed by GFL or, if an Event of Default has
occurred and is continuing, the Policy Provider, and has accepted such
appointment, and GFL has received both a written confirmation from each of the
Rating Agencies that no lowering or withdrawal of the then current Ratings of
any class or subclass of Notes will result from such appointment and the prior
written consent of the Policy Provider; provided,
however, that,
in the event that a Replacement Servicer shall not have been appointed within
90 days after any termination of this Agreement with respect to the Servicer or
any resignation by or removal of the Servicer, the Servicer may petition any
court of competent jurisdiction for the appointment of a Replacement
Servicer.
36
(d) Payment
of Fees and Expenses. (i)
Upon the expiration or termination of this Agreement in accordance with this
Article X, or upon the resignation or removal of the Servicer with respect to
the performance of the Services for any Aircraft Asset, so long as the Servicer
is continuing to perform any of the Services, GFL shall continue to pay
Servicing Fees and reimbursable Aircraft Asset Expenses to the Servicer until a
Replacement Servicer shall have been appointed and shall have accepted such
appointment in accordance with the provisions of Section 10.04(c).
(ii) If a
Replacement Servicer is appointed with respect to any Aircraft Asset in
accordance with Section 10.04(c) and such Aircraft Asset is sold by any Person
within the GFL Group to a customer to whom the Servicer had been actively
engaged in marketing such Aircraft Asset and with whom the Servicer had been
engaged in substantive discussions at any time during the three month period
prior to the appointment and acceptance of such Replacement Servicer, the
Servicer shall be paid Sales Fees in respect of such Aircraft Asset as if the
Servicer had arranged for the sale of such Aircraft Asset. Following any such
appointment of a Replacement Servicer, the Servicer will, upon the request of
GFL, provide GFL with a list of customers with respect to which the Servicer
had been actively engaged in marketing such Aircraft Asset and with which the
Servicer had been engaged in substantive discussions at any time during such
three-month period. Such list shall be treated as confidential by GFL and shall
not be disclosed to any Person other than GFL or the Manager (including
officers, directors, employees and agents), or used for any purpose other than
as a basis for determining any Sales Fees payable to the Servicer pursuant to
the first sentence of this Section 10.04(d)(ii).
(e) Transition. Upon
the expiration or termination of this Agreement in accordance with this Article
X, or upon the resignation or removal of the Servicer with respect to the
performance of the Services for any Aircraft Asset, the Servicer shall promptly
return the originals (and all copies) within its possession of all Aircraft
Assets Related Documents to GFL and shall provide GFL with such access to other
nonconfidential, nonproprietary documentation and information (exclusive of
internal correspondence, approval materials, internal evaluations or similar
documentation or information) generated as part of the performance of the
Services to any Person within the GFL Group (and, upon the request by GFL and
to the extent practicable, copies thereof) within its possession as is
reasonably necessary to the conduct of the business of any Person within the
GFL Group and the services to be performed by a Replacement Servicer in
connection therewith.
Section
10.05. Survival.
Notwithstanding any termination or the expiration of this Agreement, (a) the
obligations of GFL, Policy Provider, Genesis and the Security Trustee under
Sections 2.03(g), 2.03(i), 2.03(j), 2.04, 2.05(a), 2.05(c), 2.05(d), 2.05(f),
2.05(g), 2.05(h), 3.03, 3.04, 6.06 and 7.03(f), Article IX, Sections 10.04 and
10.05, Article XI and Sections 13.01 and 13.03 of this Agreement and Section
2.2(b) of Schedule 2.02(a) to this Agreement and the Servicer’s
obligations under Section 10.04 and Article XI shall survive such termination
or expiration, as the case may be, and (b) the representations and warranties
contained in Article IV and in Section 2.02(g) shall survive and remain in full
force and effect until the third anniversary of the date on which this
Agreement shall have expired or terminated.
ARTICLE
XI
Indemnification
Section
11.01. Indemnity.
(a) Notwithstanding anything to the contrary set forth herein (other than
Section 2.03(m)) or in any other Operative Agreement, GFL does hereby assume
liability for, and does hereby agree to indemnify and hold harmless on an
After-Tax Basis each of the Indemnified Parties from, any and all Losses that
may be imposed on, incurred by or asserted against any Indemnified Party,
directly or indirectly, arising out of, in connection with or related to (i)
the Servicer’s performance under this Agreement or from errors in judgment
or omissions by the Servicer under this Agreement; provided,
however, that
such indemnity shall not apply to the extent that such Losses are finally
adjudicated to have
37
been
directly caused by (x) the willful misconduct (including willful misconduct
that constitutes fraud) or gross negligence of the Servicer (or Servicer
Delegate) in respect of its obligation to apply the Standard of Care or the
Conflicts Standard in respect of its performance of the Services or (y) any
representation or warranty by the Servicer set forth in Section 4.10 or 4.11
having proven to be false on the date hereof; (ii) any Indemnified
Parties’ involvement (or alleged involvement) in connection with the
structuring or implementation of any aspect of the transactions contemplated by
the Final Prospectus; (iii) without limiting the provisions of clause (y)
above, any Aircraft Assets and (iv) except as expressly provided to be the
obligation of the Servicer in Section 2.03(m), the offering or sale of the
Notes, the securities of Genesis or any other debt or equity securities or the
obtaining of any loans by GFL or any of its Affiliates, or any other Offerings,
including any Losses to which any Indemnified Party may become subject, under
the Securities Act of 1933, the Securities Exchange Act of 1934 or other
Federal or state or non-U.S. statutory law or regulation, at common law or
otherwise, including any Loss that arises out of or is based upon: (A) any
untrue statement or alleged untrue statement of a material fact contained in
any Prospectus or in any amendment thereof or supplement thereto or in any
other document filed with the United States Securities and Exchange Commission,
or (B) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(b) Each
Indemnified Party agrees to give GFL prompt notice of any action, claim,
demand, discovery of fact, proceeding or suit for which the applicable
Indemnified Party intends to assert a right to indemnification under this
Agreement; provided,
however, that
failure to give such notification shall not affect such Indemnified
Party’s entitlement to indemnification under this Section 11.01 unless and
only to the extent such failure results in actual irreparable prejudice to GFL
or any other Person within the GFL Group.
Section
11.02. Procedures
for Defense of Claims.
(a) If a
Third Party Claim is made against any Indemnified Party, the applicable
Indemnified Party shall promptly notify GFL in writing of such claim (which
notice shall include all relevant information reasonably necessary for GFL to
understand such claim which is in the possession or under the control of, or
which can with reasonable commercial efforts be obtained by, such Indemnified
Party at the time of such notice, subject to Applicable Laws and
confidentiality obligations), and the Servicer or GFL(if so directed by the
applicable Indemnified Party and if so accepted by GFL) will undertake the
defense thereof. The failure to notify GFL promptly shall not relieve GFL of
its obligations under this Article XI unless and only to the extent that such
failure results in actual irreparable prejudice to GFL or any other Person
within the GFL Group.
(b) If so
directed by the applicable Indemnified Party and if accepted by GFL, GFL shall
within 30 days, undertake the conduct and control, through counsel of its own
choosing (subject to the consent of the applicable Indemnified Party, such
consent not to be unreasonably withheld or delayed) and at GFL’s risk and
expense, the good faith settlement or defense of such claim, and the applicable
Indemnified Party shall cooperate fully with GFL in connection therewith;
provided,
however, that
(i) at all times the applicable Indemnified Party shall be entitled to
participate in such settlement or defense through counsel chosen by it, and the
fees and expenses of such counsel shall be borne by the applicable Indemnified
Party, and (ii) GFL shall not be entitled to settle such claims unless it shall
have confirmed in writing its obligation to indemnify the applicable
Indemnified Party for the liability asserted in such claim. GFL shall obtain
the written consent of the applicable Indemnified Party prior to ceasing to
defend, settling or otherwise disposing of such claim if as a result thereof
such Indemnified Party would become subject to injunctive, declaratory or other
equitable relief or the business of such Indemnified Party would be materially
adversely affected in any manner.
(c) So long
as GFL is reasonably contesting any such claim in good faith, the applicable
Indemnified Party shall fully cooperate with GFL in the defense of such claim
as is reasonably required
38
by GFL.
Such cooperation shall include the retention and the provision of records and
information, which are reasonably relevant to such Third Party Claim and making
directors, officers and employees available on a mutually convenient basis to
provide additional information. Neither the Servicer nor any Indemnified Party
shall settle or compromise any claim without the written consent of GFL unless
the Servicer or the applicable Indemnified Party agrees in writing to forego
any and all claims for indemnification from GFL with respect to such
claims.
(d) If GFL,
within 10 days after notice of any such claim, does not agree to defend such
Third Party Claim as directed by the applicable Indemnified Party, such
Indemnified Party will have the right to undertake the defense, compromise or
settlement of such Third Party Claim.
Section
11.03. Reimbursement
of Costs. The
costs and expenses, including fees and disbursements of counsel (except as
provided in clause (i) of the proviso to the first sentence of Section
11.02(b)) and expenses of investigation, incurred by any Indemnified Party in
connection with any Third Party Claim, shall be reimbursed on a quarterly basis
by GFL upon the submission of evidence reasonably satisfactory to GFL that such
expenses have been incurred, without prejudice to GFL’s right to contest
the Indemnified Party’s right to indemnification and subject to refund in
the event that GFL is ultimately held not to be obligated to indemnify the
Indemnified Party.
Section
11.04. Waiver
of Certain Claims; Special Indemnity. GFL
does hereby (a) assume liability for and agree to indemnify and hold harmless
on an After-Tax-Basis, in accordance with the provisions of this Article XI,
each of the Indemnified Parties from any and all Losses that may be imposed on,
incurred by or asserted against any Indemnified Party directly or indirectly
arising out of, in connection with or related to any claims of shareholders or
creditors of any Person within the GFL Group or of Genesis and any claims
(“Shadow
Director/Related Company Claims”)
that may be made by or on behalf of any Person against any Indemnified Party
which are based on any Indemnified Party being a shadow director of, or a
related company to, any Person within the GFL Group under applicable Irish law
or which are based on any similar concept under any other Applicable Law;
(b) waive, and shall cause each other Person within the GFL Group and
Genesis to waive, any and all Shadow Director/Related Company Claims that may
be made by or on behalf of any Person within the GFL Group against any
Indemnified Party, (c) agree not to xxx, and to cause each other Person within
the GFL Group and Genesis not to xxx, upon any such Shadow Director/Related
Company Claims, and (d) agree that any amounts awarded to or received by any
Person within the GFL Group or of Genesis arising out of or related to any such
Shadow Director/Related Company Claims (whether such claims were made by or on
behalf of any Person within the GFL Group or of Genesis or by a third party
(including any liquidator)) shall be paid over to the applicable Indemnified
Party.
Section
11.05. Waiver
of Certain Accounting Claims; Special Indemnity. GFL
does hereby (a) assume liability for and agree to indemnify and hold harmless
on an After-Tax-Basis, in accordance with this Article XI, each of the
Indemnified Parties from any and all Losses that may be imposed on, incurred by
or asserted against any Indemnified Party directly or indirectly arising out
of, in connection with or related to any claims of shareholders or creditors of
any Person within the GFL Group or of Genesis or of any other Person arising
out of, in connection with or related to, the compliance by GFL or any other
Person within the GFL Group or Genesis of their respective obligations,
including any of their respective reporting obligations (“Compliance
Obligations”)
to any holders of outstanding Notes, any holders of any other securities issued
by any Person within the GFL Group or of Genesis or any Governmental
Authorities and for all instructions, discretion, judgments and assumptions
related to such Compliance Obligations (collectively “Accounting
Claims”);
provided,
however, that
such indemnity shall not apply to the extent that such Losses are finally
adjudicated to have been directly caused by the willful misconduct (including
willful misconduct that constitutes fraud) or gross negligence of the Servicer
(or Servicer Delegate) in respect of its obligation to apply the Standard of
Care in respect of its performance of such Services, waive, and shall cause
each other Person within the GFL Group and Genesis to waive,
39
any and
all Accounting Claims that may be made by or on behalf of GFL or Genesis or any
other Person within the GFL Group or of any holder of a Beneficial Interest
against any Indemnified Party and (b) agree not to xxx, and to cause each other
Person within the GFL Group and Genesis not to xxx, upon any such Accounting
Claim.
Section
11.06. Continuing
Liability under Other Agreements. The
Servicer understands, acknowledges and agrees that the intent of the parties
hereunder is that any limitation on the liability of the Servicer under this
Agreement, whether under this Article XI, Article III or otherwise, is not
intended to and shall not be construed to limit the liability of any Person
selling any Aircraft Assets under the Asset Purchase Agreement or the
liability, if any, of GE Capital to the initial purchasers under a separate
indemnification agreement, and that any such liability under such agreement
shall not give rise to any claim for indemnification in favor of the Servicer
or any of its Affiliates under this Agreement.
ARTICLE
XII
Assignment
and Delegation
Section
12.01. Assignment
and Delegation.
(a) No party to this Agreement shall assign or delegate this Agreement or
all or any part of its rights or obligations hereunder to any Person without
the prior written consent of all other parties; provided,
however, that
(i) the Servicer may delegate, subject to the terms hereof, any portion of but
not all its obligations to any Affiliate of the Servicer (a “Servicer
Delegate”);
(ii) the foregoing provisions on assignment and delegation shall not limit the
ability of the Servicer to contract with any Person, including any of its
Affiliates, for services in respect of Aircraft Assets subject to the terms
hereof; and (iii) GFL may assign its rights hereunder to the Security
Trustee under the Security Trust Agreement and, without in any way releasing
GFL from any of its duties or obligations hereunder, the Servicer consents to
such assignment, it being understood that neither GFL’s assignment nor the
Servicer’s consent to such assignment will affect the Servicer’s
rights and obligations hereunder, subject the Servicer to any liability to
which it would not otherwise be subject to hereunder nor modify in any respect
the contract rights of the Servicer hereunder. In addition, as a result of such
assignment the Security Trustee and each Person entitled to any direct or
indirect benefit under the Security Trust Agreement shall be bound by the
provisions of this Agreement, including Article 3 hereof. Subject to the
Security Trustee’s compliance with the provisions of this Agreement in
exercising any such rights, the Servicer and each member of the GFL Group
agrees that all of the GFL Group’s rights, including the right of GFL or
any agent on its behalf to give notices or instructions to the Servicer under
this Agreement, hereunder may be exercised by the Security Trustee to the
exclusion of any member of the GFL Group following notice to the Servicer by
the Trustee or the Policy Provider of the occurrence and continuance of an
Event of Default (whether or not other remedial action, such as the giving of a
Default Notice, has been taken). Any assignment or delegation pursuant to this
Section 12.01(a) shall not require any approval pursuant to Section 7.04 and no
delegation or contract pursuant to clause (i) or (ii) above shall release the
Servicer from any of its obligations hereunder.
(b) Without
limiting the foregoing, any Person who shall become a successor by assignment
or otherwise of GFL or the Servicer (or any of their respective successors) in
accordance with this Section 12.01 shall be required as a condition to the
effectiveness of any such assignment or other arrangement to become a party to
this Agreement; provided,
however, that
the Security Trustee shall not be required to become a party to this Agreement
solely by reason of the execution and delivery of the Security Trust
Agreement.
40
ARTICLE
XIII
Miscellaneous
Section
13.01. Documentary
Conventions. The
Documentary Conventions shall govern this Agreement.
Section
13.02. Power
of Attorney. GFL
shall and shall cause each other Person within the GFL Group, to appoint the
Servicer and its successors, and its permitted designees and assigns, as their
true and lawful attorney-in-fact pursuant to the form of Power of Attorney
attached as Schedule 13.02 to this Agreement (with such modifications as are
necessary under the laws of the jurisdictions in which such Persons are
organized). All services to be performed and actions to be taken by the
Servicer pursuant to this Agreement shall be performed for and on behalf of
GFL. The Servicer shall be entitled to seek and obtain from GFL (and/or any
other Person within the GFL Group as appropriate) a power of attorney in
respect of the execution of any specific action as the Servicer deems
appropriate.
Section
13.03. Reliance. The
Servicer shall be entitled to rely on the provisions of this Agreement,
including Schedule 2.02(a), any Approved Budget, any direction of, or
certification by, GFL or its board of directors (or any duly appointed
committee thereof) or the Manager, to the extent set forth in Section 2.02(c),
and the Transaction Approval Requirements, in carrying out its obligations
hereunder, and GFL hereby waives any rights to challenge any action taken by
the Servicer that is consistent with the provisions of this Agreement
(including the Standard of Care and the Conflicts Standard), including Schedule
2.02(a), any Approved Budget, any such direction or certification or the
Transaction Approval Requirements, or any direction of the Manager, or which
has been approved by the board of directors of GFL or a duly appointed
committee thereof, or the Manager.
Section
13.04. Certain
Information. The
parties hereto agree (a) not to provide to each other competitively sensitive
information, other than information required to be provided by GECAS or GFL, as
the case may be, under contractual arrangements existing on the date hereof (or
successor arrangements thereto), (b) that any party receiving such information
shall take such action as shall be necessary to maintain the confidentiality
thereof and (c) to establish appropriate procedures and protocols to ensure
compliance with the agreements in clauses (a) and (b). Similarly, GFL’s
board of directors and Genesis’ board of directors and Genesis itself on
behalf of itself and its employees shall agree (x) not to provide competitively
sensitive information which it may receive from GECAS pursuant to this
Agreement to any third party and (y) not to use any such competitively
sensitive information for any purpose other than its duties and
responsibilities as a director or shareholder of GFL or director or employee of
Genesis. In addition, to the extent that any director of GFL or Genesis or
employee of Genesis is involved in any other business activities that are
competitive with GECAS or any Affiliate, GFL must screen such Person from
receipt of competitively sensitive information. GFL shall require any such
director of it or employee or director of Genesis to undertake in writing not
to provide competitively sensitive information which it may receive pursuant to
this Agreement to any third party and not to use any such competitively
sensitive information for any purpose other than its duties and
responsibilities as a director of GFL or Genesis or as an employee of Genesis.
GFL agrees that it will cause the terms of this Section 13.04 to be included in
any other servicing agreement entered into by any Person within the GFL Group
or by Genesis or any of their Affiliates with any other entity pursuant to
which such entity will provide services with respect to any aircraft on behalf
of any Person within the GFL Group or on behalf of Genesis or any of their
Affiliates, and, in connection therewith, the relevant directors shall provide
to the servicer under such other servicing agreement written undertakings
substantially similar to those provided to the Servicer as contemplated by the
immediately preceding sentence. Without limiting the foregoing, GFL shall, and
shall cause each Person in the GFL Group, and Genesis and each of its
Affiliates, and each of its and their Representatives, including the Manager
and the Policy Provider to, ensure that no
41
competitively
sensitive information is provided to a Competitor, even a Competitor that is a
shareholder of Genesis or of GFL or any Person within the GFL
Group.
Section
13.05. Original
Aircraft. In the
event that in the Servicer’s reasonable judgment the application of the
terms of any provision hereunder in respect of any Aircraft Asset would not be
appropriate prior to the title to such Aircraft Asset being transferred to a
Person within the GFL Group, then the Servicer shall take such action in
respect of such Aircraft Asset as is commercially reasonable or appropriate in
such context or circumstances. The Servicer shall make a good faith effort to
consult with GFL prior to taking any action in reliance upon this Section
13.05, taking into account timing and other relevant considerations;
provided,
however, that
any failure to so consult with GFL will not constitute a default under or
violation of this Agreement.
Section
13.06. Relationship
to Master Servicing Agreement. For
the avoidance of doubt, notwithstanding the existence of the Master Servicing
Agreement between Genesis and GECAS, this Servicing Agreement shall govern
exclusively the rights and obligations of the parties hereto with respect to
Aircraft Assets and any Additional Aircraft once an Additional Aircraft has
been acquired by any Person in the GFL Group. Upon the termination of this
Agreement by the Servicer pursuant to Section 10.02(a) or by GFL or the
Policy Provider pursuant to Section 10.02(b) (but not the expiration of
the term of this Agreement pursuant to Section 10.01(a)), the Master
Servicing Agreement shall not apply to the Aircraft Assets and
Section 10.04 shall govern the rights and obligations of the parties with
respect to the appointment of a Replacement Servicer for the Aircraft Assets;
provided that
upon the expiration of the term of this Agreement pursuant to
Section 10.01(a), the Master Servicing Agreement shall, if and to the
extent it is then in full force and effect, govern the rights and obligations
of the parties hereto with respect to the Aircraft Assets; provided further,
however, that,
notwithstanding the foregoing, the provisions hereof which are provided herein
to survive the expiration or termination of this Agreement shall continue to
survive and be in full force and effect.
Section
13.07. Limited
Recourse.
(a) In the
event that the assets of the Persons in the GFL Group are insufficient, after
payment of all other claims, if any, ranking in priority to the claims of the
Servicer hereunder (it being agreed that there are no claims ranking in
priority to those of the Servicer), to pay in full such claims of the Servicer
in accordance with the Indenture and the Security Trust Agreement, then the
Servicer shall have no further claim against the Persons in the GFL Group in
respect of any such unpaid amounts.
(b) To the
extent permitted by Applicable Law, no recourse under any obligation, covenant
or agreement of any party contained in this Agreement shall be had against any
shareholder, officer or director of the relevant party as such, by the
enforcement of any assessment or by any proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement is a
corporate obligation of the relevant party and no personal liability shall
attach to or be incurred by the shareholders, officers, agents or directors of
the relevant party as such, or any of them under or by reason of any of the
obligations, covenants or agreements of such relevant party contained in this
Agreement, or implied therefrom, and that any and all personal liability for
breaches by such party of any of such obligations, covenants or agreements,
either at law or by statute or constitution, of every such shareholder,
officer, agent or
director is hereby expressly waived by the other parties as a condition of and
consideration for the execution of this Agreement. For purposes of
clarification, the foregoing applies only to Persons acting in their capacity
as such shareholder, officer, agent or director and not in any other capacity
and does not extend to the benefit of the Person for which such Person serves
as shareholder, officer, agent or officer.
Section
13.08. GFL
Group Members. Each
Person in the GFL Group that joins as a party to this Agreement hereby agrees
to be bound by and perform the obligations hereunder of a Person in the GFL
Group, and if any such Person is a trust of which GFL or another Person in the
GFL Group is the
42
beneficiary,
GFL hereby instructs and authorizes such trust to execute this Agreement, and
perform such obligations (and the Policy Provider, and the Security Trustee by
its acceptance of the assignment provided above, consent thereto to the extent
applicable).
[Remainder
of page intentionally left blank.]
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IN
WITNESS WHEREOF, this Agreement has been duly executed on the date first
written above.
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COMMERCIAL AVIATION SERVICES
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Title:
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FINANCIAL
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SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
Aircraft
Assets Services
The
provision of the Services set forth in this Schedule 2.02(a) will be subject in
all cases to such approval as may be required or such limitations as may be
imposed pursuant to Section 7.04(a) of the Servicing Agreement and the
provisions of this Schedule 2.02(a) shall be deemed to be so
qualified.
Unless
otherwise defined herein, all capitalized terms used in this Schedule 2.02(a)
have the meanings assigned to such terms in Appendix A to the Servicing
Agreement or, in the case of certain defined terms used in Annex 1 or 2 to the
Servicing Agreement or Schedule 2.02(a)(i) to the Servicing Agreement, in the
copy of the Indenture delivered to the Servicer pursuant to Section 2.1. GFL
shall provide to the Servicer any instructions the Servicer may require in the
interpretation of Annexes 1 and 2 to the Servicing Agreement on which
instructions the Servicer shall be entitled to rely in all
respects.
SECTION 1. Lease
Services.
SECTION 1.1. Collections
and Disbursements. In
connection with each Lease of an Aircraft Asset under which any Person within
the GFL Group is the lessor, the Servicer will:
(a) invoice
the Lessee or otherwise arrange, as the Servicer deems reasonably appropriate,
on behalf of such Person within the GFL Group, for all payments due from the
Lessee, including Rents, Deposits, Utilization Rent, Aircraft redelivery
payments, late payment charges and any payments in respect of Taxes and other
payments (including technical, engineering, insurance and other recharges) due
under the relevant Lease, use reasonable commercial efforts to direct the
Lessee, subject to the terms of the Lease, to make such payments to such
account designated as the “Rental Account” in Schedule 4.03 to the
Servicing Agreement (the relevant details of such Rental Account being set
forth in such Schedule) or to such other accounts as specified in writing by
the Cash Manager and use reasonable commercial efforts to enforce the payment
thereof in the event of a nonpayment by the relevant due date;
(b) review
from time to time, as deemed necessary by the Servicer, the level of Rents,
Deposits, Utilization Rent and other amounts that may be adjusted under a Lease
(and to the extent they are provided to be adjusted pursuant to the provisions
of such Lease) and shall propose to the relevant Lessee and/or make such
adjustments to the Rents, Deposits, Utilization Rent and other amounts as are
required or that the Servicer otherwise deems reasonably appropriate
considering, among other things, the terms of the relevant Lease and practices
that the Servicer believes are prevalent in the operating lease
market;
(c) subject
to the timely receipt by the Servicer of the information related to the receipt
of all payments made pursuant to any Lease into any Bank Account, maintain
appropriate records regarding payments under the Leases;
(d) subject
to the terms of any applicable Aircraft Assets Related Document, take such
commercially reasonable actions as are necessary to apply any payments of any
type received from any Lessee, or to make any payments payable to a Lessee, on
a basis consistent with the directions of such Lessee and, to the extent that
any such payments are made to an account other than the account to which such
payment should have been directed pursuant to such Lessee’s direction, to
take such further commercially reasonable actions as are necessary to give
effect to such directions; provided,
however, that,
in the event a Lessee is in default under a Lease or a Lessee is subject to a
voluntary or involuntary bankruptcy, liquidation, receivership or other similar
proceeding, the Servicer will advise GFL of how funds received from such Lessee
were
SCHED 2.02(a)-1
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applied
to the extent that such funds were applied to leases relating to both Aircraft
Assets and Other Assets; and
(e) provide
for the safekeeping and recording of any letters of credit, guarantees or other
credit support (other than cash and cash equivalents) held as part of Deposits
or Utilization Rent and the timely renewal or drawing on or disbursement
thereof as provided under the applicable Lease or other Aircraft Assets Related
Document or otherwise in accordance with Section 1.5 of this Schedule
2.02(a).
SECTION 1.2. Maintenance.
Subject to the availability of adequate funding to comply with the obligations
under this Schedule 2.02(a) and the Servicing Agreement, the Servicer will
perform the following technical services relating to the maintenance of the
Aircraft Assets:
(a) monitor
the performance of maintenance obligations by Lessees under all Leases relating
to the Aircraft Assets by including the Aircraft Assets in the Servicer’s
technical audit program, which program entails, to the extent feasible in a
reasonable commercial manner in the ordinary course under the terms of the
applicable Lease, the review of a Lessee’s technical recordkeeping
procedures, the collection of summary maintenance data on each Aircraft Asset
and, to the extent the Servicer deems reasonably necessary or appropriate,
physical inspection of the Aircraft Assets on a sampling basis consistent with
procedures employed from time to time by GECAS and its Affiliates with respect
to their own or other serviced Aircraft;
(b) confirm
the air authority approval status of a Lessee’s proposed maintenance
program and proposed maintenance performer under any new Lease of any Aircraft
Assets under which any Person within the GFL Group is, or following the
Delivery of the related Aircraft Asset will be, the lessor;
(c) in
connection with a termination or expiration of a Lease under which any Person
within the GFL Group is, or following the Delivery of the related Aircraft
Asset will be, the lessor:
(i) arrange
for the appropriate technical inspection of the Aircraft Asset for the purpose
of determining if the re-delivery conditions under the Lease have been
satisfied;
(ii) maintain
a record of all material reports and other written materials (including any
relevant reconciliation statements) received or generated by the Servicer in
connection with such inspection and provide reasonable access to such reports
and written materials to the relevant Persons within the GFL
Group;
(iii) on the
basis of the final inspection and available records, determine whether the
Lessee has complied with all required airworthiness directives and mandatory
modifications, and establish the status of compliance with Airframe and Engine
manufacturer service bulletins and Lessee-originated modifications undertaken,
in each case with respect to the Aircraft Asset and as required by the
Lease;
(iv) (A)
determine whether the Lessee has satisfied the re-delivery conditions
applicable to the Aircraft Asset specified in the Lease and negotiate any
modifications, repairs, refurbishments, inspections or overhauls to or
compromises of such conditions that the Servicer deems reasonably necessary or
appropriate, (B) determine the application of any available Deposits,
Utilization Rent or other payments under the Lease
SCHED 2.02(a)-2
SCHEDULE
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and
(C) maintain a record of the satisfaction of such conditions and accept
re-delivery of the Aircraft Asset; and
(v) determine
the need for, procure and monitor (as provided in clause (a) above) the
performance of any maintenance and refurbishment of the Aircraft Asset upon
re-delivery, including compliance with applicable airworthiness directives,
service bulletins and other modifications which the Servicer may deem
reasonably necessary or appropriate for the marketing of the Aircraft
Asset;
(d) consider
and, to the extent the Servicer deems reasonably necessary or appropriate,
approve any Lessee-originated modifications to any Aircraft Asset submitted by
any Lessee for approval:
(i) to the
extent authorized by the terms of the relevant Lease; or
(ii) which
the Servicer reasonably determines would not result in a material diminution in
value of the Aircraft Asset or the interests of any Person within the GFL
Group; or
(iii) which
are approved by GFL;
(e) determine
the amount (if any) that the relevant Person within the GFL Group is obliged to
contribute pursuant to the provisions of a Lease (taking into account where
applicable the amount of Utilization Rent paid with respect to such Lease and
the receivables position of the related Lessee) to the cost of complying with
any modification requirements, maintenance contribution requirements,
redelivery condition payment requirements, airworthiness directives and similar
requirements; and
(f) arrange
and supervise appropriate storage and any required on-going maintenance of any
Aircraft Asset, at the expense of the relevant Person within the GFL Group,
following termination of a Lease for any reason and re-delivery of the Aircraft
Asset thereunder and prior to delivery of such Aircraft Asset to a new lessee
or purchaser, on the most economic basis reasonably available and appropriate
under the circumstances.
The
Servicer shall generally provide the technical/maintenance services set forth
in this Section 1.2 through the use of its own staff where it shall deem
appropriate and shall utilize third parties to provide such
technical/maintenance services where it shall deem appropriate.
SECTION 1.3. Insurance.
(a) The
Servicer will provide the following insurance services:
(i) negotiate
the insurance provisions of any proposed lease or other agreement affecting any
of the Aircraft Assets, with such provisions to include such minimum coverage
amounts with respect to hull and liability insurance as are set forth on Annex
1 to the Servicing Agreement, as the same may be amended from time to time at
the direction of GFL (but in no event shall any amendment adversely affect the
right of the Servicer to be insured under general and war risk liability
policies acceptable to it with the minimum amounts specified herein);
provided,
however, that,
if an agreement with respect to hull or liability insurance, if any, cannot be
reached with any particular Lessee pursuant to which such Lessee will procure
and pay the premiums for such
SCHED 2.02(a)-3
SCHEDULE
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insurance
in amounts consistent with the foregoing, the Servicer may still cause the
applicable Person in the GFL Group to enter into such proposed lease or other
agreement, but in which case the Servicer shall arrange for any shortfall in
the required amount of insurance to be covered, at the expense of GFL, pursuant
to arrangements entered into pursuant to clauses (iii) and (v) of this Section
1.3(a);
(ii) monitor
the performance of the obligations of Lessees relating to insurance under
Leases of any Aircraft Assets and, where practicable, ensuring that appropriate
evidence of insurance exists with respect to any Aircraft Assets maintenance
providers;
(iii) source
and arrange an aviation insurance program covering the Aircraft Assets (it
being understood that such program may be arranged pursuant to a group policy
covering both Aircraft Assets and Other Assets the premiums in respect of which
are shared equitably based on the amount of insurance obtained and premium paid
thereunder with respect to the covered Aircraft Assets, on the one hand, and
the Other Assets, on the other hand; provided that the Servicer is not
obligated to arrange such a group policy and that GFL acknowledges that
(A) such a group policy may not result in any savings; and (B)
Servicer’s current practice is to include the Other Assets serviced for
other third parties under a different group policy than that for Other Assets
serviced for GE Capital and its Affiliates), with such minimum coverage amounts
with respect to hull and liability insurance as are set forth on Annex 1 to the
Servicing Agreement, as the same may be amended from time to time at the
direction of GFL;
(iv) procure
such repossession insurance for Aircraft Assets registered in those countries
listed on Annex 1 to the Servicing Agreement (which list has been established
by GFL and may be modified from time to time by GFL) and with such minimum
coverage amounts with respect to hull insurance as are set forth on Annex 1 to
the Servicing Agreement, as the same may be amended from time to time at the
direction of GFL; provided,
however, that,
if an agreement with respect to repossession insurance, if any, cannot be
reached with any particular Lessee pursuant to which such Lessee will pay the
premiums for such insurance in amounts consistent with the foregoing, the
Servicer may still cause the applicable Person in the GFL Group to enter into
such proposed lease or other agreement, but in which case the Servicer shall
pay any premiums to the extent unpaid by the Lessee, at the expense of GFL;
and
(v) if at
any time any Aircraft Asset ceases to be insured or any Person within the GFL
Group requires insurance coverage relating to an Aircraft Asset for any reason,
including default by the Lessee or an Aircraft Asset not being leased upon
termination of a Lease, the Servicer will procure, at the expense of the
relevant Person within the GFL Group, alternative insurance coverage, with such
minimum coverage amounts with respect to hull and liability insurance as are
set forth on Annex 1 to the Servicing Agreement, as the same may be amended
from time to time at the direction of GFL;
provided,
however, that,
in each case where insurance is to be obtained by the Servicer, such insurance
is reasonably available in the relevant insurance market and the Servicer shall
have used reasonable sourcing techniques prior to obtaining such insurance;
and, provided,
further,
however, that
the Servicer shall not obtain or shall terminate, as the case may be, any such
insurance (except liability insurance and war risk liability insurance in favor
of the Servicer and its Affiliates) with respect to which the Servicer has been
so instructed by GFL because GFL has determined that the rates for such
insurance are not
SCHED 2.02(a)-4
SCHEDULE
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commercially
reasonable. The foregoing provisions shall apply, mutatis mutandis, to any
arrangements in which Persons other than Lessees have possession of, or
insurance responsibility for, an Aircraft Asset (including in the event that an
Aircraft Asset has been sold pursuant to a mortgage, deferred payment agreement
or any similar arrangement).
(b) The
Servicer may engage, on behalf of, and for the benefit and at the expense of,
any Person within the GFL Group, one or more Advisers and Brokers with respect
to insurance matters, each of whom:
(i) may also
act in the same or similar capacities for the Servicer and its
Affiliates;
(ii) shall
take directions from the Servicer (as authorized by the Servicing Agreement) in
respect of the Aircraft Assets; and
(iii) may act
on behalf of any Person within the GFL Group in respect of any of their other
insurance requirements, if requested to do so by any such Person within the GFL
Group.
The
Servicer shall be entitled to rely reasonably on the actions taken by or
recommendations of any such Adviser and Broker, subject to the terms of the
relevant Lease. The Servicer will obtain such advice from the relevant Adviser
or Broker or both, as it deems appropriate, as to the reasonableness of any
insurance arrangements proposed by a Lessee, and as to the levels and types of
insurance to be provided by a Lessee or to be arranged by the Servicer, for any
of the Aircraft Assets. Except to the extent the Servicer can effect more cost
efficient coverage under fleet or group policies, the Servicer will use
reasonable commercial efforts to maintain separate and distinct customer
relationships with such Advisers or Brokers when acting on behalf of any Person
within the GFL Group, on the one hand, and when acting on its own behalf or on
behalf of other Persons not within the GFL Group whose Aircraft Assets it
manages, on the other hand. Any such insurance obtained by the Servicer shall
include as the named insured thereunder, such Persons as are required to be
designated as named insureds pursuant to paragraph 6 of Annex 1 to the
Servicing Agreement.
(c) The
Servicer shall provide to GFL such periodic reports regarding insurance matters
relating to the Aircraft Assets as GFL may reasonably request.
SECTION 1.4. Administration. The
Servicer shall administer each Lease in accordance with its terms and as
otherwise specifically addressed herein.
SECTION 1.5. Enforcement. The
Servicer shall take commercially reasonable steps to enforce the obligations to
the relevant Person within the GFL Group of the Lessee and any other parties
under each Lease and under any ancillary agreements thereto delivered by GFL to
the Servicer (including any guarantees of the obligations of the Lessee).
Following any default by a Lessee under the applicable Lease, the Servicer will
take all such commercially reasonable steps as it deems reasonably necessary or
appropriate to preserve and enforce the rights of the relevant Person within
the GFL Group (or, if applicable, with respect to any Original Aircraft, the
owner) under the applicable Lease, including entering into negotiations with
such Lessee with respect to the restructuring of such Lease or declaration of
an event of default under the applicable Lease, drawing on or making
disbursement of any Deposits, Utilization Rent or any letters of credit,
guarantees or other credit support thereunder, voluntary or involuntary
termination of the Lease and repossession of the Aircraft Asset that is the
subject of the Lease, and pursuing such legal action with respect thereto as
the Servicer deems reasonably necessary or appropriate.
SCHED 2.02(a)-5
SCHEDULE
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AGREEMENT
SECTION 1.6. Lease
Modifications.
(a) The
Servicer shall be authorized to make such amendments and modifications to any
Lease as it shall deem reasonably necessary or appropriate; provided,
however, that
such amendment or modification shall require the approval of GFL pursuant to
Section 7.04(a) of the Servicing Agreement if the provisions of such amendment
or modification, were they to be included in a new Lease to be entered into
after the date hereof, would, on their own, cause the entering into of such new
Lease to require the approval of GFL pursuant to Section 7.04(a)(ii) of the
Servicing Agreement. Such amendments or modifications may be made without
regard to whether there is a default by the Lessee or other party under or with
respect to any such Lease.
(b) The
Servicer may waive, in good faith but sole discretion, overdue interest due
from any Lessee under any Lease on any default in payment of rent, Utilization
Rent or other amount thereunder.
SECTION 1.7. Options
and Other Rights. The
Servicer shall be authorized to take such action as it shall deem reasonably
necessary or appropriate with respect to:
(a) the
exercise by any Lessee or other party of any option or right affecting the
applicable Aircraft Asset or the applicable Lease, consistent with the terms of
any such option or right; and
(b) the
exercise on behalf of any Person within the GFL Group of any right or option
that such Person may have with respect to any of the Aircraft Assets or the
Leases.
SECTION 2. Compliance
with Covenants; Security Interests.
SECTION 2.1. Compliance
Generally.
Subject to the availability to the Servicer of adequate funding to comply with
its obligations under this Schedule 2.02(a) and the Servicing Agreement, the
Servicer shall take such commercially reasonable actions as it shall deem
reasonably necessary or appropriate to keep GFL in compliance with its
obligations and covenants under Sections 5.02 and 5.03 of the Indenture, as and
to the extent set forth on Schedule 2.02(a)(i) and solely to the extent that
such obligations and covenants specifically and directly relate to the
Services, excluding, in any case, (i) any reporting obligations in respect of
any of the foregoing and (ii) any rental, any Note obligations or any payment
or monetary obligations under the Indenture; provided,
however, that
the foregoing shall only apply to (A) any Indenture covenants that are set
forth (or, in certain cases, appear as extracts) on Schedule 2.02(a)(i) to the
Servicing Agreement, to the extent that each provision set forth (or extracted)
on such Schedule includes the relevant section references for each such
provision from the Indenture, and which (together with the definitions for any
capitalized terms used therein) are set forth in full in a copy of the
Indenture delivered by GFL to the Servicer, certified by GFL as a true and
complete copy thereof (and GFL shall promptly provide the Servicer with all
amendments, supplements and waivers thereto, so certified), and GFL shall
provide to the Servicer any instructions the Servicer may require in the
interpretation of the Indenture, on which instructions the Servicer shall be
entitled to rely in all respects, and (B) such Indenture covenants (excluding,
in any case, any such covenants relating to the limitations on Lessee
concentrations, which are treated in Section 2.2 of this Schedule 2.02(a))
first coming into effect (including through amendments or modifications) after
the date of the Servicing Agreement that are reasonably acceptable to the
Servicer, or which GFL shall from time to time notify the Servicer in writing,
in reasonably specific detail by amendment to such Schedule 2.02(a)(i) and that
are reasonably acceptable to the Servicer.
(a) Nothing
in this Schedule 2.02(a) or elsewhere in the Servicing Agreement shall be
deemed to constitute or be construed as (i) a delegation or other transfer to,
or an assumption by, the Servicer or any of its Affiliates of any obligations
of any Person within the GFL Group
SCHED 2.02(a)-6
SCHEDULE
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AGREEMENT
(or, if
applicable, with respect to any Original Aircraft, the owner) to make any
payment to any Lessee or other Person, or to comply with any other monetary
obligation, under any Lease or (ii) a transfer to the Servicer or any of its
Affiliates of any right, title or interest in any Lease or related agreement or
any Aircraft Asset covered thereby.
SECTION 2.2. Certain
Matters Relating to Concentration Thresholds.
(a) Concentration
Thresholds Generally. The
Servicer shall use reasonable commercial efforts to comply with any covenants
specifically relating to limitations on Lessee concentration set forth in the
Indenture (“Concentration
Limits”)
and shall promptly inform GFL of any proposed transaction that it reasonably
determines may result in such Concentration Limits being exceeded, and GFL
shall promptly provide to the Servicer any information that the Servicer may
reasonably require in connection with such Concentration Limits in order to
comply with the provisions of this Section 2.2. The Servicer shall not enter
into any such transaction other than pursuant to the terms of Section 2.2(c)
below.
(b) Present
Concentration Limits. GFL
hereby represents and warrants to the Servicer that set forth in Annex 2 to the
Servicing Agreement are the Concentration Limits (including, following each
provision set forth in such Annex, the relevant section references for each
such provision from the Indenture) presently imposed under the Indenture, which
Concentration Limits (together with the definitions for any capitalized terms
used therein) are set forth in a full copy of the Indenture delivered by GFL to
the Servicer, certified by GFL as a true and complete copy thereof (and GFL
shall promptly provide the Servicer with all amendments, supplements and
waivers thereto, so certified) and GFL shall provide to the Servicer any
instructions the Servicer may require in the interpretation of such
Concentration Limits, on which instructions the Servicer shall be entitled to
rely in all respects.
(c) Directions
to Servicer. The
Servicer shall not enter into any transaction with respect to which it has
provided notice pursuant to Section 2.2(a) until GFL has provided a written
certification to the Servicer to the effect that such transaction will not
result in any violation of the Concentration Limits and the Servicer shall be
entitled to rely upon such certification for all purposes of the Servicing
Agreement and this Schedule 2.02(a).
SECTION 2.3. Security
Interests and International Interests. (a)
Security
Interests. In
connection with the obligation of any Person within the GFL Group under the
Security Trust Agreement to perfect any security interest granted by it in its
right, title and interest in and to any Assigned Lease, the Servicer’s
sole responsibility in respect thereof shall be to take the following actions
with respect to each Assigned Lease: (1) seek advice from local counsel in the
jurisdiction where the related Aircraft Asset is registered as to what actions
would be customarily taken in such jurisdiction to perfect the security
interest created in such Assigned Lease pursuant to the Security Trust
Agreement and to use commercially reasonable efforts to implement such advice,
(2) create an original chattel paper copy of such Assigned Lease by adding the
following language to the cover of such Assigned Lease: “To the extent, if
any, that this [Lease Agreement] or any [Lease Supplement] hereunder
constitutes chattel paper (as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction), no security interest in this
[Lease Agreement] or such [Lease Supplement] may be created through the
transfer or possession of any counterpart other than the original executed
counterpart, which shall be identified as the counterpart containing the
receipt therefor executed by the Security Trustee under and as defined in the
Security Trust Agreement dated as of [_________ ] between GFL, Deutsche Bank
Trust Company Americas, as Security Trustee, and the various other parties
identified on the signature pages thereof”, and (3) no later than ten
days after the execution of such Assigned Lease by all the parties thereto,
deliver such original chattel paper copy (which, by way of clarification, shall
not include the
SCHED 2.02(a)-7
SCHEDULE
2.02(a) TO
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AGREEMENT
signature
or the receipt therefor of the Security Trustee) to a courier service for
delivery to the Security Trustee at _____________________________, Attention:
Corporate Trust and Agency Services, Structure Finance Team, (4) notify
the Lessee in writing of the security assignment of such Assigned Lease to the
Security Trustee pursuant to the Security Trust Agreement (which notice may be
contained in such Assigned Lease), (5) obtain from the Lessee a written
acknowledgment addressed to, or for the benefit of, the Security Trustee
(A) acknowledging receipt of notification of such security assignment and
(B) containing the agreement of the Lessee to continue to make all
payments required to be made to the lessor under such Assigned Lease to the
account specified in such Assigned Lease unless and until the Security Trustee
otherwise directs (it being understood that the account specified in such
Assigned Lease will be the account specified by the Manager to the Servicer as
contemplated by Section 1.1(a) of this Schedule 2.02(a)) and (6) take such
other action as GFL shall have reasonably requested and described in reasonable
detail in a written notice to the Servicer. Notwithstanding the foregoing, the
Servicer shall have no obligation to take any action specified in the prior
sentence of this Section 2.3(a) with respect to any Assigned Lease or any
supplement or amendment thereto that was executed before the related Aircraft
became an Aircraft Asset (it being the expectation of the parties hereto that
such action will be taken by the seller of any Aircraft Asset related to such
Assigned Lease to any Person within the GFL Group). In connection with any
Assigned Lease, GFL will cooperate with the Servicer in obtaining a letter of
quiet enjoyment with respect to such Assigned Lease referred to in the final
sentence of Section 2.08(a) of the Security Trust Agreement.
(b) International
Interests. In
connection with the obligation of any Person within the GFL Group under the
Security Trust Agreement to register at the International Registry any
International Interest provided for under any Assigned Lease, the
Servicer’s sole responsibility in respect thereof shall be to direct the
International Registry administrator of the Person within the GFL Group that is
lessor under such Assigned Lease to register such International Interest with
the International Registry and seek the consent of the Lessee to such
registration. In connection with the obligation of any Person within the GFL
Group under the Security Trust Agreement to register the assignment to the
Security Trustee of any International Interest provided for under any Assigned
Lease of an Aircraft, the Servicer’s sole responsibility in respect
thereof shall be to, upon request by the Security Trustee, direct the
International Registry administrator of the Person within the GFL Group that is
lessor under such Lease to consent to the registration of the assignment in
favor of the Security Trustee of any International Interest that has been
registered with the International Registry in respect of such Assigned Lease
and is then held by a Person with the GFL Group, and request the consent of the
lessee under such Assigned Lease to such assignment (which consent may be forth
in the Assigned Lease). In connection with the obligation of any Person within
the GFL Group under the Security Trust Agreement to register any International
Interest created under any contract of sale with respect to an Aircraft Asset,
the Servicer’s sole responsibility in respect thereof shall be to direct
the International Registry administrator of the Person within the GFL Group
that is a party to such contract of sale to register such International
Interest with the International Registry and seek the consent of the other
party to such contract of sale to such registration. In connection with the
obligation of any Person within the GFL Group under the Security Trust
Agreement to register any contract of sale with respect to an Aircraft Asset,
the Servicer’s sole responsibility in respect thereof shall be to, upon
request by the Security Trustee, direct the International Registry
administrator of the Person within the GFL Group that is owner of such Aircraft
Asset to consent to the registration in favor of the Security Trustee of such
International Interest with the International Registry.
SECTION 3. Lease
Marketing.
(a) The
Servicer shall provide and perform lease marketing services with respect to the
Aircraft Assets and in connection therewith is authorized:
SCHED 2.02(a)-8
SCHEDULE
2.02(a) TO
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AGREEMENT
(i) to
negotiate and enter into any commitment for a lease of an Aircraft Asset in the
name of the relevant Person within the GFL Group (or, if applicable, with
respect to any Original Aircraft, the owner); and
(ii) to
include within any commitment for a Lease of an Aircraft Asset and/or effect
any intermediate Lease or Leases through any Person within the GFL Group that
the Servicer deems reasonably necessary or appropriate.
(b) The
Servicer shall commence the negotiation of any commitment for a Lease or Leases
of Aircraft Assets in a manner consistent with the practices employed by the
Servicer with respect to its aircraft operating leasing services business
generally and shall commence the drafting of, and negotiation with respect to,
any Leases for Aircraft Assets on the following basis:
(i) in the
case of any proposed Lessee that is not and has not been a lessee of an
aircraft managed or serviced by the Servicer, the Servicer shall commence the
drafting of, and negotiation with respect to, a Lease for Aircraft Assets based
on the form of lease agreement or agreements then used by the Servicer in
connection with its aircraft operating leasing services business generally but
reflecting any changes thereto required under clause (c)(ii) below (as such
form of lease shall be amended from time to time by the Servicer, the
“GFL
Pro Forma Lease”);
and
(ii) in the
case of any proposed Lessee that is or was a lessee of an aircraft managed or
serviced by the Servicer, the Servicer may commence the drafting of, and
negotiation with respect to, a Lease for Aircraft Assets based on a form of
lease substantially similar to the lease previously used with respect to such
Lessee (the “Precedent
Lease”).
Provided that
the Servicer commences the negotiation of a Lease of any Aircraft Asset in
accordance with clauses (b)(i) and (b)(ii) above, the terms of any executed
Lease may vary from the terms of the GFL Pro Forma Lease or the Precedent Lease
employed by the Servicer in accordance with such clauses. Section 3(b) shall
not be applicable to the negotiation with respect to, or execution of, any
Lease for Aircraft Assets in which negotiations commenced on or prior to the
Closing Date. The Servicer is authorized to execute and deliver binding leases
and related agreements on behalf of the relevant Person within the GFL Group
based on the foregoing procedures.
(c) (i) Upon
ten Business Days’ prior written notice from GFL (x) requesting a
copy of the then current GFL Pro Forma Lease and (y) specifying that such GFL
Pro Forma Lease is to be used for purposes of the annual review required
pursuant to the terms of Section 5.03(f) of the Indenture (the
“Annual
Review”),
the Servicer shall provide GFL with a copy of its then current GFL Pro Forma
Lease, together with a copy thereof marked (with such marking to be
accomplished only if, and to the extent, possible with the then current word
processing software employed by the Servicer and, for the avoidance of doubt,
not manually) to reflect changes from the version of the GFL Pro Forma Lease
that was produced by the Servicer following the immediately preceding Annual
Review to give effect to the terms of Section 3(c)(ii) below (or from the GFL
Pro Forma Lease utilized as of the Closing Date (a copy of which shall have
been delivered to GFL on or before the Closing Date) in the case of the first
such Annual Review).
(ii) On or
prior to each anniversary of the Closing Date and following the Annual Review,
GFL shall advise the Servicer in writing whether any provisions in the then
current GFL Pro Forma Lease that correspond to the Core Lease Provisions are
required in accordance with the terms of Section 5.03(f) of the Indenture to be
deleted
SCHED 2.02(a)-9
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
from
such GFL Pro Forma Lease and replaced with the provision corresponding thereto
in the most recent GFL Pro Forma Lease in which such provision was determined
to be acceptable in accordance with the terms of Section 5.03(f) of the
Indenture. Following any such written advice from GFL, the Servicer shall amend
the GFL Pro Forma Lease accordingly and shall commence the negotiation of any
Lease thereafter with the GFL Pro Forma Lease as so amended in respect of any
such provision.
(d) The
Servicer shall take such reasonable commercial actions as shall be reasonably
necessary or appropriate to deliver any Aircraft Asset pursuant to the terms of
the documentation of the Lease or Leases of such Aircraft Asset, including upon
an extension of such Leases.
(e) The
Servicer shall generally provide the marketing services set forth in this
Section 3 through the use of its own marketing staff where it shall deem
appropriate and shall utilize third parties to provide such marketing services
where it shall deem appropriate, provided, that no such utilization shall
release the Servicer from any of its obligations under the Servicing
Agreement.
SECTION 4. Sales of
Aircraft and Engines.
(a) The
Servicer shall provide and perform sales services with respect to the Aircraft
Assets at, and on a basis consistent with, the direction from time to time of
GFL, and, in connection therewith, is authorized:
(i) to enter
into any commitment for a sale of an Aircraft Asset on behalf and (through a
power of attorney) in the name of the relevant Person within the GFL Group;
and
(ii) to
include within any sale and effect any intermediate Lease or Leases through any
Person within the GFL Group that the Servicer deems reasonably necessary or
appropriate;
provided,
however, that,
except as otherwise required in accordance with the terms of a Lease, the
Servicer shall not enter into any sale of any Aircraft Asset or agreement to
sell any Aircraft Assets without obtaining the approval of GFL pursuant to
Section 7.04(a) of the Servicing Agreement.
(b) The
Servicer shall negotiate documentation of any sale and, subject to
Section 4(a) of this Schedule 2.02(a), is authorized to execute and
deliver binding agreements on behalf and (through a power of attorney) in the
name of the relevant Person within the GFL Group.
(c) The
Servicer shall take such reasonable commercial actions as shall be reasonably
necessary or appropriate to deliver any Aircraft Asset pursuant to the terms of
the documentation of the sale.
(d) In the
event that GFL directs the Servicer to sell or arrange for the sale of any
Aircraft Asset, the Servicer will not be required to take any such action until
GFL shall provide the Servicer with an Officer’s Certificate,
substantially in the form attached as Schedule 2.02(a)(ii) to the Servicing
Agreement, certifying that such sale complies with the terms of the Indenture
and that the Servicer is entitled to rely upon such certification for all
purposes of the Servicing Agreement and this Schedule 2.02(a).
SCHED 2.02(a)-10
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
(e) Notwithstanding
any other provision in Section 7.04 of the Servicing Agreement to the contrary,
the Servicer shall be permitted to purchase, sell or exchange any Engine
relating to an Aircraft or any part or components thereof or spare parts or
ancillary equipment or devices furnished with an Aircraft at such times and on
such terms and conditions as the Servicer deems reasonably necessary or
appropriate in connection with its performance of the Services; provided,
however, the
Servicer shall not be permitted to purchase, or enter any order to purchase,
Engines or spare parts (y) in a quantity in excess of that quantity deemed by
the Servicer as appropriate in connection with the operation, leasing or sale
of such the Aircraft Assets without obtaining the prior written consent of GFL,
or (z) if the net (after credit for any exchanges, replacements or similar
items) cash out-of-pocket purchase price of such Engine exceeds
$3,000,000.
SECTION 5. Aircraft
Acquisitions.
SECTION 5.1. Limitation
on Acquisitions. GFL
shall not, and shall not permit any other Person within the GFL Group to,
purchase or otherwise acquire, directly or indirectly, (x) Aircraft Assets from
any Person other than the Servicer or any of its Affiliates, or (y) without the
consent of the Servicer, any Aircraft as to which Servicer has no obligation to
provide “Services” under the Master Servicing Agreement , and other
than as provided herein (including, without limitation, with respect to any
Engine, in Section 4(e) of Schedule 2.02(a) and, in respect of any Aircraft
Assets, pursuant to the terms of the Asset Purchase Agreement). For purposes of
clarification, the Servicer shall have no obligations under this Agreement with
respect to the acquisition of any Aircraft except to the extent expressly set
forth in this Section 5.1 and subject to the conditions in Section 2.03(g) of
the Servicing Agreement.
SECTION 5.2. Other
Acquisitions. Except
as otherwise provided in Section 2.03(g) of the Servicing Agreement, the
Servicer shall not be required to assist in the solicitation of, or otherwise
take any action to obtain, any acquisition of any aircraft, engine or other
property or any lessee consents and/or novations in connection with the
acquisition of any Aircraft Assets or the issuance of Additional Notes or any
other additional equity or debt capital (it being the expectation of the
parties hereto that the obtaining of any lessee consents and/or novations with
respect to any Aircraft Asset shall be the responsibility of the seller of such
Aircraft Asset to any Person within the GFL Group). The parties hereto
acknowledge that Section 2.03 of the Servicing Agreement deals with, among
other things, the Servicer’s involvement in the issuance of Additional
Notes.
SECTION 6. Market
Research.
SECTION 6.1. Market
Research. The
Servicer shall maintain research capability and, subject to the requirements of
Section 13.04 of the Servicing Agreement, shall provide non-proprietary
commercial aviation general market industry research reports to GFL on an
annual basis, which reports shall include general market information with
respect to commercial aviation demand in terms of traffic growth, new Aircraft
requirements and other similar information; provided,
however, that
the Servicer shall not be obligated to provide competitively sensitive
information to the GFL Group or to provide any valuations, interpretations,
comparisons, evaluations, opinions, forecasts, predictions or analytical
analysis.
SECTION 7. Aircraft
Asset Cash Services.
SECTION 7.1. Accounts
and Account Information.
(a) Existing
Accounts. In the
event that the Cash Manager desires to modify any of the arrangements relating
to any of the bank accounts set forth on Schedule 4.03 to the Servicing
Agreement (the “Existing
Accounts”)
in accordance with Section 2.04 of the Cash Management Agreement, GFL shall
cause the Cash Manager to (i) deliver a certificate to the Servicer
SCHED 2.02(a)-11
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
specifying
in reasonable detail the modifications to be made with respect to any such
Existing Accounts and certifying that any such modifications are in accordance
with the applicable provisions of the Indenture and the Cash Management
Agreement and (ii) transmit instructions to the relevant banking institution to
effect such modifications and shall take such other actions as are incidental
thereto in order to give effect to the foregoing.
(b) New
Accounts. The
Servicer shall notify the Cash Manager in the event that any new bank accounts
need to be established on behalf of any Person within the GFL Group in
connection with a Lease and shall set forth in reasonable detail the
(i) identity of the Lessee, (ii) Aircraft Assets subject to such Lease and
(iii) jurisdiction of the Lessee and in which such Aircraft Assets are to be
registered. Following receipt of such notice from the Servicer, GFL shall cause
the Cash Manager promptly to (i) deliver a certificate to the Servicer
specifying (v) the name and location of the bank at which such account
will be established, (w) the name(s) in which such account will be established,
(x) the names of the beneficiaries of such account, (y) the names of the
Persons authorized to make withdrawals from such account and (z) such other
information (including with respect to any security arrangements) as the Cash
Manager deems appropriate and certifying that the establishment of such account
is in accordance with the applicable provisions of the Indenture and the Cash
Management Agreement and (ii) transmit instructions to the relevant banking
institution to effect the establishment of such account and shall take such
other actions as are incidental thereto in order to give effect to the
foregoing (the “New
Accounts”;
and, together with the Existing Accounts, the “Bank
Accounts”).
SECTION
7.2. Cash
Transfers. (a) In
the event that funds are required to be transferred from any Bank Account to
the account of another Person (other than any Person within the GFL Group) in
order to give effect to the directions of any Lessee in accordance with Section
1.1(d) of this Schedule 2.02(a), the Servicer shall provide the Cash
Manager and the Manager with written notice setting forth the (i) name of the
transferor, (ii) name of the transferee, (iii) accounts from and to
which funds are to be transferred, (iv) amounts to be transferred,
(v) amount of the initial payment from or to the Lessee and
(vi) anticipated date of transfer. No later than the next following
Business Day, GFL shall cause the Cash Manager to notify the Servicer in
writing whether the proposed transfer will be made on such anticipated date of
transfer or on another stated date. GFL shall instruct the Cash Manager to
cause such transfer to be made on such date in accordance with the terms of the
written notice provided by the Servicer.
(b) It is
understood and agreed that (i) all decisions as to any transfers contemplated
by Section 7.2(a) shall be the decisions and responsibility of the Cash Manager
or the Manager, as the case may be, and not the decisions and responsibility of
the Servicer (and the Servicer shall not be subject to any other
responsibilities not specified in this Section 7 or any liability whatsoever
for any such transfers or any decisions of the Cash Manager or the Manager, as
the case may be, related thereto) and (ii) the Servicer shall have no
responsibility as to the actions taken (or omitted) by any banking institution
upon receipt of any payment instruction from the Cash Manager or the Manager,
as the case may be, in accordance with the procedures set forth in this
Section 7.
SECTION
7.3 Payments.
(a) Anticipated
Payments. For
purposes of the calculation of the Required Expense Amount by the Cash Manager
pursuant to Section 2.03 of the Cash Management Agreement, not less than one
Business Day prior to each Calculation Date, the Servicer shall deliver to the
Cash Manager and the Manager a written projection of payment obligations
(including projected expenditures (including maintenance contribution payments,
airworthiness directive payments
SCHED 2.02(a)-12
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
and
redelivery condition payments), or return to Lessees of security deposits in
accordance with the terms of any Lease) reasonably anticipated by the Servicer
to be necessary to be paid in connection with the Servicer’s performance
of the Services under the Servicing Agreement during the period extending from
the Payment Date immediately following such Calculation Date through to the
next succeeding Payment Date (the “Monthly
Payment Period”).
Not later than two Business Days prior to the date of each cash payment, the
Servicer shall deliver to the Cash Manager and the Manager a written notice of
such payment (whether or not such cash payment was reflected in the projection
referred to in this Section 7.3(a)), and shall state (i) the anticipated date
of such payment, (ii) the payee, (iii) the amount of such payment and (iv) the
obligation in respect of which such payment is to be made (the
“Stated
Services Obligation”),
with an appropriate notation if, and to what extent, such payment should be
made from the Lessee Funded Account. No later than the Business Day prior to
such anticipated date of payment, GFL shall instruct the Cash Manager to notify
the Servicer in writing whether the proposed payment will be made on such
anticipated date or on another stated date. GFL shall instruct the Cash Manager
to pay or cause such payment to be made on such date to the payee for the
Stated Services Obligation from the funds then available in the Expense Account
and/or the Lessee Funded Account, as the case may be.
(b) Unanticipated
Payments. During
any Monthly Payment Period the Servicer may request in writing the Cash
Manager’s approval for the Cash Manager to pay or cause to be paid
expenses that had not been reasonably anticipated by the Servicer at the time
the projection required to be provided to the Cash Manager pursuant to Section
7.3(a) with respect to such Monthly Payment Period was delivered to the Cash
Manager. Any such request shall specify for each such payment obligation (i)
the anticipated date of such payment, (ii) the payee, (iii) the amount of
such payment and (iv) the Stated Services Obligation, with an appropriate
notation if, and to what extent, such payment should be made from the Lessee
Funded Account. No later than the Business Day next following such request by
the Servicer, GFL shall instruct the Manager to notify the Servicer in writing
whether such payment will be made on such anticipated date of payment or on
another stated date. GFL shall instruct the Cash Manager to pay or cause such
payment to be made on such date to the payee for the Stated Services Obligation
from the funds then available in the Expense Account or the Lessee Funded
Account, as the case may be. In the event that the funds then available in the
Expense Account or the Lessee Funded Account are insufficient to make any such
payment, pursuant to Section 2.03 of the Cash Management Agreement, GFL shall
cause the Cash Manager to take such actions as are necessary to cause funds
sufficient to make any such payments to be transferred as soon as practicable
from the Collection Account to the Expense Account and/or the Lessee Funded
Account, as the case may be. Following the transfer of such funds from the
Collection Account, GFL shall cause the Cash Manager to pay or cause such
payments to made in accordance with the foregoing provisions.
(c) Limitation
on Payments. It is
understood and agreed that (i) all decisions as to the payment of funds from
any Bank Account (including the timing, amount and payee thereof) shall be the
decisions and responsibility of the Cash Manager and not the decisions or
responsibility of the Servicer (and the Servicer shall not be subject to any
other responsibilities not specified in this Section 7 or any liability
whatsoever for any such payments or any decisions of the Cash Manager related
thereto) and (ii) the Servicer shall have no responsibility as to the action
taken (or omitted) by any banking institution upon receipt of any payment
instructions from the Cash Manager in accordance with the procedures set forth
in this Section 7 or as to the application by any payee of any amounts paid to
it from any Bank Account in accordance with the procedures set forth in this
Section 7, including no responsibility as to whether such payee applies such
payment toward the Stated Services Obligation for which such payment was
made.
SCHED 2.02(a)-13
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
SECTION 8. Professional
and Other Services.
SECTION 8.1. Legal
Services. The
Servicer shall provide or procure legal services, in all relevant
jurisdictions, on behalf of the relevant Persons within the GFL Group with
respect to the lease, sale or financing of the Aircraft Assets, any amendment
or modification of any Lease, the enforcement of the rights of any Person
within the GFL Group under any Lease, any disputes that arise with respect to
the Aircraft Assets or for any other purpose that the Servicer reasonably
determines is necessary in connection with the performance of the Services. The
Servicer shall provide such legal services (which services shall not, in any
case, be deemed to include (i) services or transactions relating to
taxation matters, the laws of foreign jurisdictions, capital markets
transactions or novel or unique transactions or (ii) a high level of services
at fiscal year end or other times of peak activity relative to the level of
services at other times) by using its in-house legal staff where it shall deem
appropriate and shall authorize outside counsel to provide such legal services
where it shall deem appropriate. The Servicer anticipates that it will use
outside counsel to perform some or all the Services set forth in Section 2.3 of
this Schedule 2.02(a). GFL recognizes, and shall cause each other Person within
the GFL Group to recognize, that from time to time the Servicer will retain
legal counsel to provide legal services on behalf of Persons within the GFL
Group and, in the event that a dispute arises between any Person within the GFL
Group and the Servicer, GFL agrees, and shall cause each other Person within
the GFL Group, to waive any conflict of interest any such counsel may have with
respect to any such dispute or otherwise to enable the Servicer to retain such
counsel on its own behalf (it being understood that notwithstanding any such
waiver of a conflict of interest, any such Persons within the GFL Group do not
waive any rights to retain any such counsel on its own behalf if such counsel
is so agreeable).
SECTION 8.2. Tax
Services. The
Servicer shall arrange for such tax services and advice (which may be provided
by the Servicer’s internal staff, to the extent available) as shall be
reasonably necessary or appropriate in connection with the structuring of lease
or sale with respect to the Aircraft Assets or for any other purpose that the
Servicer reasonably determines is necessary in connection with the performance
of the Services; provided,
however, that
the Servicer shall not be responsible for arranging for any tax services with
respect to the preparation of tax returns or the acquisition of any Additional
Aircraft or in connection with any Offering or other financing.
SECTION 9. Reports;
Custody.
SECTION 9.1. Monthly
Reports. On the
Business Day immediately preceding each Calculation Date (or, to the extent
impracticable, promptly thereafter), the Servicer shall provide to GFL and the
Cash Manager a written report substantially in the form attached as
Exhibit A covering the period from the end of the last such report, if
any, through and including the fourth Business Day prior to such Calculation
Date.
SECTION 9.2. Quarterly
Reports. The
Servicer shall provide written reports: (a) to GFL within thirty days after the
end of each calendar quarter substantially in the form of Exhibit B-1 with
respect to such calendar quarter, and (b) to the Policy Provider within thirty
days after the end of each calendar quarter substantially in the form of
Exhibit B-2 with respect to such calendar quarter plus if the DSCR under the
Indenture is less than 2.0 such individual Aircraft Asset rent information as
the Policy Provider may request.
SECTION 9.3. Other
Information.
(a) To the
extent the Servicer is in possession of the relevant information, the Servicer
shall prepare and submit to GFL the following information with respect to each
Person within the GFL Group:
SCHED 2.02(a)-14
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
(i) upon
request by GFL, information with respect to transactions relating to Aircraft
Assets necessary for each Person within the GFL Group or Genesis or any other
holder of a Beneficial Interest to prepare value added tax and other tax
returns;
(ii) promptly
after the occurrence thereof, notification to GFL of any accident or incident
of which the Servicer has notice involving any Aircraft Asset where (A) the
potential loss in connection therewith exceeds the higher of the damage
notification threshold under the relevant Lease, if any, and $2,000,000 or (B)
the potential liability in connection therewith exceeds $2,000,000;
and
(iii) advise
GFL of any settlement offers received by the Servicer with respect to any claim
of damage or loss in excess of $10,000,000 with respect to an Aircraft Asset,
and, upon request by GFL, provide GFL with copies of all relevant documentation
related thereto and such other additional information and advice as GFL may
reasonably request and, upon direction from GFL that any such settlement offer
related thereto is acceptable, prepare the appropriate documentation, including
releases and any indemnities required in connection with such releases, to give
effect to such settlement offer and procure the execution of such documentation
by GFL (it being understood that settlement offers with respect to any such
claims up to and including $10,000,000 may be settled by the Servicer
independently).
(b) Upon
request by GFL, the Servicer shall provide to GFL copies of any financial
statements received by the Servicer from any Lessee under and in accordance
with the provisions of its Lease of an Aircraft Asset.
(c) Upon
request by GFL, the Servicer shall provide to GFL such factual non-proprietary
and non-confidential information and data about the Aircraft Assets that the
Servicer has created to provide the Services (exclusive of internal
correspondence, approval materials, internal evaluations and similar
information and data) or obtained from Lessees which may reasonably be
requested by GFL; provided,
however, that
the Servicer shall not be required to provide any valuations, interpretations,
comparisons, evaluations, opinions, forecasts, predictions or analytical
analysis.
SECTION 9.4. Ratings
Information. Upon
request by GFL, and subject to the rating agency’s handling of such
information and data pursuant to its confidentiality policies, the Servicer
shall provide to GFL such information and data about the Aircraft Assets that
the Servicer has created to provide the Services or obtained from Lessees and
other commercially reasonable assistance relating to the Aircraft Assets as GFL
shall deem reasonably necessary or appropriate in connection with providing
information to the ratings agencies for GFL’s debt ratings.
SECTION 9.5. Custody
of Documents. The
Servicer agrees to hold all original documents of any Person within the GFL
Group that relate to the Aircraft Assets in the possession of the Servicer in
safe custody and according to the commercially reasonable instructions of
GFL.
SECTION 9.6. Reporting
Obligations Generally.
Notwithstanding anything herein to the contrary, GFL acknowledges and agrees
that it shall be responsible for, and the Servicer shall not have any
responsibility for, (a) any Compliance Obligations to any holders of
outstanding Notes, any holders of any other securities issued by any Person
within the GFL Group or by Genesis or any of its Affiliates or any Governmental
Authorities, (b) any instructions, discretion, judgments and assumptions
related to such Compliance Obligations, and GFL agrees to indemnify the
Servicer and its Affiliates in respect of the foregoing as further provided in
Section 11.05 of the Servicing Agreement, and (c) the completeness
SCHED 2.02(a)-15
SCHEDULE
2.02(a) TO
SERVICING
AGREEMENT
or
accuracy of any information or data provided hereunder (except to the extent
the Servicer is liable therefor pursuant to the proviso in Section
11.05).
SECTION 9.7. Aircraft
Assets Related Documents. The
Servicer shall provide to the Security Trustee a copy of each fully executed
Aircraft Assets Related Document received by the Servicer no later than ten
Business Days after the receipt thereof by the Servicer. For purposes of this
Section 9.7, the term “Aircraft Assets Related Documents” does not
include letters of intent, memoranda of understanding or similar
documents.
SECTION 9.8. Quarterly
Meeting Directions. At
each quarterly meeting contemplated by Section 5.01 of the Servicing
Agreement, the Servicer will be advised by GFL if there are Aircraft Assets
which GFL instructs the Servicer to sell pursuant to Section 4 of this Schedule
2.02(a) of the Servicing Agreement, and, with respect to any Aircraft Asset
subject to a Lease expiring within the next twelve (12) months of the end of
the preceding calendar quarter, if such Aircraft Asset is not to be remarketed
for lease or an extension of a Lease because such Aircraft Asset is to be
converted to a freighter aircraft (and is to be remarketed for lease after
giving effect to such conversion) or is to be sold free and clear of a Lease
(it being agreed that in the absence of an instruction not to remarket an
Aircraft Asset for lease, such Aircraft Asset shall be remarketed for lease and
in any event an Aircraft Asset shall continue to be remarketed for lease (or an
extension of an existing Lease), and notwithstanding any contrary instruction,
may be leased if the Servicer has entered into any preliminary agreement (such
as a letter of intent) with respect thereto or has entered into a lease or
lease extension with respect thereto).
SECTION 9.9. Public
Filing Information. The
Servicer shall provide to GFL such information and data about the Aircraft
Assets that the Servicer has created to provide the Services or obtained from
Lessees, as GFL may reasonably request to comply with its public statutory and
filing obligations.
SCHED 2.02(a)-16
SCHEDULE
2.02(a)(ii)
TO THE
SERVICING AGREEMENT
Applicable Indenture Covenants
Attached
are applicable extracts of the following sections of the
Indenture:
|
1.
|
5.02(b)
Limitation on Encumbrances; |
|
2.
|
5.03(a)
Concentration Limits; |
|
3.
|
5.03(b)
Compliance with Law, Maintenance of Permits; |
|
4.
|
5.03(c)
Maintenance of Assets; |
|
5.
|
5.03(e)
Leases; |
|
6.
|
5.03(f)
Opinions; |
|
7.
|
5.03(g)
Insurance; and |
|
8.
|
5.03(i)
Indemnity. |
SCHED 2.02(a)(i)-1
SCHEDULE
2.02(a)(ii)
TO THE
SERVICING AGREEMENT
[Form of
Officer’s Certificate for GFL]
The
undersigned, representing GFL, a Bermuda limited liability company, in
accordance with Section 4(d) of Schedule 2.02(a) to the Servicing Agreement
dated as of _______ (the “Servicing Agreement”) between GFL and GE
Commercial Aviation Services Limited (the “Servicer”), hereby
certifies as follows:
(a) the sale
of the [insert description of asset(s) to be sold], which GFL has directed the
Servicer to arrange pursuant to Section 4 of Schedule 2.02(a) to the Servicing
Agreement (the “Sale”), complies in all respects with the terms of
the Trust Indenture dated as of ________, between GFL, Genesis Lease Limited,
_______, and Deutsche Bank Trust Company Americas (including, if required, has
been consented to by the Policy Provider);
(b) the Sale
has been approved by the board of directors of GFL in accordance with Section
7.04(a) of the Servicing Agreement;
(b) in
connection with such Sale, the Servicer is entitled to rely upon this
certification for all purposes of the Servicing Agreement and Schedule 2.02(a)
thereto; and
(c) the
undersigned is a duly appointed, qualified and acting officer of GFL and the
signature appearing below after his/her name is a genuine
signature.
IN
WITNESS WHEREOF, I have hereunto set my hand on and as of this [____] day of
[____ ], [_____].
| |
|
|
| By: | /s/ | |
|
Name:
|
||
| Title: | ||
SCHED 2.02(a)(i)-2
SCHEDULE
4.01 TO
THE
SERVICING AGREEMENT
Aircraft
Assets
|
SERIAL
# |
MODEL
|
OWNER
|
||
|
[TO
COME] |
[TO
COME] |
[TO
COME] |
||
SCHED 4.01-1
SCHEDULE
4.02
TO THE
SERVICING AGREEMENT
Aircraft
Assets Related Documents
SCHED 4.02-1
SCHEDULE
4.03
TO THE
SERVICING AGREEMENT
Bank
Accounts
|
ACCOUNT
NAME |
ACCOUNT
NUMBER |
|
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
LESSEE FUND |
||
|
GFL
RENTAL ACCT (DDA Account) |
*
|
|
|
GFL
RENTAL ACCT - SUSPENSE |
||
|
GFL
COLLECTIONS ACCT |
||
|
GFL
EXPENSE ACCT |
||
|
[GFL
NOTE ACCT CLASS G-_] |
||
|
GFL
[OWNER TRUSTEE] ACCT |
*
Deutsche Bank Trust Company Americas - NY
ABA #:
000-000-000
Account
#: ____________
Account
Name: Deutsche Bank Trust Company Americas as Security Trustee for GFL-GFL
Rental Account
Reference:
GFL-[lessee][serial #]
SCHED 4.03-1
SCHEDULE
4.04(a) TO
THE
SERVICING AGREEMENT
List
of Persons within the GFL
Group
and Jurisdictions
* These
Persons will not be within the GFL Group as of the Closing Date. These Persons
will be within the GFL Group as of date of each such Persons’ applicable
Delivery Date (as defined in the Asset Purchase Agreement).
SCHED 4.04(a)-1
SCHEDULE
7.01 TO
SERVICING
AGREEMENT
Responsibilities
of GFL Group
|
A.
|
With
respect to Aircraft Assets, each Person within the GFL Group shall retain such
responsibilities as are expressly set forth in Article VII of the Servicing
Agreement. |
|
B.
|
Each of
GFL and each other Person within the GFL Group shall be responsible for, and
the Servicer shall have no responsibilities in respect of, assets which do not
constitute Aircraft Assets and for any or all GFL Group
Liabilities. |
|
C.
|
Each of
GFL and each other Person within the GFL Group shall be responsible for, and
the Servicer shall have no responsibilities in respect of, all finance
functions which are not expressly the responsibility of the Servicer under the
Servicing Agreement. Such responsibilities of the GFL Group shall
include: |
| (i) |
all
matters relating to the arrangement and procurement of any financings of any
type or nature for the GFL Group; |
| (ii) |
all
matters relating to the management of borrowings and payments under such
financings and the management of the respective borrowers’ or
issuers’, as the case may be, compliance with the terms of such
financings, including compliance with the reporting requirements thereunder and
any computations required in connection with such reporting; |
| (iii) |
all
matters relating to the arrangement and procurement of refinancings of any type
or nature of any outstanding indebtedness of the GFL Group; |
| (iv) |
all
matters relating to the restructuring of any type or nature of any indebtedness
of the GFL Group; and |
| (v) |
all
communications with creditors (other than trade creditors and Lessees) of any
type or nature of the GFL Group. |
It is
expressly understood by the parties that while the Servicer will, to the extent
expressly provided in Schedule 2.02(a) to the Servicing Agreement, provide GFL
with assistance and information required to assist in its compliance with its
obligations and covenants under the Indenture to the extent such compliance
specifically relates to the Services, the Servicer shall not deal directly with
any creditors of any Person within the GFL Group, except to the extent such
dealings with trade creditors are incidental to the Servicer’s provision
of the Services under the Servicing Agreement.
|
D.
|
Each of
GFL and each other Person within the GFL Group shall be responsible for, and
the Servicer shall have no responsibilities in respect of, all treasury
functions of the GFL Group that are not expressly the responsibility of the
Servicer under the Servicing Agreement, including: |
| (i) |
cash
management; |
| (ii) |
currency
and interest rate risk management (including the establishment of related
policies and the arrangement and procurement of appropriate swap programs);
and |
| (iii) |
reconciliation
of all Bank Account-related information. |
SCHED 7.01-1
SCHEDULE
7.01 TO
SERVICING
AGREEMENT
|
E.
|
Each of
GFL and each other Person within the GFL Group shall be responsible for, and
the Servicer shall have no responsibilities in respect of, all accounting
functions not expressly the responsibility of the Servicer under the Servicing
Agreement, including: |
| (i) |
the
monitoring of cash receipts and disbursements and accounts payable and accounts
receivable of the GFL Group; |
| (ii) |
the
promulgation, maintenance, interpretation, amending and supplementing of
accounting policies for the GFL Group, and the review and approval of any
potential exceptions to the accounting policies established by the GFL
Group; |
| (iii) |
maintaining
the accounting ledgers, preparing balance sheets, statements of changes in
shareholders’ equity and statements of income and cash flows and arranging
for financial audits, as required, and for the preparation of audited financial
reports for the GFL Group; |
| (iv) |
the
provision of overhead services to the GFL Group; and |
| (v) |
preparing
annual Lease Operating Budgets and Aircraft Asset Expenses Budgets, preparing
and analyzing actual results to budget and performing profitability
analysis. |
|
F.
|
Each of
GFL and each other Person within the GFL Group shall be responsible for, and
the Servicer shall have no responsibilities in respect of, all corporate
secretarial activities and other matters related to the existence of any Person
within the GFL Group. |
|
G.
|
Each of
GFL and each other Person within the GFL Group shall be responsible for, and
the Servicer shall have no responsibilities in respect of, all matters relating
to the holders of the share capital, beneficial interests or membership
interests of any Person within the GFL Group. |
|
H.
|
Each of
GFL and each other Person within the GFL Group shall be responsible for, and
the Servicer shall have no responsibilities in respect of, all legal and
regulatory matters which are not expressly the responsibility of the Servicer
under the Servicing Agreement, including: |
| (i) |
the
preparation and filing of reports required to be filed with the U.S. Securities
and Exchange Commission, any securities exchange or any other Governmental
Authority; |
| (ii) |
all
legal services (including the negotiation of documents) not constituting the
provision of Services relating to all matters described herein for which any
Person within the GFL Group has responsibility; |
| (iii) |
the
preparation and filing of corporate and tax returns of each Person within the
GFL Group with any Governmental Authority; and |
| (iv) |
the
preparation of business plans, forecasts or other similar
activities. |
|
I.
|
Each of
GFL and each other Person within the GFL Group shall be responsible for, and
the Servicer shall have no responsibilities in respect of, any and all
litigation or other legal proceedings against or brought by any Person within
the GFL Group, other than enforcement actions relating to any Aircraft Assets
(including any counterclaim arising from any such action to the extent any such
counterclaim relates to the Aircraft Assets) brought by GFL or any other Person
within the GFL Group commencing after the date of the Servicing
Agreement. |
SCHED 7.01-2
SCHEDULE
7.01 TO
SERVICING
AGREEMENT
|
J.
|
Each of
GFL and each other Person within the GFL Group shall be responsible for, and
the Servicer shall have no responsibilities in respect of, the arrangement and
procurement of all insurance other than insurance related to the Aircraft
Assets which the Servicer is to arrange and procure (at the expense of the GFL
Group) under the Servicing Agreement. |
|
K.
|
Each of
GFL and each other Person within the GFL Group shall be responsible for, and
the Servicer shall have no responsibilities in respect of, employees of any
Person within the GFL Group. |
|
L.
|
Each of
GFL and each other Person within the GFL Group, shall be responsible for, and
the Servicer shall have no responsibilities in respect of purchases, purchase
orders and options to purchase Aircraft, except to the extent the same
constitute the provision of Services, or in respect of the decision to sell an
Aircraft Asset. |
|
M.
|
Except
to the extent expressly provided for in Section 2.3 of Schedule 2.02(a) to the
Servicing Agreement, each of GFL and each other Person within the GFL Group
shall be responsible for, and the Servicer shall have no responsibilities in
respect of, keeping GFL in compliance with their obligations and covenants
under the Security Trust Agreement. |
Notwithstanding
anything contained herein to the contrary, GFL acknowledges and agrees that it
shall be responsible for, and the Servicer shall not have any responsibility
for, (a) any Compliance Obligations to any holders of outstanding Notes or to
Genesis, any holders of any other securities issued by any Person within the
GFL Group or any Governmental Authorities and (b) all instructions, discretion,
judgments and assumptions related to such Compliance Obligations, and GFL
agrees to indemnify the Servicer and its Affiliates in respect of the foregoing
as further provided in Section 11.05 of the Servicing Agreement.
SCHED 7.01-3
SCHEDULE
7.04 TO
THE
SERVICING AGREEMENT
Liabilities
Incurred in Ordinary Course of Business
|
1.
|
Acquisitions,
dispositions or replacements of Aircraft, Engines or Parts (including BFE and
IFE) including, without limitation, by leasing in. |
|
2.
|
Modifications,
maintenance, overhauls, repairs, upgrades or other technical
expenditures. |
|
3.
|
Dry
Leases and wet Leases (including extensions, renewals, amendments and
terminations thereof). |
|
4.
|
Repossessions.
|
|
5.
|
Registrations
and Deregistrations. |
|
6.
|
Governmental
approvals, certifications, permits, licenses, consents, filings and
authorizations. |
|
7.
|
Third
party professional services including, without limitation, legal, tax advisory
and insurance. |
|
8.
|
Taxes.
|
|
9.
|
Aircraft
operator transition costs (including, without limitation, flight operations,
storage and maintenance, technical consultants costs, and purchase, storage and
scrapping of spare Parts). |
|
10.
|
Lessee
Liens. |
|
11.
|
Insurance.
|
SCHED 7.04-1
SCHEDULE
8.01 TO
THE
SERVICING AGREEMENT
Conditions
to Execution
1. Each
Person within the GFL Group (other than GFL) as to which a request therefor has
been made shall have executed and delivered an GFL Group Guarantee in favor of
the Servicer substantially in the form attached to the Servicing Agreement as
Appendix B.
2. Each
appendix, annex, exhibit or schedule to the Servicing Agreement and each GFL
Group Guarantee shall have been completed to the reasonable satisfaction of the
Servicer and delivered with the Servicing Agreement and the GFL Group
Guarantees on the Closing Date.
3. The
Aircraft Assets Related Documents shall have been delivered to the Servicer,
pursuant to Sections 2.02(f) and 4.02 of the Servicing Agreement, at the
Servicer’s offices in Xxxxxxx, Ireland, on or prior to the Closing
Date.
4. Each
person within the GFL Group shall have executed and delivered to the Servicer
the acknowledged power of attorney contemplated by Section 13.02 of the
Servicing Agreement.
5. GFL
shall have delivered to the Servicer a copy of the Indenture, certified by GFL
as a true and complete copy thereof.
6. GFL and
each other Person within the GFL Group shall have delivered to the Servicer
satisfactory evidence, in the reasonable judgment of the Servicer, as to the
appointment of agents for service of process as required by the Documentary
Conventions set forth in Appendix A to the Servicing Agreement.
7. GFL and
each other Person within the GFL Group shall have delivered to the Servicer, in
form and substance reasonably satisfactory to the Servicer:
(A) a
certificate dated the Closing Date of the secretary, any assistant secretary or
other appropriate officer of each such Person certifying as to:
(1) the
attached corporate charter, by-laws and other constituent documents of such
Person, recently certified, in the case of any such document filed with the
secretary of state or similar Governmental Authority of the jurisdiction in
which such Person is organized by such Governmental Authority;
(2) the
absence of amendments to any constituent document since the date of the last
amendment (a) shown on the official evidence as to filed constituent documents
furnished pursuant to (B) below if such official evidence is available and in
any event (b) reflected in the constituent documents furnished pursuant to
(1) above;
(3) resolutions
or other written evidence of corporate action of the board of directors (or
appropriate committee thereof) and, if applicable, the shareholders of such
Person duly authorizing or ratifying the execution, delivery and performance by
such Person of the Servicing Agreement and the GFL Group Guarantee, as
applicable, to which it is or is to be party and the absence of any
modification, amendment or revocation thereof or any other resolutions relating
thereto;
(4) the
absence of proceedings for the dissolution, liquidation, receivership or
similar proceedings with respect to such Person;
SCHED 8.01-1
SCHEDULE
8.01 TO
THE
SERVICING AGREEMENT
(5) if
applicable, its corporate seal; and
(6) the
incumbency and signatures of the individuals authorized to execute and deliver
documents on such Person’s behalf; and
(B) to the
extent available from appropriate Governmental Authorities, recent official
evidence from appropriate Governmental Authorities of appropriate jurisdictions
as to constituent documents on file, good standing, payment of franchise taxes
and qualification to do business in the jurisdiction in which such Person is
organized.
8. GFL and
each other Person within the GFL Group shall have delivered to the Servicer an
Officer’s Certificate dated the Closing Date, in form and substance
reasonably satisfactory to the Servicer, stating that:
(A) each
representation and warranty of such Person contained in the Servicing Agreement
and GFL Group Guarantee, as applicable, is true and correct as of the Closing
Date;
(B) such
Person has duly performed and complied in all material respects with all
covenants, agreements and conditions contained in the Servicing Agreement and
GFL Group Guarantee, as applicable, required to be performed or complied with
by it on or before the Closing Date;
(C) no event
has occurred and is continuing or condition exists or would result from the
consummation of any transaction contemplated by the Servicing Agreement or GFL
Group Guarantee, as applicable, to which such Person is a party that
constitutes, or with the giving of notice or lapse of time or both would
constitute, a default in any material respect under such Servicing Agreement or
GFL Group Guarantee, as applicable, or a breach thereof or would give any party
thereto the right to terminate, or not to perform any material obligation
under, any thereof; and
(D) the
Servicing Agreement and GFL Group Guarantee, as applicable, to which it is a
party is in full force and effect with respect to it, has not been amended,
modified or terminated and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms (subject to bankruptcy and
similar laws applicable to creditors’ rights generally and to general
equitable principles).
9. The
Servicer (and such Affiliates of the Servicer that the Servicer designates as
addressees) shall have received legal opinions dated as of the Closing Date,
which shall cover the following matters and shall also cover such other matters
as the Servicer and its counsel may reasonably request:
(A) Each of
GFL and each other Person within the GFL Group has been duly organized and is
validly existing as a trust, a corporation or a limited liability company in
good standing under the laws of its jurisdiction or organization, incorporation
or formation, respectively.
(B) Neither
the execution and delivery of the Servicing Agreement and GFL Group Guarantee,
as applicable, nor the consummation of the transactions contemplated thereby
nor the performance by GFL or any other Person within the GFL Group of any of
their obligations thereunder in accordance with the terms thereof will (i)
violate any order, writ, injunction, judgment or decree in effect as of the
date hereof of any [insert appropriate courts] to which GFL or any other Person
within the GFL Group, or any of their respective Affiliates, is a party or by
SCHED 8.01-2
SCHEDULE
8.01 TO
THE
SERVICING AGREEMENT
which
any of their respective properties or assets are bound, (ii) violate in any
material respect any applicable law of [insert applicable law] in effect as of
the date hereof or (iii) result in any conflict with, breach of or default (or
give rise to any right of termination, cancellation or acceleration) under, any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
warrant or other similar instrument or any license, permit material agreement
or other material obligation to which any such Person is a party or by which
any such Person’s properties or assets may be bound.
(C) Upon
execution and delivery thereof, the Servicing Agreement and the GFL Group
Guarantee, as applicable, to which GFL and each other Person within the GFL
Group is a party shall be valid and legally binding on and enforceable against
such party in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other laws
affecting creditors’ rights generally from time to time in effect and to
general equity principles regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(D) No
action, consent or approval by, or filing with, any [insert appropriate
Governmental Authorities] or other third party is required in connection with
the execution, delivery or performance by GFL or any other Person within the
GFL Group of the Servicing Agreement and the GFL Group Guarantee, as
applicable, to which it is a party or the consummation by GFL or any other
Person within the GFL Group of the transactions contemplated
thereby.
10. The
Servicer shall have delivered to GFL, in form and substance reasonably
satisfactory to GFL:
(A) a
certificate dated the Closing Date of the secretary, any assistant secretary or
another appropriate officer of the Servicer certifying as to:
(1) the
attached corporate charter, by-laws and other constituent documents of the
Servicer, recently certified, in the case of any such document filed with the
secretary of state or similar Governmental Authority of the jurisdiction in
which the Servicer is organized by such Governmental Authority;
(2) the
absence of amendments to any constituent document since the date of the last
amendment (a) shown on the official evidence as to filed constituent documents
furnished pursuant to (B) below if such official evidence is available and (b)
in any event reflected in the constituent documents furnished pursuant to (1)
above;
(3) resolutions
or other written evidence of corporate action of the board of directors (or
appropriate committee thereof) and, if applicable, the shareholders of the
Servicer duly authorizing or ratifying the execution, delivery and performance
by the Servicer of the Servicing Agreement and the absence of any modification,
amendment or revocation thereof or any other resolutions relating
thereto;
(4) the
absence of proceedings for the dissolution, liquidation, receivership or
similar proceedings with respect to the Servicer;
(5) if
applicable, its corporate seal; and
(6) the
incumbency and signatures of the individuals authorized to execute and deliver
documents on the Servicer’s behalf; and
SCHED 8.01-3
SCHEDULE
8.01 TO
THE
SERVICING AGREEMENT
(B) to the
extent available from appropriate Governmental Authorities, recent official
evidence from appropriate Governmental Authorities of appropriate jurisdictions
as to constituent documents on file, payment of franchise taxes and
qualification to do business in the jurisdiction in which the Servicer is
organized.
11. The
Servicer shall have delivered to GFL an Officer’s Certificate dated the
Closing Date, in form and substance reasonably satisfactory to GFL, stating
that:
(A) each
representation and warranty of the Servicer contained in the Servicing
Agreement is true and correct as of the Closing Date;
(B) the
Servicer has duly performed and complied in all material respects with all
covenants, agreements and conditions contained in the Servicing Agreement
required to be performed or complied with by it on or before the Closing
Date;
(C) no event
has occurred and is continuing or condition exists or would result from the
consummation of any transaction contemplated by the Servicing Agreement that
constitutes, or with the giving of notice or lapse of time or both would
constitute, a default in any material respect under the Servicing Agreement or
a breach thereof or would give any party thereto the right to terminate, or not
to perform any material obligation under, the Servicing Agreement;
and
(D) the
Servicing Agreement is in full force and effect with respect to it, has not
been amended, modified or terminated and constitutes its legal, valid and
binding obligation enforceable against it in accordance with its terms (subject
to bankruptcy and similar laws applicable to creditors’ rights generally
and to general equitable principles).
12. GFL
shall have received legal opinions dated as of the Closing Date, covering
matters comparable to those set forth in Section 9 above, with respect to the
Servicer.
SCHED 8.01-4
SCHEDULE
9.06(a) TO
THE
SERVICING AGREEMENT
Overhead
Expenses
|
1.
|
Salary,
bonuses, company cars and benefits of Servicer’s employees.
|
|
2.
|
Travel
and entertainment expenses of Servicer’s employees. |
|
3.
|
Office,
office equipment and rental expenses of the Servicer. |
|
4.
|
Telecommunications
expenses of the Servicer. |
|
5.
|
Advertising
and promotional expenses of the Servicer. |
|
6.
|
Taxes on
the income, receipts, profits, gains, net worth or franchise of the Servicer
and payroll, employment and social security Taxes for employees of the
Servicer. |
SCHED 9.06(a)-1
SCHEDULE
9.06(b) TO
THE
SERVICING AGREEMENT
Categories
of Aircraft Asset Expenses
|
1.
|
Storage,
maintenance, repossession (whether or not successful), reconfiguration,
refurbishment, delivery, redelivery, and repair expenses relating to Aircraft
Assets, including all expenses incurred by the Servicer relating to compliance
with airworthiness directives and service bulletins, which include the fees and
expenses of independent technicians and other experts retained for any of the
foregoing purposes. |
|
2.
|
Insurance
expense related to Aircraft Assets, including all fees and expenses of
insurance advisors and brokers. |
|
3.
|
Expenses
incurred in connection with the effectuation or acceptance of delivery of any
Aircraft Asset, whether being sold or leased by any Person within the GFL
Group. |
|
4.
|
Special
studies expenses related to Aircraft Assets authorized by any Person within the
GFL Group and fees and expenses of independent advisors retained for providing
valuation and appraisal services and general financial advice such as
structuring leases and sales and financing transactions. |
|
5.
|
Outside
legal counsel, advisory fees and expenses and other professional fees and
expenses related to Aircraft Assets (including in connection with the purchase,
sale, delivery, redelivery, lease, re-lease, lease extension or repossession of
Aircraft Assets or any enforcement actions relating to any lease).
|
|
6.
|
Subject
to Section 7.04 of the Servicing Agreement, extraordinary fees and expenses not
incurred in the ordinary course of business, which the Servicer reasonably
determines appropriate in rendering the Services. |
|
7.
|
Taxes
reimbursable to Servicer pursuant to Section 9.07. |
|
8.
|
Any
other expenses relating to or associated with Aircraft Assets other than
Overhead Expenses of the Servicer and such Overhead Expenses of the GFL Group
as are expressly the responsibility of the Servicer under Section 9.06(a) of
the Servicing Agreement. |
SCHED 9.06(b)-1
SCHEDULE
13.02 TO THE
SERVICING
AGREEMENT
MANAGEMENT
SERVICES
POWER OF
ATTORNEY
OF
[GRANTOR]
WHEREAS
[GRANTOR], having its [registered] office at [insert address] desires to
appoint GE COMMERCIAL AVIATION SERVICES LIMITED having its registered
office at 0 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx (“the
Attorney”) as the true and lawful attorney of the Grantor for and in the
name of and on behalf of the Grantor in such Attorney’s absolute
discretion to execute each and every Requisite Document and Requisite Act as
defined below and do all or any of the acts or things hereinafter
mentioned.
KNOW ALL
MEN BY THESE PRESENTS that in consideration for the mutual promises and
benefits set forth in the Servicing Agreement (defined below) the Grantor does
hereby make, constitute and irrevocably and unconditionally appoint for the
period (the “Term”) as and from the date hereof until termination or
expiry of the Servicing Agreement between ________________ and GE Commercial
Aviation Services Limited dated as of ________ (“the Servicing
Agreement”), in accordance with its terms, the Attorney as a true and
lawful attorney of the Grantor for and in the name of and on behalf of the
Grantor with absolute discretion to exercise, do, execute and/or deliver all or
any of the acts, documents and things hereinafter mentioned, that is to
say:
|
1.
|
To
negotiate, approve, settle the terms of, agree, make, sign, execute (whether
under hand or seal) and deliver all deeds, agreements, documents, commitments,
arrangements, instruments, applications, oaths, affidavits, declarations,
notices, confirmations, certificates, approvals, acceptances, deliveries and to
do all other acts, matters and things whatsoever which are in each case
necessary or desirable for the Attorney to do for and on behalf of the Grantor
in respect of the provision of the Services (as defined in and contemplated by
the Servicing Agreement) (each such document a “Requisite Document”
and each such act a “Requisite Act”). |
|
2.
|
To make
such amendments, modifications and variations to the Requisite Documents and to
enter into ancillary documentation in respect thereof, all on such terms as any
such Attorney may, in its sole discretion, determine from time to time for and
on behalf of the Grantor; and to make, give, sign, execute and do all things
including, without limitation, any material acts which may be necessary in
order to effect the terms of such Requisite Documents or in connection with the
making, signature, executions and delivery of the Requisite Documents or any
other documents required to be executed by the Grantor in connection therewith
or the performance of any acts, matters and things contemplated thereby or by
the Requisite Acts as may be necessary in accordance with the provision of the
Services. |
|
3.
|
To
nominate and appoint one or more substitutes as attorney or attorneys under it
for all and any of the purposes aforesaid and the appointment of same with
liberty to revoke. |
|
4.
|
To
acknowledge this Power of Attorney as the act and deed of the Grantor and
generally to do all other acts which may be necessary and desirable for
carrying the purpose of this Power of Attorney into effect. |
SCHED 13.02-1
SCHEDULE
13.02 TO THE
SERVICING
AGREEMENT
IT IS
HEREBY DECLARED THAT:-
|
(A)
|
The
Grantor hereby ratifies and confirms and agrees to ratify and confirm
whatsoever any Attorney shall do or cause to be done in, or by virtue of this
Power of Attorney as long as such act is not inconsistent with the terms of the
Servicing Agreement or this Power of Attorney or in violation of Applicable
Law. |
|
(B)
|
This
Power of Attorney shall be irrevocable for the Term and at all times both
before and after the Term shall be conclusive and binding upon the Grantor and
no person or corporation having dealings with any Attorney under this Power of
Attorney shall be under any obligation to make any inquiries as to whether or
not this Power of Attorney has been revoked and all acts hereunder shall be
valid and binding on the Grantor unless express notice of its revocation shall
have been received by such person or corporation. |
|
(C)
|
Subject
to the provisions of the Servicing Agreement the Grantor unconditionally
undertakes to indemnify and keep indemnified each Attorney and his agents, and
their respective successors and estates, against all actions, proceedings,
claims, costs, expenses and liabilities of whatsoever nature arising from the
exercise or purported exercise in good faith of any of the powers conferred on
each Attorney by this Power of Attorney. |
|
(D)
|
Subject
to the provisions of the Servicing Agreement any Attorney or other person,
making or doing any payment or act, in good faith, in pursuance of this Power
of Attorney shall not be liable in respect of the payment or act by reason that
before the payment or act the Grantor was insolvent or had revoked this power
if the fact of such insolvency or revocation was not at the time of payment or
act known to the Attorney or other person making or doing same.
|
|
(E)
|
The
particular powers enumerated above shall be given the widest
interpretation. |
|
(F)
|
THIS
POWER OF ATTORNEY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF [THE STATE OF NEW YORK] [IRELAND]. |
IN
WITNESS WHEREOF the Grantor has caused this Power of Attorney duly executed by
the Grantor this day of [ ],
[ ].
SIGNED
BY: ______________________________
For and
on behalf of
[GRANTOR]
in the
presence of:
SCHED 13.02-2
ANNEX 1
TO THE
SERVICING
AGREEMENT
INSURANCE
GUIDELINES
|
1.
|
Hull
and Repossession Insurance: With
respect to any Aircraft Asset, hull and repossession insurance, when
applicable, shall be maintained in an amount equal to the greatest of (a) the
Note Target Price for such Aircraft (as such Note Target Price is set forth on
Schedule 1(a) attached hereto, as the same shall be amended in writing from
time to time by GFL, which amendment GFL shall provide to Servicer promptly
after any change in any such Note Target Price), (b) the appraised value
for such Aircraft (as such appraised value is set forth on Schedule 1(b)
attached hereto, as the same shall be amended in writing from time to time by
GFL, which amendment GFL shall provide to Servicer promptly after any change in
any such appraised value), (c) 110% of the net book value of such Aircraft (as
such net book value is set forth on Schedule 1(c) attached hereto, as the same
shall be amended in writing from time to time by GFL, which amendment GFL shall
provide to Servicer promptly after any change in such net book value), and (d)
such other amounts as may be directed in writing by GFL from time to time.
Spare engines and parts, if any, shall be insured on the basis of their
“replacement cost”. |
|
2.
|
Liability
Insurance:
Liability insurance shall be maintained for each Aircraft Asset and occurrence
in an amount not less than the amount set forth on Schedule 2 attached hereto,
as the same shall be amended in writing from time to time by GFL. Liability
insurance shall be maintained for each non-passenger Aircraft Asset and
occurrence in an amount not less than 75% of the amounts set forth on Schedule
2. With respect to each Aircraft Asset acquired pursuant to the Asset Purchase
Agreement, liability insurance shall include, without limitation, cover, to the
extent generally available in the leading insurance markets, for the indemnity
of each Purchaser (as defined in the Asset Purchase Agreement) contained in
Section 10.1 of the Asset Purchase Agreement, with the relevant Seller
Indemnitees (as defined in the Asset Purchase Agreement) as additional
insureds, during the period commencing on the date of Delivery of the relevant
Aircraft Asset and ending on the earlier of (i) the second anniversary of the
date of such Delivery and (ii) the date of completion of the next major check
in respect of the relevant Aircraft Asset. The amounts of liability insurance
applicable to an Aircraft Asset that is in storage or otherwise grounded may be
reduced in a manner consistent with paragraph 5 below. |
|
3.
|
Insurance
Deductibles:
|
|
(a)
|
Deductibles
and self-insurance for Aircraft Assets subject to a Lease may be maintained in
an amount which is substantially consistent with the customary practices of the
Servicer. |
|
(b)
|
Deductibles
for Aircraft Assets off-lease shall be maintained in respect of any one
occurrence in respect of such Aircraft Assets in an amount equal to $200,000 or
such other higher amount as GFL may direct in writing from time to
time. |
|
4.
|
Repossession
Insurance:
Subject to prior confirmation from GFL on a case by case basis, repossession
insurance shall be maintained for Aircraft Assets subject to a Lease that are
or will be registered in any jurisdiction listed on Schedule 4 attached hereto,
as the same may be amended in writing from time to time by GFL.
|
|
5.
|
Other
Insurance Matters: Apart
from the matters set forth above, the coverage and terms of any insurance with
respect to any Aircraft Assets (a) subject to a Lease, shall be negotiated on a
basis consistent with Sections 3(b) and (c) of Schedule 2.02(a) to the
Servicing Agreement and (b) not subject to a Lease, shall be substantially
consistent with the customary practices of the Servicer regarding similar
equipment. |
ANNEX 1-1
ANNEX 1
TO THE
SERVICING
AGREEMENT
|
6.
|
Named
Insureds: Any
insurance arrangements entered into with respect to any Aircraft Assets shall
include as named insureds such Persons as are set forth on Schedule 6 attached
hereto, as the same shall be amended in writing from time to time by GFL. The
Servicer shall use commercially reasonable efforts to cause Lessees to include
the Persons set forth in such clauses as named insureds in connection with
liability insurance; provided,
however, that
to the extent that a Lessee is not willing to include such Persons, the
Servicer will, subject to the provisions of the Servicing Agreement and at the
expense of GFL, arrange for alternative liability insurance coverage with
respect to such Persons. GECAS shall, and such of its Affiliates as it
determines appropriate may, in GECAS’ sole discretion, be named as
additional insureds in connection with any such liability insurance
arrangements. |
|
7.
|
Currencies: Any
insurance requirement stated in U.S. dollar terms shall be interpreted to
include the foreign currency equivalent thereto from time to time if any such
insurance related thereto is denominated in a currency other than U.S.
dollars. |
|
8.
|
Availability: The
insurance guidelines set forth herein are subject in all cases to such
insurance being generally available in the relevant insurance market, or under
applicable governmental programs, from time to time. |
|
9.
|
Revisions
to Required Amounts of Insurance: GFL
shall use commercially reasonable efforts to provide to the Servicer amendments
to Schedules 1(a) and 1(c) attached hereto, on a quarterly basis, and Schedule
1(b) attached hereto, on an annual basis, promptly (and in any event within
seven Business Days) following receipt or calculation by GFL of the relevant
information that would form the basis of any such amendment. With respect to
each proposed amendment to any schedule to this Annex 1, GFL shall provide the
Servicer with (x) a signed hard copy thereof and (y) an e-mailed Excel version
thereof. The Servicer shall not be required to implement any change in the
amount of insurance required to be maintained with respect to any Aircraft
Asset pursuant to Section 1.3 of Schedule 2.02(a) to the Servicing Agreement
and this Annex 1 as a result of the receipt by the Servicer from GFL of any
written notice, direction, amendment or similar communication pursuant to this
Annex 1 until the seventh Business Day following receipt thereof (including,
with respect to the immediately preceding sentence, receipt of the items listed
in both clauses (x) and (y) thereof). |
|
10.
|
War
Risk Insurance. Unless
otherwise agreed between GFL and the Servicer, war risk hull and liability
insurance in respect of the Aircraft Assets shall be maintained in a manner
which is substantially consistent with the customary practices of the
Servicer. |
ANNEX 1-2
SCHEDULE
1(b) TO ANNEX 1
TO THE
SERVICING AGREEMENT
Note
Target Price
|
Serial
Number |
Type
|
Outstanding
Principal
Balance
Allocable
to Aircraft |
Note
Target
Price |
|||||
|
1
|
||||||||
|
2
|
||||||||
|
3
|
||||||||
|
4
|
||||||||
|
5
|
||||||||
|
6
|
||||||||
|
7
|
||||||||
|
8
|
||||||||
|
9
|
||||||||
|
10
|
||||||||
|
11
|
||||||||
|
12
|
||||||||
|
13
|
||||||||
|
14
|
||||||||
|
15
|
||||||||
|
16
|
||||||||
|
17
|
||||||||
|
18
|
||||||||
|
19
|
||||||||
|
20
|
||||||||
|
21
|
||||||||
|
22
|
||||||||
|
23
|
||||||||
|
24
|
||||||||
|
25
|
||||||||
|
26
|
||||||||
|
27
|
||||||||
|
28
|
||||||||
|
29
|
||||||||
|
30
|
||||||||
|
31
|
||||||||
|
32
|
||||||||
|
33
|
||||||||
|
34
|
||||||||
|
35
|
||||||||
|
36
|
||||||||
|
37
|
||||||||
|
38
|
||||||||
|
39
|
||||||||
|
40
|
||||||||
|
41
|
||||||||
|
42
|
||||||||
|
43
|
||||||||
|
Total
|
SCHEDULE 1(b)-1
SCHEDULE
1(b) TO ANNEX 1
TO THE
SERVICING AGREEMENT
Appraised
Values
|
Type
|
Serial
Number
|
Appraised
Value
|
||||
|
1
|
||||||
|
2
|
||||||
|
3
|
||||||
|
4
|
||||||
|
5
|
||||||
|
6
|
||||||
|
7
|
||||||
|
8
|
||||||
|
9
|
||||||
|
10
|
||||||
|
11
|
||||||
|
12
|
||||||
|
13
|
||||||
|
14
|
||||||
|
15
|
||||||
|
16
|
||||||
|
17
|
||||||
|
18
|
||||||
|
19
|
||||||
|
20
|
||||||
|
21
|
||||||
|
22
|
||||||
|
23
|
||||||
|
24
|
||||||
|
25
|
||||||
|
26
|
||||||
|
27
|
||||||
|
28
|
||||||
|
29
|
||||||
|
30
|
||||||
|
31
|
||||||
|
32
|
||||||
|
33
|
||||||
|
34
|
||||||
|
35
|
||||||
|
36
|
||||||
|
37
|
||||||
|
38
|
||||||
|
39
|
||||||
|
40
|
||||||
|
41
|
||||||
|
42
|
||||||
|
43
|
||||||
| Total |
SCHEDULE 1(b)-2
SCHEDULE
1(c) TO ANNEX 1
TO THE
SERVICING AGREEMENT
Net
Book Value
|
Type
|
Serial
Number
|
Net
Book
Value
|
110%
of Net
Book
Value |
|||||
|
1
|
||||||||
|
2
|
||||||||
|
3
|
||||||||
|
4
|
||||||||
|
5
|
||||||||
|
6
|
||||||||
|
7
|
||||||||
|
8
|
||||||||
|
9
|
||||||||
|
10
|
||||||||
|
11
|
||||||||
|
12
|
||||||||
|
13
|
||||||||
|
14
|
||||||||
|
15
|
||||||||
|
16
|
||||||||
|
17
|
||||||||
|
18
|
||||||||
|
19
|
||||||||
|
20
|
||||||||
|
21
|
||||||||
|
22
|
||||||||
|
23
|
||||||||
|
24
|
||||||||
|
25
|
||||||||
|
26
|
||||||||
|
27
|
||||||||
|
28
|
||||||||
|
29
|
||||||||
|
30
|
||||||||
|
31
|
||||||||
|
32
|
||||||||
|
33
|
||||||||
|
34
|
||||||||
|
35
|
||||||||
|
36
|
||||||||
|
37
|
||||||||
|
38
|
||||||||
|
39
|
||||||||
|
40
|
||||||||
|
41
|
||||||||
|
42
|
||||||||
|
43
|
||||||||
|
Total
|
SCHEDULE 1(c)-1
SCHEDULE
2 TO
ANNEX 1
TO THE
SERVICING
AGREEMENT
Liability
Insurance
|
Model
|
Minimum
Limit |
|
RJs
|
US $250
million |
|
B737/A320/A319/B757
|
US $500
million ($300 million for North American carriers) |
|
A330/A340/MD11/B767/B777/B787
|
US $600
million |
|
B747/A380
|
US $750
million |
Notwithstanding
the foregoing, with respect to any liability insurance maintained by any Person
within the GFL Group for the benefit of the Persons listed in clause 2(h) of
Schedule 6 to Annex 1, such amount of insurance shall be not less than US$750
million for wide-body Aircraft, US$500 million for narrow-body Aircraft and
US$350 million for regional jet Aircraft.
SCHED 2-1
SCHEDULE
4 TO ANNEX 1
TO THE
SERVICING AGREEMENT
Repossession
Insurance
|
Country
|
|
|
Belarus
|
|
|
Bhutan
|
|
|
Kazakhstan
|
|
|
Mongolia
|
SCHED 4-1
SCHEDULE 6
TO ANNEX 1
TO THE
SERVICING AGREEMENT
Named
Insureds
1. Hull and
Repossession Insurance
with
respect to each Aircraft Asset, owner (and head lessor, if applicable) and/or
lessor and intermediate lessor(s), if any, of Aircraft and Security
Trustee
2. Liability
Insurance
(a) owner
(and head lessor, if applicable) of Aircraft (Person within GFL
Group)
(b) intermediate
lessor(s), if any, of Aircraft (Person(s) within GFL Group)
(c) GECAS,
the Servicer
(d) the
Manager
(e) the
Trustee and Security Trustee
(f) GFL
(g) following
the Delivery of an Aircraft Asset, any holder of a Beneficial Interest in GFL
from time to time1
(h) with
respect to each Aircraft Asset acquired pursuant to the Asset Purchase
Agreement, the relevant Seller Indemnitees (as defined in the Asset Purchase
Agreement) during the period commencing on the date of Delivery of such
Aircraft Asset and ending on the earlier of (i) the second anniversary of such
date of Delivery and (ii) the date of completion of the next major check in
respect of such Aircraft Asset
(i) the
Policy Provider.
1 This
requirement shall be deemed to be satisfied in the event that “Named
Insured” for liability insurance includes Genesis (in each case, as
substantially defined in Annex A, in pertinent part) or a reference to
shareholders or affiliates of GFL.
SCHED 6-1
ANNEX 2
TO THE
SERVICING
AGREEMENT
Concentration
Limits
The
following chart sets forth the Concentration Limits that are applicable during
periods when the weighted Portfolio age (weighted by Assumed Base Value of each
Aircraft in the Portfolio) is (1) below ten years, (2) between ten and 12.5
years and (3) above 12.5 years. The percentages in the following chart are
obtained by dividing the Assumed Base Value of all Aircraft leased to lessees
habitually based or domiciled in the applicable country or category by the
Assumed Portfolio Value.
|
Limits
Below 10 Years |
Limits
Between
10
and 12.5 Years |
Limits
Above
12.5 Years |
||||||||
|
Lessee
Concentration Limits |
||||||||||
|
Single
lessee |
15.0
|
%
|
15.0
|
%
|
15.0
|
%
|
||||
|
Any
other single lessee habitually based or domiciled in an undesignated
country |
10.0
|
%
|
10.0
|
%
|
10.0
|
%
|
||||
|
Three
largest lessees |
30.0
|
%
|
30.0
|
%
|
30.0
|
%
|
||||
|
|
Limits
Below 10 Years |
Limits
Between
10
and 12.5 Years |
Limits
Above
12.5 Years |
|||||||
|
Country
Concentration Limits |
|
|
|
|||||||
|
U.S.
|
25.0
|
%
|
25.0
|
%
|
25.0
|
%
|
||||
|
Single
country rated the equivalent of BBB/Baa2 or better1 |
22.5
|
%
|
25.0
|
%
|
27.5
|
%
|
||||
|
Other
single countries |
15.0
|
%
|
15.0
|
%
|
15.0
|
%
|
||||
1 The
applicable rating is the sovereign foreign currency debt rating assigned by the
Rating Agencies to the country in which a Lessee is habitually based or
domiciled at the time the relevant Lease is executed.
ANNEX 2-1
ANNEX 2
TO THE
SERVICING
AGREEMENT
|
Region
Concentration Limits2
|
|
|
|
|||||||
|
Developed
Europe |
40.0
|
%
|
40.0
|
%
|
40.0
|
%
|
||||
|
Developed
Asia |
35.0
|
%
|
35.0
|
%
|
35.0
|
%
|
||||
|
North
America |
25.0
|
%
|
25.0
|
%
|
25.0
|
%
|
||||
|
Emerging
Europe and Africa/Middle East |
35.0
|
%
|
40.0
|
%
|
42.5
|
%
|
||||
|
Latin
America/Caribbean |
25.0
|
%
|
30.0
|
%
|
32.5
|
%
|
||||
|
Emerging
Asia/Pacific |
40.0
|
%
|
45.0
|
%
|
47.5
|
%
|
||||
|
Undesignated
|
10.0
|
%
|
10.0
|
%
|
10.0
|
%
|
||||
The
Concentration Limits for the Initial Aircraft will be determined based on the
Leases to which such Initial Aircraft are subject to, regardless of the time or
order of acquisition. Without limiting Section 5.03 of the Indenture, any
failure to meet the Concentration Limits arising solely by reason of the
non-acquisition of an Initial Aircraft will be deemed not to result in a
Concentration Default.
|
Region
|
Countries
|
|
|
Developed
Markets: |
||
|
Europe
|
European
Union (excluding Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania,
Luxembourg, Malta, Poland, Portugal and Slovakia), Iceland, Norway and
Switzerland |
|
|
North
America |
Canada
and United States |
|
|
Asia
|
Australia,
Hong Kong, Japan, New Zealand and Singapore |
|
|
Emerging
Markets: |
||
|
Europe
|
Bulgaria,
Channel Islands, Croatia, Cyprus, Czech Republic, Estonia, Hungary, Latvia,
Xxxxxxxxx, Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxxxx and
Turkey |
|
|
Asia/Pacific
|
China,
Guam, Indonesia, Macau, Malaysia, Philippines, South Korea, Taiwan, Thailand
and Vietnam |
|
|
Indian
Subcontinent |
India
|
|
|
Latin
America/Caribbean |
Argentina,
Bermuda, Brazil, Cayman Islands, Chile, Colombia, Costa Rica, El Salvador,
Guatemala, Mexico, Panama and Peru |
2 The
designation of regions is set out below.
ANNEX 2-2
ANNEX 2
TO THE
SERVICING
AGREEMENT
|
Region
|
Countries
|
|
Africa/Middle
East |
Bahrain,
Egypt, Jordan, Kuwait, Morocco, Oman, Qatar, South Africa and United Arab
Emirates |
|
|
Undesignated
|
Algeria,
Aruba, Bahamas, Barbados, Bangladesh, Belarus, Bhutan, Botswana, Brunei
Darussalam, Dominican Republic, Falkland Islands, Faroe Islands, Fiji, French
Guiana, French Polynesia, Greenland, Guadeloupe, Guinea, Honduras, Isle of Man,
Israel, Jamaica, Kazakhstan, Kenya, Lebanon, Luxembourg, Macedonia, Mauritius,
Mongolia, Mozambique, Nepal, Netherlands Antilles, Nicaragua, Pakistan, Papua
New Guinea, Paraguay, Puerto Rico, Romania, Samoa, Saudi Arabia, Seychelles,
Sri Lanka, Suriname, Tanzania, Tonga, Trinidad & Tobago, Tunisia, Ukraine,
Uruguay, Vanuatu and Venezuela |
Prohibited
Albania,
Afghanistan, Armenia, Azerbaijan, Belize, Bolivia, Bosnia and Herzegovina,
Cambodia, Cameroon, Cape Verde Islands, Cuba, Ecuador, Equatorial Guinea,
Eritrea, Ethiopia, Gambia, Georgia, Ghana, Grenada, Guyana, Haiti, Iran, Iraq,
Kyrgyz Republic, Laos, Libya, Madagascar, Malawi, Moldova, Myanmar, Namibia,
New Caledonia, Nigeria, North Korea, Sao Tome and Principe, Senegal, Serbia and
Montenegro, Solomon Islands, Sudan, Syria, Turkmenistan, Uganda, Uzbekistan,
Yemen, Zambia, Zimbabwe and all other countries not listed.
ANNEX 2-3
APPENDIX
A TO THE
SERVICING
AGREEMENT
CONSTRUCTION
AND USAGE; DEFINITIONS
Construction
and Usage
The
terms defined below have the meanings set forth below for all purposes.
“Include”, “includes” and “including” shall be
deemed to be followed by “without limitation” whether or not they are
in fact followed by such words or words of like import. “Writing”,
“written” and comparable terms refer to printing, typing, lithography
or other means of reproducing words in a visible form (including electronic
mail). Any agreement or instrument or any law, rule or regulation of any
Governmental Authority defined or referred to below means such agreement or
instrument or such law, rule or regulation as from time to time amended,
modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of such law, rule or regulation) by
succession of any comparable successor law, rule or regulation and includes (in
the case of agreements or instruments) references to all attachments thereto
and instruments incorporated therein. References to a Person are also to its
permitted successors and assigns. Any term defined below by reference to any
agreement or instrument or any law, rule or regulation of any Governmental
Authority has such meaning whether or not such agreement, instrument or law,
rule or regulation is in effect. “Agreement”, “hereof”,
“herein”, “hereunder” and comparable terms refer to the
agreement in which such term appears (including all exhibits and schedules
hereto) and not to any particular article, section, clause or other subdivision
thereof or attachment thereto. References to any gender include, unless the
context otherwise requires, references to all genders, and references to the
singular include, unless the context otherwise requires, references to the
plural and vice versa. “Shall” and “will” have equal force
and effect. References to “Article”, “Section”,
“Clause” or another subdivision or to an attachment are, unless the
context otherwise requires, to an article, section, clause or subdivision of or
attachment to such agreement.
Definitions
“Accounting
Claims”
has the meaning assigned to such term in Section 11.05 of the Servicing
Agreement.
“Additional
Aircraft”
means any Aircraft that is not then an Aircraft Asset proposed to be acquired
by a Person in the GFL Group in accordance with the provisions of Section 5 of
Schedule 2.02(a).
“Additional
Notes”
means any class or subclass of Notes issued pursuant to the Indenture (or
pursuant to supplements thereto) at any time after the Closing Date, the
proceeds of which are used, in substantial part, to acquire
Aircraft.
“Adviser”
means an insurance adviser engaged by the Servicer in accordance with Section
1.3(b) of Schedule 2.02(a) to the Servicing Agreement.
“Affiliate”
means a Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the Person
specified; provided,
however, that
GFL and its respective Subsidiaries, on the one part, and GE and its
Subsidiaries, on the other part, shall not be considered to be Affiliates of
each other .
“After-Tax
Basis”
means on a basis such that any payment received, deemed to have been received
or receivable by any Person shall, if necessary, be supplemented by a further
payment to that Person so that the sum of the two payments shall, after
deduction of Taxes resulting from the receipt (actual or constructive) or
accrual of such payments (after taking into account any current deduction to
APPENDIX A-1
APPENDIX
A TO THE
SERVICING
AGREEMENT
which
such Person shall be entitled with respect to the amount that gave rise to the
underlying payment), be equal to the payment received, deemed to have been
received or receivable.
“Aggregate
Gross Proceeds”
has the meaning assigned to such term in Section 9.04(b) of the Servicing
Agreement.
“Aircraft”
means any airframe together with (i) any Engine installed on such airframe (or
any Engine substituted therefor), (ii) parts or components thereof,
(iii) spare parts or ancillary equipment or devices furnished therewith
and (iv) the Aircraft Documents with respect thereto.
“Aircraft
Asset Expenses”
has the meaning assigned to such term in Section 9.06(b)(i) of the Servicing
Agreement.
“Aircraft
Asset Expenses Budget”
has the meaning assigned to such term in Section 7.03(a) of the Servicing
Agreement.
“Aircraft
Assets”
means (a) all Aircraft owned or leased-in by any Person within the GFL Group as
of the Closing Date or at any time or from time to time thereafter (taking into
account any acquisitions or dispositions made in accordance with this
Agreement) and (b) all Original Aircraft; provided,
however, that
Aircraft Assets shall not include (x) any Aircraft Asset that shall have ceased
to be an Aircraft Asset in accordance with the provisions of Sections 2.04(b)
or 3.02(d) of the Servicing Agreement, but shall include any Former Aircraft
Asset that shall have become an Aircraft Asset pursuant to Section 6.07 of
the Servicing Agreement or (y) any Aircraft Asset in respect of which the
obligation of the Servicer to provide Services shall have been terminated in
accordance with Article X of the Servicing Agreement.
“Aircraft
Assets Related Documents”
means all Leases and other contracts and agreements of Persons within the GFL
Group the terms of which relate to or affect any of the Aircraft
Assets.
“Aircraft
Documents”
means, in relation to an Aircraft, all records, logs, technical data, manuals
and other documents relating to the maintenance and operation of such
Aircraft.
“Annex
1”
means Annex 1 to the Servicing Agreement, which annex sets forth the Insurance
Guidelines.
“Annex
2”
means Annex 2 to the Servicing Agreement, which annex sets forth the
Concentration Limits contained in Section 5.03(a) of the
Indenture.
“Annual
Review”
has the meaning assigned to such term in Section 3(c)(i) of Schedule 2.02(a) to
the Servicing Agreement.
“Anti-Terrorism
Laws”
means the USA Patriot Act and the Executive Order.
“Applicable
Law”
with respect to any Person means any law, statute, ordinance, rule or
regulation or code of conduct or practice of any U.S. Federal, state or local
Governmental Authority, the EU or any Irish or other foreign or international
Governmental Authority that applies to such Person or any of its properties or
assets.
“Appraised
Value”
means with respect to any Aircraft, the average of the most recent appraisals
by each of the Appraisers of the Base Value of such Aircraft.
APPENDIX A-2
APPENDIX
A TO THE
SERVICING
AGREEMENT
“Appraiser”
means at least three independent appraisers that are members of the
International Society of Transport Aircraft Trading or any similar
organization.
“Approved
Budget”
has the meaning assigned to such term in Section 7.03(d) of the Servicing
Agreement.
“Asset
Purchase Agreement”
means the Asset Purchase Agreement dated as of _________ 2006, among GE
Capital, GFL and the other parties thereto.
“Assigned
Leases”
has the meaning assigned to such term in Section 1.01 of the Security Trust
Agreement.
“Bank
Accounts”
has the meaning assigned to such term in Section 7.1(b) of Schedule 2.02(a) to
the Servicing Agreement.
“Base
Value”
has the meaning assigned to such term in Section 1.01 of the
Indenture.
“Beneficial
Interest”
means shares issued by GFL.
“Broker”
means an insurance broker engaged by Servicer in accordance with Section 1.3(b)
of Schedule 2.02(a) to the Servicing Agreement.
“Business
Day”
means a day on which U.S. dollar deposits may be traded on the London
inter-bank market and commercial banks and foreign exchange markets are open in
New York, New York and London, England.
“Business
Opportunities Agreement”
means the Business Opportunities Agreement dated as of ______, 2006 between
Genesis and the Servicer.
“Calculation
Date”
means the fourth Business Day immediately preceding each Payment
Date.
“Cape
Town Convention”
means the Convention on International Interests in Mobile Equipment and its
Protocol on Matters Specific to Aircraft Equipment, concluded in Cape Town on
16 November 2001.
“Cash
Manager”
means Deutsche Bank Trust Company Americas.
“Cash
Management Agreement”
means the Cash Management Agreement dated as of ______, 2006 between the Cash
Manager and GFL.
“Changed
Circumstance”
means the occurrence and continuation of any material event, circumstance or
condition that is reasonably likely to result in the current cash flow
projections in any Year being materially less favorable than the forecast which
is the most current at the time that the Approved Budget is finalized for that
Year in accordance with Section 7.03 of the Servicing Agreement.
“Closing”
means the closing of the offering and sale of the Notes by GFL and the
consummation of the Acquisition and the other transactions described in the
Final Prospectus.
“Closing
Date”
means _______, 2006.
“Code”
has the meaning assigned to such term in Section 9.07(c) of the Servicing
Agreement.
APPENDIX A-3
APPENDIX
A TO THE
SERVICING
AGREEMENT
“Collection
Account”
has the meaning assigned to such term in Section 3.01(a) of the
Indenture.
“Competitor”
means any of the following Persons:
(i) any
Person (other than GE Capital and its Affiliates) engaged in, or which has an
Affiliate engaged in, the business of manufacturing aircraft or aircraft
engines, which business had consolidated revenues attributable to such business
for such Person’s and/or its Affiliates’, as the case may be, most
recently completed fiscal year in excess of $200 million; or
(ii) any of
the following Persons (or any of their respective Affiliates) and their
respective successors and assigns:
(a) International
Lease Finance Corporation;
(b) Aviation
Capital Group;
(c) AWAS;
(d) ORIX;
(e) CIT
Group Inc.;
(f) Xxxxxxx
& Xxxxx Limited;
(g) AerCap
B.V.;
(h) RBS
Aviation Capital;
(i) Fortress
Investments/Aircastle Advisor LLC;
(j) Cerberus
Capital Management;
(k) Terra
Firma Capital Partners;
(l) Singapore
Aircraft Leasing Enterprise;
(m) Boeing
Capital;
(n) GATX
Air; and
(o) Pegasus
Aviation or
(iii) any
other Person (or any Affiliate thereof) (other than GE and its Affiliates)
which engages in a business as an operating lessor of Aircraft Assets in
competition with any Person within the GFL Group either (x) in succession to
any of the Persons specified in clause (ii) above or (y) which has
consolidated aircraft leasing-related revenues (excluding revenues from sales
of aircraft) attributable to such business for its most recently completed
fiscal year in excess of $200 million.
“Competitor
Control”
means, with respect to any Person, a Competitor’s control or beneficial
ownership, directly or indirectly, of 50% or more of any class of securities
(other than promissory notes or loan certificates or pass-through certificates
in respect of promissory notes or loan certificates), directly
APPENDIX A-3
APPENDIX
A TO THE
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AGREEMENT
or
indirectly, of such Person, or the appointment or ability to appoint a
director, member, trustee or similar Person of such Person.
“Compliance
Obligations”
has the meaning assigned to such term in Section 11.05 of the Servicing
Agreement.
“Concentration
Limits”
has the meaning assigned to such term in Section 2.2(a) of
Schedule 2.02(a) to the Servicing Agreement.
“Conflicts
Standard”
has the meaning assigned to such term in Section 3.02(b) of the Servicing
Agreement.
“control”
(including, with its correlative meanings, “controlled
by”
and “under
common control with”)
means possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or
otherwise).
“Core
Lease Provisions”
means the core lease provisions included as Exhibit K to the Indenture, as the
same may be amended from time to time.
“Default
Notice”
has the meaning assigned to such term in Section 1.01 of the
Indenture.
“Delivery”
has the meaning assigned to such term in Section 1.1 of the Asset Purchase
Agreement.
“Deposits”
means the deposits required under a Lease.
“Disposition”
has the meaning assigned to such term in Section 9.04(b) of the Servicing
Agreement.
“Documentary
Conventions”
with respect to any agreement, instrument or other document that states it is
governed thereby, means that, except as otherwise expressly provided
therein:
(a) No
Partnership. The
parties thereto expressly recognize and acknowledge that such agreement,
instrument or other document is not intended to create a partnership, joint
venture or other similar arrangement between or among any of the parties
thereto or their respective Affiliates.
(b) Notices.
Subject to paragraph (d) below, all notices, consents, directions, approvals,
instructions, requests and other communications required or permitted by such
agreement, instrument or other document to be given to any Person shall be in
writing, and any such notice shall become effective five Business Days after
being deposited in the mails, certified or registered, return receipt
requested, with appropriate postage prepaid for first class mail or, if
delivered by hand or courier service or in the form of a facsimile, when
received (and, in the case of a facsimile, receipt of such facsimile is
electronically or otherwise confirmed to the sender), and shall be directed to
the address or facsimile number of such Person set forth in Appendix C to the
Servicing Agreement. From time to time any party to such agreement, instrument
or other document may designate a new address or number for purposes of notice
thereunder by notice to each of the other parties thereto.
APPENDIX A-4
APPENDIX
A TO THE
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AGREEMENT
(c) Governing
Law. SUCH
AGREEMENT, INSTRUMENT OR OTHER DOCUMENT SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
(d) Jurisdiction;
Court Proceedings; Waiver of Jury Trial. Any
suit, action or proceeding against any party to such agreement, instrument or
other document arising out of or relating to such agreement, instrument or
other document, any transaction contemplated thereby or any judgment entered by
any court in respect of any thereof may be brought in any New York State court
located in the County of New York or Federal court sitting in the Second
Circuit, and each such party hereby submits to the nonexclusive jurisdiction of
such courts for the purpose of any such suit, action or proceeding. To the
extent that service of process by mail is permitted by applicable law, each
party thereto irrevocably consents to the service of process in any such suit,
action or proceeding in such courts by the mailing of such process by
registered or certified mail, postage prepaid, at its address for notices
provided for above. Each party to such agreement, instrument or other document
irrevocably agrees not to assert any objection which it may ever have to the
laying of venue of any such suit, action or proceeding in any New York State
court located in the County of New York or Federal court sitting in the Second
Circuit, and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum. To the fullest extent
permitted by Applicable Law, each party to such agreement, instrument or other
document waives any right it may have to a trial by jury in respect of any
litigation directly or indirectly arising out of, under or in connection with
such agreement, instrument or other document. GFL agrees, and it shall cause
each other Person within the GFL Group, not to bring any action, suit or
proceeding against GE Capital, the Servicer or any of their respective
Affiliates or any of GE Capital’s, the Servicer’s or their respective
Affiliates’ Representatives arising out of, in connection with or related
to any such agreement, instrument or other document or any transaction
contemplated thereby except in a New York State court located in the County of
New York or Federal court sitting in the Second Circuit.
(e) Agent. GFL
and each other Person within the GFL Group hereby appoints CT Corporation
System (the “Agent”),
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, X.X.X. 00000, as its nonexclusive agent
for service of process in connection with each Operative Agreement. The parties
may use any other legally available means of service of process. GFL will
promptly notify the Servicer, the Policy Provider and GE Capital of any change
in the address of the Agent; provided,
however, that
GFL will at all times maintain an agent located within New York State for
service of process in connection with each Operative Agreement.
The
Servicer hereby appoints GE Capital (the “Servicer’s
Agent”),
000 Xxxxxxx Xxx., 00xx Xxxxx, Xxx Xxxx, X.X. 00000, X.X.X., as its
nonexclusive agent for service of process in connection with each Operative
Agreement. The parties may use any other legally available means of service of
process. The Servicer will promptly notify GFL and the Policy Provider of any
change in the address of the Servicer’s Agent; provided,
however, that
the Servicer will at all times maintain an agent located within New York State
for service of process in connection with each Operative
Agreement.
(f) Consequential
Damages. In no
event will any party to such agreement, instrument or other document be liable
to any other for lost profits, income tax consequences, lost savings or any
other consequential damages, even if such party has been advised of the
possibility of such damages, or for punitive damages, resulting from the breach
of any obligation under such agreement, instrument or other
document.
APPENDIX A-5
APPENDIX
A TO THE
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AGREEMENT
(g) Counterparts. Each
such agreement, instrument or other document may be executed by the parties
thereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same agreement, instrument or other document. All signatures need not
be on the same counterpart.
(h) Entire
Agreement; Amendment and Waiver. Such
agreement, instrument or other document, together with the other Operative
Agreements, shall constitute the entire agreement of the parties thereto with
respect to the subject matter thereof and supersedes all prior written and oral
agreements and understandings with respect to such subject matter. Neither any
such agreement, instrument or other document nor any of the Appendix A to the
Servicing Agreement terms thereof may be terminated, amended, supplemented,
waived or modified, except by an instrument in writing signed by GFL, the
Policy Provider and the Servicer. No failure or delay of any party to any such
agreement, instrument or other document, in exercising any power or right
thereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power.
(i) Table
of Contents; Headings. The
table of contents and headings of the various articles, sections and other
subdivisions of such agreement, instrument or other document are for
convenience of reference only and shall not modify, define or limit any of the
terms or provisions of such agreement, instrument or other
document.
(j) Parties
in Interest; Limitation on Rights of Others. The
terms of such agreement, instrument or other document shall be binding upon,
and inure to the benefit of, the parties thereto and their permitted successors
and assigns and, to the extent applicable, their respective Affiliates and
Representatives. Except as expressly set forth in any such agreement,
instrument or other document with respect to Affiliates and Representatives of
the parties thereto, nothing in such agreement, instrument or other document,
whether express or implied, shall be construed to give any Person (including
any past, present or future employee of any Person within the GFL Group) (other
than the parties thereto and their permitted successors and assigns (including,
in the case of GFL, the Security Trustee, the extent provided in Section 12.01
of the Servicing Agreement) and, with respect to Section 2.01(a) of the
Servicing Agreement and Section 9.3 of Schedule 2.02 to the Servicing
Agreement, Genesis) any legal or equitable right, remedy or claim under or in
respect of such agreement, instrument or other document or any covenants,
conditions or provisions contained therein. References in the Servicing
Agreement to the Policy Provider shall terminate without further action upon
the occurrence and during the continuance of a Policy Non-Consent Event as
defined in the Indenture.
(k) Method
of Payment. Except
as otherwise agreed, all amounts required to be paid by any party to such
agreement, instrument or other document to any other party thereunder
(including in respect of any judgment or settlement entered in respect of such
agreement, instrument or other document) shall be paid in dollars, by wire
transfer, or other acceptable method of payment, of same day funds to a dollar
account located in the United States as such party may specify by notice to the
other party.
(l) Payment
on Business Days. If any
payment under such agreement, instrument or other document is required to be
made on a day other than a Business Day, the date of payment shall be extended
to the next Business Day.
APPENDIX A-6
APPENDIX
A TO THE
SERVICING
AGREEMENT
(m) Past
Due Payments. Any
amount payable to any party or any of its Representatives under any such
agreement, instrument or other document shall be paid on the date therein
specified for payment of such amounts. To the extent that all or a portion of
such amount is not paid on such date, such amount (or the unpaid portion
thereof) shall bear interest at the Stipulated Interest Rate from such date
until and through the date that such amount has been paid in full.
(n) Severability. Any
provision of such agreement, instrument or other document that shall be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by Applicable Law, each of GFL and the Servicer waives any provision of law
that renders any provision of any agreement, instrument or other document
prohibited or unenforceable in any respect.
“Dollar”
or “$”
means the lawful money of the United States of America.
“Due
Date”
has the meaning assigned to such term in Section 9.07(a) of the Servicing
Agreement.
“Effectiveness
Date”
has the meaning assigned to such term in Section 10.02(c)(ii) of the Servicing
Agreement.
“Engine”
means owned or leased-in aircraft engines or, with respect to any Original
Aircraft, any aircraft engine required to be delivered together with such
Original Aircraft pursuant to the terms of the Asset Purchase
Agreement.
“EU”
means the European Union.
“Event
of Default”
has the meaning assigned to such term in Section 1.01 of the
Indenture.
“Executive
Order”
means US Executive Order No. 13224 on Blocking Property and Prohibiting
Transaction with Persons who Commit, Threaten to Commit, or Support Terrorism,
which came into effect on September 23, 2001.
“Existing
Accounts”
has the meaning assigned to such term in Section 7.1(a) of Schedule
2.02(a) to the Servicing Agreement.
“Expense
Account”
has the meaning assigned to such term in Section 3.01(a) of the
Indenture.
“Fee
Period”
has the meaning assigned to such term in Section 9.03(a)(i) of the Servicing
Agreement.
“Final
Prospectus”
has the meaning assigned to such term in Section 2.03(a)(ii) of the
Servicing Agreement.
“Former
Aircraft Asset”
has the meaning assigned to such term in Section 2.04(b) of the Servicing
Agreement.
“GE”
means General Electric Company, a New York corporation.
APPENDIX A-7
APPENDIX
A TO THE
SERVICING
AGREEMENT
“GE
Capital”
means General Electric Capital Corporation, a Delaware
corporation.
“GE
Policy”
has the meaning assigned to such term in Section 2.04(a) of the Servicing
Agreement.
“GECAS”
means GE Commercial Aviation Services Limited, a company incorporated under the
laws of Ireland.
“GFL”
means Genesis Funding Limited, a limited liability company incorporated under
the laws of Bermuda.
“GFL
Group”
has the meaning assigned to such term in Section 2.01(a) of the Servicing
Agreement.
“GFL
Group Guarantees”
means each Guarantee, in the form set forth as Appendix B to the Servicing
Agreement, issued by each Person within the GFL Group (other than GFL) pursuant
to Section 6.13 of the Servicing Agreement.
“GFL
Group Liabilities”
means any obligations or liabilities of any Person within the GFL Group
(whether accrued, absolute, contingent, unasserted, known or unknown or
otherwise).
“GFL
Pro Forma Lease”
has the meaning assigned to such term in Section 3(b)(ii) of Schedule 2.02(a)
to the Servicing Agreement.
“Genesis”
means Genesis Lease Limited, a limited liability company organized under the
laws of Bermuda.
“Governmental
Authority”
means any court, administrative agency or commission or other governmental
agency or instrumentality (or any officer or representative thereof) domestic,
foreign or international, of competent jurisdiction including the
EU.
“Gross
Proceeds”
has the meaning assigned to such term in Section 9.04(b) of the Servicing
Agreement.
“Guarantee”
means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness or other obligation of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person or (ii) entered into for
purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided,
however, that
the term Guarantee shall not include (x) endorsements for collection or
deposit, in either case in the ordinary course of business, (y) any guarantee
by any Person within the GFL Group of the obligations of another Person within
the GFL Group in respect of such Person’s obligations in connection with
any Aircraft Assets, whether as lessor, seller or otherwise, or (z) the
delivery of a bond or similar instrument by or on behalf of any Person within
the GFL Group in connection with the detention or repossession of any Aircraft
Assets or enforcement of a Lease or removal of an encumbrance.
“Indebtedness”
means, with respect to any Person at any date of determination (without
duplication), (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (c) all obligations of such Person in
APPENDIX A-8
APPENDIX
A TO THE
SERVICING
AGREEMENT
respect
of letters of credit or other similar instruments (including reimbursement
obligations with respect thereto), (d) all the obligations of such Person
to pay the deferred and unpaid purchase price of property or services, which
purchase price is due more than six months after the date of purchasing such
property or service or taking delivery and title thereto or the completion of
such services, and payment deferrals arranged primarily as a method of raising
finance or financing the acquisition of such property or service, (e) all
obligations of such Person under a lease of (or other agreement conveying the
right to use) any property (whether real, personal or mixed) that is required
to be classified and accounted for as a capital lease obligation under U.S.
GAAP, (f) all Indebtedness of other Persons secured by a lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person, and
(g) all Indebtedness of other Persons Guaranteed by such Person.
“Indemnified
Parties”
means the Servicer and its respective Affiliates and each of the
Servicer’s and its respective Affiliates’
Representatives.
“Indenture”
means the Trust Indenture dated as of _________, 2006, among GFL, the Manager,
the Policy Provider and Deutsche Bank Trust Company Americas, as
trustee.
“Independent
Representative”
has the meaning assigned to such term in Section 3.02(c) of the Servicing
Agreement.
“Independent
Director”
means the independent trustees of GFL.
“International
Interest”
has the meaning given such term in the Cape Town Convention.
“International
Registry”
has the meaning given such term in the Cape Town Convention.
[“Initial
Offer”
means __________].]
“Lease”
means any lease or other agreement or arrangement pursuant to which any Person
(other than a Person within the GFL Group) has the right to possession and use
of any Aircraft Asset.
“Lease
Operating Budget”
has the meaning assigned to such term in Section 7.03(a) of the Servicing
Agreement.
“Lessee”
means the lessee (or equivalent Person) in respect of a Lease.
“Lessee
Contact”
has the meaning assigned to such term in Section 2.01(a) of the Servicing
Agreement.
“Lessee
Funded Account”
has the meaning assigned to such term in Section 3.01(a) of the
Indenture.
“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, charge, International Interest, Prospective International
Interest or security interest in or on such asset, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement relating to such asset and (c) in the case of securities,
any purchase option, call or similar right of a third party with respect to
such securities.
“Losses”
means any and all liabilities (including liabilities arising out of the
doctrine of strict liability), obligations, losses, damages, penalties,
actions, suits, judgments, costs, fees, expenses (including reasonable legal
fees, expenses and related charges and costs of investigation, including in
APPENDIX A-9
APPENDIX
A TO THE
SERVICING
AGREEMENT
connection
with enforcement of any indemnity) and disbursements, of whatsoever kind and
nature; provided,
however, the
term “Losses” shall not include Taxes or any Indemnified Party’s
management time or overhead expenses.
“Manager”
means Genesis acting through any one of its chief executive officer, its chief
financial officer or ____, under the Management Agreement.
“Management
Agreement”
means the Management Agreement dated as of ____, 2006 between Genesis and
GFL.
“Master
Servicing Agreement”
means the Master Servicing Agreement dated as of _____, 2006 between Genesis
and GECAS.
“Material
Adverse Effect”
means an event, condition, matter, change or effect that impacts or, insofar as
reasonably can be foreseen, in the future is likely to impact, in a material
adverse manner, (a) with respect to any Person other than the Servicer,
the condition (financial or otherwise), properties, assets, liabilities,
earnings, capitalization, shareholders’ equity, licenses or franchises,
businesses, operation or prospects of such Person or the ability of such Person
to perform fully any of its obligations under any of the Operative Agreements,
and (b) with respect to the Servicer, the Servicer’s liabilities,
obligations, rights or benefits under the Servicing Agreement or the
Servicer’s ability to perform fully any of the Services.
“Monthly
Base Fee”
has the meaning assigned to such term in Section 9.01(a) of the Servicing
Agreement.
“Monthly
Payment Period”
has the meaning assigned to such term in Section 7.3(a) of
Schedule 2.02(a) to the Servicing Agreement.
“Net
Proceeds”
has the meaning assigned to such term in Section 2.03(g) of the Servicing
Agreement.
“New
Accounts”
has the meaning assigned to such term in Section 7.1(b) of Schedule 2.02(a) to
the Servicing Agreement.
“Non-Curable
Termination Event”
has the meaning assigned to such term in Section 10.02(c)(ii) of the Servicing
Agreement.
“Nonterminating
Party”
has the meaning assigned to such term in Section 10.02(c)(i) of the Servicing
Agreement.
“Note
Target Price”
has the meaning assigned to such term in Section 5.02(g) of the
Indenture.
“Notes”
means any class or subclass of Notes issued pursuant to the Indenture on the
Closing Date, any Additional Notes and any Refinancing Notes, in each case
issued pursuant to the Indenture (or pursuant to any supplements
thereto).
“Notice
of Termination”
means a Termination Notice.
“OFAC
Designated Person”
means a Person: (a) listed in the annex to, or otherwise subject to the
provisions of, the Executive Order; (b) named as a specially designated
national and blocked Person” on the most current list published by the
Office of Foreign Asset Control of the United States Department of
APPENDIX A-10
APPENDIX
A TO THE
SERVICING
AGREEMENT
the
Treasury; or (c) owned or controlled by, or acting for on behalf of, any Person
referred to in clause (a) or (b) above.
“Offering”
has the meaning assigned to such term in Section 2.03(a)(i) of the
Servicing Agreement
“Officer’s
Certificate”
means, as to any Person, a certificate of the President, any Vice President or
Assistant Vice President, the Treasurer or any Assistant Treasurer, the
Secretary or any Assistant Secretary, or any Director.
“Operative
Agreements”
means the Servicing Agreement, the GFL Group Guarantees and all other
agreements, instruments or other documents, which are required by the terms of
any thereof to be delivered in connection with any of the foregoing
documents.
“Original
Aircraft”
means any “Aircraft” (as defined in the Asset Purchase Agreement);
provided,
however, that
Original Aircraft shall not include any “Aircraft” (x) which shall
have suffered an “Event of Loss” (as defined in the Asset Purchase
Agreement) or (y) with respect to which a payment of the Aircraft Refund Amount
has been made pursuant to Section 4.2 or 5.3 of the Asset Purchase
Agreement.
“Other
Assets”
has the meaning assigned to such term in Section 3.02(a) of the Servicing
Agreement.
“Outstanding
Principal Balance”
has the meaning assigned to such term in Section 1.01 of the
Indenture.
“Overhead
Expenses”
has the meaning assigned to such term in
Section
9.06(a) of the Servicing Agreement.
“Partial
Termination”
has the meaning assigned to such term in Section 10.02(a)(ii) of the
Servicing Agreement.
“Payment
Date”
means the 15th day of each month, commencing on _____ __, 2006; provided,
however, that,
if any Payment Date would otherwise fall on a day that is not a Business Day,
the relevant Payment Date shall be the first following day which is a Business
Day.
“Permitted
Account Investments”
has the meaning assigned to such term in Section 1.01 of the
Indenture.
“Person”
means any individual, firm, corporation, limited liability company,
partnership, trust, body of persons, joint venture, governmental authority or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
“Policy
Provider”
means Financial Guaranty Insurance Company, a New York stock insurance
company.
“Precedent
Lease”
has the meaning assigned to such term in Section 3(b) of Schedule 2.02(a) to
the Servicing Agreement.
APPENDIX A-11
APPENDIX
A TO THE
SERVICING
AGREEMENT
“Prime
Rate”
means the rate of interest per annum publicly announced from time to time by
Deutsche Bank Trust Company Americas as its prime rate in effect at its
principal office in New York City; each change in the “Prime Rate”
shall be effective on the date such change is announced.
“Prospective
International Interest”
has the meaning given to such term in the Cape Town Convention.
“Prospectus”
has the meaning assigned to such term in Section 2.03(a)(i) of the Servicing
Agreement.
“Rating
Agencies”
means each of Standard & Poor’s Ratings Group, a division of the
XxXxxx-Xxxx Companies, Inc. and Xxxxx’x Investors Service, Inc. and any
successors to either of the foregoing.
“Ratings”
means the then current rating assigned by a Rating Agency in respect of the
Notes.
“Refinancing
Notes”
means any class or subclass of Notes issued pursuant to the Indenture (or
pursuant to supplements thereto) at any time after the Closing Date, the
proceeds of which are used to repay all or any part of the then outstanding
Notes.
“Rent
Collected Fee”
has the meaning assigned to such term in Section 9.03(a)(ii) of the
Servicing Agreement.
“Rent
Fees”
has the meaning assigned to such term in Section 9.01 of the Servicing
Agreement.
“Rent
Payable Fee”
has the meaning assigned to such term in Section 9.03(a)(i) of the
Servicing Agreement.
“Rents”
means the basic rent payable pursuant to a Lease, and in the event that the
agreement or arrangement pursuant to which possession of any Aircraft Asset is
given is other than as a lease, amounts equivalent to any basic rent, and, in
the event that there is a negotiated or non-consensual termination of a Lease
prior to the scheduled expiry date of the term thereof or the exercise of a
termination right by the Lessee under a Lease, all amounts payable by the
Lessee in connection therewith other than amounts that the Servicer allocates
in good faith to damages for the applicable Aircraft’s failure to comply
with the return conditions specified in the Lease for such Aircraft (as
compared with damages for failure to pay overdue or future rent).
“Replacement
Servicer”
means a replacement servicer to perform some or all of the Services under the
Servicing Agreement formerly performed by the Servicer, Appendix A to the
Servicing Agreement appointed in accordance with Section 10.04(c) of the
Servicing Agreement.
“Representatives”
with respect to any Person means the officers, directors, employees, advisors
and agents of such Person.
“Required
Expense Amount”
has the meaning assigned to such term in Section 1.01 of the
Indenture.
“Restricted
Lessee Contact”
has the meaning assigned to such term in Section 2.01 of the Servicing
Agreement.
“Sales
Fee”
has the meaning assigned to such term in Section 9.01 of the Servicing
Agreement.
APPENDIX A-12
APPENDIX
A TO THE
SERVICING
AGREEMENT
“Security
Trust Agreement”
means the Security Trust Agreement dated as of the Closing Date among GFL,
Deutsche Bank Trust Company Americas, as Security Trustee and the operating
bank, and the other parties thereto.
“Security
Trustee”
means Deutsche Bank Trust Company Americas, a New York banking corporation, in
its capacity as security trustee pursuant to the Security Trust
Agreement.
“Servicer”
means GECAS.
“Servicer
Delegate”
has the meaning assigned to such term in Section 12.01 of the Servicing
Agreement.
“Servicer
Disclosure”
has the meaning assigned to such term in Section 2.03(a)(i) of the
Servicing Agreement.
“Servicer
Information”
has the meaning assigned to such term in Section 2.03(m) of the Servicing
Agreement.
“Services”
has the meaning assigned to such term in Section 2.02(a) of the Servicing
Agreement.
“Servicing
Agreement”
or “Agreement”
means the Servicing Agreement dated as of _________, 2006, between GFL and the
Servicer.
“Servicing
Fees”
means the Monthly Base Fee, the Sales Fee, the Rent Fees and any other fees
payable to the Servicer under the Servicing Agreement.
“Shadow
Director/Related Company Claims”
has the meaning assigned to such term in Section 11.04 of the Servicing
Agreement.
“Significant
Subsidiary”
means any Person within the GFL Group that has title to, or any other indicia
of ownership in, any Aircraft Assets.
“Standard
of Care”
has the meaning assigned to such term in Section 3.01 of the Servicing
Agreement.
“Standard
of Liability”
has the meaning assigned to such term in Section 3.03 of the Servicing
Agreement.
“Stated
Services Obligation”
has the meaning assigned to such term in Section 7.3(a) of
Schedule 2.02(a) to the Servicing Agreement.
“Stipulated
Interest Rate”
means, for any period, a rate per annum equal to the Prime Rate in effect
during such period plus 2 percent per annum.
“Subsidiary”
of any Person means a corporation, company, common law or statutory trust or
other entity (i) more than 50% of whose outstanding shares or securities
(representing the right to vote for the election of directors or other managing
authority) are, or (ii) which does not have outstanding shares or securities
(as may be the case in a partnership, joint venture or unincorporated
association), but more than 50% of whose ownership interest representing the
right to make decisions for such other entity is, now or hereafter owned or
controlled, directly or indirectly, by such Person, but such corporation,
APPENDIX A-13
APPENDIX
A TO THE
SERVICING
AGREEMENT
company,
common law or statutory trust or other entity shall be deemed to be a
Subsidiary only so long as such ownership or control exists.
“Tax”
or “Taxes”
means all fees (including documentation, license and registration fees), taxes,
assessments, levies, impositions, duties, withholdings and other charges of any
nature whatsoever (including taxes based upon or measured by gross receipts,
income, profits, sales, use or occupation, and value added, ad valorem,
transfer, franchise, withholding, payroll, social security, employment, excise,
documentary, stamp, corporation, corporation profits, advance corporation,
capital duty, capital gains, capital acquisitions, wealth, vehicle
registration, social insurance, and property taxes) asserted or imposed by any
Governmental Authority, together with all interest, fines, penalties and
additions imposed with respect to such amounts.
“Taxpayer”
means any Person within the GFL Group or any predecessor of any Person within
the GFL Group, or any successor to any Person within the GFL Group [or Genesis
and its Subsidiaries] (but not including the Servicer or any of its
Affiliates).
“Terminating
Party”
has the meaning assigned to such term in Section 10.02(c)(i) of the
Servicing Agreement.
“Termination
Notice”
has the meaning assigned to such term in Section 10.02(c)(i) of the
Servicing Agreement.
“Third
Party Claim”
means a claim by a third party arising out of a matter for which an Indemnified
Party is entitled to be indemnified pursuant to the indemnity provisions of the
Servicing Agreement.
“Transaction
Approval Requirements”
has the meaning assigned to such term in Section 7.04(c) of the Servicing
Agreement.
“Trustee”
has the meaning assigned to such term in the Indenture.
“U.S.”
means the United States of America.
“U.S.
GAAP”
means generally accepted accounting principles in the United
States.
“Utilization
Rent”
means the utilization rent, supplemental rent, and other similar payments
(including payments analogous to or consisting of maintenance reserves) under
each of the Leases.
“Year”
means each fiscal year ending December 31.
APPENDIX A-14
APPENDIX B
TO THE
SERVICING
AGREEMENT
GUARANTEE
dated as of [insert date],
made by
[insert name] (“Guarantor”) in favor of GE COMMERCIAL AVIATION
SERVICES LIMITED (the “Servicer”) and its Affiliates relating to the
Servicing Agreement dated as of _________ __, 2006 (the
“Agreement”), between the Servicer and
_________________(“GFL”).
WHEREAS
pursuant to the Agreement, the Servicer has agreed to provide Services to each
Person within the GFL Group in accordance with and to the extent set forth in
the Agreement;
WHEREAS
the Obligor is a party to the Agreement and is liable for any and all amounts
due and owing to the Servicer and any of its Affiliates under the Agreement;
and
WHEREAS
each Person within the GFL Group is a direct or indirect beneficiary of the
Services performed by the Servicer pursuant to the Agreement.
NOW,
THEREFORE, in consideration of the premises and to induce the Servicer to enter
in the Agreement and to perform the Services thereunder, Guarantor hereby
agrees, for the benefit of the Servicer and its Affiliates, as
follows:
1. Guarantor
unconditionally and irrevocably guarantees to the Servicer and its Affiliates
(a) the due and punctual payment of all amounts due to the Servicer and
its Affiliates from the Obligor under the Agreement, whether now existing or
hereafter incurred, and (b) the due and punctual performance of all other
obligations of the Obligor to the Servicer and its Affiliates under the
Agreement (all the foregoing being hereinafter collectively called the
“Obligations”) and any and all fees and expenses (including, without
limitation, reasonable attorneys’ fees and expenses) incurred by the
Servicer and its Affiliates in enforcing any rights under this Guarantee, all
without regard to any counterclaim, set-off, deduction or defense of any kind
which the Obligor or Guarantor may have or assert, and without abatement,
suspension, deferment or diminution on account of any event or condition
whatsoever. In case of failure of the Obligor punctually to pay any of the
amounts referred to in clause (a) above, Guarantor hereby agrees to cause such
amounts to be paid punctually when and as the same shall become due and payable
as if such payment were made by the Obligor. Guarantor further agrees that this
Guarantee constitutes a guarantee of payment when due and not of
collection.
2. The
liability of the undersigned under this Guarantee shall, to the fullest extent
permitted by Applicable Law, be unconditional irrespective of (i) any lack of
enforceability against the Obligor of any Obligation, (ii) any change of the
time, manner or place of payment, or any other term, of any Obligation, (iii)
any exchange, release or nonperfection of any collateral securing payment of
any Obligation or any other guarantee in respect thereof, (iv) any law,
regulation or order of any jurisdiction affecting any term of any Obligation or
the Servicer’s or any of its Affiliates’ rights with respect thereto
and (v) any other circumstance which might vary the risk of or otherwise
constitute a defense available to, or a discharge of, the Obligor, Guarantor or
any surety. The Guarantor waives, to the fullest extent permitted by Applicable
Law, promptness, diligence and notices with respect to any Obligation and this
Guarantee and any requirement that the Servicer or any of its Affiliates
exhaust any right or take any action against the Obligor, any collateral
security or any other guarantor.
3. In the
event that the Guarantor is required by any applicable law to make any
deduction or withholding for or on account of Taxes from any payment to be made
by it hereunder, then it shall (i) pay over to the government or taxing
authority imposing such Tax the full amount required to be
APPENDIX X-00
XXXXXXXX X
TO THE
SERVICING
AGREEMENT
deducted
or withheld (including the full amount required to be deducted or withheld from
the additional amounts required to be paid pursuant to clause (ii) below), (ii)
pay to the Servicer or its Affiliates, as the case may be, together with such
payment such additional amounts as may be necessary in order that the net
amount received by the Servicer or its Affiliates, as the case may be, will be
not less than the full amount of such payment which would otherwise have been
receivable had no such deduction or withholding been required and (iii) forward
to the Servicer as soon as possible such tax receipts or other official
documentation with respect to the payment of the Taxes so deducted or withheld
as may be issued from time to time by such government or taxing
authority.
4. Guarantor
further agrees that this Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation or interest thereon is rescinded or must otherwise be restored
by the Servicer upon the bankruptcy or reorganization of the Obligor, Guarantor
or otherwise.
5. Upon
payment by Guarantor of any sums to the Servicer or its Affiliates under this
Guarantee, all rights of Guarantor against the Obligor arising as a result
thereof by way of right of subrogation or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full of all the obligations of the Obligor under the Agreement.
6. The
Guarantor represents and warrants as of the date hereof to the Servicer and its
Affiliates that:
(a) the
Guarantor is a [corporation or business trust duly organized and validly
existing and, if relevant, in good standing under the laws of the jurisdiction
in which it is legally organized] [national banking association duly organized
and validly existing in good standing under the laws of the United States], and
has full power, authority and legal right to execute and deliver, and to
perform its obligations under, this Guarantee;
(b) the
Guarantor has taken all necessary corporate and legal action to authorize the
guarantee hereunder on the terms and conditions of this Guarantee and to
authorize its execution, delivery and performance;
(c) this
Guarantee has been duly executed and delivered by a duly authorized officer or
Representative of the Guarantor, and constitutes the legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with its terms;
(d) the
execution, delivery and performance of this Guarantee will not constitute a
default under or violate any provision of any law or regulation, or any
judgment or order of any court, arbitrator or governmental authority, in each
case applicable to the Guarantor, constituent documents of the Guarantor, or
any agreement to which the Guarantor is a party; and
(e) no
consent of any other Person, and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any Governmental Authority, is required in connection with
the execution delivery, performance, validity or enforceability with respect to
the Guarantor of this Guarantee.
7. This
Guarantee shall remain in full force and effect and be binding in accordance
with its terms upon the Guarantor and shall inure to the benefit of the
Servicer and its Affiliates until all the Obligations and the obligations of
the Guarantor under this Guarantee shall have been satisfied by indefeasible
payment in full.
APPENDIX X-00
XXXXXXXX X
TO THE
SERVICING
AGREEMENT
8. The
obligations of Guarantor under this Guarantee may not be assigned or delegated
without the prior written consent of the Servicer.
9. [The
liability of the Guarantor under this Guarantee is limited to the maximum
amount that will result in the obligations of the Guarantor not constituting a
fraudulent conveyance or fraudulent transfer under Applicable Law.
10. ]This
Guarantee shall be governed by the Documentary Conventions, and all capitalized
terms used but not defined herein have the meanings assigned to such terms in
Appendix A to the Agreement. The construction and usage set forth in such
Appendix A are incorporated herein by reference.
11. All of
the statements, representations, covenants and agreements made by Guarantor
contained in this Guarantee are made and intended only for the purpose of
binding the Trust Estate (as such expression is defined in the Trust Agreement)
and establishing the existence of rights and remedies which can be exercised
and enforced against the Trust Estate. Therefore, anything contained in this
Guarantee to the contrary notwithstanding, no recourse shall be had with
respect to this Guarantee against Guarantor in its individual capacity or
against any institution or person which becomes a successor trustee or
co-trustee or any officer, director, trustee, servant or direct or indirect
parent or controlling person or persons of any of them; provided, however, that
this Section 11 shall not be construed to prohibit any action or proceeding
against any party hereto for its own willful misconduct or grossly negligent
conduct for which it would otherwise be liable; and provided, further, that
nothing contained in this Section 11 shall be construed to limit the exercise
and enforcement in accordance with the terms of this Guarantee or such other
agreements of rights and remedies against the Trust Estate.]
IN
WITNESS WHEREOF, Guarantor has executed this Guarantee as of the date first
above written.
| [Insert Name of Guarantor] | ||
| |
|
|
| By: | ||
|
Name:
Title: |
||
APPENDIX B-18
APPENDIX C
TO THE
SERVICING
AGREEMENT
Notices
GE
Commercial Aviation Services Limited
Aviation
House
Shannon,
County Clare
Ireland
Attention:
Company Secretary
Fax:
(000) 00-000000
Telephone:
(000) 00-000000
with a
copy to:
GE
Commercial Aviation Services LLC
000 Xxxx
Xxxxx Xxxx (Xxxxxx Xxxxx)
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
General Counsel
Fax:
(000) 000-0000
Telephone:
(000) 000-0000
_______________________________
_______________________________
_______________________________
with a
copy to:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
APPENDIX C
EXHIBIT
A TO
THE
SERVICING AGREEMENT
MONTHLY
REPORT TO GFL
EXHIBIT A
EXHIBIT
B-1 TO
THE
SERVICING AGREEMENT
QUARTERLY
REPORT TO GFL
EXHIBIT B-1
EXHIBIT
B-2 TO
THE
SERVICING AGREEMENT
QUARTERLY
REPORT TO POLICY PROVIDER
EXHIBIT B-2
