EXHIBIT 10.49
EXECUTION COPY
FORM OF SECURITY AGREEMENT USED FOR EACH OF THE SECURED PROMISSORY NOTES
FILED AS EXHIBITS 10.46, 10.47 AND 10.48. EACH SECURITY AGREEMENT COVERS
ONE GULFSTREAM IV AIRCRAFT.
FORM OF SECURITY AGREEMENT (1032)
Dated as of November 30, 1998
By and Between
GULFSTREAM AEROSPACE CORPORATION
as Borrower
and
THE CIT GROUP/EQUIPMENT FINANCING, INC.
as Secured Party
One (1) Gulfstream Aerospace G-IV Aircraft
Manufacturer's Serial Number 1032
FAA Registration Number N432QS (formerly assigned N888UE)
Two (2) Rolls ▇▇▇▇▇ ▇▇▇ Model MK-611-8 Engines
Manufacturer's Serial Numbers 16163 and 16164, respectively
[This Schedule
Intentionally Omitted
from FAA filing copy]
SCHEDULE A (1032)
-----------------
PRINCIPAL AMOUNT OF LOAN
Seventeen Million Dollars ($17,000,000)
TABLE OF CONTENTS
Page
RECITALS ..............................................................1
ARTICLE I DEFINITIONS................................................1
ARTICLE II CREATION OF SECURITY INTEREST..............................5
Section 2.01. Security Interest in the Collateral; Assignment.......5
ARTICLE III REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE
BORROWER..................................................6
Section 3.01. Existence; Authorization..............................6
Section 3.02. No Adverse Pending Actions............................6
Section 3.03. Government Authorizations.............................7
Section 3.04. Taxes.................................................7
Section 3.05. Interest in Note......................................7
Section 3.06. Collateral Documents..................................7
Section 3.07. Registration and Insignia.............................8
Section 3.08. Compliance with Laws..................................8
Section 3.09. Maintenance and Repair................................8
Section 3.10. Insurance.............................................8
Section 3.11. Inspection; Records; Information.....................11
Section 3.12. Title; Liens.........................................11
Section 3.13. Notice of Default....................................11
Section 3.14. Event of Loss........................................12
Section 3.15. Mergers and Consolidations...........................12
Section 3.16. Financial Information................................12
Section 3.17. Taxes, Duties, Fees, Claims and Charges..............13
Section 3.18. Overdue Payments.....................................13
Section 3.19. Citizenship..........................................13
Section 3.20. Possession...........................................13
Section 3.21. Indemnity............................................13
ARTICLE IV EVENTS OF DEFAULT AND REMEDIES............................13
Section 4.01. Events of Default....................................13
Section 4.02. Remedies Upon Default................................14
Section 4.03. Waiver...............................................16
Section 4.04. Application of Proceeds..............................16
Section 4.05. Termination..........................................16
Section 4.06. Remedies Cumulative..................................17
Section 4.07. Construction, Applicable Law; Jurisdiction...........17
ARTICLE V MISCELLANEOUS PROVISIONS...................................17
Section 5.01. Successors and Assigns...............................17
Section 5.02. Entire Agreement.....................................17
Section 5.03. Notices..............................................17
Section 5.04. Continuing Lien and Security Interests; Transfer.....18
Section 5.05. Counterparts and Dating..............................18
SCHEDULE A - Principal Amount of Loan
SECURITY AGREEMENT (1032)
-------------------------
THIS SECURITY AGREEMENT (1032) is entered into as of November 30,
1998 (this "Agreement"), by and between GULFSTREAM AEROSPACE CORPORATION, a
Georgia corporation (the "Borrower") and THE CIT GROUP/EQUIPMENT FINANCING,
INC., a New York corporation (the "Secured Party").
RECITALS
A. The Borrower is the owner and manufacturer of a Gulfstream
Aerospace G-IV Aircraft bearing manufacturer's serial number 1032 and U.S.
registration number N432QS (formerly assigned N888UE) (the "Airframe")
together with two Rolls ▇▇▇▇▇ ▇▇▇ Model MK-611-8 engines bearing
manufacturer's serial numbers 16163 and 16164 (the "Engine(s)", and
together with the Airframe and all parts relating to the Engines and the
Airframe, the "Aircraft" and all available operating, repair, and
maintenance records pertaining to the Aircraft (the "Records") and together
with the Aircraft, the "Equipment")).
B. Pursuant to the loan between the Secured Party, as lender, and
the Borrower, as borrower, the Secured Party has loaned to the Borrower the
aggregate amount set forth in Schedule A attached hereto (the "Loan") in
order that the Borrower shall finance the Aircraft. Such Loan is evidenced
by a promissory note (the "Note"), which Note will be secured by (i) the
Aircraft, (ii) the Lease and (iii) other Collateral pursuant to this
Agreement.
C. Borrower, as lessor, has leased the Aircraft to EJI Sales,
Inc. (the "Lessee") pursuant to the Aircraft Lease Agreement (the "Lease"),
dated as of July 23, 1996, which Lease was recorded by the Federal Aviation
Administration on October 25, 1996 and assigned Conveyance No. P08553.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Secured Party to make the Loan and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
-----------
As used in this Agreement, the following terms shall have the
following definitions:
"Agreement" shall mean this Security Agreement (1032) and
concurrent or subsequent exhibits or schedules to this Security Agreement
(1032) and any extensions, supplements, amendments or modifications to this
Security Agreement (1032) and/or to any such exhibits or schedules.
"Aviation Authority" shall mean the FAA.
"Business Day" shall mean any day other than a Saturday, Sunday
or day on which commercial banking institutions in New York, New York are
authorized by law to be closed.
"Closing Date" shall mean each date upon which the Secured Party
shall make a Loan to the Borrower pursuant to the Note.
"Collateral" is defined in Section 2.01 of this Agreement.
"Event of Default" shall mean and include the occurrence of any
one or more of the events of default set forth in Section 4.01 of this
Agreement.
"Event of Loss" shall mean any of the following events with
respect to any Collateral:
(i) loss of such property or of the use thereof due to
theft, disappearance which continues for more than fifteen (15)
days, destruction, damage beyond repair or rendition of such
property permanently unfit for normal use for any reason;
(ii) any damage to such property which results in an
insurance settlement with respect to such property on the basis
of an actual, constructive or compromised total loss; or
(iii) the condemnation, confiscation or seizure of, or
requisition to title to or use of, such property by any
Governmental Authority which, in the case of a requisition for
use, continues for more than fifteen (15) days.
"FAA" shall mean and refer to the United States Federal Aviation
Administration or any successor or replacement administration or
governmental agency having the same or similar authority and
responsibilities.
"Financing Documents" shall mean this Agreement, the Note, the
Lessee Consent and the Guaranty, as originally executed and as the same may
from time to time be supplemented or amended and any other document or
instrument expressly declared to be a Financing Document.
"Governmental Authority" shall mean and include (a) the FAA; (b)
any national government, or political subdivision thereof or local
jurisdiction therein; (c) any board, commission, department, division,
organ, instrumentality, court or agency of any entity described in (b)
above, however, constituted; and (d) any association, organization, or
institution of which any entity described in (b) or (c) above is a member
or to whose jurisdiction any such entity is subject or in whose activities
any such entity is a participant but only (except for purposes of defining
Law below) to the extent that any of the preceding have jurisdiction over
the Aircraft or its operations.
"Guaranty" shall mean the Guaranty (1032), dated November ___,
1998, made by Gulfstream Delaware Corporation, a Delaware corporation, and
by Gulfstream Aerospace Corporation, a Delaware corporation, in favor of
the Secured Party.
"Guarantors" shall mean each of (i) Gulfstream Delaware
Corporation, a Delaware corporation and (ii) Gulfstream Aerospace
Corporation, a Delaware corporation.
"Indemnitee" shall mean the Secured Party and its successors,
permitted assigns, affiliates, agents, employees, servants, officers and
directors.
"Insolvency Proceeding" shall mean and include any proceeding
commenced by or against any person or entity, under any provision of the
Federal Bankruptcy Code, as amended, or under any other bankruptcy or
insolvency law, including, but not limited to, assignments for the benefit
of creditors, formal or informal moratoriums, compositions or extensions
with some or all creditors.
"Insured Value" shall mean the amount of the Loan as set forth in
Schedule A hereto.
"Interest Rate" shall have the meaning set forth in the Note.
"Judicial Officer or Assignee" shall mean and include any
trustee, receiver, controller, custodian, assignee for the benefit of
creditors or any other person or entity having powers or duties like or
similar to the powers and duties of a trustee, receiver, controller,
custodian or assignee for the benefit of creditors.
"Law" shall mean and include (a) any statute, decree,
constitution, regulation, order, judgment or other directive of any
Governmental Authority; (b) any treaty, pact, compact or other agreement to
which any Governmental Authority is a signatory or party; (c) any judicial
or administrative interpretation or application of any Law described in (a)
or (b) above; and (d) any amendment or revision of any Law described in
(a), (b) or (c) above.
"Lessee Consent" shall mean the Consent Agreement and
Acknowledgment (1032) dated as of November __, 1998 made by EJI Sales, Inc.
"Liens" shall mean any mortgage, pledge, lien, charge,
encumbrance, lease, exercise of rights, security interest or claim.
"Maintenance Program" shall mean the Borrower's FAA approved
maintenance program for the Aircraft and the Engines as the same may be
amended from time to time with FAA approval, Secured Party's approval.
"Obligations" shall mean and include any and all loans, advances,
overdrafts, debts, liabilities, obligations owing by the Borrower to the
Secured Party pursuant to any Financing Document, including without
limitation, any and all amounts due the Secured Party under the Note
(whether now in force or hereafter executed and delivered), and any other
Financing Document, any and all interest (including late payment charges)
which is not paid when due, and any and all Secured Party Expenses which
the Borrower is required to pay or reimburse pursuant to this Agreement, by
law, or otherwise, or under covenants and duties owing by the Borrower to
the Secured Party, of any kind or description, arising out of or in
connection with, or related to the transactions contemplated by the Note,
this Agreement, and any other Financing Document between the Borrower and
the Secured Party entered into in connection therewith, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising.
"Parts" shall mean, at any time, all parts, components,
equipment, instruments, appliances, avionics, radio and radar devices,
cargo handling systems and loose equipment that are at such time
incorporated or installed in or attached to the Airframe or either Engine.
"Permitted Liens" shall mean (i) liens arising from taxes either
not yet assessed or, if assessed, not yet due or contested in good faith so
long as such proceedings do not involve any danger of sale, forfeiture or
loss of the Collateral; and (ii) materialmen's, mechanic's, workmen's,
repairmen's, employees', or other like liens arising by operation of law in
the ordinary course of business for amounts which are either not yet due or
are being contested in good faith by appropriate proceedings (and for which
adequate reserves have been made or when required in order to pursue such
proceedings, an adequate bond has been obtained) so long as such
proceedings do not involve any danger of sale, forfeiture or loss of the
Collateral.
"Person" shall mean an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Proceeds" shall have the meaning assigned to it in the Uniform
Commercial Code in effect from time to time in New York, and in any event,
shall include (i) any and all proceeds of any insurance, indemnity or,
warranty payable to the Borrower from time to time with respect to the
Aircraft or the Records; (ii) any and all payments (in any form whatsoever)
made or due and payable to the Borrower from time to time in connection
with any requisition, confiscation, condemnation, seizure or forfeiture of
the Aircraft by any governmental body, authority, bureau or agency or any
other Person (whether or not acting under color of governmental authority);
and (iii) any and all proceeds of any sale, transfer or disposition and any
and all other rents or profits or other amounts from time to time paid or
payable in connection with the Aircraft or the Records.
"Related Transactions" shall mean any and all leases or secured
financings of any aircraft between the Secured Party or any affiliate of
the Secured Party, as lessor or secured party, and the Borrower or any
affiliate of the Borrower, as lessee or obligor.
"Secured Party Expenses" shall mean and include all costs and
expenses which the Borrower is required to pay or cause to be paid under
this Agreement, and any other Financing Document, and which are paid or
advanced by the Secured Party pursuant to the provisions hereof or thereof;
all taxes and insurance premiums of every nature and kind which the
Borrower is required to pay or cause to be paid under this Agreement and
any other Financing Document, and which are paid or advanced by the Secured
Party pursuant to the provisions hereof or thereof; all filing, recording,
publication and search fees paid or incurred by the Secured Party in
connection with the transactions contemplated by this Agreement and/or any
other Financing Document; all costs and expenses paid or incurred by the
Secured Party, to correct any default or enforce any provisions of this
Agreement, the Note, or any other Financing Document, or in gaining
possession of, maintaining, handling, preserving, storing, refurbishing,
appraising, selling, preparing for sale and/or advertising to sell the
Collateral, whether or not a sale is consummated; all costs and expenses of
suit paid or incurred by the Secured Party in enforcing, or defending this
Agreement, the Note, or any other Financing Document, or any portion of any
thereof; and attorneys' fees and expenses paid or incurred by the Secured
Party in advising, structuring, drafting, amending, terminating, enforcing
(whether or not suit is brought and whether or not in connection with an
Insolvency Proceeding), defending or concerning this Agreement, the Note,
or any other Financing Document, or any portion of any thereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Transportation Act" shall mean 49 U.S.C. Section 40101, et.
seq., as amended, as in effect on the date of this Agreement, or any
successor or substitute legislation at the time in effect and applicable.
ARTICLE II
CREATION OF SECURITY INTEREST
-----------------------------
Section 2.01. Security Interest in the Collateral; Assignment. In
consideration of the making of the Loan by the Secured Party to the
Borrower, the Borrower does hereby sell, assign, transfer and set over to
the Secured Party and its successors and assigns, and does hereby grant to
the Secured Party and its successors and assigns, a continuing security
interest in and lien upon the following, whether now or hereafter acquired
(the "Collateral"), in order to secure prompt repayment of any and all
Obligations owed by the Borrower to the Secured Party and in order to
secure prompt performance of any and all other Obligations to be performed
by the Borrower:
(a) all of the Borrower's right, title and interest in and to the
Equipment wherever located and whether now or hereafter existing, and
whether presently owned or hereafter acquired and any and all documents,
instruments and agreements relating to Borrower's acquisition of the
Equipment and all attachments, replacements, substitutions, additions,
proceeds and all log books or title thereto; and
(b) all right, title, interest of the Borrower in, to and under
the Lease, together with all rights, powers, privileges, options and other
benefits thereunder, including, without limitation, the immediate and
continuing right to demand, receive and collect all rent thereunder,
income, revenues, issues, profits, insurance proceeds, condemnation awards
and other payments, maintenance and other reserves, escrowed funds, tenders
and security, including, without limitation, security deposits and all
other collateral (cash and non-cash) securing any payment, performance or
other obligations of the Lessee now or hereafter payable under the Lease
pursuant thereto, and the right to make all waivers and agreements, to give
and receive duplicate copies of all notices and other instruments or
communications, to take such action upon the occurrence of a default or an
event of default thereunder, including, without limitation, the
commencement, conduct and consummation of legal, administrative or other
proceedings, as shall be permitted by the Lease, or by law, and to do any
and all other things whatsoever which the Borrower or any lessor is or may
be entitled to do under the Lease.
The Secured Party's security interest in, lien upon, and rights
under, the Collateral shall attach to all of the Collateral upon the
execution and delivery of this Agreement, without further act being
required on the part of either the Secured Party or the Borrower.
ARTICLE III
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE BORROWER
----------------------------------------------------------
The Borrower represents and warrants (with respect to Sections
3.01 through 3.06 hereof), and covenants (with respect to Sections 3.07
through 3.21 hereof) to the Secured Party as follows:
Section 3.01. Existence; Authorization. It is a corporation duly
organized, validly existing and in good standing under the laws of Georgia
and is a "citizen of the United States" within the meaning of Section
40102(a)(15) of the Transportation Act. The execution, delivery and
performance by the Borrower of this Agreement, and the other Financing
Documents to which it is a party (i) do not and will not contravene any
Financing Document, any law or any contractual restriction binding upon
Borrower and (ii) do not and will not result in or require the creation of
any lien, security interest or other encumbrance upon or with respect to
any of its properties, other than in favor of the Secured Party. The
Borrower has all requisite power and authority to conduct its business and
perform its obligations under this Agreement and the other Financing
Documents to which it is a party and it has duly authorized by all
requisite action the execution, delivery and performance of each of the
Financing Documents to which it is a party. The Borrower is not a party to
any agreement or instrument or subject to any restriction materially
adversely affecting its business, operations, property, assets or
condition, financial or otherwise or its ability to perform its obligations
under this Agreement, any of the other Financing Documents or any agreement
or instrument thereunder to which it is a party and is not in default in
the performance, observance or fulfillment of the material obligations,
covenants, or agreements contained in any agreement or instrument to which
it is a party or by which it or any of its property or assets are bound.
When executed and delivered, this Agreement and each of the Financing
Documents to which it is a party will constitute its valid, legal, binding
and enforceable obligation except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or similar
laws affecting the rights of creditors generally.
Section 3.02. No Adverse Pending Actions. There are no actions,
suits or proceedings pending, or to its knowledge, threatened against or
affecting it by any governmental department, board, agency or
instrumentality or before any arbitrator which, if adversely determined,
would have a material adverse effect on its business or assets or would
materially impair its abilities to perform its obligations under this
Agreement or any of the other Financing Documents to which it is a party.
The Borrower is not in default under any applicable order, writ, injunction
or decree of any court, governmental department, board, agency, or
instrumentality or of any arbitrator and no Event of Default, or event
which with the giving of notice or the lapse of time or both would
constitute an Event of Default, under any Financing Document has occurred
and is continuing.
Section 3.03. Government Authorizations. The Borrower has
obtained in respect of this Agreement and each of the other Financing
Documents to which it is a party and the transactions contemplated hereby
and thereby, on or prior to the date hereof all governmental permissions,
rights, licenses and permits to carry out the transactions contemplated
hereby or thereby. The Borrower has not received notice and has no
knowledge of any violation of any applicable Law, regulation, order or
requirement which would have a material adverse effect on its business or
on the transactions contemplated by the Financing Documents, and which has
not been complied with or corrected in all material respects. True and
complete copies of all such governmental permissions, rights, licenses and
permits which have been obtained have been supplied to the Secured Party by
it.
Section 3.04. Taxes. The Borrower has filed or caused to be filed
(or has obtained a valid extension of time to file) all tax returns, if
any, required by any Federal, state or local government or other taxing
authority in the United States of America or by any foreign government or
other taxing authority, which it is required to file and has paid or caused
to be paid all taxes as shown on such returns or on any assessment received
by it to the extent that such taxes have become due (or is contesting such
taxes in good faith by appropriate procedures and has established adequate
reserves for the payment thereof). It has established reserves adequate for
the payment of additional taxes for years which have not been audited by
the respective tax authorities.
Section 3.05. Interest in Note. Neither the Borrower nor anyone
acting on its behalf has directly or indirectly offered an interest in any
Note for sale to, or solicited any offer to acquire the same from, any
Person which offer or solicitation would subject the same to registration
under the Securities Act, and neither the Borrower nor anyone acting on its
behalf will take any action which would subject any interest in any Note to
registration under the Securities Act.
Section 3.06. Collateral Documents. The provisions of the
Financing Documents are effective to create in favor of the Secured Party a
legal, valid and enforceable lien on and security interest in the
Collateral, and when the filings and recordations required by the terms
hereof have been duly effected, the Financing Documents will constitute a
fully perfected security interest in the Collateral, superior in right to
all other Liens, existing or future (except such other Liens as are
permitted under this Agreement).
Section 3.07. Registration and Insignia. The Borrower shall prior
to or concurrently with the mortgaging of the Aircraft hereunder cause, the
Airframe to be duly registered, and at all times thereafter to remain duly
registered, in the name of the Borrower. The Borrower shall not remove, or
cause or permit the removal of, any plate, disc or other similar device
affixed to the Airframe or any Engine indicating the Secured Party's
security interest therein. The Borrower shall not allow the name of any
other person, association or corporation other than the Lessee to be placed
on the Airframe or any Engine as a designation that might be interpreted as
a claim of ownership or of any interest therein; provided, however, that
the Borrower may cause the Airframe to be lettered or otherwise marked in
an appropriate manner for convenience of identification of the interest of
the Borrower therein.
Section 3.08. Compliance with Laws. The Borrower shall neither
use the Collateral, nor permit the Collateral to be used, for any unlawful
purpose or contrary to any statute, law, ordinance or regulation relating
to the registration, use, operation or control of the Collateral. The
Borrower shall comply with, or cause to be complied with, at all times and
in all material respects, all statutes, laws, ordinances and regulations of
the United States (including, without limitation, the FAA), and of all
other governmental, regulatory, or judicial bodies applicable to the use,
operation, maintenance, overhauling, or condition of the Collateral;
provided, that the Borrower shall have the right to contest any of the
foregoing with the appropriate authorities so long as such contest does not
place the Collateral in danger of sale, forfeiture or loss or otherwise
adversely affect the Secured Party's security interest.
Section 3.09. Maintenance and Repair. The Borrower shall cause
the Aircraft to be serviced, repaired, overhauled, tested and maintained in
compliance with all applicable FAA regulations, (i) by personnel in
accordance with FAA requirements, (ii) in accordance with the Maintenance
Program and the operations and maintenance manuals of the manufacturers
thereof (including, without limitation, an FAA approved or manufacturer's
recommended program for the prevention and treatment of corrosion), (iii)
so as to keep the Aircraft in as good operating condition and appearance as
when first manufactured, ordinary wear and tear excepted, and (iv) so as to
keep the Aircraft in such operating condition as shall be necessary to
cause the airworthiness certificate of the Aircraft to be maintained in
good standing at all times under the applicable rules and regulations of
the Aviation Authority.
Section 3.10. Insurance. The Borrower shall at all times, at its
own cost and expense, maintain, or cause to be maintained, a policy of
insurance with respect to the Collateral, in accordance with the following
provisions:
(a) The Borrower shall maintain in effect comprehensive third
party aircraft liability insurance against bodily injury and property
damage losses arising from ground, flight and taxiing exposures, including,
but not limited to, passenger legal liability, cargo liability, contractual
liability and products liability insurance, in an amount not less than
$50,000,000 for any one accident, or series of accidents arising out of any
one event, with respect to the Aircraft. Such policy shall include war and
allied risks in accordance with standard market practice (currently "The
Extended Coverage Endorsement-AVN 52C"). Any such liability insurance
policy may be subject to a deductible in an amount not to exceed $100,000
per occurrence. All such policies shall be maintained in effect with
insurers and/or reinsurers of recognized reputation and responsibility,
reasonably satisfactory to the Secured Party. To the extent commercially
available, coverages shall not contain a Year 2000, GPS or other date
recognition exclusion.
(b) The Borrower shall maintain in effect with insurers and/or
reinsurers of recognized reputation and responsibility reasonably
satisfactory to the Secured Party: (A) all-risk ground and flight aircraft
hull insurance covering the Aircraft (including taxiing exposures) with an
agreed value loss valuation clause; (B) all-risk coverage with respect to
any Engines, parts or landing gear while removed from the Aircraft insured
on a replacement cost basis; and (C) war risk and hijacking (including
political/non-political hijacking and acts of terrorism) coverage,
including, but not limited to, coverage against confiscation,
expropriations, nationalization or seizure, including the country of
registry (if other than the United States). All such insurance shall be in
full force and effect throughout any geographical areas at any time
traversed by the Aircraft, shall be payable in Dollars in the United States
and shall be in the amount of not less than the Insured Value from time to
time in effect. Any hull insurance carried in accordance with this Section
3.10 shall not contain any provision for self-insured amounts or a
deductible, provided that such insurance may be subject to a deductible
which does not exceed $100,000 per occurrence. Each Engine, after removal,
shall be insured for not less than $2,500,000 under a ground risks policy
reasonably acceptable to the Secured Party.
(c) The Borrower will name or cause to be named each Indemnitee
as an additional insured on all policies of insurance and the Secured Party
as sole loss payee, to the extent their interests may apply, to the
Aircraft with respect to the aircraft hull insurance coverage; provided,
that in respect of partial losses to the Aircraft, so long as the insurers
have not received written notice that an Event of Default, or an event
which with time or notice or both would become an Event of Default has
occurred, the amounts that are equal to or less than $1,000,000.00 shall be
payable to the Borrower. Loss with respect to the Aircraft in excess of
$1,000,000.00 shall be payable to Secured Party in an amount not to exceed
the then outstanding Obligations with respect to the Aircraft. The Borrower
shall cause all parties who may have an interest in the proceeds of such
policies to acknowledge, in writing, that the Secured Party has a prior
interest in such proceeds. Each and every such policy under this Section
3.10 shall (i) provide that in respect of the interests of the Secured
Party and the other Indemnities in such policies, such insurance shall not
be invalidated by any action or inaction of the Borrower, the Secured Party
or any Indemnitee or any other Person and shall insure the Secured Party
and the other Indemnities regardless of any breach or violation of any
warranty, declaration or condition contained in such policies by the
Borrower or any Indemnitee or any other Person; (ii) provide that, if such
insurance is canceled for any reason whatever, or any material change is
made in policy terms or conditions, or if such insurance is allowed to
lapse for nonpayment of premium, such cancellation, change or lapse shall
not be effective as to any Indemnitee for thirty (30) days and in the case
of any war risk or allied perils coverage, seven (7) days after receipt by
them of written notice from such insurers or their authorized
representatives of such cancellation, change or lapse; (iii) provide that
such insurers shall hold harmless and waive any rights of subrogation
against each Indemnitee; (iv) be primary without right of contribution from
any other insurance that is carried by any Indemnitee; (v) waive any rights
of set-off, counterclaim or other deduction against any Indemnitee; (vi)
provide that the Secured Party shall have no obligation or liability for
premiums, commissions, assessments, representations or warranties or calls
in connection with such insurance; (vii) provide that all the provisions
thereof, except the limits of liability, shall operate in the same manner
as if there were a separate policy covering each Indemnitee; and (viii) in
respect to casualty insurance shall provide that proceeds shall be paid to
the Secured Party Lender so long as this Agreement is in effect for
distribution to the parties.
(d) On or before the Closing Date and prior to the renewal or
replacement date of any insurance policy required hereunder, the Borrower
shall provide the Secured Party with written certifications by a firm of
independent insurance brokers acceptable to the Secured Party with respect
to the types, amounts and policy numbers of insurance in effect as of the
date of execution and delivery of this Agreement and certifying that in the
opinion of such firm the insurance then carried and maintained complies
with the terms of this Section 3.10. The original certificate of insurance
shall be in a form acceptable to the Secured Party.
(e) In the event that the Borrower should, for any reason, fail
to renew or cause to be renewed any such policy or contract of insurance,
the Secured Party shall have the option to pay the premiums on any such
policy or contract of insurance, or to take out new insurance in such
amounts, types, coverage, and terms as the Secured Party may determine to
be prudent, and any sums paid therefor shall constitute Secured Party
Expenses, shall be payable by the Borrower on demand, and shall be added to
and be a part of and included in the Obligations.
(f) The Borrower shall not use or permit the Collateral to be
used in any manner or for any purpose excepted from or contrary to the
requirements of any insurance policy or policies required to be carried and
maintained hereunder and shall not do any other act or permit anything to
be done which could reasonably be expected to invalidate or limit any such
insurance policy or policies.
(g) All insurance payments received by the Secured Party and the
Borrower from insurance referred to in Section 3.10(b) and paid other than
as the result of an Event of Loss with respect to the Aircraft shall be
paid over to or retained by the Secured Party, and shall then be paid to
the Borrower upon certification that repairs satisfactory to the Secured
Party have been completed in a workmanlike manner and in compliance with
FAA regulations and the requirements of this Agreement; provided, that so
long as no Event of Default, or event which with time or notice or both
would become an Event of Default has occurred, insurance payments which are
equal or less than $100,000 shall be immediately paid to or retained by the
Borrower. The Secured Party shall advance funds received from time to time
for any agreed portion of the repair work which funds shall be applied to
the extent necessary to repair damage to the Aircraft; provided that the
Secured Party shall not be required to make any such payment if an Event of
Default or an event which with time or notice or both would become an Event
of Default has occurred and is continuing, and such amount shall be held
and either (A) paid to the Borrower if such default shall be cured and no
other default or Event of Default shall have occurred and be continuing or
(B) applied in accordance with the terms of Section 4.02 if an Event of
Default shall occur and then be continuing.
Section 3.11. Inspection; Records; Information.
--------------------------------
(a) At any reasonable time, on demand by the Secured Party, the
Borrower shall cause the Collateral (including the Records) to be made
available to the Secured Party, as the case may be (or persons designated
by the Secured Party, as the case may be) for purposes of inspection and,
with respect to the Records, copying; provided, however, that the
Borrower's operations shall not be interrupted thereby.
(b) The Borrower shall keep accurate and complete logs, manuals,
books and records relating to the Collateral, and will provide the Secured
Party with copies of such reports and information relating to the
Collateral as the Secured Party may reasonably require from time to time.
(c) The Borrower shall provide such other information regarding
the Collateral as may be reasonably requested by the Secured Party from
time to time.
Section 3.12. Title; Liens.
------------
(a) The Borrower holds good and marketable title in the Equipment
subject to this Agreement.
(b) The Borrower will not suffer or permit any security interest,
lien, charge or other encumbrance to attach to or exist relative to the
Collateral, except for Permitted Liens and the lien of this Agreement,
whether voluntarily or involuntarily, and whether by issuance of judicial
process, levy or otherwise, until all of the Obligations have been
completely discharged. The Borrower shall at its own cost and expense
promptly take such action as may be necessary to discharge duly all Liens
on the Aircraft, the Engines or any Parts thereof (i) resulting from claims
against the Borrower or (ii) created, granted or assumed by the Borrower
(other than any Lien created or permitted by the Financing Documents).
(c) The Borrower shall not directly or indirectly assign, convey
or otherwise transfer any of its right, title or interest in the Collateral
without the prior written consent of the Secured Party.
Section 3.13. Notice of Default. The Borrower will promptly give
the Secured Party notice of any Event of Default or event which, after
notice or lapse of time or both, would constitute an event of default under
any Financing Document.
Section 3.14. Event of Loss.
-------------
(a) Upon the occurrence of an Event of Loss with respect to the
Aircraft, the Borrower shall forthwith (and in any event within two (2)
Business Days after such occurrence) give the Secured Party written notice
of such Event of Loss, and the Secured Party and the Borrower shall proceed
diligently and cooperate fully with each other in the recovery of any and
all proceeds of insurance applicable thereto. Upon the earlier of the date
(a) which is 60 days after the occurrence of such an Event of Loss or (b)
on which insurance proceeds are received with respect to such Event of
Loss, the Borrower shall pay to the Secured Party an amount required to pay
in full any outstanding Obligations secured by this Agreement, including,
without limitation, interest at the Interest Rate, which shall continue to
accrue with respect to the Note until the date on which such payment is
received by the Secured Party. At such time as the Secured Party shall have
received all amounts necessary to satisfy the outstanding Obligations, the
Borrower's obligations hereunder shall terminate. The Borrower shall be
entitled to receive all insurance proceeds from policies maintained by the
Borrower applicable to the Aircraft over and above the Obligations, if any.
(b) Upon the occurrence of an Event of Loss with respect to an
Engine under circumstances in which there has not occurred an Event of Loss
with respect to the Aircraft, the Borrower shall forthwith (and in any
event within two (2) Business Days after such occurrence) give the Secured
Party written notice thereof and the Borrower shall replace such Engine as
soon as reasonably possible, by duly conveying to the Secured Party, free
and clear of all Liens, a valid security interest to another Rolls ▇▇▇▇▇
▇▇▇ Model MK-611-8 engine of the same or an improved model and suitable for
installation and use on the Airframe, which engine shall have a value and
utility at least equal to, and be in as good operating condition as, the
Engine with respect to which such Event of Loss shall have occurred (based
on but not limited to all life-limited engine components and time since
last heavy maintenance and/or time since last hot section refurbishment),
assuming such Engine was of the value and utility and in the condition and
repair as required by the terms hereof immediately prior to the occurrence
of such Event of Loss. Such replacement engine shall be deemed an "Engine"
as defined herein for all purposes hereunder. The Borrower agrees to take
such action and execute and deliver such documents, including, but not
limited to, a supplement hereto and legal opinions, as the Secured Party
may reasonably request in order that the Secured Party shall have a valid
perfected security interest in any such replacement Engine to the same
extent as any Engine replaced thereby. The Secured Party will assign to the
Borrower all casualty insurance proceeds arising from such Event of Loss to
the Engine(s).
Section 3.15. Mergers and Consolidations. At least twenty (20)
days prior to the effective date of any merger or consolidation, Borrower
shall provide written notice of the merger or consolidation and Borrower
covenants that after any merger or consolidation, the surviving company
will have a net worth equal to or greater than the net worth of the
Borrower.
Section 3.16. Financial Information. The Borrower shall furnish
such financial information as the Secured Party may reasonably request at
any time concerning the Borrower and its respective affairs.
Section 3.17. Taxes, Duties, Fees, Claims and Charges. The
Borrower shall pay or cause to be paid all taxes, assessments, license fees
and other public or private charges when levied or assessed against the
Collateral.
Section 3.18. Overdue Payments. In case any payment of principal
of or interest on the Note or any amount due under the Financing Documents
is not paid when due (notwithstanding any grace period), the Borrower
shall, to the extent permitted by applicable Law, pay interest at the
Interest Rate plus 2% on such amount from the date when due until the date
of payment.
Section 3.19. Citizenship. The Borrower agrees that if at any
time the Borrower has ceased to be a "citizen of the United States" as
defined in Section 40102(a)(15) of the Transportation Act, the Borrower
will promptly notify the Secured Party, and if such citizenship is then
necessary to maintain the eligibility of the Aircraft for United States
registration, shall promptly convey the Aircraft to a trust or other entity
acceptable to the Secured Party which is or which shall qualify as a
"citizen of the United States" as defined above, at the direction of the
Secured Party.
Section 3.20. Possession. The Borrower will not without the
Secured Party's consent, sell, rent, lend, secrete, encumber, transfer or
otherwise dispose of the Collateral.
Section 3.21. Indemnity. Borrower shall indemnify and save
Secured Party harmless from and against any and all liability, loss,
damage, expense, causes of action, suits, claims or judgments arising from
or caused directly or indirectly by (i) Borrower's failure to promptly
perform any of its obligations under the provisions of this Security
Agreement, (ii) injury to person or property resulting from or based upon
the actual or alleged use, operation, delivery or transportation of the
Aircraft or (iii) inadequacy of the Aircraft for any purpose or any
deficiency or defect therein or the use or maintenance thereof or any
repairs, servicing or adjustments thereto or any delay in providing or
failure to provide any thereof or any interruption or loss of service or
use thereof or any loss of business; and shall, at its own cost and
expense, defend any and all suits which may be brought against Secured
Party, either alone or in conjunction with others upon any such liability
or claim or claims and shall satisfy, pay and discharge any and all
judgments and fines that may be recovered against Secured Party in any such
action or actions, provided, however, that Secured Party shall give
Borrower written notice of any such claim or demand.
ARTICLE IV
EVENTS OF DEFAULT AND REMEDIES
------------------------------
Section 4.01. Events of Default. The occurrence of any one or
more of the following events shall constitute an Event of Default under
this Agreement and the Note:
(a) the Borrower shall fail to pay principal or interest under
the Note when due whether at maturity by acceleration, mandatory prepayment
or otherwise and such payment shall not have been made within five (5) days
after such due date; or
(b) the Borrower breaches any warranty or provision hereof, or of
any note or of any instrument or agreement delivered by Borrower to Secured
Party; or
(c) the Borrower shall fail to procure or maintain the insurance
coverage required pursuant to the terms of Section 3.10 of this Agreement,
or shall operate the Aircraft outside the scope of the insurance coverage
maintained with respect to the Collateral; or
(d) any representation made by the Borrower under this Agreement
or any Financing Documents, or made in writing in connection herewith or
therewith, shall have been incorrect in any material respect on the date on
which made, in the case of a representation, or shall be breached
materially, in the case of a warranty; or
(e) A petition in bankruptcy or for arrangement or reorganization
is filed by or against the Borrower or Borrower admits its inability to pay
its debts as they mature; or
(f) the Borrower shall default in the performance or observance
of any covenant, term or condition contained in any Related Transaction and
(i) shall not have caused such default to be cured within any applicable
grace period provided by the applicable agreements, and (ii) the effect of
such default is to cause (after notice or lapse of time or both), or to
permit the lessor or secured party under such Related Transaction to
terminate such transaction or exercise remedies, or
(g) all or any of the Collateral is attached, seized, subjected
to a writ or distress warrant, or is levied upon, or comes into the
possession of any Judicial Officer or Assignee except to the extent such
event constitutes an Event of Loss; or
(h) a notice of levy is filed of record with respect to any or
all of the Collateral by the United States Government or any department,
agency or instrumentality thereof; provided, however, that the Borrower
shall have ten (10) days to remove such notice from record if, in the
Secured Party's opinion, such levy is curable; or
(i) any Guarantor for Borrower defaults in any obligation or
liability to Secured Party or any Guaranty obtained in connection with this
transaction is terminated or breached.
Section 4.02. Remedies Upon Default. Upon the occurrence of an
Event of Default, the Secured Party may, at its election, and without
notice and without demand, do any one or more of the following to the
fullest extent permitted by Law, all of which are authorized by the
Borrower:
(a) Declare all of the Obligations immediately due and payable
upon which declaration such Obligations shall be accelerated and
immediately due and payable;
(b) Take possession, by its agents or otherwise, of the
Collateral wherever found, with or without notice of process of law, and
hold, store and/or use, operate, manage and control the Collateral, and
collect and receive all Proceeds, rents, revenues, issues and profits of
the Collateral and every part thereof;
(c) Grant extensions and compromise claims with respect to the
Collateral, and settle claims with respect to the Collateral for less than
face value on commercially reasonable terms, all without prior notice to
the Borrower;
(d) Retain the Collateral in full satisfaction of the Obligations
secured thereby as permitted by the Uniform Commercial Code in effect in
the applicable jurisdiction, or sell the Collateral at either a public or
private sale, or both, by way of one or more contracts or transactions, for
cash or on terms, in such manner and such places as is commercially
reasonable.
(e) All costs and expenses incurred by the Secured Party in
connection with the enforcement and/or exercise of any of its rights or
remedies herein shall be immediately payable by the Borrower, upon demand,
and shall constitute Secured Party Expenses hereunder, whether or not suit
is commenced;
(f) With or without taking possession of the Collateral, take
legal proceedings for:
(i) The specific performance of any covenant or
agreement contained herein, or the execution of any right or
power herein granted;
(ii) Foreclosure hereunder;
(iii) The sale, under the judgment or decree of any
court of competent jurisdiction, of all or any part of the
Collateral;
(iv) The appointment of a receiver or receivers of all
or part of the Collateral pending any foreclosure hereunder or
the sale of all of the Collateral, by any court of competent
jurisdiction or under executory or other legal process;
(v) The recovery of the unpaid balance of the
Obligations; or
(vi) The enforcement of any other appropriate remedy,
whether under this Agreement or available at law or in equity, or
otherwise.
(g) Exercise any and all other rights and remedies of a secured
party under the Uniform Commercial Code in the applicable jurisdictions.
(h) Upon the occurrence at any time of an Event of Default and
during its continuance under this Agreement, the Secured Party shall have
the right to declare, by notice to the Borrower the outstanding principal
of the Note and all other amounts otherwise due and owing to the Secured
Party under this Agreement or any of the other Financing Documents to be
immediately due and payable, whereupon the same, together with interest
thereon and all additional amounts as may be necessary to compensate the
Secured Party for any loss (including any loss or expense incurred in
liquidation or employing fixed deposits acquired from third parties to
maintain the Note as scheduled) and any expense (including the expense of
any sale, the expense of any taking of property, attorneys' fees, court
costs and other expenses or advances made or incurred by the Secured Party
in the protection of rights or the pursuance of remedies under this
Agreement or any of the Financing Documents) accrued to the date of
declaration shall become and be immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
waived, and the Borrower agrees that upon such declaration they will
immediately pay the same to the Secured Party.
(i) The Secured Party may, to the extent permitted by applicable
Law, bring suit at law, in equity, and/or other appropriate proceedings,
whether for the specific performance or observance or otherwise of any
terms or conditions contained in this Agreement or any other Financing
Documents, or for an injunction against the violation of any power granted
hereby or thereby, or by law to recover judgment for any and all amounts
due under the Note, this Agreement or any of the Financing Documents.
After payment in full of all amounts owed under this Security
Agreement and the Financing Documents, any excess amounts received by
Secured Party will be returned to Borrower or deposited on behalf of
Borrower in a court of competent jurisdiction.
Section 4.03. Waiver. The Borrower waives, to the extent
permitted by Law, any right it may have to a hearing prior to the
disposition of any of the Collateral by the Secured Party following the
occurrence of an Event of Default, or prior to the exercise of the Secured
Party's right of set-off as herein provided.
Section 4.04. Application of Proceeds. The proceeds of any
disposition of the Collateral, including any remarketing of the Collateral,
the net earnings of any lease thereof, or other agreement relating to the
use of the Collateral, and any amounts received as a result of the exercise
of any of the rights, powers and remedies of the Secured Party herein
granted, including the right to collect the proceeds of any insurance
received on account of the Collateral (the "Default Proceeds"), shall be
available for application and shall be applied as follows:
(i) First, to the repayment of all the Secured Party
Expenses.
(ii) Second, to the repayment of all other Obligations
of the Borrower to the Secured Party in such order as the Secured
Party shall elect.
(iii) Third, to the Borrower or as any court of
competent jurisdiction may otherwise direct.
Section 4.05. Termination. If all of the Obligations shall be
fully paid, performed and satisfied, including all payments and
performances, agreements and covenants due the Secured Party under the Note
and the other Financing Documents, then the security interest and lien of
the Secured Party in the Collateral shall thereupon terminate. In any such
case, the Secured Party shall, upon the request of the Borrower, execute
and deliver to the Borrower proper instruments acknowledging the
termination of the security interest.
Section 4.06. Remedies Cumulative. Each and every power and
remedy herein specifically given to the Secured Party or otherwise in this
Agreement or any of the Financing Documents shall be cumulative and shall
be in addition to any other power and remedy herein specifically given or
now or hereafter existing at law, in equity, or by statute. The Secured
Party may waive any Event of Default by written notice to that effect to
the Borrower but no such waiver shall extend to or affect any subsequent or
other Event of Default or impair any rights or remedies consequent thereon.
Section 4.07. Construction, Applicable Law; Jurisdiction. THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO
BE PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES. The Borrower hereby irrevocably submits to and accepts with
regard to any such action or proceeding, for itself and in respect of its
assets, generally and unconditionally, the jurisdiction of any court of the
State of New York or any court of the United States located in New York,
New York.
ARTICLE V
MISCELLANEOUS PROVISIONS
------------------------
Section 5.01. Successors and Assigns. All of the covenants,
promises, stipulations and agreements contained herein shall bind each
party and its successors and assigns, and shall inure to the benefit of the
other party and its respective successors and permitted assigns, except
that the Borrower may not assign or transfer any of its rights under this
Agreement without the prior written consent of the Secured Party. Secured
Party shall not assign any of its rights under this Agreement without the
prior written consent of the Borrower for 12 months from the date hereof.
Section 5.02. Entire Agreement. This Agreement, together with the
Schedule and the other Financing Documents referred to herein, constitute
the entire understanding between the parties with respect to the subject
matter hereof. All prior agreements, understandings, representations,
warranties and negotiations, if any, are merged into this Agreement, and
this Agreement is the entire agreement between the Borrower and the Secured
Party relating to the subject matter hereof. This Agreement cannot be
changed or terminated orally, but only by a instrument in writing signed by
the Borrower and the Secured Party.
Section 5.03. Notices. All notices provided for herein shall be
in writing and shall be deemed to have been given when delivered
personally, when telexed or telecopied, or if deposited in the United
States mail, when received addressed as follows:
if to the Borrower, at:
Gulfstream Aerospace Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Treasurer
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
if to the Secured Party, at:
The CIT Group/Equipment Financing, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, Credit
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
The CIT Group/Equipment Financing, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Credit Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Section 5.04. Continuing Lien and Security Interests; Transfer.
This Agreement shall create a continuing lien and security interest in the
Collateral and shall (i) remain in full force and effect until payment and
performance in full of all of the Obligations, (ii) be binding upon the
Borrower, its successors and assigns, and (iii) inure, together with the
rights and remedies of the Secured Party hereunder, to the benefit of the
Secured Party, and its respective successors, transferees and assigns.
Section 5.05. Counterparts and Dating. This Agreement may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which, when taken together, shall constitute but one
instrument. Although this Agreement is dated as of the date first above
written for convenience, the actual dates of execution hereof are the dates
indicated below the signatures of the parties hereto and this Agreement
shall be effective on the latest of such dates.
IN WITNESS WHEREOF, the parties have caused this Security
Agreement to be executed and delivered as of the day and year set forth
below.
GULFSTREAM AEROSPACE CORPORATION
Borrower
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name:
Title: Senior Vice President and
General Counsel
Date: November 30, 1998
THE CIT GROUP/EQUIPMENT FINANCING, INC.
Secured Party
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
Title: Senior Vice President
Date: November 30, 1998
