EXHIBIT 10.5
AIRCRAFT FACILITY AGREEMENT
In respect of a term facility in the maximum principal amount
US$719,000,000 for the financing of nineteen (19) Airbus Aircraft
Dated 20 December 2001
THE BANKS AND FINANCIAL INSTITUTIONS NAMED HEREIN
(as Lenders)
HALIFAX PLC
CREDIT LYONNAIS
BAYERISCHE LANDESBANK GIROZENTRALE
(as National Agents)
KREDITANSTALT FIIR WIEDERAUFBAU
(as German Parallel Lender)
CREDIT LYONNAIS
(as Agent)
CREDIT LYONNAIS
(as Security Trustee)
EFG AIRCRAFT LIMITED
(as Cayman Borrower)
EFG AIRCRAFT (IRELAND) LIMITED
(as Irish Borrower)
X'XXXXXXX LEASING LIMITED
(as Cayman Export Lessee)
X'XXXXXXX LEASING (IRELAND) LIMITED
(as Irish Export Lessee)
GATX FINANCIAL CORPORATION
(GFC)
HALIFAX PLC
CREDIT LYONNAIS
(as Joint Arrangers)
[XXXXXX XXXXX SAPTE LOGO]
LONDON
CONTENTS
1 DEFINITIONS 2
2 AVAILABILITY 2
3 UTILISATION OF THE FACILITY 4
4 INTEREST, REPAYMENT AND PREPAYMENT 14
5 APPOINTMENT OF AGENT, SECURITY TRUSTEE AND NATIONAL AGENTS 24
6 REPRESENTATIONS AND WARRANTIES 25
7 UNDERTAKINGS AND COVENANTS 29
8 SUBORDINATION 41
9 TRIGGER EVENT 42
10 DEFAULT 43
11 PROCEEDS ACCOUNT 46
12 APPLICATION OF SUMS RECEIVED 47
13 INDEMNITIES 52
14 CHANGE IN CIRCUMSTANCES 56
15 MITIGATION 58
16 FEES AND EXPENSES 59
17 INTENTIONALLY LEFT BLANK 60
18 ASSIGNMENTS AND TRANSFERS 61
19 SET-OFF AND PRO RATA PAYMENTS 63
20 RIGHTS CUMULATIVE, WAIVERS, SEVERABILITY 64
21 FURTHER ASSURANCE 65
22 NOTICES 65
23 GOVERNING LAW AND JURISDICTION 67
24 MISCELLANEOUS 68
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Contents (i)
25 CONFIDENTIALITY 68
26 COUNTERPARTS 69
27 CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000 70
SCHEDULE 1 - PART I: THE BRITISH LENDERS 71
SCHEDULE 1 - PART II : THE FRENCH LENDERS 72
SCHEDULE 1 - PART III: THE GERMAN LENDERS 73
SCHEDULE 2 - FORM OF TRANSFER CERTIFICATE 74
SCHEDULE 3 - UTILISATION NOTICE 80
SCHEDULE 4 PART I - DETAILS OF PROPOSED AIRCRAFT AND PROPOSED AIRCRAFT DELIVERY SCHEDULE 82
SCHEDULE 5 - LEASE PROVISIONS AND UNDERTAKINGS 84
SCHEDULE 6 - PART I: CONDITIONS PRECEDENT TO THE FACILITY 99
SCHEDULE 6 - PART II: CONDITIONS PRECEDENT TO A UTILISATION 101
SCHEDULE 6 - PART III: CONDITIONS PRECEDENT TO A UTILISATION FOR A REFINANCED AIRCRAFT 104
SCHEDULE 6 - PART IV : CONDITIONS PRECEDENT TO LEASES OR RE-LEASING OF AN AIRCRAFT 105
SCHEDULE 7 - ENGLISH PROCESS AGENTS 106
SCHEDULE 8 - FORM OF LOAN SUPPLEMENT 107
SCHEDULE 9 - FORM OF ACCESSION DEED 121
SCHEDULE 10 - FORM OF QUIET ENJOYMENT UNDERTAKING 125
SCHEDULE 11 - APPOINTMENT OF SECURITY TRUSTEE, AGENT AND NATIONAL AGENTS AND TRUST
PROVISIONS 126
APPENDIX X - DEFINITIONS 136
Contents (ii)
AIRCRAFT FACILITY AGREEMENT
DATED 20 December 2001
BETWEEN
(1) THE BANKS AND FINANCIAL INSTITUTIONS listed in Part I of Schedule 1
(together with their successors, permitted assigns and permitted
transferees) (the BRITISH LENDERS);
(2) THE BANKS AND FINANCIAL INSTITUTIONS listed in Part II of Schedule 1
(together with their successors, permitted assigns and permitted
transferees) (the FRENCH LENDERS);
(3) THE BANKS AND FINANCIAL INSTITUTIONS listed in Part III of Schedule 1
(together with their successors, permitted assigns and permitted
transferees) (GERMAN LENDERS);
(the British Lenders, the French Lenders and the German Lenders being
herein together called the LENDERS and severally a LENDER).
(4) HALIFAX PLC a banking institution registered in England with company
registration number 2367076 whose registered office is at Trinity Road,
Halifax, West Yorkshire, HX1 2RG, England, in its capacity as national
agent of the British Lenders ("BRITISH NATIONAL AGENT"), CREDIT LYONNAIS a
banking institution established under the laws of France acting through
its main office at 0-0 xxx xxx Xxxxxxxx, 00000 Xxxxx, Xxxxxx, in its
capacity as national agent of the French Lenders ("FRENCH NATIONAL
AGENT"), BAYERISCHE LANDESBANK GIROZENTRALE a banking institution
established under the laws of Germany and whose principal place of
business is at Xxxxxxxx Xxxxxxx 00, X-00000, Xxxxxx, Xxxxxxx, in its
capacity as national agent of the German Lenders ("GERMAN NATIONAL Agent")
(together the NATIONAL AGENTS and each a NATIONAL AGENT);
(5) KREDITANSTALT FIIR WIEDERAUFBAU a public corporation established under the
laws of Germany and having its principal place of business at
Xxxxxxxxxxxxxxxxxxx 0-0, 00000 Xxxxxxxxx xx Xxxx (herein called the GERMAN
PARALLEL LENDER);
(6) CREDIT LYONNAIS a banking institution established under the laws of France
acting through its main office at 0-0 xxx xxx Xxxxxxxx, 00000 Xxxxx,
Xxxxxx (the AGENT); and
(7) CREDIT LYONNAIS a banking institution established under the laws of France
acting through its main office at 0-0 xxx xxx Xxxxxxxx, 00000 Xxxxx,
Xxxxxx (the SECURITY TRUSTEE);
(8) EFG AIRCRAFT LIMITED, a company incorporated under the laws of the Cayman
Islands and having its registered office at Walkers SPV Limited, Xxxxxx
House, Xxxx Street, PO Box 908GT, Xxxxxx Town, Grand Cayman, Cayman
Islands (the CAYMAN BORROWER);
(9) EFG AIRCRAFT (IRELAND) LIMITED a company incorporated under the laws of
Ireland and having its registered office at West Block Building,
International Financial Services Centre, Xxxxxx 0, Xxxxxxx (the IRISH
BORROWER);
(10) X'XXXXXXX LEASING LIMITED, a company incorporated under the laws of the
Cayman Islands and having its registered office at Walkers SPV Limited,
Xxxxxx House, Xxxx Street, PO Box 908GT, Xxxxxx Town, Grand Cayman, Cayman
Islands (the CAYMAN EXPORT Lessee);
(11) X'XXXXXXX LEASING (IRELAND) LIMITED, a company incorporated under the laws
of Ireland and having its registered office at 00 Xxxxxxx Xxxxxx, Xxxxxx
0, Xxxxxxx, (the IRISH EXPORT Lessee);
Page 1
(12) GATX FINANCIAL CORPORATION, a corporation incorporated under the laws of
the State of Delaware, United States of America and having an office at
Four Embarcadero Center, Suite 2200, San Francisco, California 94111,
United States of America (GFC); and
(13) CREDIT LYONNAIS a banking institution established under the laws of France
acting through its main office at 0-0 xxx xxx Xxxxxxxx, 00000 Xxxxx,
Xxxxxx and HALIFAX PLC a banking institution registered in England with
company registration number 2367076 whose registered office is at Trinity
Road, Halifax, West Yorkshire, HX1 2RG, England (together the JOINT
ARRANGERS and each a JOINT ARRANGER).
RECITALS
This Agreement (executed in London, England) sets out the terms upon which the
Lenders will make available to the Borrowers the Facility described herein to
enable the Borrowers to purchase each of the Aircraft.
IT IS AGREED:
1 DEFINITIONS
In this Agreement (including the Recitals, the Schedules and the Appendix
hereto), except where the context otherwise requires or there is express
provision to the contrary, words and expressions set out in Appendix X
shall have the meanings ascribed thereto. Rules of interpretation as
applicable to this Agreement are also set out in Appendix X.
2 AVAILABILITY
2.1 FACILITY
Subject to the terms and conditions of this Agreement and in reliance on
the representations and warranties of the Obligors set out in Clause 6
(REPRESENTATIONS AND WARRANTIES), the Lenders hereby grant and undertake
to make available to the Borrowers, a loan facility in the maximum
principal amount equal to the lesser of (i) the aggregate of eighty-five
per cent. (85%) of the Aircraft Purchase Price for each of the Eligible
Aircraft and (ii) US$719,000,000 (seven hundred and nineteen million
dollars) (the FACILITY AMOUNT).
2.2 AVAILABILITY PERIOD
2.2.1 The Facility shall be available for drawdown at any time during the
Availability Period on the terms and subject to the conditions of this
Agreement.
2.2.2 The availability of Utilisations has been predicated on the basis that
each of the Eligible Aircraft will be delivered during the Scheduled
Delivery Month for such Eligible Aircraft specified (if so specified) in
Part I of Schedule 4 and accordingly the relevant Export Lessee (as the
case may be) shall promptly, following receipt of notice from or agreement
with the Seller, notify the Agent of any change in the Scheduled Delivery
Month for an Eligible Aircraft. Upon receipt by the Agent of such notice
and provided that the new Scheduled Delivery Month falls within the
Availability Period, the Scheduled Delivery Month for the relevant
Eligible Aircraft shall be amended accordingly and thereafter Part I of
Schedule 4 shall be read and construed as so amended.
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2.3 NUMBER AND COMPOSITIONS OF ADVANCES
2.3.1 The Facility shall be available in multiple Advances, each in respect of
one Eligible Aircraft,
2.3.2 The maximum amount of an Advance in respect of an Aircraft shall be the
lesser of:
(a) the Unutilised Facility at the time when the Advance is made; and
(b) eighty-five per cent. (85%) of the Aircraft Purchase Price relating
to that Aircraft.
(c) Subject to the terms and conditions of this Agreement and the
relevant Loan Supplement, the British Lenders, the French Lenders
and the German Lenders shall participate in each Advance through
their respective Lending Offices in certain proportions, to be
determined as set out in Part II of Schedule 4.
GFC agrees to notify the Agent in writing which Engine Manufacturer will
supply the Engines to be fitted to each Eligible Aircraft as soon as the
same has been decided.
2.4 PURPOSE
Each Advance shall be used by the relevant Borrower solely for the purpose
of financing or refinancing the acquisition and contributing towards the
Aircraft Purchase Price of an Eligible Aircraft. None of the National
Agents, the Joint Arrangers, the Agent, the Security Trustee or the
Lenders is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement and the relevant Loan Supplements.
2.5 CANCELLATION OF THE FACILITY
Upon the expiry of the Availability Period, the Unutilised Facility (if
any) then remaining shall be cancelled.
2.6 CURRENCY
2.6.1 The Advances shall be made available wholly in Dollars or Euros as elected
by the relevant Export Lessee in the Utilisation Notice.
2.6.2 Once an Advance has been made in a particular currency, all repayments of
principal and interest in respect thereof shall be made in that same
currency and the relevant Borrower shall not have the right to change
currencies during the life of a Loan.
2.7 AMOUNT
2.7.1 The British Lenders severally agree to advance the British Credits to the
Borrowers in an aggregate amount in Dollars not exceeding 33% of the
Facility Amount or the equivalent amount thereof in Euros determined from
time to time in accordance with the provisions of this Agreement.
2.7.2 The French Lenders severally agree to advance the French Credits to the
Borrowers in an aggregate amount in Dollars not exceeding 52% of the
Facility Amount or the equivalent amount thereof in Euros determined from
time to time in accordance with the provisions of this Agreement.
2.7.3 The German Lenders severally agree to advance the German Credits to the
Borrowers in an aggregate amount in Dollars not exceeding 36% of the
Facility Amount or the equivalent amount thereof in Euros determined from
time to time in accordance with the provisions of this Agreement.
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2.8 SEVERAL OBLIGATIONS
2.8.1 The obligation of each Lender to make its Commitment or any part thereof
available and to perform its obligations in respect of any Utilisation are
several and not joint. The failure of any Lender to perform its
obligations under this Agreement or any Loan Supplement shall not result
in any of the Agent, the Security Trustee or any other Lender assuming any
additional obligation or liability whatsoever.
2.8.2 Nothing contained in any Transaction Document shall constitute a
partnership, association, joint venture or other entity between any two or
more of the Lenders or Representatives or Joint Arrangers.
3 UTILISATION OF THE FACILITY
3.1 UTILISATION NOTICES
3.1.1 In order to effect a Utilisation under this Agreement, the relevant Export
Lessee must submit a notice to the Agent substantially in the form set out
in Schedule 3 identifying:
(a) the proposed Utilisation Date, which shall be a Banking Day within
the Availability Period (i) in the case of the first and second
Utilisations under the Facility, as GFC and the Agent may agree and
(ii) in the case of all other Utilisations (other than an
Alternative Utilisation) under the Facility not less than ten (10)
Business Days (or such shorter period as the Agent acting on the
instructions of the National Agents, in any particular case, may
agree) after the date of service of such notice;
(b) the amount and currency of the proposed Advance;
(c) the relevant Eligible Aircraft (including its manufacturer's serial
number, the proposed registration xxxx (if then known) and the type
and serial numbers (if then known) of the Engines to be installed);
(d) if known, the identity of the proposed Lessee of the Aircraft and
the jurisdiction in which the Aircraft shall be registered and the
principal place of business of the Lessee;
(e) the Aircraft Purchase Price;
(f) the structure of the proposed Utilisation and the identity of each
Obligor to be involved in such Utilisation; and
(g) in the case of a Refinanced Aircraft, the Delivery Date,
and having attached thereto a Certified Copy of the latest draft (if any)
or, if the same is then available, a Certified Copy of the executed
version of the proposed Lease. Once served, subject to Clause 3.1.6, a
Utilisation Notice is irrevocable.
3.1.2 The Agent shall only be obliged to accept a Utilisation Notice and the
Lenders shall only be obliged to make the Advance the subject of a
Utilisation Notice:
(a) if no Relevant Event, Termination Event or Utilisation Block Event
has occurred which is continuing and no such event would result from
the drawdown of the relevant Advance;
(b) if the proposed date for the making of such Advance is a Banking Day
which is within the Availability Period;
Page 4
(c) if the Advance requested therein is equal to or less than eighty
five per cent. (85%) of the Aircraft Purchase Price of the relevant
Eligible Aircraft;
(d) if the proposed aggregate amount of such Advance is less than or
equal to the aggregate of the Total Commitments at the time;
(e) if any requisite approvals of the competent authorities of the
French Republic, the Federal Republic of Germany and the United
Kingdom shall have been obtained in respect of this Aircraft which
is the subject of such Utilisation Notice and that COFACE, HERMES
and ECGD shall have indicated that they are willing to give
guarantees, insurances or other applicable support (subject to
satisfaction of the relevant conditions precedent) in terms
satisfactory to the British National Agent, the French National
Agent and the German National Agent respectively on the relevant
Utilisation Date.
(f) in respect of any Eligible Aircraft, if the delivery of such
Eligible Aircraft to the intended Lessee or Sub-Lessee would not
cause the relevant Export Lessee to breach Clause 7.2 (LEASING AND
INSURANCE COVENANTS OF EXPORT LESSEES); and
(g) if the Eligible Aircraft which the relevant Export Lessee proposes
to be the subject of the relevant Utilisation will not be registered
in a Prohibited Country, or the jurisdiction of the principal place
of business of the intended Lessee will not be a Prohibited Country,
or the jurisdiction of the principal place of business of the
intended Lessee will not be the United States of America.
3.1.3 An Export Lessee may issue a Utilisation Notice even if the relevant
Eligible Aircraft will not be the subject of a Lease on the Utilisation
Date, provided that the provisions of Clause 7.2.6 shall apply.
3.1.4 The Agent shall:
(a) send to each National Agent a copy of each Utilisation Notice
received from an Export Lessee which complies with Clauses 3.1.1 and
3.1.2 and shall notify GFC of such compliance; and
(b) procure the preparation and circulation to the National Agents and
the relevant Borrower and GFC of the relevant Utilisation
Documentation at least five (5) Business Days prior to the proposed
Utilisation Date except in respect of the first and second
Utilisations when they may be circulated within such shorter period
as the Finance Parties may agree.
3.1.5 The relevant Export Lessee shall provide the Agent with written
confirmation of the Aircraft Purchase Price in each case, as soon as the
same becomes available from the Seller and in any event not less than five
(5) Business Days prior to the proposed Utilisation Date.
3.1.6 GFC shall be entitled by notice in writing to the Agent, no later than
three (3) Business Days prior to the proposed Utilisation Date specified
in any Utilisation Notice, (a) to postpone such Utilisation Date to
another date which satisfies the requirements for Utilisation Dates set
forth in this Agreement or (b) to cancel the Utilisation requested
pursuant to such Utilisation Notice.
3.2 LOAN SUPPLEMENTS
3.2.1 The Agent shall procure the preparation of the Loan Supplement for each
Utilisation by adding the following information to the form set out in
Schedule 8:
(a) in Clause 1.2, the type and serial number of the relevant Aircraft;
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(b) in Clause 2.1 (a), the amount and currency of the Advance;
(c) in Clause 2.1(b), the amount of the British Credits based on the
relevant finance portion set forth in Schedule 4 Part II;
(d) in Clause 2.1(c), the amount of the French Credits based on the
relevant finance portion set forth in Schedule 4 Part II;
(e) in Clause 2.1(d), the amount of the German Credits based on the
relevant finance portion set forth in Schedule 4 Part II;
(f) in Clause 4, the Applicable Rate for the relevant Loan for the first
Interest Period;
(g) in Clause 5, the proposed Utilisation Date; and
(h) in Parts A, B and C of schedule 2, part I of the Loan Supplement,
the repayments of principal for the British Lenders, the French
Lenders and the German Lenders (respectively) and in schedule 2,
part II of the Loan Supplement a summary of the aggregate amount of
principal payable by the Borrower on each Repayment Date.
3.2.2 The Agent shall procure that an execution version of the Loan Supplement
is circulated to the relevant Borrower and GFC at least one (1) Business
Day prior to the Utilisation Date.
3.2.3 The Agent, the relevant Borrower and the relevant Export Lessee shall, on
or prior to the proposed Utilisation Date, execute a Loan Supplement and
other Utilisation Documentation in respect of that Utilisation and the
Security Trustee and each Lender hereby authorises and instructs the Agent
to execute each Loan Supplement on its behalf.
3.2.4 Each Loan Supplement shall be supplemental to, and form part of, this
Agreement and each Advance referred to therein shall be made in accordance
with and shall be regulated by the terms and conditions of this Agreement,
the other Transaction Documents and the relevant Transaction Documents.
3.3 ALTERNATIVE OBLIGORS
3.3.1 (a) Subject to Clause 3.3.1(b), GFC shall be entitled to request that an
Alternative Borrower and/or an Alternative Export Lessee be
incorporated into the structure for a Utilisation. No Export Lessee
shall be entitled to serve a Utilisation Notice in which it is
proposed that an Alternative Borrower or Alternative Export Lessee
be incorporated into the structure for a particular Utilisation (in
whatever capacity) until such Alternative Borrower or Alternative
Export Lessee has acceded to this Agreement and (save where the last
sentence of this Clause 3.3.1 applies) has received the consent
required pursuant to this Clause 3.3.1.
Any such request shall be made by GFC by written notice to the Agent
(an ALTERNATIVE OBLIGOR REQUEST). The Alternative Obligor Request
shall identify the following:
(i) whether an Alternative Borrower and/or Alternative Export
Lessee is to accede to this Agreement;
(ii) the jurisdiction of incorporation of the Alternative Borrower
and/or Alternative Export Lessee;
Page 6
(iii) in the case of an Alternative Borrower, the identity of the
Alternative Borrower Manager, the Alternative Borrower
Trustee and the Alternative Borrower Manager Parent (if any);
and
(iv) in the case of an Alternative Export Lessee, the role which
such party is intended to take in the proposed Utilisation.
The Agent (acting on the instructions of the Majority Lenders) shall
consider such request in good faith taking into account the
proposed jurisdiction of incorporation of the proposed Alternative
Borrower and/or Alternative Export Lessee. Subject to the Agent
receiving instructions from each of the National Agents, the Agent
shall inform GFC within 15 Business Days of receipt of an
Alternative Obligor Request in respect of an Alternative Export
Lessee and within 30 Business Days in respect of an Alternative
Borrower as to whether its Alternative Obligor Request has been
approved by the Majority Lenders any such approval not to be
unreasonably withheld or delayed.
(b) If the proposed Alternative Borrower or Alternative Export Lessee
has already acceded to this Agreement prior to the date of the
relevant Alternative Obligor Request for the purposes of a previous
Utilisation, the approval of the Agent to the incorporation of such
Alternative Obligor in the structure for the relevant Utilisation
shall not be required.
3.3.2 Each such Alternative Borrower or Alternative Export Lessee shall be a
company incorporated in a jurisdiction approved by the Agent (acting on
the instructions of the Majority Lenders acting reasonably) and shall be
capable of providing representations and warranties and covenants having
substantially the same effect as those given by the relevant Obligors in
Clauses 6 (REPRESENTATIONS AND WARRANTIES) and Clause 7 (UNDERTAKINGS AND
COVENANTS). The Agent and the Lenders shall not unreasonably withhold
their consent to any such jurisdiction suggested by GFC. Each Alternative
Export Lessee shall be an affiliate of GFC.
3.3.3 Each Alternative Borrower shall be a company whose shares are held by a
trustee on trust for charitable purposes or such other person (including,
without limitation, GFC or any Subsidiary of GFC) as may be approved by
the National Agents and the German Parallel Lender and shall be
incorporated in a jurisdiction approved by the Agent (acting on the
instructions of the National Agents and the German Parallel Lender acting
reasonably) and shall be capable of providing representations and
warranties and covenants having substantially the same effect as those
given by the Cayman Borrower and the Irish Borrower in Clause 6.2
(REPRESENTATIONS AND WARRANTIES BY EACH BORROWER AND EACH EXPORT LESSEE)
and Clause 7.3 (BORROWER COVENANT). If an Alternative Borrower is directly
or indirectly owned by a person other than a Guarantor, such Alternative
Borrower shall be managed by an established and recognised management
company on terms substantially similar to the Administration Agreements.
3.3.4 If an Alternative Export Lessee or Alternative Borrower has not already
acceded to this Agreement for the purposes of a previous Utilisation and
is to be incorporated into the structure and the consent required pursuant
to Clause 3.3.1 is given, then as a condition precedent to a Utilisation
Notice being served in which it is proposed to use such Alternative Export
Lessee or Alternative Borrower:
(a) each such Alternative Export Lessee or Alternative Borrower shall
accede to this Agreement by executing an Accession Deed and such
other Transaction Documents as the Agent (acting on the
instructions of the National Agents and the German Parallel Lender
acting reasonably) in its reasonable opinion considers appropriate
so that any such Alternative Export Lessee or Alternative Borrower
shall become a party to this Agreement and such of the other
Transaction Documents as may be appropriate as if
Page 7
named therein as a party and shall have the same rights, benefits,
obligations and liabilities thereunder; and
(b) each of the parties to this Agreement and any such Alternative
Borrower and/or Alternative Export Lessee shall enter into such
other documents and provide such security as the Agent may (acting
on the instructions of the National Agents and the German Parallel
Lender acting reasonably) reasonably require in order to ensure that
the Agent, the Security Trustee and each of the Lenders are in
substantially the same position (including, without limitation, as
to their security position) with respect to such:
(i) Alternative Borrower, as they are with respect to the Cayman
Borrower and the Irish Borrower; and
(ii) Alternative Export Lessee, as they are with respect to the
Cayman Export Lessee and the Irish Export Lessee.
Upon receipt by the Agent of the Accession Deed signed on behalf of each
Obligor and by the proposed Alternative Borrower or Alternative Export
Lessee, as the case may be, the Agent shall sign the same for itself and
on behalf of the other Finance Parties and shall as promptly as
practicable give notice of such execution to all of the parties to the
Accession Deed. Upon execution of any such Accession Deed, it shall take
effect in accordance with, but subject to, the terms hereof and thereof.
3.3.5 Each GATX Obligor and each Alternative Borrower hereby irrevocably
authorises GFC to execute any duly completed Accession Deed on its behalf
provided that such authorisation does not extend to the execution of an
Accession Deed on behalf of the Acceding Party (as defined in the
Accession Deed) named therein. Each of the Finance Parties hereby
irrevocably authorises the Agent to execute any duly completed Accession
Deed on its behalf.
3.3.6 If it is proposed that an Alternative Borrower or an Alternative Export
Lessee accede to this Agreement that is not currently a Borrower or Export
Lessee (as the case may be) for the purposes of this Agreement, GFC shall
procure that the Agent (acting on the instructions of the National Agents
acting reasonably) is provided with the following items, in form and
substance reasonably satisfactory to the Agent no later than fifteen 15
Business Days prior to the Utilisation in which it is proposed to use such
acceding Alternative Borrower or Alternative Export Lessee:
(a) an Accession Deed duly executed by the parties thereto;
(b) in the case of an Alternative Borrower only, a Share Charge duly
executed by the relevant Alternative Borrower Trustee over the
entire issued share capital of such acceding Alternative Borrower
together with certified copies of the minute books and the share
register (if any) of such acceding Alternative Borrower and the
originals of the share certificates of such acceding Alternative
Borrower as referred to therein and duly executed originals of the
letters of resignation, irrevocable proxy and undated share transfer
forms referred to therein;
(c) in the case of an Alternative Export Lessee only, an Alternative
Export Lessee Share Charge duly executed by the owner of the entire
issued share capital of such Alternative Export Lessee over the
entire issued share capital of such Alternative Export Lessee
together with certified copies of the minute books and the share
register (if any) of such Alternative Export Lessee and the
originals of the share certificates of such Alternative Export
Lessee as referred to therein and duly executed originals of
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the letters of resignation, irrevocable proxy and undated share
transfer forms referred to therein;
(d) in the case of an Alternative Borrower, an Alternative Borrower
Floating Charge together with any documents deliverable therewith;
(e) in the case of an Alternative Borrower, a Beneficiary Accession
Certificate (as such term is defined in the Guarantee);
(f) in the case of an Alternative Borrower, a notice and acknowledgement
duly executed by the relevant parties in respect of an assignment of
the benefit of the Guarantee to the Security Trustee.
(g) a certificate signed by a director of the relevant Alternative
Export Lessee and/or Alternative Borrower and the relevant
Alternative Borrower Trustee, in the case of an acceding Alternative
Borrower, setting out, in each case, the specimen signature of those
persons authorised to sign the Transaction Documents to which such
Alternative Obligor is or is to be a party and attaching in each
case Certified Copies of the following:
(i) the certificate of incorporation of the acceding Alternative
Obligor together with its memorandum and articles of
association or other constitutional documents;
(ii) the resolutions of the board of directors and shareholders of
such acceding Alternative Obligor approving the execution and
performance by it of each Transaction Document to which it is
or is to be a party;
(iii) the resolutions of the owner of the entire issued share
capital of the Alternative Borrower approving the execution
and performance by such person of each Transaction Document to
which it is or is to be a party; and
(iv) a power of attorney appointing those persons authorised to
sign on behalf of such Alternative Obligor each Transaction
Document to which it is, or is to be, a party;
(h) in the case of an Alternative Borrower, if applicable, an
Administration Agreement duly executed by the Alternative Borrower
Manager and the other parties thereto, substantially in the form of
the Administration Agreements, together, if applicable, with an
Alternative Declaration of Trust duly executed by the Alternative
Borrower Trustee;
(i) in the case of an Alternative Borrower, if applicable and if the
Agent so requests and, at the time, it is the practice of that
Alternative Borrower Manager Parent to issue Alternative Borrower
Comfort Letters, an Alternative Borrower Comfort Letter duly
executed by the Alternative Borrower Manager Parent in relation to
the Alternative Borrower Manager;
(j) if the acceding Alternative Obligor is to be incorporated in the
Cayman Islands, a certificate of exemption in respect of such
acceding Alternative Obligor from the appropriate Cayman Islands
authorities;
(k) a legal opinion from in-house counsel to GFC on the due execution by
GFC of the Accession Deed in form and substance reasonably
acceptable to the Agent;
Page 9
(l) a legal opinion from counsel to the Lenders in the jurisdiction of
incorporation of the relevant Alternative Export Lessee and/or
Alternative Borrower in form and substance reasonably acceptable to
the Agent;
(m) a legal opinion from Xxxxxx Xxxxx Sapte, counsel to the Lenders in
form and substance reasonably acceptable to the Agent;
(n) such other documents and legal opinions as the Agent (acting on the
instructions of the Majority Lenders) may reasonably require; and
(o) if applicable, a form W-8BEN (or such other form as may be
prescribed by the United States Internal Revenue Service) duly
executed by the relevant Alternative Borrower.
3.4 ALTERNATIVE UTILISATIONS AND ALTERNATIVE STRUCTURES
3.4.1 GFC may, from time to time and by written notice to the Agent at least
sixty (60) Business Days or such shorter period as may be agreed by GFC
and the National Agents and the German Parallel Lender request that an
Advance in respect of an Eligible Aircraft be an Alternative Utilisation,
in which case GFC shall provide to the Agent such information as the Agent
may request concerning:
(a) the financial structure of the proposed
Alternative Utilisation including the tenor, the proposed amortisation
schedule and details of the proposed owner of the relevant Aircraft;
(b) the proposed security structure, including details of all Liens to be
created in respect of the Aircraft or any other property in favour of
any relevant party;
(c) the list of documents proposed to be entered into in relation to such
Alternative Utilisation;
(d) whether such transaction will involve a tax lease in relation to the
relevant Aircraft; and
(e) the jurisdiction of incorporation of the proposed Borrower and, if
different, the proposed owner of the relevant Aircraft and of the
other Obligors which may be used in the Alternative Utilisation.
3.4.2 The Agent, the Lenders and the Export Credit Agencies shall consider in
good faith but without obligation any request for an Alternative
Utilisation. If the Lenders and the Agent consent to an Alternative
Utilisation, GFC shall serve a UTILISATION NOTICE on the Agent specifying
the information set out in Clause 3.1.1 (UTILISATION NOTICES) not less
than thirty 30 Business Days or such shorter period as may be agreed by
GFC and the National Agents and the German Parallel Lender prior to the
proposed Utilisation Date. GFC shall pay to the Agent for the account of
the Agent, the Lenders and the Export Credit Agencies any fees agreed with
such parties for their agreement to enter into any such Alternative
Utilisation and any Expenses such parties incur in relation thereto.
3.5 CONDITIONS PRECEDENT
3.5.1 The obligations of each of the Finance Parties under this Agreement in
respect of the first Utilisation shall be subject to the Agent (acting on
the instructions of the Majority Lenders acting reasonably) having
received (or waived receipt of) the documents set out in Schedule 6 Parts
I, II and IV in form and substance satisfactory to it acting reasonably.
Page 10
3.5.2 Each Subsequent Utilisation shall be subject to the conditions precedent
set out in Parts II and IV of Schedule 6 and, in the case of a Refinanced
Aircraft, the conditions precedent set out in Parts II, III and IV of
Schedule 6.
3.6 REPAYMENT SCHEDULES
3.6.1 Each Advance:
(a) shall be repaid in up to 144 monthly instalments, one on each
Repayment Date. Each such instalment shall be in an amount set
opposite such Repayment Date in column 3 of Schedule 2 of the
relevant Loan Supplement so as to reduce the outstanding balances of
the Advance to the amount set opposite such Repayment Date in column
3 of Schedule 2 of the Loan Supplement and shall in any event repay
the outstanding balance in full on the Final Repayment Date of such
Advance; and
(b) shall be repaid in the same currency as that in which the Advance is
made.
3.6.2 The repayment profiles shown in schedule 2 to the Loan Supplement shall be
calculated on a "mortgage style" basis applying the Relevant Rate for the
relevant Advance and as follows:
(a) if the Utilisation Date is a Reference Date, the schedule will
provide for repayments of principal, the first of which will be due
on the first Reference Date after the Utilisation Date with the
remainder due at monthly intervals thereafter; and
(b) if the Utilisation Date is not a Reference Date, the schedule will
provide for repayments of principal the first of which will be due
on the second Reference Date after the Utilisation Date; and
(c) the final Repayment Date (prior to any application of the proviso in
the definition of such terms set forth in Appendix X) shall be no
later than the twelfth (12th) anniversary of the relevant
Utilisation Date or, in respect of a Refinanced Aircraft or Aircraft
referred to in paragraph (c) of the definition of Delivery Date, the
twelfth (12th) anniversary of the Delivery Date for such Aircraft
(FINAL REPAYMENT DATE).
3.7 DISBURSEMENT OF THE LOAN
3.7.1 On the terms and subject to the conditions of this Agreement, the Lenders
severally agree to make each Advance to the relevant Borrower on the date
set forth in the Utilisation Notice as set out below:
(a) the British Lenders severally agree to advance the British Credits
to the relevant Borrower;
(b) the French Lenders severally agree to advance the French Credits to
the relevant Borrower; and
(c) the German Lenders severally agree to advance the German Credits to
the relevant Borrower.
3.7.2 Each Loan shall be made available in Dollars or Euros by payment to:
(a) in the case of an Aircraft other than a Refinanced Aircraft, the
owner of such Aircraft (to such account as the owner may have
specified to the Agent); or
Page 11
(b) in the case of a Refinanced Aircraft, the seller of such Aircraft
(to such account as GFC may have specified to the Agent),
on behalf of the relevant Borrower.
3.7.3 Subject to Clause 3.7.5, all payments by the Lenders in respect of the
Advance shall be effected on the relevant Utilisation Date and as between
the British Lenders, the French Lenders and the German Lenders, in the
proportions described in Clause 2.3 (NUMBER AND COMPOSITIONS OF ADVANCES)
and provided for in the relevant Loan Supplement.
3.7.4 Subject to the terms of this Agreement, the Advance shall be made
available by each of the British Lenders, the French Lenders and the
German Lenders in their respective proportions by payment to the relevant
National Agent of its Relevant Proportion of the Loan and the National
Agents shall make the Advance available by one disbursement, through the
Agent by 10.00 a.m. (New York time) if the Advance is in Dollars and by
10.00 a.m. (Paris time) if the Advance is in Euros, on the date requested
in the Utilisation Notice if:
(a) such date is the relevant Utilisation Date and is a Banking Day
which falls during the Availability Period;
(b) the Agent shall have received a Utilisation Notice which complies
with the provisions of Clause 3.1.2; and
(c) the conditions precedent to such Advance in Clause 3.5 and Schedule
6 have been satisfied in the opinion of the Agent (acting on the
instructions of the National Agents acting reasonably).
3.8 LIMITED RECOURSE OBLIGATIONS OF THE BORROWERS
3.8.1 Notwithstanding the provisions of this Agreement or any of the other
Transaction Documents to the contrary, all amounts payable or expressed to
be payable by any Borrower for, in respect of or in connection with its
obligations, covenants, representations, warranties, indemnities or other
contractual assurances which are owed to the Security Trustee, the Agent,
the National Agents, the Joint Arrangers, the Lenders, GFC or any GATX
Obligor under, pursuant to or in connection with this Agreement and the
other Transaction Documents shall be limited to and only be made or
payable from:
(a) the recovery from such Borrower of all sums that are paid to or
recovered by such Borrower (or any person claiming through or on
behalf of such Borrower) pursuant to any provision of any
Transaction Document or any sale or disposal of the relevant
Aircraft or any part thereof or as a result of the enforcement of
the Aircraft Security Documents; and
(b) the realisation of any proceeds from the enforcement of any security
granted to the Security Trustee, the Agent and/or any of the
Lenders under the Aircraft Security Documents (except to the extent
that the Borrower is not entitled to retain such sums as against any
third party by virtue of any law, including as a result of any
judgment or order of any court or in any bankruptcy of such third
party),
and each of the Security Trustee, the Agent, the National Agents, the
Joint Arrangers, Lenders, GFC and any GATX Obligor irrevocably and
unconditionally agree that they shall look solely to such rights and sums
for payments to be made by such Borrower under this Agreement and the
other Transaction Documents and that they shall not otherwise take or
pursue any judicial or other steps or proceedings or exercise any other
right or remedy that they might otherwise have against such Borrower or
any of its other assets except:
Page 12
(i) to the extent such judgment or similar order is a necessary
procedural step to enable the realisation of the full benefit of the
security and rights granted in the Transaction Documents to obtain
(but not enforce) a declaratory judgment or similar order as to the
obligations of such Borrower expressed to be assumed under this
Assignment or under any other Transaction Documents; or
(ii) to the extent such claim or proof is a necessary procedural step to
enable the realisation of the full benefit of the security and
rights granted in the Transaction Documents, to make or file a claim
or proof in any bankruptcy, insolvency, winding-up, liquidation,
reorganisation, amalgamation or dissolution of such Borrower, but
not to take proceedings to instigate such bankruptcy, insolvency or
other similar situation.
3.8.2 Clause 3.8.1(i) shall be of no application in respect of a Borrower and
such Borrower shall be fully liable and the Indemnitees shall be at
liberty to prove all their respective rights and remedies against such
Borrower and its assets for any loss, damage, cost or expense (including
without limitation legal fees and expenses) sustained or incurred by such
Indemnitee as a consequence of (a) the wilful misconduct or gross
negligence of such Borrower or (b) a representation or warranty made by
such Borrower in any Transaction Document being untrue, incorrect or
misleading which would have an adverse effect upon the ability of such
Borrower to perform or comply with its obligations under this Agreement or
any of the Transaction Documents or (c) fraud on the part of such
Borrower.
3.8.3 The provisions of this Clause 3.8 shall only limit the personal liability
of each Borrower for the discharge of its monetary obligations under this
Agreement or any of the Transaction Documents and shall not (i) limit or
restrict in any way the accrual of interest on any unpaid amount, or (ii)
derogate from or otherwise limit the right of recovery, realisation or
application by the Indemnitees under or pursuant to any of the Aircraft
Security Documents or anything assigned, mortgaged, charged, pledged or
secured under or pursuant to any of the Aircraft Security Documents.
3.8.4 GFC and each GATX Obligor each hereby agrees that it shall not petition
for bankruptcy, insolvency, winding-up, liquidation, administration,
examinership, reorganisation, amalgamation or dissolution of any Borrower.
3.9 LIMITED RECOURSE OF EXPORT LESSEES
3.9.1 Notwithstanding the provisions of this Agreement or any of the other
Transaction Documents to the contrary, all amounts payable or expressed to
be payable by any Export Lessee for, in respect of or in connection with
its obligations, covenants, representations, warranties, indemnities or
other contractual assurances which are owed to the Security Trustee, the
Agent, the National Agents, the Joint Arrangers, the Lenders, GFC or any
GATX Obligor (other than the relevant Export Lessee) under, pursuant to or
in connection with this Agreement and the other Transaction Documents
shall be limited to and only be made or payable from:
(a) the recovery from such Export Lessee of all sums that are paid to or
recovered by such Export Lessee (or any person claiming through or
on behalf of such Export Lessee) pursuant to any provision of any
Transaction Document or any sale or disposal of the relevant
Aircraft or any part thereof or as a result of the enforcement of
the Aircraft Security Documents;
(b) the realisation of any proceeds from the enforcement of any security
granted to the Security Trustee, the Agent and/or any of the Lenders
under the Aircraft Security Documents (except to the extent that the
Export Lessee is not entitled to retain such
Page 13
sums as against any third party by virtue of any law, including as a
result of any judgment or order of any court or in any bankruptcy of
such third party); and
(c) amounts paid by, or recovered from, the Guarantor pursuant to the
Guarantee or the provisions of Clause 5 hereof.
and each of the Security Trustee, the Agent, the National Agents, the
Joint Arrangers, Lenders, GFC, any Borrower and any GATX Obligor (other
than the relevant Export Lessee) irrevocably and unconditionally agree
that they shall look solely to such rights and sums for payments to be
made by such Export Lessee under this Agreement and the other Transaction
Documents and that they shall not otherwise take or pursue any judicial or
other steps or proceedings or exercise any other right or remedy that they
might otherwise have against such Export Lessee or any of its other assets
except:
(i) to the extent such judgment or similar order is a necessary
procedural step to enable the realisation of the full benefit of the
security and rights granted in the Transaction Documents to obtain
(but not enforce) a declaratory judgment or similar order as to the
obligations of such Export Lessee expressed to be assumed under this
Assignment or under any other Transaction Documents; or
(ii) to the extent such claim or proof is a necessary procedural step to
enable the realisation of the full benefit of the security and
rights granted in the Transaction Documents, to make or file a claim
or proof in any bankruptcy, insolvency, winding-up, liquidation,
reorganisation, amalgamation or dissolution of such Export Lessee,
but not to take proceedings to instigate such bankruptcy, insolvency
or other similar situation.
3.9.2 Clause 3.9.1 shall be of no application in respect of an Export Lessee and
such Export Lessee shall be fully liable and the Indemnitees shall be at
liberty to prove all their respective rights and remedies against such
Export Lessee and its assets for any loss, damage, cost or expense
(including without limitation legal fees and expenses) sustained or
incurred by such Indemnitee as a consequence of (a) the wilful misconduct
or gross negligence of such Export Lessee or (b) a representation or
warranty made by such Export Lessee in any Transaction Document being
untrue, incorrect or misleading which would have an adverse effect upon
the ability of such Export Lessee to perform or comply with its
obligations under this Agreement or any of the Transaction Documents or
(c) fraud on the part of such Export Lessee.
3.9.3 The provisions of this Clause 3.9 shall only limit the personal liability
of each Export Lessee for the discharge of its monetary obligations under
this Agreement or any of the Transaction Documents and shall not (i) limit
or restrict in any way the accrual of interest on any unpaid amount, or
(ii) derogate from or otherwise limit the right of recovery, realisation
or application by the Indemnitees under or pursuant to any of the Aircraft
Security Documents or anything assigned, mortgaged, charged, pledged or
secured under or pursuant to any of the Aircraft Security Documents.
4 INTEREST, REPAYMENT AND PREPAYMENT
4.1 PAYMENT OF INTEREST
4.1.1 Each Borrower shall pay interest on each Advance in respect of each
Interest Period referable thereto in the currency in which the same is
outstanding hereunder on each Repayment Date referable thereto at, in the
case of:
Page 14
(a) the British Credits forming part thereof, the Agreed British Rate
for such Advance and Interest Period;
(b) the French Credits forming part thereof, the Agreed French Rate for
such Advance and Interest Period; and
(c) the German Credits forming part thereof, the Agreed German Rate for
such Advance and Interest Period
Provided that, in respect of Utilisations which do not occur on a
Reference Date, interest shall not accrue as aforesaid but will accrue
from (and including) the Utilisation Date to (but excluding) the second
Repayment Date next succeeding such Utilisation Date at a rate per annum
which is the aggregate of (i) the applicable Margin, (ii) such rate which
expresses as a percentage rate per annum the cost to each Lender of
funding its participation in the relevant Advance for the relevant period
and (iii) the applicable ECA Premium.
4.1.2 The Agent shall calculate the applicable LIBOR or EURIBOR for each
consecutive Interest Period on the relevant Quotation Date for the
relevant currency. The Agent shall promptly thereafter notify each of the
Lenders and GFC of such rates. The Agent's calculation or determination of
EURIBOR and LIBOR shall be conclusive save in the case of manifest error.
4.1.3 Interest shall accrue from the Utilisation Date and shall be calculated on
the outstanding unpaid principal amount of each Loan on the basis of a
year of three hundred and sixty (360) days and the actual number of days
elapsed and shall be payable in arrears on each Repayment Date.
4.2 REPAYMENT OF PRINCIPAL
4.2.1 Each Borrower shall repay each Loan advanced to it in the amounts and on
the dates set out in schedule 2 to the relevant Loan Supplement.
4.2.2 Each Repayment Instalment shall comprise principal and accrued unpaid
interest and the principal portion thereof shall:
(a) in the case of the British Credits be the aggregate of the amounts
set out opposite the relevant Repayment Date in column 4 of Section
A of Schedule 2, Part I to the relevant Loan Supplement;
(b) in the case of the French Credits be the aggregate of the amounts
set out opposite the relevant Repayment Date in column 4 of Section
B of Schedule 2, Part I to the relevant Loan Supplement; and
(c) in the case of the German Credits be the aggregate of the amounts
set out opposite the relevant Repayment Date in Column 4 of Section
C of Schedule 2, Part I to the relevant Loan Supplement.
4.2.3 Provided that no Termination Event has occurred and is continuing, upon
irrevocable receipt in full by the Security Trustee of all Repayment
Instalments in respect of a Loan, together with all other amounts due but
unpaid in respect thereof in accordance with the terms of this Agreement,
the Security Trustee shall confirm in writing to GFC that the Secured Loan
Obligations in respect of the Loan that has been repaid have been
satisfied in full at which time title to the relevant Aircraft shall be
transferred by the relevant Borrower in accordance with the relevant
Credit Sale Agreement. Upon title transferring to such person, at the
request and cost of GFC, the Security Trustee shall release the English
Law Mortgage, the Mortgage, the Borrower Security Assignment and the
Lease Security Assignment in respect of the Loan
Page 15
that has been repaid and take such other action which GFC may reasonably
request of it in order to effect such releases.
4.3 VOLUNTARY PREPAYMENT
4.3.1 Any Borrower may voluntarily prepay any of the Loans advanced to it in
full at any time PROVIDED that:
(a) the Agent shall have received from GFC not less than ten (10)
Business Days notice (in this Clause 4.3.1 a PREPAYMENT NOTICE) of
its intention to make such prepayment specifying the date on which
such prepayment is to be made (the PREPAYMENT DATE); and
(b) any such prepayment shall be made in the same currency as the
relevant Advance; and
(c) the Prepayment Date shall also be a Repayment Date.
The Agent shall promptly inform the National Agents of the receipt of the
Prepayment Notice. The relevant Borrower shall pay to the Agent in respect
of each Loan being prepaid by it on the Prepayment Date the relevant
Termination Amount as shall be notified to it by the Agent in writing.
4.3.2 No amount prepaid may be re-borrowed.
4.3.3 The relevant Borrower shall pay all amounts due under Clause 4.3.1 into
the Proceeds Account for application in accordance with Clause 12.6
(APPLICATION OF PROCEEDS RECEIVED AS A RESULT OF A PREPAYMENT MADE
PURSUANT TO CLAUSES 4.3, 4.6, 4.8 AND 4.10).
4.3.4 Provided that no Relevant Event or Termination Event has occurred and is
continuing, upon irrevocable receipt in full of the amounts set out in
Clause 4.3.1 by the Agent, the Security Trustee shall confirm in writing
to GFC that the Secured Loan Obligations in respect of the Loans that have
been prepaid have been satisfied in full at which time title to the
relevant Aircraft shall be transferred by the relevant Borrower' in
accordance with the relevant Credit Sale Agreement. Upon title
transferring to such person as is nominated by GFC, at the request and
cost of GFC, the Security Trustee shall release the English Law Mortgage,
the Mortgage, the Borrower Security Assignment and the Lease Security
Assignment in respect of the Loans that have been prepaid and take such
other action which GFC may reasonably request of it in order to effect
such releases.
4.4 PREPAYMENT FOLLOWING A TOTAL LOSS
4.4.1 Subject to Clause 4.7 (SUBSTITUTION OF AIRCRAFT), if at any time a Total
Loss occurs in relation to an Aircraft, the relevant Borrower shall, on or
prior to the expiry of the period of one hundred and twenty days (120)
days commencing on the Total Loss Date or, if earlier, the date upon which
the Total Loss Proceeds are paid by the insurers, repay the Loan relating
to such Aircraft by payment to the Agent of the Termination Amount with
respect to such Aircraft.
Until such repayment, the relevant Borrower shall continue to make all
payments of principal and interest in respect of the relevant Loan in
accordance with this Agreement and the relevant Loan Supplement.
4.4.2 Subject to the provisions of Clause 4.7.2 (SUBSTITUTION OF AIRCRAFT), the
relevant Borrower shall pay all amounts due under Clause 4.4,1 into the
relevant Proceeds Account to be applied in accordance with Clause 12.4
(APPLICATION OF TOTAL LOSS PROCEEDS) and, immediately upon irrevocable
receipt of such funds, the Security Trustee shall confirm in writing to
GFC that the Secured Loan Obligations in respect of the relevant Loan that
has been prepaid have been
Page 16
satisfied in full at which time title to the relevant Aircraft shall be
transferred by the relevant Borrower in accordance with the terms of the
relevant Credit Sale Agreement. Upon title having been transferred, at the
request and cost of GFC, the Security Trustee shall release the English
Law Mortgage, the Mortgage, the Borrower Security Assignment and the Lease
Security Assignment in respect of the Loan that has been prepaid and take
such other action which GFC may reasonably request of it in order to
effect such releases.
4.5 INTENTIONALLY LEFT BLANK
4.6 NON-PERFORMANCE OF A BORROWER
4.6.1 If a Termination Event occurs and is continuing which arises as a result
of any act or omission of a Borrower which is not caused by any act or
omission of any Export Lessee or GFC (BORROWER TERMINATION EVENT), the
Agent, subject to Clause 4.6.2, shall not be entitled to serve an
Acceleration Notice in respect of the occurrence of such Termination
Event. The Agent shall serve notice on GFC that a Termination Event as
contemplated by this Clause 4.6.1 has arisen and the Representatives and
Lenders shall consult with GFC for a period not exceeding fourteen (14)
Business Days from the date of such notice with a view to restructuring
each Loan under which the relevant Borrower is the borrower and GFC shall
pay for the Expenses incurred by the Representatives and the Lenders for
such negotiations as well as (if alternative arrangements are agreed) to
complete all steps required to implement such restructuring and all
rectifications and amendments to the relevant Transaction Documents in
relation to each Loan under which such Borrower is the borrower.
4.6.2 Notwithstanding Clause 4.6.1, in the event of a Termination Event
occurring and continuing as described in Clause 4.6.1, the Agent shall be
entitled, subject to any other arrangements satisfactory to the Agent
having been agreed, to serve an Acceleration Notice immediately if the
Agent, acting in good faith, believes that not to do so would materially
prejudice the interests of the Finance Parties and/or any of the Export
Credit Agencies.
4.6.3 If a resolution acceptable to GFC and the Majority Lenders is obtained as
a result of procedure referred to in Clause 4.6.1, GFC and the Lenders
shall implement the restructuring of each relevant Loan and rectifications
and amendments to the relevant Transaction Documents (including the
transfer of the obligations of the relevant Borrower to another Borrower)
and the replication of the relevant Aircraft Security Documents duly
executed by the relevant Obligor being provided to the Agent in respect of
the relevant Secured Loan Obligations on terms satisfactory to the Agent
(acting on the instructions of the Majority Lenders) within 20 days from
the date when such resolution is reached at the cost of GFC.
4.6.4 If no resolution acceptable to GFC and the Majority Lenders is found
within the 14 day period referred to in Clause 4.6.1 or if the relevant
Export Lessee fails to implement such restructuring of each relevant Loan
and rectification and amendment to the relevant Transaction Documents
within the 20 day period referred to in Clause 4.6.3, provided the
relevant Borrower Termination Event is continuing, the relevant Borrower
shall prepay to the Agent the Termination Amount in respect of every Loan
for which the relevant Borrower is the borrower.
4.6.5 Provided that no Termination Event (other than a Borrower Termination
Event) has occurred and is continuing and immediately upon irrevocable
receipt of the Proceeds referred to in Clause 4.6.4 into the relevant
Proceeds Account for application in accordance with Clause 12.6
(APPLICATION OF PROCEEDS RECEIVED AS A RESULT OF A PREPAYMENT MADE
PURSUANT TO CLAUSES 4.3, 4.6, 4.8 AND 4.10) the Security Trustee shall
confirm in writing to GFC that the Secured Loan Obligations in respect of
the Loans that have been prepaid have been satisfied in full at which time
title to the relevant Aircraft shall be transferred by the relevant
Borrower in accordance with the terms of the relevant Credit Sale
Agreement, whereupon the Security
Page 17
Trustee, at the request and cost of GFC, shall release the English Law
Mortgage, the Mortgage, the Borrower Security Assignment and the Lease
Security Assignment in respect of the Loan that has been prepaid and take
such other action which GFC may reasonably request of it in order to
effect such releases.
4.7 SUBSTITUTION OF AIRCRAFT
4.7.1 Subject to no Termination Event having occurred and continuing, if a Total
Loss occurs in respect of an Aircraft (the EXISTING AIRCRAFT), the
relevant Export Lessee may, by notice to the Agent, request permission to
substitute for the Existing Aircraft another Airbus aircraft of the same
type or in the same family of aircraft as the Existing Aircraft (the
REPLACEMENT AIRCRAFT). The notice shall provide details of the age from
delivery by the Manufacturer and number of block hours since the last
heavy maintenance check of the proposed Replacement Aircraft. The National
Agents and the German Parallel Lenders shall consider any such request in
good faith, in accordance with the then current practice of the Export
Credit Agencies in relation to the substitution of aircraft, and shall
inform the relevant Export Lessee (as the case may be) within 21 Business
Days of the receipt of such notice as to whether the proposed substitution
has been approved and, if approved, the terms upon which such Replacement
Aircraft shall be substituted for the Existing Aircraft. The parties to
this Agreement acknowledge that the current practice of the Export Credit
Agencies is that Export Credit Agency-supported Airbus aircraft may only
be substituted in Export Credit Agency-supported facilities by new Airbus
aircraft of the same type or in the same family of aircraft as the
Existing Aircraft.
4.7.2 Following a request by the relevant Export Lessee for the substitution of
an Aircraft in accordance with Clause 4.7.1 and if the Total Loss Proceeds
have been paid to the Security Trustee in accordance with the provisions
of Clause 4.4 (PREPAYMENT FOLLOWING A TOTAL LOSS) either:
(a) prior to the Agent informing the relevant Export Lessee of the
National Agents' and German Parallel Lender's decision as to such
substitution; or
(b) if the National Agents and the German Parallel Lender have approved
the substitution of such Existing Aircraft, prior to the actual
substitution of such Existing Aircraft by a Replacement Aircraft,
then the Total Loss Proceeds shall remain in the relevant Proceeds Account
pending completion of the substitution (and assuming, in the case of
Clause 4.7.2(a), that the substitution will be approved by the Lenders)
for up to one hundred and eighty (180) days or such other period of time
as shall then reflect the then current practice of the Export Credit
Agencies as notified to the relevant National Agent and the German
Parallel Lender by its Export Credit Agencies. If the Existing Aircraft is
then substituted by the Replacement Aircraft in accordance with the
approval and terms given or specified pursuant to Clause 4.7.1, the Total
Loss Proceeds (together with accrued interest thereon at the rate agreed
between the Agent and the relevant Export Lessee) in respect of such
Existing Aircraft shall be returned to the relevant Export Lessee,
provided that no Termination Event has occurred and is continuing, and
otherwise the Total Loss Proceeds shall be applied in accordance with
Clause 12.4 (APPLICATION OF TOTAL LOSS PROCEEDS).
4.8 PREPAYMENT IF NOT LEASED
4.8,1 If an Aircraft is not (a) delivered to a Lessee pursuant to a Lease within
one hundred and eighty (180) days after the relevant Delivery Date or such
longer period as the National Agents may agree in writing, the relevant
Export Lessee shall, on the first Banking Day following the expiry of such
one hundred and eighty (180) day period or any such longer period as may
be
Page 18
agreed, pay into the Proceeds Account the Termination Amount in respect of
the relevant Loan relating to such Aircraft as such amount shall be
notified to it in writing by the Agent and immediately upon irrevocable
receipt of such funds payable under this Clause 4.8 in the Proceeds
Account for application in accordance with Clause 12.6 (APPLICATION OF
PROCEEDS RECEIVED AS A RESULT OF A PREPAYMENT MADE PURSUANT TO CLAUSES
4.3, 4.6, 4.8 AND 4.10), the Security Trustee shall confirm in writing to
GFC that the Secured Loan Obligations in respect of the Loans that have
been prepaid have been satisfied in full at which time title to the
relevant Aircraft shall be transferred by the relevant Borrower in
accordance with the terms of the relevant Credit Sale Agreement, whereupon
the Security Trustee, at the request and cost of GFC, shall release the
English Law Mortgage, the Mortgage, the Borrower Security Assignment and
the Lease Security Assignment in respect of the Loan that has been prepaid
and take such other action which GFC may reasonably request of it in order
to effect such releases.
4.9 INTENTIONALLY LEFT BLANK
4.10 MANDATORY PREPAYMENT EVENT
4.10.1 A mandatory prepayment event in respect of a particular Loan shall occur:
(a) if a Home Country Notice or a US Restriction Notice or both are
served on the relevant Borrower or Export Lessee (as the case may
be) in accordance with the provisions of Clause 7.2.4; or
(b) with respect to a particular Aircraft, any conditions precedent
which the Agent has agreed in writing may be satisfied after an
Advance has been made have not been so satisfied within the period
stipulated in such notice from the Agent; or
(c) if any of the Aircraft Security Documents (other than an English Law
Mortgage which is not the relevant Mortgage for such Aircraft where
the relevant State of Registration is the United Kingdom), at any
time and for any reason, ceases to be valid or enforceable in
accordance with its terms and such circumstance, if capable of
remedy, is not remedied within fourteen (14) days; or
(d) in such other circumstances as GFC and the Agent may agree in
writing from time to time .
If a mandatory prepayment event pursuant to Clause 4.10.1 (a), (b), (c) or
(d) shall occur and be continuing, the Agent may demand repayment of the
relevant Loan whereupon the relevant Termination Amount shall become due
and payable on the next succeeding Repayment Date following such demand
or, if such Repayment Date falls within seven (7) Business Days of such
demand, the second succeeding Repayment Date provided that, if in the
reasonable opinion of the Agent, such delay might be prejudicial to the
interests of the Lenders, it may demand immediate repayment and
immediately upon irrevocable receipt of such funds payable under this
Clause 4.10.1 in the relevant Proceeds Account, the Security Trustee shall
(provided that no Termination Event has occurred and is continuing) at the
cost of GFC confirm in writing to GFC that the Secured Loan Obligations in
respect of the Loans that have been prepaid have been satisfied in full
after which title to the relevant Aircraft shall be transferred by the
relevant Borrower free and clear of Borrower's Liens or Finance Party
Liens to such person as is nominated by GFC (who shall not be a Borrower
or an Export Lessee).
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4,10.2 Each Borrower shall pay sums due under this Clause 4.10 into the relevant
Proceeds Account for application in accordance with Clause 12.6
(APPLICATION OF PROCEEDS RECEIVED AS A RESULT OF A PREPAYMENT MADE
PURSUANT TO CLAUSES 4.3, 4.6, 4.8 AND 4.10).
4.11 OVERDUE PAYMENTS
4.11.1 If any Obligor fails to pay on the due date any sum payable by it to a
Finance Xxxxx under any Transaction Document (or fails to pay on demand
any sum which is expressed to be payable on demand) (UNPAID AMOUNT) the
relevant Obligor shall pay interest in the same currency as the Unpaid
Sum to the Agent for the account of the relevant Finance Xxxxx on such
Unpaid Amount from (and including) the due date to (but excluding) the
date of actual payment (after as well as before judgment) at the Default
Rate for each Default Interest Period.
4.11.2 Interest at the Default Rate for each Default Interest Period shall be
calculated on the basis of a year of three hundred and sixty (360) days
and the actual number of days elapsed and shall accrue from day to day
and be due and payable on the last day of each Default Interest Period
and, if not paid, shall, to the extent permitted by Applicable Law, be
compounded on such date PROVIDED always that interest shall not be
compounded on any such sum until such sum has been unpaid for more than
one week.
4.11.3 The payment of interest by an Obligor pursuant to Clause 4.11.1 shall in
no way preclude any Finance Party from making any other claim or pursuing
any other right or remedy that may be available to it or otherwise
prejudice any such claim, right or remedy.
4.12 DEDUCTIONS AND WITHHOLDINGS
4.12.1 All sums payable to the Finance Parties pursuant to or in connection with
any Transaction Document shall be paid in full without any set-off or
counterclaim whatsoever and free and clear of all deductions or
withholdings of or on account of Tax whatsoever save only as may be
required by law.
4.12.2 Each Lender shall deliver to the Agent three completed and signed United
States Internal Revenue Service Form X-0XXX, X-0XXX or W-8EXP or such
other form as may be prescribed by the Internal Revenue Service of the
United States of America (whichever form applies to such Lender)
certifying that such Lender is entitled to a complete exemption from
United States withholding taxes on all payments pursuant to this
Agreement or in connection with any Transaction Document:
(a) in the case of each initial Lender, on or prior to the date of its
execution and delivery of this Agreement; and
(b) in the case of each Transferee, on or prior to the date of
execution of the Transfer Certificate pursuant to which it becomes
a Lender;
(c) in the case of an initial Lender and each Transferee (other than as
aforesaid), thereafter:
(i) on or prior to (or as soon as practicable after) the date on
which the Internal Revenue Service form previously delivered
by such Lender or Transferee ceases to be effective or becomes
inaccurate; or
(ii) promptly after receipt of a request therefor from any GATX
Obligor;
and as long as any portion of any Advance remains outstanding.
PROVIDED THAT this Clause 4.12.2 shall not apply to:
Page 20
(i) a Lender that is not legally entitled to an exemption from United
States withholding taxes as a result of a Change in Tax Law, in the
case of an initial Lender, after the date of execution of this
Agreement and, in the case of any Transferee, after the date on
which such Transferee became a Lender. CHANGE IN TAX LAW, as used in
the preceding sentence, means any of the following: (i) the
enactment of any amendment to the United States Internal Revenue
Code, (ii) the publication of any new regulation to the United
States Internal Revenue Code or any amendment of any such
regulation, or (iii) the entry into force of any new income tax
convention to which the United States is a party or any amendment of
or supplement to any income tax convention to which the United
States is a party or the revocation of any such income tax
convention; or
(ii) any Lender that (i) is incorporated or otherwise organised under
the laws of the United States of America or any State thereof and is
a corporation (or an entity taxable as a corporation) for United
States federal income tax purposes or (ii) is an Export Credit
Agency.
The Agent shall deliver to the Cayman Borrower and the Irish Borrower
(with a copy to GFC) a completed and signed United States Internal Revenue
Service Form W-8IMY (including as attachments copies of the current
Internal Revenue Service forms that the Agent received from the Lenders):
(a) on or before the date of execution of this Agreement;
(b) before or promptly after the date of any transfer by a Lender to a
Transferee pursuant to Clause 18.2 (Transfers by Lenders) (but in
any event not later than fifteen (15) Business Days before the first
date on which a payment is due to the Lenders with respect to the
Loan that is the subject of the Transfer Certificate); and
(c) thereafter:
(i) on or prior to (or as soon as practicable after) the date on
which the Internal Revenue Service Form previously delivered
by the Agent ceases to be effective or becomes inaccurate; or
(ii) promptly after receipt of a request therefor from any GATX
Obligor.
If the principal officer responsible for United States tax matters of any
Lender or the Agent knows that the information set forth in any Internal
Revenue Service form delivered by such Lender or the Agent pursuant to
this Clause 4.12.2 is no longer correct and that the exemption claimed
therein is no longer available to the Lender or the Agent as a result
thereof, such Lender or the Agent (as the case may be) shall notify GFC of
such circumstance.
4.12.3 If any deduction or withholding is required of any Borrower or any
Export Lessee in respect of any payment due to the Agent, the Security
Trustee, any Borrower or any Lender by any Borrower or any Export Lessee
pursuant to or in connection with any Transaction Document, the relevant
Borrower or any Export Lessee, shall:
(a) ensure that the deduction or withholding is made and that it does
not exceed the minimum legal requirement therefor;
(b) pay or procure the payment of the full amount deducted or withheld
to the relevant Taxation or other authority in accordance with the
Applicable Law;
Page 21
(c) (if the payment is to be made by any Borrower, or GFC or any other
Obligor), increase the payment in respect of which the deduction or
withholding is required so that the net amount received by the
relevant Lender, Borrower or Representative (as the case may be)
after the deduction or withholding has been made (and after taking
account of any further deduction or withholding which is required to
be made as a consequence of the increase) shall equal the amount
which that Lender, Borrower or Representative or Export Credit
Agency would have been entitled to receive in the absence of any
requirement to make a deduction or withholding;
(d) (if the payment is to be made by any person other than a Borrower or
GFC or any other Obligor), the relevant Borrower shall pay directly
to the Agent for the account of the relevant Representative or the
relevant Lender such sum (in Clause 4.12.3(d) a COMPENSATING SUM) as
will, after taking into account any deduction or withholding which
the payer is obliged to make from the compensating sum, enable the
relevant Representative or Lender (as the case may be) to receive,
on the due date for payment, a net sum equal to the sum which it
would have received in the absence of any requirement to make a
deduction or withholding; and
(e) promptly deliver to the Agent or procure the delivery of appropriate
receipts or other documents evidencing the deduction or withholding
which has been made.
4.12.4 If a Representative is obliged by any Change in Law or Change in Tax Law
to make any deduction or withholding from any payment to a Lender or
another Representative (an AGENCY PAYMENT) which relates to an amount
received by that Representative for the account of that Lender pursuant
to this Agreement or any of the Transaction Documents the relevant
Borrower shall pay directly to the Lender such sum (in this Clause 4.12.4
a COMPENSATING SUM) as will, after taking into account any deduction or
withholding which the relevant Borrower is obliged to make from the
compensating sum, enable the Lender to receive, on the due date for
payment of the agency payment, an amount equal to the agency payment
which the Lender would have received in the absence of any requirement to
make a deduction or withholding.
4.12.5 If a Representative is obliged other than by any Change in Law or Change
in Tax Law to make any deduction or withholding from any payment to a
Lender or another Representative which relates to an amount received by
that Representative for the account of that Lender, GFC, the relevant
Representatives and the relevant Lenders shall consult together with a
view to trying to mitigate against such deduction or withholding
including redirecting any payment flows to avoid monies passing through
such Representative and, if reasonably required by any Representative,
payments shall be made directly to the relevant National Agent or Lender,
as the case may be.
4.12.6 If a Lender or Representative determines, in its reasonable discretion,
that it has received, realised, utilised and retained a Tax benefit by
reason of any deduction or withholding in respect of which any Obligor
has made an increased payment or paid a compensating sum under this
Clause 4.12, such Lender or Representative shall, so long as no
Termination Event has occurred and is continuing and provided it has
received all amounts which are then due and payable by the relevant
Borrower and each of the other Obligors under the Transaction Documents
or, if the Tax benefit exceeds the amounts then due and payable, has
set-off such amounts against the Tax benefit, pay to the relevant Obligor
(to the extent that the Lender or Representative can do so without
prejudicing the amount of such benefit or the right of such Lender or
Representative to obtain any other benefit, relief or allowance which may
be available to it) such amount as shall leave such Lender or
Representative in no better or worse after Tax position than such Lender
or Representative would have been in if the deduction or withholding had
not been required PROVIDED that:
Page 22
(a) each Lender and Representative shall use its reasonable discretion
as to the time at which and the order and manner in which it
realises or utilises any Tax benefit and shall not be obliged to
arrange its business or its Tax affairs in any particular way in
order to be eligible for any Tax benefit;
(b) no Lender or Representative shall be obliged to disclose any
information regarding its business, Tax affairs or Tax computations;
(c) if any Lender or Representative has made a payment to the relevant
Obligor pursuant to this Clause 4.12.6 on account of any Tax benefit
and it subsequently transpires that such Lender or Representative
did not receive that Tax benefit, or received a lesser Tax benefit
the relevant Obligor shall pay on demand to such Lender or
Representative such sum as such Lender or Representative may
determine as being necessary to restore the after-Tax position of
the Lender or Representative to that which it would have been had no
adjustment under this proviso (c) been necessary; and
(d) the Lender or Representative shall not be obliged to make any
payment under this Clause 4.12.6 if either it is an Export Credit
Agency or if, by doing so, it would contravene the terms of any
Applicable Law or any notice, direction or requirement of any
governmental or regulatory authority (whether or not having the
force of law).
4.12.7 If any amount falls due to be paid to the Agent or any Lender pursuant to
or in connection with this Agreement or any of the other Transaction
Documents on a day which is not a Banking Day, then it shall be due and
payable on the next succeeding Banking Day and the amount,(if necessary),
shall be adjusted accordingly.
4.12.8 Each Lender (other than an Export Credit Agency), on the date on which it
becomes a party to this Agreement, represents to the Agent and each
Obligor that it is:
(a) either:
(i) not resident in the United Kingdom for United Kingdom tax
purposes; or
(ii) a "bank" as defined in section 840A of the Income and
Corporation Taxes Act 1988 (or any statutory re-enactment or
modification thereof, in substantially the same form and
content as of the date hereof) and resident in the United
Kingdom; and
(b) beneficially entitled to the principal and interest payable by the
Agent to it under this Agreement,
and shall forthwith notify the Agent and GFC if either representation
ceases to be correct.
4.13 CURRENCY OF PAYMENT
4.13.1 All payments of principal and interest (including interest at the Default
Rate) payable in respect of any Loan pursuant to this Agreement and any
relevant Loan Supplement shall be paid in the same currency as the
relevant Loan.
4.13.2 Subject to Clause 4.13.1, all other amounts payable to the Agent,
the Security Trustee and/or the Lenders pursuant to or in connection with
this Agreement or any of the Transaction Documents shall, unless
otherwise provided in the relevant notice or demand for payment, be paid
in Dollars to the Agent (where appropriate, for the account of the
relevant Lender or the Security Trustee).
Page 23
4.14 PERFORMANCE PROCEDURE
4.14.1 On each date on which an amount is due from any Borrower in connection
with any Loan pursuant to this Agreement or any of the Transaction
Documents, the relevant Borrower shall no later than (i) 10.00 am (New
York time) if such payment is due in Dollars and (ii) 1.00 pm Paris time
if such payment is due in Euros on such due date make such amount
available to the Agent by payment in Dollars or Euros, as the case may
be, in same day funds to the Agent's account (x) if payment is in Dollars
with Credit Lyonnais, New York Branch, Swift Code XXXXXX00 for the
account of 01 00684 0001 00-EX896, Credit Lyonnais, Paris, Swift Code
XXXXXXXXX00, (or to such other account in New York City as the Agent may
upon not less than five (5) Business Days' written notice from time to
time designate) or (y) if the payment is to be made in Euros to the
Agent's account with Credit Lyonnais, Paris branch, swift code
XXXXXXXXX00 account no 30002008960000999109D90 (or to such other account
as the Agent may upon not less than five (5) Business Days' written
notice from time to time designate. All payments shall be made under
reference DDO-EX/896-FC6-GATX msn [relevant msn].
4.14.2 Upon receipt by the Agent of an amount referred to in Clause 4.14.1, the
Agent shall if such amount is received by 5.00 pm (Paris time) on the due
date make available on such due date (and otherwise on the next
succeeding Banking Day) to the relevant National Agent such portion of
the amount so received as represents the aggregate of the entitlement of
the British Lenders, the French Lenders or the German Lenders (as the
case may be) of such amount in such funds as are received by the Agent by
payment to such account as the relevant National Agent may have specified
in writing.
4.14.3 Without prejudice to the provisions of Clause 4.14.2, the Agent shall not
be obliged to make available to any National Agent or any Lender any sum
which it is expecting to receive for the account of such National Agent
or such Lender pursuant to this Agreement or any of the Transaction
Documents until it has been able to establish that it has received that
sum from the relevant Borrower. If and to the extent that the Agent does
pay such sum to a National Agent but it subsequently transpires that the
Agent had not received the relevant sum:
(a) the relevant National Agent shall on request by the Agent refund
such sum to the Agent; and
(b) the relevant National Agent shall on request by the Agent pay to the
Agent the amount (as certified by the Agent) which will indemnify
the Agent against any funding or other cost, loss, expense or
liability as a result of making available or paying out that sum
before receiving it; and
(c) each Lender shall indemnify the relevant National Agent in respect
of its Relevant Proportion of the amounts referred to in paragraphs
(a) and (b) above.
5. APPOINTMENT OF AGENT, SECURITY TRUSTEE AND NATIONAL AGENTS
The terms and conditions upon which (i) each Lender appoints the relevant
National Agent to act as national agent (ii) the Lenders and the National
Agents appoint the Agent to act as agent (iii) the Lenders, National
Agents and Agent appoint the Security Trustee to act as trustee for the
Collateral (iv) the terms of such trust arrangement are set out in
Schedule 10 (APPOINTMENT OF SECURITY TRUSTEE, AGENT AND NATIONAL AGENTS
AND TRUST PROVISIONS).
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6 REPRESENTATIONS AND WARRANTIES
6.1 GFC'S REPRESENTATIONS AND WARRANTIES
To induce the Finance Parties to enter into the Transaction Documents GFC
represents and warrants to the Finance Parties that:
(a) it is a corporation duly incorporated and validly existing and in
good standing under the laws of the State of Delaware and has full
power, authority and legal right to own its property and carry on
its business as presently conducted;
(b) it has the power and capacity to execute and deliver, and to perform
its obligations under the Transaction Documents to which it is or
will be a party and all necessary action has been taken to authorise
the execution, delivery and performance of the same;
(c) it has taken all necessary legal action to authorise the person or
persons who execute and deliver the Transaction Documents to which
it is or will be a party to execute and deliver the same and thereby
bind it to all the terms and conditions hereof and thereof and to
act for and on behalf of it as contemplated hereby and thereby;
(d) the Transaction Documents to which it is or will be a party
constitute (or will when executed constitute) legal, valid and
binding obligations of it enforceable in accordance with their
respective terms subject only to the qualifications set out in the
legal opinions to be provided to the Lenders in accordance with the
provisions of Clause 2.8. (SEVERAL OBLIGATIONS) and Clause 3.1.4
(UTILISATION NOTICES) and Schedule 6 in respect of the relevant
Transaction Documents;
(e) the execution and delivery of, the performance of its obligations
under, and compliance with the provisions of, the Transaction
Documents to which it is or will be a party will not (i) contravene
any existing Applicable Law to which it is subject, (ii) conflict
with, or result in any breach of any of the terms of, or constitute
a default under, any document, instrument or agreement to which it
is a party or is subject or by which it or any of its assets may be
bound, (iii) contravene or conflict with any provision of its
constitutional documents, or (iv) result in the creation or
imposition of, or oblige it to create, any Lien on or over any of
its assets (other than the Liens created pursuant to the Transaction
Documents);
(f) every consent, registration, licence and qualification required by
it to enable it to carry on its business and which could be material
in the context of the transactions contemplated by the Transaction
Documents has been duly obtained or made and is in full force and
effect and there has been no material default in the observance or
performance of any of the conditions or restrictions (if any)
imposed on, or in connection with, any such consent, registration,
licence or qualification;
(g) every consent, registration, licence and qualification required by
it to authorise, or required by it in connection with, the
execution, delivery, legality, validity, priority, enforceability,
admissibility in evidence or effectiveness of the Transaction
Documents to which it is or will be a party has been duly obtained
or made and is in full force and effect and there has been no
material default in the observance or performance of any of the
conditions or restrictions (if any) imposed on, or in connection
with, any such consent, licence, registration or qualification;
(h) it is not (nor would be with the giving of notice or lapse of time
or both or the making of any relevant determination or the
fulfilment of any other condition) in breach or in
Page 25
default under any document, instrument or agreement to which it is a
party or is subject or by which it, or any of its assets may be
bound and no litigation, arbitration or administrative proceeding is
taking place, pending or threatened against it, or against any of
its assets, which in any such case would be expected to have a
Material Adverse Effect;
(i) it has not taken any action nor, to its knowledge or the knowledge
of its officers, have any steps been taken or legal proceedings been
started for any insolvency-related winding-up, dissolution or
re-organisation or for the appointment of a receiver or
administrative receiver, or an administrator, trustee or similar
officer of it or of any or all of its assets;
(j) its obligations under the Transaction Documents to which it is or
will be a party are, or will when the same are executed be, direct,
general and unconditional obligations of it and rank at least pari
passu with all other present and future unsecured and unsubordinated
obligations of it save for obligations mandatorily preferred by
law;
(k) no Relevant Event or Termination Event has occurred and is
continuing;
(l) there have been no amendments or supplements to its certificate of
incorporation and bylaws from the form of those documents provided
to the Agent pursuant to Clause 2.9.1 (CONDITIONS PRECEDENT PRIOR TO
FIRST UTILISATION);
(m) no Trigger Event has occurred and is continuing;
(n) under the laws of the United States of America in force at the date
hereof, it will not be required to make any deduction or withholding
from any payment it may make under this Agreement or any other
Transaction Document to which it is or will be a party;
(o) it is not an "investment company" within the meaning of the
Investment Company Xxx 0000 of the United States of America and no
consent or authorisation of any Government Entity is required on the
part of it in connection with the Guarantee or any other of the
Transaction Documents or with the execution, delivery or performance
by GFC of this Agreement or the other Transaction Documents.
6.2 REPRESENTATIONS AND WARRANTIES OF EACH EXPORT LESSEE AND EACH BORROWER
6.2.1 To induce each of the Finance Parties to enter into the Transaction
Documents, each Export Lessee and each Borrower represents and warrants
(as to itself only) to the Finance Parties and, in the case of such
representations and warranties of the Borrowers, to the Export Lessees,
that:
(a) it is duly organised and validly existing under the laws of the
Cayman Islands or Ireland (as appropriate) and the jurisdiction
referred to in paragraph 2.1(d) of the relevant Accession Deed (in
the case of any Alternative Export Lessee), and has full power,
authority and legal right to own its property and carry on its
business as presently conducted;
(b) it has the power and capacity to execute and deliver, and to perform
its obligations under the Transaction Documents to which it is or
will be a party and all necessary action has been taken to authorise
the execution, delivery and performance of the same;
Page 26
(c) it has taken all necessary legal action to authorise the person or
persons who execute and deliver the Transaction Documents to which
it is or will be a party to execute and deliver the same and thereby
bind it to all the terms and conditions hereof and thereof and to
act for and on behalf of it as contemplated hereby and thereby;
(d) the Transaction Documents to which it is or will be a party
constitute or will when executed constitute its legal, valid and
binding obligations enforceable in accordance with their terms
subject only to the qualifications set out in the legal opinions to
be provided to the Lenders in accordance with the provisions of
Clause 2.9 (CONDITIONS PRECEDENT) (in respect of the Aircraft) and
Schedule 6 (in respect of the Transaction Documents;
(e) the execution and delivery by it of, the performance of its
obligations under, and compliance with the provisions of, the
Transaction Documents to which it is or will be a party will not (i)
contravene any existing Applicable Law to which it is subject, (ii)
conflict with, or result in any breach of any of the terms of, or
constitute a default under, any document, instrument or agreement to
which it is a party or is subject or by which it or any of its
assets may be bound, (iii) contravene or conflict with any provision
of its constitutional documents, or (iv) result in the creation or
imposition of, or oblige it to create, any Lien on or over any of
its assets other than those created pursuant to the Transaction
Documents;
(f) every consent, registration, licence and qualification required by
it to enable it to carry on its business has been duly obtained or
made and is in full force and effect and there has been no default
in the observance or performance of any of the conditions or
restrictions (if any) imposed on, or in connection with, any such
consent, registration, licence and/or qualification;
(g) every consent, registration, licence and qualification required by
it to authorise, or required by it in connection with, the
execution, delivery, legality, validity, priority, enforceability,
admissibility in evidence or effectiveness of the Transaction
Documents to which it is or will be a party has been duly obtained
or made and is in full force and effect and there has been no
default in the observance or performance of any of the conditions or
restrictions (if any) imposed on, or in connection with, any such
consent, licence, registration and/or qualification;
(h) no litigation, arbitration or administrative proceeding is taking
place, pending or threatened against it, or against any of its
assets;
(i) it has not taken any action nor, to its knowledge or the knowledge
of its officers, have any steps been taken or legal proceedings been
started for any insolvency-related winding-up, dissolution or
re-organisation or for the appointment of a receiver or
administrative receiver, or an administrator, trustee or similar
officer of it or of any or all of its assets;
(j) its obligations under the Transaction Documents to which it is or
will be a party are, or will when the same are executed be, its
direct, general and unconditional obligations and rank at least pari
passu with all other present and future unsecured and unsubordinated
obligations save for obligations mandatorily preferred by law;
(k) no Relevant Event or Termination Event has occurred and is
continuing;
(l) except as otherwise permitted hereunder, there have been no
amendments or supplements to its memorandum of association and
by-laws or (as the case may be), articles of association from the
form of those documents last seen by the Agent and the
Page 27
memorandum of association and by-laws or (as the case may be),
articles of association in the form last seen by the Agent remain in
full force and effect;
(m) the board resolutions and, if applicable, power of attorney supplied
by it to the Agent pursuant to the provisions of Clause 2.9
(CONDITIONS PRECEDENT PRIOR TO FIRST UTILISATION) of this Agreement
or pursuant to Schedule 6 (as the case may be) remain in full force
and effect and have not been amended, supplemented, varied or
revoked, in whole or in part since they were entered into and the
authority therein given to the persons therein named to agree and
execute on its behalf the Transaction Documents remains in full
force and effect and has not been revoked, amended, supplemented or
varied, in whole or in part; and
(n) it has not, prior to entering into the Transaction Documents,
engaged in any business or transaction or entered into any contract
or agreement with any person or otherwise created or incurred any
liability to, or acquired any asset from, any person, other than any
such transactions, contracts, agreements or liabilities or
acquisitions of assets as (i) have been necessary solely in order
for it to establish itself as a company duly incorporated and
validly existing under the laws of its state of incorporation, (ii)
have occurred pursuant to or are contemplated by any of the
Transaction Documents or (iii) have been entered into by the Irish
Export Lessee in connection with its acquisition of the LTU Aircraft
and the interim financing thereof and the leasing thereof to LTU
Lufttransport - Unternehmen GmbH.
6.3 REPRESENTATIONS AND WARRANTIES BY EACH FINANCE PARTY
Each Finance Party makes the following representations and warranties to
GFC, each Borrower and each Export Lessee on the date of this Agreement:
(a) it is a corporation, duly incorporated and validly existing under
the law of its jurisdiction of incorporation and has full power,
authority and legal right to own its property and carry on its
business as presently conducted;
(b) it has the power and capacity to execute and deliver, and to perform
its obligations under the Transaction Documents to which it is or
will be a party and all necessary action has been taken to authorise
the execution, delivery and performance of the same; and
(c) it has taken all necessary legal action to authorise the person or
persons who execute and deliver the Transaction Documents to which
it is or will be a party to execute and deliver the same and thereby
bind it to all the terms and conditions hereof and thereof and to
act for and on behalf of itself as contemplated hereby and thereby.
6.4 REPETITION
The representations and warranties set out in Clauses 6.1 and 6.2, in the
case of an Obligor which is a party to this Agreement on the date of this
Agreement, are made by that Obligor on that date and, in the case of a
party which enters into an Accession Deed after the date of this
Agreement, will be deemed to be made by that party on the date it executes
an Accession Deed.
Page 28
7 UNDERTAKINGS AND COVENANTS
7.1 GENERAL COVENANTS OF THE EXPORT LESSEES
Until all of the Secured Loan Obligations have been paid in full, each
Export Lessee hereby undertakes and covenants with each of the Lenders and
the Representatives (in respect of itself only) that from the date of this
Agreement, or if later, the date upon which such Obligor accedes to this
Agreement:
(a) it shall remain duly incorporated and validly existing under the
laws of the Cayman Islands (in the case of the Cayman Export
Lessee,) Ireland (in the case of the Irish Export Lessee) and the
laws of the jurisdiction stated in paragraph 2.1(d) of the relevant
Accession Deed (in the case of each Alternative Export Lessee);
(b) at all times, it shall comply and procure the compliance with all
laws and regulations applicable to it and which are necessary in
relation to the conduct of its business generally, and it shall
obtain, maintain in full force and effect and comply in all material
respects with, any present or future authorisations (governmental or
otherwise), approvals, licences and consents and do, or cause to be
done, all other acts and things, in each case, which may from time
to time be necessary for the continued due performance of its
obligations under the Transaction Documents;
(c) it shall inform the Agent of the occurrence of any Relevant Event or
Termination Event, promptly upon becoming aware of the same and
shall provide the Agent with full details of any steps which it is
taking, or is considering taking, in order to remedy or mitigate the
effect of any Relevant Event or such Termination Event or otherwise
in connection therewith;
(d) it shall inform the Agent of any steps it is taking in respect of
repossessing any Aircraft from a Lessee or Sub-Lessee;
(e) it shall pay and discharge all Taxes and governmental charges prior
to the date on which the same become overdue unless, and only to the
extent that, such Taxes and charges shall be contested in good faith
by appropriate proceedings, pending determination of which payment
may lawfully be withheld, and there shall be set aside adequate
reserves with respect to any such Taxes or charges so contested (if
required in accordance with generally accepted accounting
principles);
(f) it shall comply with its constitutional documents and shall not
amend any provision of its constitutional documents or permit any
amendment thereto;
(g) Subject to Clause 7.8 and Clause 9.1(d), it shall, promptly, upon
being requested so to do by any Representative take all such steps
and enter into and execute all such documents of whatsoever nature
in order to enable such Representative to effect any registration,
recording, filing, notarisation or any other action in respect of
any of the Transaction Documents to which it is a party, in each
case, which is required by law or reasonably requested by either
Representative to ensure the validity, enforceability or priority of
the liabilities and obligations of the relevant Obligor or the
rights of each Representative and/or each of the Lenders under any
of the Transaction Documents;
(h) it shall not, without the prior written consent of the Agent,
conduct any business other than the acquisition, leasing and sale of
the Aircraft and the transactions contemplated by the Transaction
Documents to which it is a party and such activities and matters
incidental to any of the foregoing;
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(i) it shall not, without the prior written consent of the Agent, incur
any liability to any person, other than:
(i) a liability for Tax or other charges arising under Applicable
Law to a Government Entity; or
(ii) liabilities pursuant to or in respect of the Intra-Group
Financing Arrangements; or
(iii) any liability under the Transaction Documents or reasonably
ancillary thereto; or
(iv) any liability that is an ordinary operating cost or overhead
expense or is otherwise in the ordinary course of its
permitted business;
(j) it shall ensure that at all times its obligations under the
Transaction Documents rank at least pari passu with its obligations
owed to all its unsecured creditors save for obligations mandatorily
preferred by law;
(k) it shall duly observe and perform all of its covenants, obligations
and conditions which are required to be observed and performed on
its part under each of the Transaction Documents to which it is,
from time to time, a party;
(l) it shall not create or acquiesce in the creation or permit to exist
any Lien (other than any Permitted Lien) on or affecting the
Aircraft or the Insurances in relation to any Aircraft (or any
relevant Engine or Part);
(m) if it is required under local law to prepare audited annual
financial statements, it shall deliver to the Agent sufficient
copies for distribution to each of the Lenders of its audited annual
financial statements for each of its financial years (which shall be
prepared in accordance with generally accepted accounting principles
and practices in its jurisdiction of incorporation and which shall
give a true and fair view of the profits and losses for the relevant
financial year at the end of such financial year) as soon as
practicable and not later than one hundred and eighty (180) days
after the end of the financial year to which they relate;
(n) it shall procure that at all times a majority of the members of its
board of directors shall be officers or employees of a GATX Group
Company (unless such requirement is contrary to local requirements
in its jurisdiction of incorporation or is impractical due to local
law requirements) and it shall procure further that no member of its
board of directors shall be replaced or substituted (other than by
another officer or employee of a GATX Group Company) without the
prior written consent of the Security Trustee (which consent shall
be exercisable in the reasonable discretion of the Security Trustee)
unless such substitution is required in order to comply with any
local requirement of its jurisdiction of incorporation or is
required for a practical reason due to local law requirements;
(o) it shall inform the Representatives promptly after it becomes aware
of the Total Loss of any Aircraft or of any occurrence which, with
the lapse of time, would or would be likely to constitute a Total
Loss of any Aircraft, the relevant Export Lessee shall provide such
details of such Total Loss or other occurrence as each
Representative may reasonably request;
(p) it shall inform the Representatives promptly after it becomes aware
of any:
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(i) Lien which has arisen over or in respect of any of the
Aircraft or any Part thereof other than any Permitted Lien; or
(ii) any steps being taken by the holders of any Lien (including
any Permitted Lien) to exercise or enforce that Lien or any
rights in respect thereof;
(q) it shall not voluntarily wind itself up;
(r) it shall not knowingly do anything or take any action or omit to
take any action which has or may have the effect of prejudicing the
entitlement of any Representative or any of the Lenders against a
liquidator, receiver, administrator or similar officer or official,
to all rights, monies and property owed to any Representative or any
of the Lenders by the relevant Obligor (as the case may be) pursuant
to the Transaction Documents to which it is a party;
(s) save as contemplated pursuant to the Transaction Documents, the
Intra-Group Financing Arrangements or any arrangements to be
implemented pursuant to Clause 7.9, it shall not sell, lease,
transfer or otherwise dispose of, by one or more transactions or
series of transactions (whether related or not), the whole or any
part of its revenues or assets; and
(t) save as contemplated pursuant to the Transaction Documents, the
Intra-Group Financing Arrangements or any arrangements to be
implemented pursuant to Clause 7.9, it shall not sell or otherwise
dispose of its interest in any Aircraft until the Loan in respect of
such Aircraft has been paid in full and the Security Trustee
confirms in writing to GFC that the Secured Loan Obligations in
respect of such Loan have been satisfied in full;
(u) in the case of the Cayman Borrower and each other Borrower
incorporated in the Cayman Islands, it will not take any action, nor
permit any action to be taken, which would result in it ceasing to
be an exempted limited company in the Cayman Islands;
(v) it shall not without the prior written consent of the Agent create
or permit to subsist any Lien over all or any of its present and
future revenues and assets other than a Permitted Lien;
(w) it shall review every three (3) months any currency exposure it may
have in respect of Insurances taken out in a currency different from
the currency of the Loan relating to the Aircraft to which such
Insurances relate.
7.2 LEASING AND INSURANCE COVENANTS OF EXPORT LESSEES
7.2.1 Until all of the Secured Loan Obligations have been paid in full, each
Export Lessee hereby undertakes and covenants with each of the Finance
Parties separately and severally from the date of this Agreement or, if it
is not a party to this Agreement on the date of this Agreement, from the
date upon which such Export Lessee accedes to this Agreement that, save as
may be agreed from time to time with the Agent, it shall ensure that each
Lease of an Aircraft which is being leased by it complies with the Minimum
Lease Provisions. In addition, each Export Lessee in respect of itself and
in respect of Aircraft leased to it pursuant to a Credit Sale Agreement
shall:
(a) ensure that each Lease is in English;
(b) with the exception of the Credit Sale Agreement or any Intermediate
Lease, ensure that no Aircraft is subject to any instalment sale
agreement, conditional sale agreement
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or other lease-purchase agreement conferring upon the bailee any
ownership right, title or interest to or in the relevant Aircraft,
including, without limitation, by means of a purchase option at a
nominal price, without obtaining the prior written approval of the
Agent (acting on the instructions of the Majority Lenders) provided
always that Export Lessees may grant a purchase option over any
Aircraft to any Lessee if the exercise of such option is expressly
conditional on the Aircraft Security Documents for such Aircraft
having been discharged;
(c) ensure that each Aircraft shall, unless in or imminently scheduled
for major maintenance or modification or as otherwise agreed by the
Agent (acting on the instructions of the Majority Lenders), be
registered in the jurisdiction of incorporation (other than the
Cayman Islands) or such of:
(i) the Borrower which is the owner of such Aircraft (including in
the name of an owner trustee on behalf of the Borrower in the
United States of America); or
(ii) if such Aircraft is an Off-Lease Aircraft, the Export Lessee
which is leasing such Aircraft pursuant to a Credit Sale
Agreement; or
(iii) a Lessee; or
(iv) any Sub-Lessee, or
(v) such other jurisdiction as the Agent may consent to in writing
in each case with the interests of the relevant Borrower as owner
noted on the register of the relevant Aviation Authority to the
extent permitted by Applicable Law;
(d) ensure that throughout the period of the relevant Loan, legal title
to the Aircraft financed under such Loan shall vest in a Borrower.
The relevant Export Lessee shall (at its own cost) take all steps,
or procure that all steps are taken, which are required by law in
the State of Registration and the jurisdiction in which the Lessee
or any Sub- Lessee has its principal place of business to protect
and perfect the relevant Borrower's ownership interest in the
Aircraft;
(e) in the event that any proposed leasing structure requires an
Intermediate Lease, ensure that such Intermediate Lease shall be
made between two Export Lessees, ensure that such Intermediate Lease
is expressly subject and subordinate to the Credit Sale Agreement
and the Mortgage and ensure that the relevant Export Lessee who is
the lessor under such Intermediate Lease executes in favour of the
Security Trustee an Intermediate Lease Security Assignment with
respect to such Intermediate Lease;
(f) it shall comply or procure compliance with all of the
Insurance Undertakings in respect of such Aircraft, Provided
Always that such Export Lessee shall not be in breach of this
Clause 7.2.(f) in relation to the Insurances effected with
respect to any Aircraft if:
(i) such Insurances are not in compliance with the requirements of
the Insurance Undertaking (any such Insurance Undertaking in
respect of which an Export Lessee is not in compliance from
time to time being referred to herein as a NON-COMPLIANT
MATTER); and
(ii) such Export Lessee has notified the Agent of the details of
such Non-Compliant Matter; and
(iii) either:
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(aa) the Agent (acting solely on the instructions of the
National Agents) has granted a waiver in respect of such
Non-Compliant Matter; or
(bb) the Agent has not given notice to such Export Lessee
requiring such Non-Compliant Matter to be complied with;
(g) manage or procure that GFC shall manage each Aircraft and the Lease
pursuant to which it is leased at any time, monitor the Lessee's
performance of its obligations in the Lease and take such action
after an event of default thereunder in each case in accordance with
the Standard;
(h) notify the Agent in writing promptly upon the installation on any
Aircraft of any leased equipment to which the relevant Borrower
shall not take title and which has a value greater than one million
dollars (US$1,000,000);
(i) promptly after the Delivery Date for each Aircraft provide the Agent
with a list of any lessee furnished equipment on such Aircraft and
procure that, as at the redelivery date under such Lease, such
equipment is either removed from such Aircraft or title thereto is
transferred to the relevant Borrower;
7.2.2 Save as the Export Credit Agencies may agree from time to time, an Export
Lessee shall not permit an Aircraft to be delivered to a Lessee (if it is
a technical operator of aircraft) or a Sub-Lessee (if the Lessee is not a
technical operator of aircraft and the Sub-Lessee is a technical operator
of aircraft) (OPERATOR LESSEE) directly under a Lease or indirectly under
a Sub-Lease if such delivery is to a Operator Lessee which is the first
Operator Lessee of such Aircraft and unless each of the National Agents
agree otherwise in writing (i) as a result of delivery of that Aircraft to
that Operator Lessee more than twenty five per cent, of the Aircraft
either financed under this Agreement and approved by the Export Credit
Agencies for such financing (rounded down to the nearest whole number and
determined by number and not by value) would be Home Country Aircraft or
(ii) such Operator Lessee is incorporated or has its principal place of
business in the United States of America.
7.2.3 The restrictions set out in Clause 7.2.2 shall not:
(a) prevent the delivery of an Aircraft to an Operator Lessee which is
not the first Operator Lessee of that Aircraft since its Delivery
Date provided that the Lease or Sub-Lease to such Operator Lessee
commences on or after the second anniversary of the Delivery Date of
such Aircraft; or
(b) prevent the delivery of an Aircraft to an Operator Lessee in breach
of any such restrictions following the bona fide repossession of
such Aircraft by, or the delivery or redelivery of such Aircraft to,
the relevant Borrower or relevant Export Lessee as a result of the
termination of the leasing of such Aircraft under a previous Lease
prior to its scheduled expiry date as a result of a default
termination of the relevant Lease.
(c) require the prepayment of a Loan in respect of a Home Country
Aircraft if any such limit is breached as a result of (i) the
prepayment of a Loan in respect of another Aircraft (by reason of
the Total Loss of such Aircraft) or (ii) the termination or expiry
of the leasing of another Aircraft which is not a Home Country
Aircraft.
For the avoidance of doubt, in the case of a Refinanced Aircraft, the
first Operator Lessee of such Refinanced Aircraft shall continue to be the
relevant Lessee as at the Delivery Date notwithstanding the novation and
amendment of the relevant Lease.
7.2.4
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(a) If, at any time, more than twenty-five per cent, of all the Aircraft
financed under this Agreement and approved by the Export Credit
Agencies for such financing (rounded down to the nearest whole
numbers and determined by number and not by value) are Home Country
Aircraft, the Agent may at the direction of the National Agents and
the German Parallel Lender serve a notice (the HOME COUNTRY NOTICE)
on the relevant Export Lessee requiring the prepayment of Loans
relating to Home Country Aircraft so that the provisions of Clause
7.2.2 are then complied with. The Agent shall consult with the
relevant Export Lessee as to the identity of the specific Loans
which shall be prepaid and the relevant Export Lessee shall procure
that the relevant Borrower prepays the amounts specified in Clause
4.10.1 (MANDATORY PREPAYMENT EVENT) in accordance with Clause 4.10.3
on the date falling 5 Business Days after the Agent has notified the
relevant Borrower of the amounts to be prepaid in accordance with
Clause 4.10.1 (MANDATORY PREPAYMENT EVENT).
(b) If the restriction set out in Clause 7.2.2(ii) is breached in
respect of any Aircraft, the Agent may at the direction of the
Export Credit Agencies serve a notice (the US RESTRICTION NOTICE) on
the relevant Export Lessee requiring the prepayment of the Loan in
respect of the relevant Aircraft. The relevant Export Lessee shall
procure that the relevant Borrower shall prepay the amounts
specified in Clause 4.10.1 (MANDATORY PREPAYMENT EVENT) in
accordance with 4.10.3 (MANDATORY PREPAYMENT EVENT) on the date
falling five (5) Business Days after the Agent has notified the
relevant Borrower of the amounts to be prepaid in accordance with
Clause 4.10.1 (MANDATORY PREPAYMENT EVENT).
7.2.5 Inspection
(a) Prior to the occurrence of a Relevant Event, the relevant Export
Lessee shall, upon the request (in this Clause 7.2.5, a REQUEST) of
the Agent, which shall not be given more frequently than once a
year, provide the Agent promptly with copies of the inspection
reports (if any) which have been prepared for the relevant Export
Lessee pursuant to the provisions of the relevant Lease in respect
of the Aircraft specified in the Request. If no inspection report
has been prepared at such time for a particular Aircraft but an
inspection report has been prepared for an Export Lessee in relation
to an aircraft leased to the same lessee as the Lessee of such
Aircraft by an Obligor, the relevant Export Lessee shall procure
that a copy of such inspection report is promptly provided to the
Agent. If the inspection report shows, or any other information
which has come to the attention of the Agent shows, that repairs to
the Aircraft are required in order for the terms of this Agreement
to be complied with, the Agent shall be entitled to request that an
inspection report be prepared for the Aircraft specified in the
Request. The relevant Export Lessee shall provide evidence to the
Agent verifying that any repairs recommended by the inspection
reports have been completed provided that, if the Aircraft is leased
to a Lessee at such time, the relevant Export Lessee shall procure
that the relevant Lessee provides such evidence in accordance with
the terms of the relevant Lease and the relevant Export Lessee shall
only be under an obligation to provide such evidence to the Agent
upon receipt by the relevant Export Lessee of such evidence from the
relevant Lessee.
(b) The relevant Export Lessee shall ensure that it shall be entitled
under the terms of the relevant Lease, on receiving notice from the
Agent after the occurrence of a Relevant Event (other than a
Relevant Event occurring solely due to the acts or omissions of a
Borrower provided that such acts or omissions shall not have been
caused by an act or omission of another Obligor) and so long as the
same is continuing, to require that the relevant Lessee or
Sub-Lessee gives permission to the Agent or its duly authorised
agent, to inspect the relevant Aircraft, Technical Records or Engine
at such time as the Agent may specify in its notice or such other
time as may be mutually agreed between
Page 34
the relevant Export Lessee and the Agent. The Agent shall have no
duty to make any such inspection and shall not incur any liability
or obligation by reason of not making any such inspection.
(c) The relevant Export Lessee shall procure that for the purposes
referred to in Clause 7.2.5(a) and (b) and subject to the
limitations therein contained, the Agent and its duly authorised
surveyors shall be permitted such access to the Aircraft as the
Agent shall reasonably require in order to satisfy the Agent that
the relevant Export Lessee is complying with its obligations under
this Agreement PROVIDED THAT the light of the Agent to inspect the
Aircraft or to have the Aircraft surveyed shall not be exercised so
as to unreasonably disrupt the normal commercial operation of the
Aircraft. The relevant Export Lessee shall procure that the Lessee
shall as soon as is practicably consistent with the requirements of
the maintenance programme described in the relevant Lease and
approved by the Aviation Authority, effect such repairs to the
relevant Aircraft as shall be shown by the inspection to be required
in order for the terms of this Agreement to be complied with. The
relevant Export Lessee shall provide evidence to the Agent verifying
that any repairs recommended by the inspection reports have been
completed provided that if the Aircraft is leased to a Lessee at
such time, the relevant Export Lessee shall use all reasonable
endeavours to ensure that the relevant Lessee provides such evidence
in accordance with the terms of the relevant Lease and Export Lessee
shall only be under an obligation to provide such evidence to the
Agent upon receipt by the relevant Export Lessee of such evidence
from the relevant Lessee.
(d) The cost of any such inspections referred to in this Clause 7.2.5
shall be borne by the relevant Export Lessee and the relevant Export
Lessee shall reimburse the Agent for all reasonable costs and
expenses incurred by the Agent or its nominees in conducting any
such inspection (including further inspection reports confirming
that the defects or deficiencies have been corrected) including,
without limitation, any reasonable fees payable to technical experts
and/or out of pocket Expenses.
7.2.6 If an Aircraft is an Off-Lease Aircraft, then:
(a) unless the Security Trustee (acting on the instructions of the
Majority Lender's) otherwise agrees, the relevant Aircraft shall be
registered in the name of the relevant Borrower or the relevant
Export Lessee (as the case may be) in the United States, the United
Kingdom, Ireland or such other jurisdiction as the Agent (acting on
the instructions of the National Agents and the German Parallel
Lender) may consent to in writing, and to the extent permitted by
Applicable Law, the relevant Mortgage shall be registered in the
aircraft mortgage register with the Aviation Authority;
(b) the relevant Export Lessee shall at all times carry out the
Operations Undertaking and the Replacement of Parts, Alterations,
Modifications and Additions Undertakings.
7.3 BORROWER COVENANTS
Until all of the Secured Loan Obligations have been satisfied in full,
each Borrower hereby undertakes and covenants with each Finance Party
(severally as to itself only) that from the date of this Agreement:
(a) it shall remain duly incorporated and validly existing under the
laws of the Cayman Islands (in the case of the Cayman Borrower),
Ireland (in the case of the Irish Borrower) or the laws of the
jurisdiction stated in paragraph 2.1(d) of the relevant Accession
Deed (in the case of each Alternative Borrower and Alternative
Export Lessee);
Page 35
(b) it will limit its business exclusively to the purchase, financing,
leasing and disposal of the Aircraft and the transactions
contemplated by the Transaction Documents and matters reasonably
incidental thereto;
(c) will not, without the prior written consent of the Agent, enter
into, any contract or agreement with any person, and will not,
without the prior written approval of the Agent otherwise create or
incur, any liability to any person, in each case other than as
provided for, or contemplated by, the Transaction Documents executed
or to be executed by it or other than such liabilities with respect
to Taxes, ordinary costs and overhead expenses as have arisen or may
arise in the ordinary course of its business as referred to in the
immediately preceding paragraph;
(d) to the extent possible pursuant to applicable law, it will obtain or
cause to be obtained, maintain in full force and effect and comply
in all material respects with the conditions and restrictions (if
any) imposed in, or in connection with, every consent,
authorisation, licence or approval of governmental or public bodies
or authorities or courts and do, or cause to be done, all other acts
and things, which may from time to time be necessary or desirable
under applicable law for the continued due performance of all its
obligations under the Transaction Documents;
(e) subject to indemnification in respect of such Taxes (other than
those in respect of which it is personally liable) pursuant to the
terms of this Agreement, it will promptly discharge or procure the
discharge of all or any Taxes which are payable by it from time to
time;
(f) in the case of the Cayman Borrower and each other Borrower
incorporated in the Cayman Islands, it will not take any action, nor
permit any action to be taken, which would result in it ceasing to
be an exempted limited company in the Cayman Islands;
(g) to the extent possible pursuant to applicable law, it will duly
observe and perform all the covenants, obligations and conditions
which are required to be observed and performed by it under the
Transaction Documents;
(h) it will not exercise any right, power or discretion vested in it
pursuant to any Transaction Document otherwise than in a manner
consistent with the provisions thereof;
(i) not without the prior written consent of the Agent create or permit
to subsist any lien over all or any of its present and future
revenues and assets other than a Permitted Lien; and
(j) it will take such action as the Security Trustee shall reasonably
require to maintain the rights granted to the Security Trustee, the
Agent and/or the Lenders under the Transaction Documents and to take
such action as the Security Trustee may require in relation to the
exercise of the rights of such Borrower under the Transaction
Documents.
7.4 GFC COVENANTS
7.4.1 Until all of the Secured Obligations have been satisfied in full, GFC
hereby undertakes and covenants with each of the Finance Parties from the
date of this Agreement that:
(a) it shall ensure that on the Delivery Date, in respect of any
Refinanced Aircraft, legal and beneficial ownership of such Aircraft
is transferred to the relevant Borrower free and clear of all Liens
(other than Permitted Liens);
Page 36
(b) it shall inform the Agent of the occurrence of any Relevant Event,
Termination Event or Trigger Event promptly after becoming aware of
the same;
(c) it shall furnish to the Security Trustee in sufficient copies for
each Lender (which the Security Trustee shall promptly furnish to
each Lender):
(i) as soon as available, and in any event within one hundred and
twenty (120) days after the end of each fiscal year of GFC,
the audited financial statements and annual audit report of
the GATX Group for such fiscal year beginning with the year
ending 31 December 2001 prepared on a consolidated basis and
in conformity with generally accepted accounting principles in
the United States of America and certified by Ernst & Young or
by another independent United States of America certified
public accountant of recognised national standing in the
United States of America selected by GFC;
(ii) as soon as available, and in any event within sixty (60) days
after the end of each quarter (except the last quarter) of
each fiscal year of GFC, the unaudited financial statements of
the GATX Group for such quarter prepared in a manner
consistent with the audited financial statements referred to
in Paragraph 2.1 (a);
(iii) promptly after the filing or making thereof, copies of all
8-K's (other than 8-K's relating solely to the issuance by GFC
of securities pursuant to an effective registration
statement), 10-Q's, 10-K's, and other material reports or
registration statements filed by GFC with or to any securities
exchange or the Securities and Exchange Commission;
(iv) from time to time such other information concerning (x) GFC's
or any GATX Group Company's operations, business affairs and
financial condition, (y) the Aircraft or any of them or (z)
any Lessee or Sub-Lessee as the Agent or the Security Trustee
(acting on the instructions of any Export Credit Agency) may
reasonably request; and
(d) it undertakes and agrees for the benefit of the Finance Parties that
(a) it shall not exercise or attempt to exercise its rights under
the Call Option Agreement relating to a Borrower to purchase the
shares in such Borrower unless and until the Secured Loan
Obligations have been fully and finally discharged (b) such Borrower
shall be not entitled to make any Utilisation under this Agreement
at any time after the exercise by GFC of the Call Option relating to
such Borrower (c) it shall not amend the Call Option Agreement
without the prior consent of the Security Trustee (d) it shall not
seek to register its rights under the Call Option Agreement on any
register where such rights are capable of being registered and (e)
the Call Option Agreement shall terminate upon the Security Trustee
exercising its rights under the Irish Borrower Share Charge. It
further acknowledges that the Call Option Agreement shall be subject
and subordinate to any security created in favour of the Security
Trustee pursuant to the Aircraft Security Documents.
7.4.2 The Finance Parties acknowledge and agree that (a) in addition to managing
the Aircraft financed under this Agreement, GFC may manage, and shall be
entitled to manage, from time to time the separate assets and business of
(i) GATX Corporation and its Affiliates, (ii)GATX/CL Air Leasing
Cooperative Association, (iii) GATX A321 Partners, LDC, (iv) GATX 737-800
Partner's, LDC, (v) GATX 737NG Partners Ltd., (vi) GATX 737-800 Partners
III, Ltd. and (vii) other third or related parties (the assets of the
parties described in (i), (ii), (iii), (iv), (v), (vi) and (vii) aforesaid
are collectively hereinafter referred to as the OTHER MANAGED AIRCRAFT);
and (b) in the course of conducting such activities, GFC may from
Page 37
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.
7.4.3 If conflicts of interest arise regarding the management of (a) a
particular Aircraft, on the one hand, and another Aircraft, on the other
hand, or (b) any Aircraft, on the one hand, and any Other Managed
Aircraft, on the other hand, GFC shall perform such management services in
good faith and, without prejudice to the generality of the foregoing, to
the extent (i) such Aircraft or (ii) such Aircraft and such Other Managed
Aircraft are substantially similar in terms of objectively identifiable
characteristics relevant for purposes of the particular management
services to be performed, GFC shall not discriminate among such Aircraft
or between such Aircraft and such Other Managed Aircraft, respectively, on
an unreasonable basis.
7.4.4 If requested, GFC agrees promptly to either (a) confirm to the Agent in
writing that it has not entered into any agreement (howsoever called)
which creates Financial Indebtedness and contains a clause similar to
Clause 10.1(1) of this Agreement with a threshold amount less than
$15,000,000 or (b) inform the Agent in writing if it has entered into an
agreement (howsoever called) which creates Financial Indebtedness and
contains a clause similar to clause 10.1(1) of this Agreement with a
threshold amount less than $15,000,000.
7.5 INTENTIONALLY LEFT BLANK
7.6 QUIET ENJOYMENT LEASES
7.6.1 Subject to Clause 7.6.3, the relevant Borrower and the Security Trustee
(on behalf of the Finance Parties) shall, in respect of any Lease which is
a Quiet Enjoyment Lease, on the Delivery Date for the relevant Aircraft
issue a Quiet Enjoyment Undertaking in favour of the relevant Lessee
covenanting that (in the case of the Borrower, in respect of itself and,
in the case of the Security Trustee, in respect of itself and the Finance
Parties) none of the Borrower, the Lenders, the Security Trustee nor the
Agent nor anyone lawfully claiming through such person will interfere with
the lawful use, possession and quiet enjoyment of the relevant Aircraft by
such Lessee in accordance with the relevant Lease for so long as no "event
of default" (however described) under and as defined in the relevant Lease
has occurred and is continuing.
7.6.2 None of the Borrower, the Lenders, the Security Trustee nor the Agent nor
anyone lawfully claiming through such person will interfere with the
lawful use, possession and quiet enjoyment of any Aircraft by any Export
Lessee under a Credit Sale Agreement for so long as no Termination Event
has occurred which is continuing.
7.6.3 The Borrower and the Security Trustee shall not be required to give a
Quiet Enjoyment Undertaking referred to in Clause 7.6.1 with respect to an
Aircraft and a Lease if (i) a Termination Event shall have occurred and be
continuing, (ii) (other than in the case of the LTU Aircraft and the Lease
pursuant to which the LTU Aircraft is being leased to LTU Lufttransport -
Unternehmen GmbH as of the Signing Date) the relevant Export Lessee shall
not have delivered to the Security Trustee at least five (5) Business Days
prior to the proposed date of commencement of the leasing of such Aircraft
pursuant to the relevant Lease the documents set out in Schedule 6 Part IV
and (iii) an acknowledgement of the notice of Lease Security Assignment
shall not have been executed by the Lessee on the relevant Delivery Date
or, in respect of re-leased Aircraft, when the Aircraft is delivered to
the Lessee.
7.7 COVENANTS IN RESPECT OF EXPORT LESSEES
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7.7.1 GFC shall be entitled, to transfer up to seventy (70) per cent. of its
direct or indirect shareholding in any Export Lessee to third parties
subject to the following:
(a) it shall have given at least fifteen (15) Business Days written
notice to the Agent of its intention to transfer any of its
shareholdings in any Export Lessee including details of:
(i) the relevant Export Lessee in which it wishes to transfer the
shares;
(ii) the number of shares to be transferred and such number of
shares expressed as a percentage of the entire issued share
capital of such Export Lessee at the time;
(iii) details of the proposed transferee including a copy of its
latest audited financial statements, details of its directors
and the holders of the entire issued share capital;
(iv) all such other information and documents that the Agent may
reasonably request of GFC.
(b) no Termination Event has occurred and is continuing;
(c) the National Agents (acting on the instructions of the Export Credit
Agencies) have consented to the proposed transfer;
(d) any Expenses of the Representatives in respect of such transfer
shall be for the account of GFC.
7.7.2 In the event that GFC transfers a part of its direct or indirect
shareholding in an Export Lessee to a third party in accordance with
Clause 7.7.1, GFC may at the same time as it gives the notice referred to
in Clause 7.7.1 (a) give notice to the Agent that it wishes the Lenders
and the Export Credit Agencies to consent to the proposed transferee, or
any approved Affiliate thereof approved by the Export Credit Agencies,
becoming a replacement guarantor for part of the obligations of the
Guarantor under the Guarantee. The Lenders and Export Credit Agencies
shall consider any such request in good faith but without obligation and,
in the event of their providing their consent, the concerned person shall
become a Guarantor by means of the guarantor accession provisions set
forth in the Guarantee. Any Expenses incurred by the Lenders, the
Representatives or the Export Credit Agencies in considering, discussing
or implementing such replacement guarantee shall be for the account of
GFC.
7.8 COVENANT TO REGISTER MORTGAGE
Each Export Lessee shall procure that as from the commencement of the
leasing of any Aircraft (or at such other time in accordance with the
provisions of Clause 9.1 (c) (Trigger Event) by it pursuant to a Lease as
a result of which such Aircraft shall be registered in a State of
Registration which maintains a public register of aircraft mortgages, (or
as soon thereafter as is reasonably practicable) there shall be a Mortgage
in respect of such Aircraft duly executed by the relevant Borrower in
favour of the Security Trustee and duly registered at the appropriate
Aviation Authority from time to time PROVIDED THAT, subject to Clause 9.1
(c) the Export Lessee shall not be so required to procure the registration
of such Mortgages if: (i) the Agent agrees that the cost of such
registration (whether in respect of registration fees, stamp duty or
notarial fees) is more than nominal and (ii) the Agent has received (in a
reasonably satisfactory form) a legal opinion from reputable counsel in
the jurisdiction of the Lessee (or Sub-Lessee) confirming that the rights
of the Security Trustee to terminate the relevant Lease and repossess the
Aircraft pursuant to the relevant Lease Security Assignment
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and the relevant Borrower Security Assignment gives at least equivalent
protection as such rights the Security Trustee would have enjoyed if the
Mortgage had been registered.
7.9 CHANGE OF OWNERSHIP, LEASING STRUCTURE AND/OR LESSEE WITH RESPECT TO AN
AIRCRAFT
7.9.1 The Finance Parties hereby acknowledge that it may be necessary, from time
to time dining
the Security Period, to change the ownership, leasing structure and/or
Lessee with respect to any Aircraft.
7.9.2 The Finance Parties hereby agree to consent to any change of ownership,
leasing structure and/or Lessee with respect to any Aircraft, and
co-operate in a timely manner with GFC to give effect to such change,
provided that (i) such change of ownership and/or leasing structure shall
only involve Borrowers and Export Lessees and (ii) the following
conditions are satisfied:
(a) GFC shall have given to the Agent twenty (20) Business Days written
notice prior to the proposed effective date of the proposed change
(PROPOSED EFFECTIVE DATE) details of the following:
(i) the affected Aircraft;
(ii) the proposed change in the ownership and/or leasing structure,
each affected Borrower, each affected Export Lessee and each
other person that will play a material role in the proposed
ownership and/or leasing structure of such Aircraft;
(iii) if such change involves a change of Lessee:
(aa) the identity of the new Lessee;
(bb) the jurisdiction of the proposed State of Registration
of the Aircraft; and
(cc) the date the leasing of the Aircraft to the new Lessee
is scheduled to commence.
(b) GFC shall have agreed the following with the Agent at least five (5)
Business Days prior to the Proposed Effective Date:
(i) if the change involves a change in ownership of the affected
Aircraft, the documentation pursuant to which title to the
Aircraft will be transferred from one Borrower to another
Borrower;
(ii) all Head Lessor Transfer Certificates and Export Lessee
Transfer Certificates (if any) required in connection with
such change;
(iii) if the change involves any change in the Borrowers and/or
Export Lessees involved in such ownership and leasing
structure:
(aa) such other documents as the Agent shall require to
ensure the Finance Parties are in no worse position than
they would be with regard to the Aircraft and the
Transaction Documents if the current Borrower and Export
Lessee or Export Lessees (as the case may be) involved
in the leasing structure were not to change (including,
without limitation, corporate approval documents for
each affected Borrower and Export Lessee); and
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(bb) such legal opinion or opinions as the Agent shall
require to demonstrate that the Finance Parties will be
in no worse position than they would be in with regard
to the Aircraft and the Transaction Documents if the
current Borrower and the Export Lessee or Export Lessees
(as the case may be) involved in the leasing structure
were not to change; and
(iv) if the change involves a change in the Lessee, the condition
precedent documents set out in Part IV of Schedule 6.
Any change in ownership and/or leasing structure satisfying the
requirements of this Clause 7.9.2 is referred to as a PERMITTED CHANGE.
7.9.3 Provided all of the documents and opinions referred to in Clause 7.9.2(b)
relating to a Permitted Change have been agreed with the Agent in
accordance with such Clause and, if such Permitted Change involves a
change of Lessee, the conditions precedent listed in Part IV of Schedule 6
have been satisfied or waived, the affected Borrower or Borrowers, and/or
affected Export Lessee or Lessees may, and at the request of GFC, the
affected Borrower or Borrowers, the Agent and the Security Trustee shall,
consummate such Permitted Change on the date specified by GFC (which shall
be any Business Day occurring no earlier than the Proposed Effective Date
for such Permitted Change and no later than the day that falls 45 days
after such Proposed Effective Date) and, simultaneously therewith, GFC
will deliver to the Agent originals or certified true copies (as
appropriate) of all such documents and opinions.
7.9.4 Each of the Agent and the Security Trustee agrees to do such acts or
things or execute such documents as may be reasonably required to
complete the Permitted Change.
8 SUBORDINATION
8.1 Until all Secured Loan Obligations have been paid and performed in full,
GFC hereby agrees with each of the Lenders, the Agent and the Security
Trustee that all rights which GFC or any GATX Group Company may have
against an Export Lessee pursuant to the Intra-Group Financing
Arrangements shall be expressly subject and subordinate to all rights and
claims, now or hereafter existing which the Finance Parties may have
pursuant to or in connection with any Transaction Document against any
Obligor.
8.2 EXPORT LESSEE SUBORDINATION
8.2.1 Each of the Finance Parties and the Export Lessees hereby agrees to
regulate their claims, as to subordination and priority, in respect of any
Proceeds in the manner set out in this Clause 8.2.
8.2.2 The Finance Parties and the Export Lessees hereby agree that the Secured
Loan Obligations shall for all purposes whatsoever rank in priority to the
Subordinated Secured Obligations and that such Subordinated Secured
Obligations shall at all times be subject and subordinate to such Secured
Loan Obligations.
8.2.3 Without prejudice to the provisions of Clause 8.9.2, if, for any reason,
an Export Lessee claims or is required to claim in the liquidation,
winding-up, dissolution or analogous proceedings in relation to any
Borrower, then such Export Lessee shall direct that all dividends and
other distributions in respect of its claim be paid to the Security
Trustee for application in accordance with the provisions of Clause 12
(APPLICATION OF SUMS RECEIVED) and, to the extent that any such dividend
or other distribution is actually paid to the Export Lessee, the Export
Lessee shall hold any amount received by it on trust for the Secured
Parties and shall pay that amount over to the Security Trustee as soon as
it is received.
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8.2.4 For so long as any of the Secured Loan Obligations remain outstanding,
each Export Lessee hereby agrees that it shall have no rights whatsoever,
save in respect of the express obligations of the Security Trustee as set
out in this Agreement, to instruct, or give directions to, the Security
Trustee or to require that the Security Trustee take any action or
exercise any right, remedy or power, in each case in relation to any
matter including, without limitation, the Trust, the Collateral and/or the
Aircraft Security Documents.
8.2.5 For so long as any of the Secured Loan Obligations remain outstanding,
each Export Lessee hereby agrees that the Security Trustee shall not be
required to consult with, or have regard to the interests of, any Export
Lessee when taking any action (including, without limitation, any
enforcement action) or when exercising any right, remedy or power, in each
case in relation to any matter including, without limitation, the Trust,
the Collateral and/or the Aircraft Security Documents.
8.2.6 Each Export Lessee shall be entitled, at any time following the full and
final discharge of the Secured Loan Obligations:
(a) to require that the relevant Borrower discharge the Subordinated
Secured Obligations by transferring title to any Aircraft to such
person as is nominated by GFC (who shall not be a Borrower or an
Export Lessee); and
(b) to exercise all of the rights of the Senior Secured Parties under
the Trust.
9 TRIGGER EVENT
9.1 Subject to Clause 9.4, at any time when a Trigger Event has occurred and
is continuing, the Security Trustee shall, if directed to do so by each of
the National Agents send written notice (a "TRIGGER EVENT NOTICE") of the
relevant Trigger Event to GFC and following receipt of any Trigger Event
Notice and so long thereafter as the relevant Trigger Event is continuing
each Export Lessee shall:
(a) pay to the Security Trustee, all rent, cash deposits and Maintenance
Reserves which are received or paid for the account of such Export
Lessee by, from, or on behalf of, any Lessee pursuant to any Lease;
(b) deposit with the Security Trustee the originals of all letters of
credit then held by such Export Lessee or GFC (or any other person)
on its behalf by way of security in respect of any of the Aircraft
and execute or procure the execution of in favour of the Security
Trustee an irrevocable power of attorney with respect to such
letters of credit and ensure that any letters of credit in respect
of any of the Aircraft it receives shall have the Security Trustee
as the named beneficiary. In the event that the relevant Export
Lessee is entitled to make a claim under any such letter of credit
it shall promptly notify the Security Trustee. The Security Trustee
shall promptly thereafter take such action as shall be necessary to
enable the relevant Export Lessee to make the relevant claim,
provided that such Export Lessee shall ensure that any amounts paid
under any such letters of credit shall be paid to such party and
such amount as the Security Trustee shall direct; and
(c) observe the Mortgage registration covenant set forth in Clause 7.8
as if the proviso thereto did not apply.
9.2 Following the service of a Trigger Event Notice and so long thereafter as
the relevant Trigger Event is continuing, the Security Trustee may
exercise its right pursuant to the relevant Lease Security Assignments and
Borrower Security Assignments to serve notice on any Lessee
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requiring such Lessee to pay all monies payable at any time thereafter to
an Export Lessee pursuant to the relevant Lease to such account as the
Security Trustee shall direct in such notice.
9.3 Subject to no Termination Event having occurred and be continuing, in the
event of an Export Lessee becoming obliged pursuant to the terms of any
Lease to return any Lessee Security or Maintenance Reserve, or make any
payment determined on the basis of the amount of any Lessee Security or
Maintenance Reserve, to a Lessee, the Security Trustee shall return any
such Lessee Security or Maintenance Reserve which it has received pursuant
to Clause 9.1 or make such payment as directed by GFC subject to GFC
having certified in writing to the Security Trustee that such Export
Lessee has become so obliged.
9.4 At any time a Trigger Event shall cease to be continuing, provided no
Termination Event shall not have occurred and be continuing, the Security
Trustee shall promptly return to each Export Lessee all Lessee Security
which it received pursuant to Clause 9.1 together with any powers of
attorney that it may have received in respect of any letters of credit.
The Security Trustee agrees to co-operate at GFC's cost in any steps
required for any letters of credit issued in the name of the Security
Trustee to be reissued in the name of the relevant Export Lessee or GFC,
as shall be so requested.
10 DEFAULT
10.1 TERMINATION EVENTS
A Termination Event shall occur if:
(a) NON-PAYMENT: any Obligor fails to pay in full any sum payable
hereunder within three (3) Business Days of the due date or, in the
case of other amounts due under any Transaction Document by any
Obligor, such Obligor fails to make such payment within five (5)
Business Days after receipt of a notice of non-payment from the
relevant Finance Party; or
(b) BREACH: any Obligor fails to observe or perform its obligations
under any of the Transaction Documents (other than the obligations
referred to in Clause 10.1 (a) and (d)) and, if such default is
capable of remedy, such default shall continue for more than thirty
(30) days after receipt by GFC of notice thereof from the Agent
without being remedied to the reasonable satisfaction of the Agent;
or
(c) REPRESENTATION: any representation or warranty made by any Obligor,
Trustee or Manager in any of the Transaction Documents or in any
certificate furnished by any of them under or in connection with any
of the Transaction Documents shall prove to have been misleading or
incorrect in any material respect on the date when made with
reference to the facts and circumstances then subsisting and, which
in the opinion of the Agent (acting on the instructions of the
Majority Lenders) is capable of being remedied, is not remedied to
the reasonable satisfaction of the Agent within thirty (30) days
after receipt by GFC of notice thereof from the Agent and in the
reasonable opinion of the Agent (acting on the instruction of the
Majority Lenders) such failure has or would have a Material Adverse
Effect; or
(d) INSURANCE: the Insurances required to be in effect at any time
pursuant to the terms of this Agreement in respect of the relevant
Aircraft are not in full force and effect and the relevant Aircraft
is not grounded and covered by such ground risk insurance as is
customary in accordance with normal industry practice in an amount
at least equal to
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Required Insurance Value of such Aircraft from time to time subject
always to the proviso to Clause 7.2.l(f); or
(e) REPUDIATION: any of the terms contained in the Guarantee are
repudiated or contested by any Guarantor; or
(f) INSOLVENCY:
(x) any Obligor shall (i) be unable to pay its debts for which it
is liable generally as they become due, (ii) file a voluntary
petition in bankruptcy or a voluntary petition or an answer
seeking reorganisation in a proceeding under any bankruptcy,
insolvency or similar laws (as now or hereafter in effect) or
an answer admitting the material allegations of any such
petition filed against an Obligor or shall by voluntary
petition, answer or consent, seek relief under the provisions
of any other now existing or future bankruptcy, insolvency or
other similar law providing for the reorganisation or
winding-up of corporations, persons or entities or providing
for an agreement, composition, extension or adjustment with
its creditors, (iii) make a general assignment for the benefit
of creditors, or (iv) consent to the appointment of a
receiver, administrator, examiner, administrative receiver,
trustee, custodian, conservator, liquidator or the like of
itself or in respect of substantially all of its property; or
(y) any order for relief in the United States of America against
an Obligor shall be entered in a voluntary or an involuntary
case under the US Bankruptcy Code; or
(g) COURT ORDER: an order, judgment or decree is entered in any
proceeding by any court of competent jurisdiction appointing,
without the consent of the applicable Obligor, a custodian,
receiver, trustee, liquidator or the like of such Obligor or of any
substantial part of its property, or sequestering any substantial
part of the property of such Obligor and such appointment or such
taking of possession is not contested in good faith by such Obligor
with all due diligence and such appointment is not dismissed or such
encumbrancer has not ceased to be in possession as aforesaid within
sixty (60) days of its taking effect; or
(h) PETITION: a petition against any Obligor in a proceeding or case
under the bankruptcy laws of the country of its incorporation or
other insolvency laws as now or hereafter in effect is filed and
such petition is not contested in good faith by such Obligor with
all due diligence and such appointment is not dismissed within sixty
(60) days of its taking effect; or
(i) COMMENCEMENT OF PROCEEDINGS: a proceeding or case shall be
commenced, without the application or consent of any Obligor, in any
court of competent jurisdiction seeking (i) the liquidation,
reorganisation, dissolution or winding-up or such Obligor, or the
composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator of the like of such Obligor
or of all or any substantial part of its assets, or (iii)
similar relief in respect of such Obligor under any law relating to
bankruptcy, insolvency, reorganisation, winding-up, or composition
or adjustment of debts, and such proceedings or case shall continue
undismissed, or an order, judgment or decree approving or ordering
any of the foregoing shall be entered and continue unstayed and in
effect, for a period of sixty (60) or more days; or
(j) ANALOGOUS EVENTS: any event analogous to any of the events specified
in Clause 10.1(f), (g), (h) or (i) in any jurisdiction shall occur;
or
Page 44
(k) CHANGE OR CESSATION OF BUSINESS: if GFC ceases, or threatens to
cease, to carry on (i) its business as generally conducted at the
date hereof or (ii) all or a substantial part of its aircraft
operating leasing and aircraft trading business, and in each case,
in the reasonable opinion of the Agent (acting on the instructions
of the Majority Lenders), cessation or threatened cessation has or
would have a Material Adverse Effect; or
(l) CROSS DEFAULT OF FINANCIAL INDEBTEDNESS: any Financial Indebtedness
of GFC exceeding in aggregate the lower of (a) US$15,000,000 or (b)
any other amount that it may have agreed previously and remains
applicable or which it may agree in the future in a similar
undertaking to other creditors (or the equivalent thereof, as
determined by the Agent by reference to prevailing market exchange
rates from time to time, in any other currency):
(i) is not paid when due (after expiry of any applicable grace
period relating thereto); or
(ii) is declared to be due or otherwise becomes due and payable
before its stated maturity by reason of a default by GFC or an
event of default (howsoever described) under the document
relating to that Financial Indebtedness;
(m) ECA CROSS DEFAULT: any other Financial Indebtedness of GFC for which
it is personally liable which is supported by any of the Export
Credit Agencies or by the United States Eximbank (i) is not paid
when due (after expiry of any applicable grace periods relating
thereto); or (ii) is declared to be due and payable or otherwise
becomes due and payable before its stated maturity by reason of a
default by GFC or an event of default (howsoever described) under
the document relating to that Financial Indebtedness; or
(n) ERISA: A Pension Plan shall fail to maintain the minimum funding
standard required by Section 412 of the Code for any plan year, or a
Pension Plan is, shall have been or is likely to be, involuntarily
terminated or the subject of involuntary termination proceedings
under ERISA or any Reportable Event occurs or GFC any Subsidiary of
GFC, or an ERISA Affiliate has incurred or is likely to incur a
liability to or on account of a Pension Plan, and there shall result
from any such event or events either liability or a material risk of
incurring a liability which will have a Material Adverse Effect.
10.2 ACCELERATION RIGHTS
Without prejudice to any other rights of the Lenders (whether under the
Transaction Documents or otherwise), at any time after the occurrence of a
Termination Event and thereafter for so long as the same is continuing,
the Agent may (acting upon the instructions of the National Agents):
(a) give a written notice (an ACCELERATION NOTICE) to each Borrower,
each Export Lessee and GFC declaring that a Termination Event has
occurred, in which case:
(i) the Commitment of each Lender in respect of each Aircraft
shall be cancelled forthwith and reduced to zero; and/or
(ii) the principal amount of each Loan then outstanding and all
interest accrued thereon, ECA Breakage Costs in respect of
each Loan and any other amounts due in respect of such Loan
which are unpaid shall become immediately due and payable and
the relevant Borrower shall immediately pay the same; and/or
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(iii) the Security Trustee may enforce its rights and those of the
Lenders under all or any of the Transaction Documents and
under Applicable Law; or
(b) give a written notice (a LOAN TERMINATION NOTICE) to the relevant
Borrower and the relevant Export Lessee and GFC declaring that a
Termination Event has occurred in relation to a particular Loan in
which case:
(i) the Commitment of each Lender in relation to such Loan shall
be cancelled forthwith and reduced to zero; and/or
(ii) the principal amount of such Loan then outstanding and all
interest accrued thereon ECA Breakage Costs in respect of such
Loan and any other amounts due in respect of such Loan which
are unpaid shall become immediately due and payable and the
relevant Borrower shall immediately pay the same; and/or
(iii) the Security Trustee may enforce its rights and those of the
Lenders under all or any of the Transaction Documents relating
to the relevant Aircraft financed under the relevant Loan and
under Applicable Law,
PROVIDED however that upon the occurrence of a Termination Event as set
out in Clause 10.1 (f), (g), (h) or (i) and with respect to GFC, the
Commitment of each Lender in respect of each Aircraft shall be cancelled
and the principal amount of each Loan then outstanding and all interest
accrued thereon, ECA Breakage Costs in respect of each Loan and any other
amounts due in respect of such Loan which are unpaid shall automatically
become immediately due and payable and the relevant Borrower shall
immediately pay the same unless the Agent (acting on the instructions of
the National Agents) gives notice to such Borrower confirming that such
Loan shall not become immediately due and payable.
10.3 The Agent (acting upon the instructions of the National Agents) shall be
entitled to serve further Loan Termination Notices on the relevant
Borrower and the relevant Export Lessee in respect of Loans for which it
has not previously served a Loan Termination Notice at any time after a
Termination Event has occurred and is continuing.
11 PROCEEDS ACCOUNT
11.1 On or before the occurrence of any event which will result in the payment
of any Proceeds or promptly thereafter, the Security Trustee shall open
the Proceeds Accounts and shall promptly notify all parties to this
Agreement of such details of such accounts as they may require in oider
to comply with their obligations under Clause 11.3. Such account shall be
held in the name of the Security Trustee and all monies from time to time
standing to the credit thereof shall be the property of the Security
Trustee and no party hereto other than the Security Trustee shall have any
proprietary interests in such account or any such monies.
11.2 Any sum received or recovered by any party hereto which is required by any
provision hereof to be paid to the Security Trustee for credit to the
Proceeds Accounts shall be received by such party on trust for the
Security Trustee and such party shall immediately pay such sums to the
Security Trustee for credit to the Proceeds Accounts.
11.3 Each Party shall from time to time pay any Proceeds (other than any such
amounts as may be received by way of distribution from the Proceeds
Accounts) to the Security Trustee promptly upon receipt thereof for
application in accordance with the terms of this Agreement.
11.4 All Proceeds received or recovered by the Security Trustee (otherwise than
by way of distribution from the Proceeds Accounts) shall promptly, if
received in Dollars, be credited to
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the Dollar denominated Proceeds Account or, if received in Euro, be
credited to the Euro denominated Proceeds Account.
11.5 If any Proceeds are received or recovered by the Security Trustee
(otherwise than by way of distribution from the Proceeds Account) in any
currency other than Dollars or Euros, then such Proceeds shall be applied
in the purchase of (at the discretion of the Security Trustee) either
Dollars or Euros depending on the currency of the Loans to which such
Proceeds relate at the spot rate of exchange available to the Security
Trustee (in the ordinary course of business) in the Paris international
exchange market on the date of receipt or, if it is not practicable to
effect such purchase on such date, the immediately following day on which
banks in Paris are generally open for the transaction of such foreign
exchange business, and the net amount of Dollars or Euros so purchased
(after the deduction by the Security Trustee of any reasonable costs
incurred by it in connection with such purchase) shall be credited to the
relevant Proceeds Account.
11.6 Each Party agrees that any sums which it pays in accordance with Clause
11.3, shall be made without any set-off or counterclaim and free and clear
of and without any withholding or deduction whatsoever (except as required
by law) to the Security Trustee, in the currency of receipt, in accordance
with the terms of this Agreement (but if any such deduction or withholding
is required by law then the party affected by such requirement (the
affected party) agrees that it shall consult in good faith with the
parties to this Agreement who may be affected thereby with a view to
mitigating the effect of any such deduction or withholding provided that
the affected party shall not be obliged to incur any additional expense,
nor to take any course of action other than it would do in relation to any
counterparty to any of its similar contracts who would be affected by the
same or any similar legal requirement).
11.7 Interest shall accrue from day to day on the amounts of all Proceeds
received by the Security Trustee and from time to time standing to the
credit of the Proceeds Accounts at the best rate available to the Security
Trustee for such interest periods as the Security Trustee shall reasonably
select from time to time. Any such interest shall be credited to the
relevant Proceeds Account at the end of each interest period so agreed.
12 APPLICATION OF SUMS RECEIVED
12.1 APPLICATION OF PRINCIPAL AND INTEREST PRIOR TO THE OCCURRENCE OF A
TERMINATION EVENT
Upon receipt by the Agent of the amounts referred to in Clause 4.14.1
(PERFORMANCE PROCEDURE) in respect of a Loan prior to the occurrence of a
Termination Event, the Agent shall make the same available in accordance
with the provisions of Clause 4.14.2 (PERFORMANCE PROCEDURE) to each of
the National Agents in the proportions specified in the relevant Loan
Supplement for application by each National Agent in or towards the
payment of interest and principal outstanding to the relevant Lenders in
respect of the Loan relating to such Aircraft, such application by each
National Agent to be in accordance with the terms agreed between that
National Agent, the relevant Lenders and the relevant Export Credit
Agency.
12.2 APPLICATION OF AMOUNTS RECEIVED IN RESPECT OF INDEMNITY OBLIGATIONS
Any and all monies received by the Agent or (as the case may be) the
Security Trustee, from any Obligor in respect of any indemnity obligations
of such Obligor prior to the occurrence of a Termination Event, shall be
paid by the Agent or (as the case may be) the Security Trustee, promptly
upon receipt thereof to the relevant Finance Party or relevant Borrower in
respect of whom the indemnity claim was made up to the total amount owing
to such Finance Party or such Borrower in respect of that indemnity claim.
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12.3 APPLICATION OF INSURANCE PROCEEDS (OTHER THAN IN RESPECT OF A TOTAL LOSS
OF AIRCRAFT)
(a) Prior to the occurrence of a Termination Event, any insurance
proceeds in respect of any loss of or damage to an Aircraft not
amounting to a Total Loss of such Aircraft which are received by the
Security Trustee together with such amount of interest as may have
accrued thereon, shall be paid to either (i) to the repairers
against presentment of their invoices or (ii) GFC against
presentment of receipts or other evidence of the repairers
evidencing payment of their invoices.
(b) Any insurance proceeds received in respect of a Total Loss of an
Engine prior to the occurrence of a Termination Event (including
where the Engine has been detached from the relevant Airframe and is
installed on another airframe) which are received by the Security
Trustee, together with such amount of interest as may have accrued
thereon shall be paid either (i) to the vendor of a Replacement
Engine or (ii) to GFC provided that:
(i) title to such Replacement Engine shall vest with the relevant
Borrower free and clear of all liens pursuant to a full
warranty xxxx of sale in form and substance reasonably
satisfactory to the Security Trustee; and
(ii) all steps are taken as the Security Trustee may reasonably
require to render such Replacement Engine subject to this
Agreement, the Aircraft Security Documents and the other
applicable Transaction Documents so that the rights of the
Finance Parties in respect of the Replacement Engine are the
same as they were in respect of the engine that suffered a
total loss save that they are in respect of the Replacement
Engine;
(c) Any monies paid under liability insurances shall be paid to the
person, firm or company to which the liability (or alleged
liability) covered by such insurances was incurred or if the
liability (or alleged liability) to such persons has been previously
discharged, such monies shall be paid to the person who has
discharged such liability in reimbursement of the monies so expended
by it in satisfaction of such liability or alleged liability.
12.4 APPLICATION OF TOTAL LOSS PROCEEDS
(a) Subject to Clause 4.7 (SUBSTITUTION OF AIRCRAFT), if any Total Loss
Proceeds in respect of a Total Loss of an Aircraft are received by
the Security Trustee prior to the occurrence of a Termination Event
such Total Loss Proceeds, together with such amount of interest as
may have accrued thereon, shall be applied promptly following such
receipt in the following order:
(i) in reimbursement of the Finance Parties and/or the Export
Credit Agencies of any and all Expenses due and payable to any
of the Finance Parties pursuant to any of the Transaction
Documents relating to the Loan for such Aircraft in connection
with the collection of such Total Loss Proceeds;
(ii) in payment of an amount of up to the total amount of interest
then due in respect of the Loan relating to such Aircraft to
each of the National Agents in the proportions specified in
the Loan Supplement relating to the relevant Aircraft for
application by each National Agent in or towards payment of
interest outstanding to the relevant Lenders in respect of the
Loan relating to such Aircraft;
Page 48
(iii) in payment of an amount of up to the total amount of principal
then due outstanding in respect of the Loan relating to such
Aircraft to each of the National Agents in the proportions
specified in the Loan Supplement relating to the relevant
Aircraft for application by each National Agent in or towards
payment of principal outstanding to the relevant Lenders in
respect of the Loan relating to such Aircraft;
(iv) in payment to each of the Representatives and each of the
National Agents on behalf of the Lenders on a pro rata and
pari passu basis in or towards settlement of the ECA Breakage
Costs; and
(v) any balance shall be paid to the relevant Export Lessee.
(b) If the amount of Total Loss Proceeds to be applied in or towards
payment of sums due pursuant to Clause 12.4(a) (ii) - (iv) above is
insufficient to pay all such sums in full owing in each of
sub-clauses 12.4(a) (ii) - (iv), as the case may be, then the amount
so available shall be paid to each party entitled to receive such
sums pursuant to each sub-clause on a pari passu basis and pro tanto
to its respective interest in the total amount due and payable
pursuant to each sub-clause, as the case may be.
(c) If the Total Loss Proceeds are received after the occurrence of a
Termination Event, the Total Loss Proceeds, together with such
amount of interest as may have accrued thereon shall (provided no
such Termination Event is continuing) be applied in accordance with
Clause 12.7 (APPLICATION OF PROCEEDS FOLLOWING A TERMINATION EVENT).
12.5 APPLICATION OF REQUISITION PROCEEDS
(a) If any Requisition Proceeds (other than as a result of a Total Loss
of an Aircraft) or similar proceeds in respect of an Engine are
received by the Security Trustee prior to the occurrence of a
Termination Event, such Requisition Proceeds, together with such
amount of interest as may have accrued thereon shall be paid
following such receipt to such account as shall be designated by
GFC:
(b) If any Requisition Proceeds (other than as a result of a Total Loss
of an Aircraft) or similar proceeds in respect of an Engine are
received after the occurrence of a Termination Event, the
Requisition Proceeds shall (provided such Termination Event is
continuing) be applied in accordance with Clause 12.7. (APPLICATION
OF PROCEEDS FOLLOWING A TERMINATION EVENT)
12.6 APPLICATION OF PROCEEDS RECEIVED AS A RESULT OF A PREPAYMENT MADE PURSUANT
TO CLAUSES 4.3,4.6,4.8 AND 4.10
(a) If any Proceeds are received by the Security Trustee as a result of
a prepayment made pursuant to Clauses 4.3, 4.6, 4.8 and/or 4.10 (in
this Clause 12.6 PREPAYMENT PROCEEDS) prior' to the occurrence of a
Termination Event, such Prepayment Proceeds, together with such
amount of interest as may have accrued thereon shall be applied
promptly following such receipt in the following order:
(i) in reimbursement of the Representatives and the Lenders and/or
the Export Credit Agencies of any and all Expenses due and
payable to any of the Representatives and Lenders pursuant to
any of the Transaction Documents relating to such Loans which
are being prepaid;
Page 49
(ii) in payment of an amount of up to the total amount of interest
in respect of the Loan relating to such Aircraft to each of
the National Agents in the proportions specified in the Loan
Supplement relating to the relevant Aircraft for application
by each National Agent in or towards payment of interest
outstanding to the relevant Lenders in respect of the Loan
relating to such Aircraft;
(iii) in payment of an amount of up to the total amount of principal
outstanding in respect of the Loan relating to such Aircraft
to each of the National Agents in the proportions specified hi
the Loan Supplement relating to the relevant Aircraft for
application by each National Agent in or towards payment of
principal outstanding to the relevant Lenders in respect of
the Loan relating to such Aircraft;
(iv) in payment to each Representative and each of the National
Agents on behalf of the Lenders on a pro rata and pari passu
basis in or towards settlement of the ECA Breakage Costs;
(v) in payment to the relevant Representative and/or Lender on a
pro rata and pari passu basis of all amounts owing to such
Representative and/or Lender under this Agreement or in any
other Transaction Document which remains unpaid;
(vi) any balance shall be paid as directed by GFC.
(b) If the amount of Prepayment Proceeds to be applied in or towards
payment of sums due pursuant to Clause 12.6(a) (ii) - (v) above is
insufficient to pay all such sums in full owing in each of
sub-clauses 12.6(a) (ii) - (v), as the case may be, then the amount
so available shall be paid to each party entitled to receive such
sums pursuant to each sub-clause on a pari passu basis and pro tanto
to its respective interest in the total amount due and payable
pursuant to each sub-clause, as the case may be.
(c) If the Prepayment Proceeds are received after the occurrence of a
Termination Event, the Prepayment Proceeds, together with such
amount of interest as may have accrued thereon whilst held in the
Security Trustee's bank account, shall (provided such Termination
Event is continuing) be applied in accordance with Clause 12.7
(APPLICATION OF PROCEEDS FOLLOWING TERMINATION EVENT).
12.7 APPLICATION OF PROCEEDS FOLLOWING A TERMINATION EVENT
Any Proceeds in the Proceeds Accounts relating to an Aircraft or otherwise
received by the Security Trustee in relation to the related Loan at the
time of a Termination Event or at any time thereafter, together with such
amount of interest as may have accrued thereon shall (provided such
Termination Event is continuing) be applied by the Security Trustee
forthwith upon receipt by the Security Trustee as follows:
(a) first, in or towards reimbursing each of the Representatives and/or
any Receiver for any Expenses including without limitation, Expenses
referred to in Clause 16.2 (ENFORCEMENT EXPENSES) incurred by the
Representatives and/or any Receiver which have not previously been
reimbursed or indemnified and in or towards payment of any debts or
claims which are by statute payable in preference to the amounts due
to the Representatives and/or the Lenders (but only to the extent
such debts or claims have such preference);
(b) second, in payment of an amount of up to the total interest
outstanding in respect of the relevant Loan to each of the National
Agents in the proportions specified in the
Page 50
Loan Supplement relating to such Loan for application by each
National Agent in or towards the payment of interest on a pro
rata and pari passu basis outstanding to the relevant Lenders in
respect of the relevant Loan;
(c) third, in payment of an amount of up to the total principal
outstanding in respect of the relevant Loan to each of the
National Agents in the proportions specified in the Loan
Supplement relating to such Loan for application by each
National Agent in or towards the payment of principal on a pro
rata and pari passu basis outstanding to the relevant Lenders in
respect of the relevant Loan;
(d) fourth, in payment to each of the Representatives and each of
the National Agents on behalf of the Lenders on a pro rata and
pari passu basis in or towards settlement of the ECA Breakage
Costs in relation to the relevant Loan;
(e) fifth, to the persons, in the order and in respect of the
matters referred to in sub-clauses (a), (b) and (c) of this
Clause 12.7 in relation to each of the other Loans (in such
order as the Security Trustee may determine in its discretion);
(f) sixth, to the relevant Finance Party and/or the Export Credit
Agencies on a pro rata and pari passu basis in respect of all
other amounts owing to such Finance Party under this Agreement
or any other Transaction Document which remains unpaid;
(g) seventh, once all the amounts referred to in sub-clauses (a) to
(f) inclusive above have been satisfied and discharged in full
and the Secured Loan Obligations have been satisfied in full,
any balance shall be paid to the relevant Export Lessee.
12.8 APPLICATION OF TRIGGER EVENT SECURITY
12.8.1 After the occurrence of a Termination Event, the Security Trustee shall
have the right to treat all or any part of the Trigger Event Security as
Proceeds and apply such amounts in accordance with Clause 12.7
(APPLICATION OF PROCEEDS FOLLOWING A TERMINATION EVENT).
12.9 APPLICATION BY NATIONAL AGENTS
12.9.1 Any application by a National Agent of funds received from the Security
Trustee by way of distribution from the Proceeds Accounts pursuant to
any provision of this Clause 12 shall be effected in accordance with the
terms agreed between that National Agent, the relevant Lenders and the
relevant Export Credit Agency, and each National Agent shall inform each
other party hereto, upon such party's request, of the effect of such
application on the remaining principal and interest due on the relevant
national portion of the relevant Loan.
12.9.2 If any Proceeds are received by the Security Trustee in either Dollars
or Euros (as applicable, the RECOVERED CURRENCY) but are required to be
exchanged into the other currency (as applicable, The REQUIRED CURRENCY)
in order that such Proceeds can be applied in accordance with the order
of application of proceeds set out in this Clause 12, then the Security
Trustee shall sell the relevant amount in the Recovered Currency and
purchase and equivalent amount in the Required Currency at the relevant
spot rate of exchange available to the Security Trustee (in the ordinary
course of business) in the Paris international exchange market on the
date of receipt (or, if it is not practicable to effect such purchase on
such date, the immediately following day on which banks in Paris are
generally open for the transaction of such foreign exchange business).
The new amount of the Required Currency so purchased (after the
deduction by the Security Trustee of any reasonable costs of exchange
incurred by it in connection with such purchase) shall be applied in
accordance with this Clause 12.
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12.9.3 Following the occurrence of a Termination Event and for as long
thereafter as the same is continuing, the Security Trustee shall be
entitled, at the discretion of the Export Credit Agencies, to retain any
Proceeds received or recovered in the Proceeds Accounts until the Export
Credit Agencies shall direct all or part of such Proceeds to be applied
in accordance with Clause 12.7.
13 INDEMNITIES
13.1 OPERATIONAL INDEMNITY
13.1.1 Each Export Lessee shall indemnify each Indemnitee on demand for each
Loss and each Expense which may from time to time be imposed on,
incurred or suffered by or asserted against any Indemnitee (whether or
not such Loss or Expense is also indemnified or insured against by any
other person, but subject to Clause 13.6 (NO DOUBLE-COUNTING)) resulting
from the relevant Borrower's acquisition and ownership of any Aircraft
or from the leasing by such Borrower or any Export Lessee to the
relevant Lessee of, or the leasing by the relevant Lessee to any other
person of, any Aircraft, or in connection with or arising directly or
indirectly out of or in any way connected with the manufacture,
acceptance, purchase, delivery, any delay in or postponement of
delivery, non-delivery, ownership, possession, charter, use, leasing,
subleasing, presence, operation, condition, storage, packing, freight,
shipping, transportation, modification, alteration, maintenance,
insurance, overhaul, replacement, refurbishment, remarketing,
management, sale, registration, de-registration, redelivery, servicing
or repair of any Aircraft or in connection with or arising from any
Indemnitee having or being deemed to have any interest in any Aircraft,
whether or not such claim may be attributable to any defect in any
Aircraft and regardless of when the same shall arise and whether or not
such Aircraft is in the possession or control of such Export Lessee or
any other person.
13.1.2 The indemnities contained in Clause 13.1.1 shall not extend to any Loss
or Expense of any Indemnitee to the extent that such Loss or Expense:
(a) is caused by an act or omission of an Indemnitee (i) which
constitutes gross negligence or wilful misconduct, or (ii) which
is caused by fraud or carried out with reckless disregard with
knowledge of the probable consequences of such act or omission
on the part of such Indemnitee;
(b) is attributable to any breach of undertaking or any
misrepresentation by such Indemnitee unless such breach of
undertaking is caused by the act or omission of an Obligor;
(c) is attributable to a Financing Party Lien, except to the extent
that such Financing Party Lien arose directly or indirectly as a
result of the acts or omissions of an Obligor;
(d) is required to be paid or borne by such Indemnitee pursuant to
the terms of any Transaction Document;
(e) is a withholding Tax, a Value Added Tax or a documentary Tax
(it, being understood that such Taxes are exclusively provided
for elsewhere in this Agreement and are not covered by Clause
13.1);
(f) arises solely from any transfer by a Lender of any of its
rights, benefits and/or obligations hereunder other than
pursuant to Clause 15.2 (PREPAYMENT OF AFFECTED LOANS AND
REPLACEMENT OF AFFECTED LENDER),
Page 52
provided that, nothing in Clauses 13.1.2 (d) or (f) shall apply to a
transfer to or by an Export Credit Agency (or any entity nominated by
it) of any rights, benefits and/or obligations under this Agreement.
13.1.3 All payments by way of indemnity under Clause 13.1.1 shall be made in
the currency of the relevant Loss or Expense.
13.1.4 If a written claim is made against an Indemnitee which is the subject of
an indemnity by a Borrower under this Clause 13.1 or Clause 13.2, such
Indemnitee shall promptly notify the relevant Export Lessee and GFC.
13.2 DOCUMENTARY TAXES
The Export Lessees shall pay, and shall indemnify each Indemnitee within
two (2) Business Days of demand accompanied with supported particulars
in reasonable detail for, all present and future stamp, documentary or
similar duties or registration taxes or fees or charges, including any
penalties, additions, fines or interest relating thereto at any time
payable in respect of any of the Transaction Documents and/or the
Support Agreements.
13.3 FUNDING INDEMNITIES
13.3.1 If for any reason (other than a breach by the relevant Lender of its
obligations hereunder) (a) an Advance is not made (including pursuant to
the provisions of Clause 3.7 (DISBURSEMENT OF THE LOAN)) to the relevant
Borrower on the proposed Utilisation Date specified in the Utilisation
Notice referable thereto (or such other date that has become the
proposed Utilisation Date for such Advance in accordance with Clause
3.1.6) as a result of any condition precedent provided for herein not
being fulfilled to the satisfaction of the Agent other than as a result
of any act or omission by the relevant Lender (except where such act or
omission arises directly or indirectly from the acts or omissions of an
Obligor) and (b) such Advance has not been cancelled or postponed in
accordance with Clause 3.1.6, then the relevant Export Lessee shall
indemnify each Lender within two (2) Business Days of demand accompanied
with supporting particulars in reasonable detail against all Losses and
Expenses which any Lender may suffer, sustain or incur as a consequence
thereof including, without limitation, in respect of funds borrowed or
mobilised by such Lender in connection with the financing or funding of
the relevant Loan, the liquidation or redeployment of any deposits taken
or made and funding costs in relation to any interest exchange, currency
exchange or other hedging arrangements entered into in connection with
its participation in the relevant Loan or any part thereof or in
connection with any foreign exchange business transacted for such
purpose, the substitute investment of such funds with a return lower
than the cost of such funds or the prepayment of such funds to the
source from which they were borrowed or mobilised.
13.3.2 Subject to Clause 13.6 (NO DOUBLE COUNTING) each Export Lessee shall
indemnify the Security Trustee, the Agent and each Lender within two (2)
Business Days of demand for all amounts which the Security Trustee, the
Agent or such Lender certifies to be necessary to compensate it for any
Loss or Expense suffered or incurred by it (together with any ECA
Breakage Costs) as a consequence of or in connection with:
(a) any prepayment of the Loan or any part thereof or any interest
accrued thereon other than on any Repayment Date;
(b) any amount of principal or interest on a Loan payable by the
relevant Borrower hereunder being paid otherwise than on the due
date; or
(c) the occurrence of a Termination Event.
Page 53
13.3.3 In the event that the Security Trustee, the Agent or any Lender (other
than any Export Credit Agency and the German Lenders) shall receive a
net monetary benefit (BROKEN FUNDING GAINS) as a result of any Advance
not being made (including pursuant to the provisions of Clause 3.7
(DISBURSEMENT OF THE LOAN)) to the relevant Borrower on the proposed
Utilisation Date specified in the Utilisation Notice referable thereto
(or such other date that has become the proposed Utilisation Date for
such Utilisation in accordance with Clause 3.1.6) other than due to the
acts or omissions of an Obligor or any Loan or any part thereof being
repaid other than on a Repayment Date then, provided no Termination
Event shall have occurred and be continuing, the Security Trustee, Agent
or Lender other than the German Lenders, as the case may be, shall
within two (2) Business Days of it making such Broken Funding Gain pay
such Broken Funding Gains to GFC. Provided that nothing herein shall
require any Export Credit Agency to pay any such gains to GFC with
respect to any funding or hedging arrangements of any of the Export
Credit Agreements.
13.4 CURRENCY INDEMNITY
13.4.1 Any amount received or recovered by the Agent, the Security Trustee or
any Lender in respect of any monies due from any Obligor under any of
the Transaction Documents (whether as a result of any judgment or order
of any court (including enforcement thereof) or in the bankruptcy,
reorganisation, liquidation or dissolution of any such Obligor
(including making or filing a claim or proof against such Obligor) or by
way of damages for any breach of any obligation to make any payment to
the Agent, the Security Trustee or such Lender) in a currency (the
CURRENCY OF PAYMENT) other than the currency in which the payment should
have been made pursuant to the relevant Transaction Document (the
CURRENCY OF OBLIGATION) in whatever circumstances and for whatever
reason shall only constitute a discharge to the relevant Obligor to the
extent of the amount of the Currency of Obligation which the Agent, the
Security Trustee or such Lender (as the case may be), is able or would
have been able, on the date or dates of receipt by it of such payment or
payments in the Currency of Payment (or, in the case of any such date
which is not a Banking Day, on the next succeeding Banking Day), to
purchase in the foreign exchange market of its choice with the amount or
amounts of the Currency of Payment so received.
13.4.2 If the amount of the Currency of Obligation which the Agent, the
Security Trustee or the relevant Lender is so able to purchase falls
short of the amount originally due to such party hereunder, the relevant
Obligor shall indemnify such party on demand against any loss or damage
arising as a result of paying to such party that amount in the Currency
of Obligation certified by such party as necessary to indemnify and hold
it harmless.
13.4.3 If the amount of the Currency of Obligation which the Agent, Security
Trustee or the relevant Lender is so able to purchase exceeds the amount
originally due to such party hereunder, the Agent, Security Trustee or
relevant Lender, as the case may be, shall pay the amount of such
excess, net of any costs and expenses incurred by such party to the
relevant Obligor.
13.5 TAX TREATMENT OF INDEMNITY PAYMENTS
Where any Obligor has an obligation to indemnify or reimburse any
Indemnitee in respect of any Loss or Expense under the Transaction
Document, the calculation of the amount payable by way of indemnity or
reimbursement shall be based upon the Tax treatment in the hands of the
Indemnitee (as determined by the Indemnitee acting in good faith) of the
amount payable by way of indemnity or reimbursement and of such Loss or
Expense in respect of which that amount is payable so as to leave the
Indemnitee in the same after-Tax position as it would have been in had
the payment made to the Indemnitee not given rise to a Tax Liability and
had the Loss or Expense incurred or payment made by the Indemnitee not
been deductible for Tax purposes.
Page 54
13.6 NO DOUBLE-COUNTING
No Lender or Representative shall be entitled, pursuant to the terms of
any of the Transaction Documents, to recover by way of indemnity any
Loss, Expense or Tax Liability to the extent that payment has previously
been received and retained by it in respect of such Loss, Expense or Tax
Liability under any other provision of any Transaction Document.
13.7 SURVIVAL OF INDEMNITIES AND OTHER OBLIGATIONS
Each of the indemnities contained in this Agreement, and each of the
obligations of the Lenders and the Representatives with respect thereto,
shall constitute a separate and independent obligation from the other
obligations contained in this Agreement, shall give rise to a separate
and independent cause of action, shall apply irrespective of any
indulgence granted by the Agent, the Security Trustee or any Lender from
time to time and shall continue in full force and effect notwithstanding
(a) the termination or expiry of this Agreement or (b) subject to the
provisions of Clause 3.8 (LIMITED RECOURSE OBLIGATIONS OF THE
BORROWERS), the satisfaction in full of all amounts owing to the
Security Trustee, the Agent and each Lender under the Transaction
Documents or (c) any judgment or order for a liquidated sum or sums in
respect of amounts due hereunder or under any such judgment or order.
13.8 VALUE ADDED TAX
13.8.1 If any Indemnitee makes any supply to any Borrower or the
Representatives for Value Added Tax purposes pursuant to or in
connection with any of the Transaction Documents, the relevant Borrower
shall (save to the extent that the relevant Indemnitee is entitled to be
indemnified in respect of Value Added Tax by an increased payment under
Clause 13.8.2) pay to the relevant Indemnitee within two (2) Business
Days of demand an amount equal to any Value Added Tax which is payable
in respect of that supply.
13.8.2 All payments made by any Borrower under the Transaction Documents are
calculated without regard to Value Added Tax. If any such payment
constitutes the whole or any part of the consideration for a taxable or
deemed taxable supply to such Borrower or the Representatives by any
Indemnitee, the amount of that payment shall be increased by an amount
equal to the amount of Value Added Tax which is chargeable in respect of
the taxable supply in question. The relevant Borrower's obligations
under this Clause 13.8.2 shall be subject to the delivery to such
Borrower on or before the due date for that payment of an invoice for
Value Added Tax purposes made out in accordance with the applicable
regulations.
13.8.3 No payment or other consideration to be made or furnished by any
Indemnitee to a Borrower or any Representatives pursuant to or in
connection with any of the Transaction Documents may be increased or
added to by reference to (or as a result of any increase in the rate
of) any Value Added Tax which shall be or may become chargeable in
respect of the taxable supply in question.
13.8.4 If any Indemnitee makes any payment under, or as contemplated in, any of
the Transaction Documents or in respect of any of the matters set out
therein which bears or includes Value Added Tax which such Indemnitee
determines to be irrecoverable by it, the relevant Borrower shall within
five (5) Business Days of demand indemnify such Indemnitee for such
Value Added Tax.
13.9 MITIGATION
If any Indemnitee becomes aware of any event or circumstances which will
result in it having to be indemnified pursuant to this Clause 13
(INDEMNITIES), it will seek to consult with GFC with a view to avoiding
or minimising any liability of an Obligor pursuant to Clause 13
Page 55
(INDEMNITIES) provided that no Indemnitee shall be obliged to take or
omit to take any action which it deems inappropriate at any point in
time nor shall the failure of an Indemnitee for whatever reason to
consult with GFC pursuant to this Clause 13.9 affect in any way the
liability of any Obligor pursuant to this Clause 13 (INDEMNITIES).
14 CHANGE IN CIRCUMSTANCES
14.1 INCREASED COSTS
14.1.1 If a Change in Law shall:
(a) subject any Lender to any Tax in connection with its commitment
to or participation in the Transaction or any part thereof
(except for changes in the rate of Tax on the overall net income
of such Lender or Representative or such Lender's Lending Office
imposed by any Government Entity of the country in which such
Lender or Representative is incorporated or in which such
Lender's Lending Office is located); or
(b) change the basis of Taxation of any Lender in respect of
payments of principal, interest or any other amount payable to
any Lender in connection with the Transaction (except for
changes in the rate of Tax on the overall net income of such
Lender or Representative or such Lender's Lending Office imposed
by any Government Entity of the country in which such Lender or
Representative is incorporated or in which such Lender's Lending
Office is located) (or the treatment for Taxation purposes of
such payments); or
(c) impose or modify any reserve, cash ratio, special deposit,
capital adequacy, liquidity or any other analogous requirement,
or require the making of any special deposit, against or in
respect of any assets or liabilities of, or deposit with or for
the account of, or loan or commitment by, any Lender in relation
to the Transaction; or
(d) change the manner in which any Lender is required by any
regulatory authority to allocate capital resources in relation
to the Transaction; or
(e) impose on any Lender any other condition directly affecting its
participation in the Transaction,
and the result of any of the foregoing is or will be (i) to increase the
cost to such Lender of funding, making available or maintaining its
participation in the Transaction or any part thereof or of funding,
making or maintaining its participation in any Loan or (ii) to render
such Lender unable to obtain the rate of return on its overall capital
reasonably allocated to its obligations hereunder which it would have
been able to obtain but for such Change in Law or (iii) to reduce any
amount payable to such Lender by either Borrower hereunder or to reduce
its return from the Transaction or any part thereof, then and in any
such case:
(i) such Lender shall notify the relevant Borrower (through
the Agent);
(ii) the relevant Borrower shall pay from time to time to the
Agent (for the account of that Lender) within two (2)
Business Days of demand all amounts which that Lender
certifies are necessary to compensate that Lender for
such Tax or increase in cost or reduction in return or
reduction in the amount payable.
Page 56
(f) The provisions of Clause 14.1.1 shall not apply in respect of
any Tax, increased cost, reduction in the rate of return or
reduction in an amount payable to the extent that the same is a
deduction or withholding Tax, Value Added Tax or documentary Tax
(it being agreed that such Taxes are exclusively provided for
elsewhere in this Agreement and are not covered by Clause
14.1.1).
14.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each Lender's
share of that Loan for the Interest Period shall be the rate per
annum which is the sum of:
(i) the applicable Margin;
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to
be paid in respect of that Interest Period, to be that
which expresses as a percentage rate per annum the cost
to that Lender of funding its participation in that Loan
from whatever source it may reasonably select; and
(iii) the applicable ECA Premium.
(b) In this Agreement MARKET DISRUPTION EVENT means at or about noon
on the Quotation Day for the relevant Interest Period the
Telerate Screen (as used in the EURIBOR and LIBOR definition)
and Reuters are not quoting LIBOR or EURIBOR, as the case may
be, and none or only one of the Reference Banks supplies a rate
to the Agent to determine LIBOR or, if applicable, EURIBOR for
the relevant currency and Interest Period.
(c) If a Market Disruption Event occurs and the Agent or GFC so
requires, the Agent and GFC shall enter into negotiations (for a
period of not more than thirty days) with a view to agreeing a
substitute basis for determining the rate of interest.
(d) Any alternative basis agreed pursuant to paragraph (c) above
shall, with the prior consent of all the Lenders and the
Borrowers, be binding on all Parties.
14.3 ILLEGALITY
If, at any time, as a result of a Change in Law:
(a) it is or it will become unlawful for any Lender (the AFFECTED
LENDER), to make, fund or allow to remain outstanding any part
of its Commitment or its participation in the Facility or any
Loan; or
(b) any Transaction Document shall cease or will cease to remain in
full force and effect in whole or in part or shall become void
or invalid or unenforceable or the repayment of any Loan or the
payment of interest at the stated non default rate on any Loan
shall become illegal,
then the Agent or any Affected Lender may deliver to the Borrowers
(through the Agent) a notice to that effect, whereupon, subject to
Clause 15 (MITIGATION), each relevant Borrower shall forthwith prepay
each Loan affected by the relevant circumstances together with all
interest accrued thereon and all other amounts due and payable to the
Lenders and the Representatives in respect of each such Loan or the
relevant Aircraft pursuant to this Agreement or any relevant Aircraft
Operative Document together with any ECA Breakage
Page 57
Costs in relation to each such Loan and any Expenses incurred by the
Representative or the Agent.
15 MITIGATION
15.1 MITIGATION
15.1.1 If circumstances arise which result, or upon the giving of notice would
result, in the operation of Clause 4.12 (DEDUCTIONS AND WITHHOLDINGS) or
Clause 14.1 (INCREASED COSTS) to the detriment of any Borrower, each
Affected Lender shall promptly, upon becoming aware of the same, notify
the relevant Borrower with a copy to the Agent and the relevant Export
Lessee (in this Clause 15.1 the AFFECTED BORROWER) and upon the written
request of the relevant Export Lessee shall negotiate in good faith with
the Affected Borrower and the relevant Export Lessee for a period not
exceeding thirty (30) days with a view to avoiding or minimising the
relevant duty, tax, fee or charge including, in the case of a Lender, a
change in its Lending Office or a transfer of its participation in the
Loans and its Commitments to another bank or financial institution.
15.1.2 Without limiting or reducing the obligations of the Obligors (or any of
them) under Clause 4.12 (DEDUCTIONS AND WITHHOLDINGS), Clause 14.1
(INCREASED COSTS), or Clause 14.3 (ILLEGALITY), in relation to Clauses
4.12 (DEDUCTIONS AND WITHHOLDINGS), 14.1 (INCREASED COSTS) and 14.3
(Illegality), no Lender or Representative shall have any obligation to
take any action under Clause 15.1.1 if, in its good faith opinion, to do
so would be likely to (a) have an adverse effect upon its business,
operation or financial condition, or (b) result in its rights,
interests, anticipated financial return or position under or in relation
to any of the Transaction Documents being materially less favourable to
it than would have been the case in the absence of such action unless
indemnified or secured to its satisfaction in respect thereof, or (c)
involve it in any unlawful act or activity or any act or activity that
is contrary to any official directive, concession, guideline, request or
requirement of any competent authority (whether or not having the force
of law but, in the case only of any of the same not having the force of
law, in respect of which it is the practice of banks or other
institutions of a similar nature to the relevant Lender or
Representative (as the case may be), generally to comply with the same),
or (d) (unless indemnified or secured to its satisfaction) involve it in
any additional Tax Liability or any expense or (e) unless protected by
confidentiality procedures involve it in any disclosure of any document
or information relating to its business or affairs which it considers
(in its good faith opinion) to be of a confidential nature.
15.1.3 If the circumstances referred to in Clause 14.3 (ILLEGALITY) arise, upon
the written request of the relevant Export Lessee or the Agent, the
Affected Borrower and the relevant Export Lessee and the Representatives
shall negotiate in good faith for a period not exceeding thirty (30)
days (or such shorter period as may be required by law) with a view to
restructuring each affected Loan and rectifying and amending the
relevant Transaction Documents in order to mitigate the effect of the
relevant Change in Law and the Affected Borrower shall pay for the
Expenses incurred by the Representatives for such negotiations as well
as (if alternative arrangements are agreed) to complete all steps
required to implement such restructuring and all rectifications and
amendments to the relevant Transaction Documents in relation to each
Loan affected by the circumstances referred to in Clause 14.3
(ILLEGALITY). If a resolution acceptable to the relevant Export Lessee,
the other relevant Obligors and the Representatives is obtained as a
result of this mitigation procedure, the relevant Export Lessee shall
implement the restructuring, rectification and amendments referred to in
this Clause 15.1.3 to the relevant Transaction Documents, to the
satisfaction of the Agent, within thirty (30) days from the earlier of
the date when such resolution is reached and the date upon which the
period of thirty (30) days (or such shorter period as required by law)
is referred to in this Clause 15.1.3 expires. If the Affected Borrower
fails to implement such rectification and amendment to the
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relevant Transaction Documents within such period, the Affected Borrower
shall prepay each Loan to which Clause 14.3 (ILLEGALITY) applies in
accordance with such Clause.
15.1.4 If any Export Credit Agency were to become a Lender, the provisions of
Clause 14 (CHANGE IN CIRCUMSTANCES) and this Clause 15 shall not apply
to such Export Credit Agency.
15.2 PREPAYMENT OF AFFECTED LOANS AND REPLACEMENT OF AFFECTED LENDER
15.2.1 If the circumstances referred to in Clauses 4.12 (DEDUCTIONS AND
WITHHOLDINGS), 14.1 (INCREASED COSTS) or 14.3 (ILLEGALITY) arise, and
no resolution acceptable to the parties is obtained as a result of the
mitigation procedure referred to in Clause 15.1 (MITIGATION), in each
case with respect to a Lender (in this Clause 15.2 an AFFECTED LENDER)
the relevant Borrower in this Clause 15.2 (the AFFECTED BORROWER) shall
pay to the Agent (for the account of each Affected Lender) each Affected
Lender's Relevant Proportion of each Loan affected by such circumstances
together with all accrued interest thereon, the ECA Breakage Costs and
Expenses owing to the Affected Lender in connection with any such Loan
or under this Agreement or the relevant Transaction Documents.
15.2.2
(a) If the Affected Borrower (acting on the instructions of the
relevant Export Lessee) wishes to make any payment referred to
in Clause 15.2.1, such payment shall be treated as a voluntary
prepayment and accordingly the provisions of Clause 4.3
(VOLUNTARY PREPAYMENT) shall apply and in particular the
Affected Borrower shall comply with provisions of Clause 4.3.1
(VOLUNTARY PREPAYMENT) (other than the giving of not less than
ten (10) Business Days' notice pursuant to Clause 4.3.1) and
4.3.3 (VOLUNTARY PREPAYMENT) in relation to any such payment
referred to in Clause 15.2.1.
(b) The Agent shall as soon as reasonably practicable after receipt
of the Affected Borrower's prepayment notice, unless the
Affected Borrower elects to prepay the entire Loan in relation
to an Aircraft, prepare a substitute schedule for schedule 2 to
the relevant Loan Supplement showing new amounts for the
repayment of the relevant Loan for the period following such
prepayment calculated on the same basis and assumptions (other
than the assumption as to the total principal amount of the
relevant Loan) as were used for the purpose of preparing the
original schedule 2 to such Loan Supplement. Upon the Affected
Borrower and each National Agent agreeing to the same, such
substitute Schedules shall become for all purposes schedule 2 to
the relevant Loan Supplement and shall be binding on all parties
with effect from the date of the prepayment.
16 FEES AND EXPENSES
16.1 TRANSACTION EXPENSES OF FINANCE PARTIES
The relevant GATX Obligor shall pay to the Agent within five (5)
Business Days of demand (whether or not any Utilisation Documentation is
entered into and/or any amount is disbursed under this Agreement) all
Expenses incurred by the Finance Parties and the Export Credit Agencies:
(a) in connection with the negotiation, preparation, execution,
registration and implementation of each of the Transaction
Documents and the other documents contemplated hereby or thereby
or at any time hereafter and the delivery of the Aircraft
(including the Expenses of the Agent's legal counsel in
connection with the
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preparation of each Aircraft Operative Document and the
collection of the conditions precedent listed in Schedule 6, in
respect of each Utilisation but subject to the separate
agreement between GFC and Xxxxxx Xxxxx Sapte) subject to any
agreements that may have been reached by GFC and the Agent
and/or the Joint Arrangers in writing on this regard.;
(b) in connection with the granting of any release, waiver or
consent requested by an Obligor in connection with any of the
Transaction Documents;
(c) in connection with any variation, amendment, supplement,
restructuring or novation of any of the Transaction Documents
requested by a GATX Obligor;
(d) in connection with the consideration, reviewing and
implementation of any Alternative Utilisation proposal
(including any administrative fee charged by any of the Export
Credit Agencies); and
(e) as are referred to in Clauses 3.8 (LIMITED RECOURSE), 4.3
(VOLUNTARY PREPAYMENT), 4.4 (PREPAYMENT FOLLOWING A TOTAL LOSS),
4.6 (NON-PERFORMANCE OF BORROWER), 4.8 (PREPAYMENT IF NOT
LEASED), 4.10 (MANDATORY PREPAYMENT EVENT), 7.2.5 (INSPECTION),
12.4 (APPLICATION OF TOTAL LOSS PROCEEDS), 12.6 (APPLICATION OF
ANY PROCEEDS RECEIVED AS A RESULT OF A PREPAYMENT MADE PURSUANT
TO CLAUSES 4.3, 4.6, 4.8 AND 4.10), 12.7 (APPLICATION OF
PROCEEDS FOLLOWING A TERMINATION EVENT), 13 (INDEMNITIES), 14
(CHANGE IN CIRCUMSTANCES), 15 (MITIGATION) 5 and Schedule 11
(APPOINTMENT OF AGENT, SECURITY TRUSTEES AND NATIONAL AGENTS AND
TRUST PROVISIONS) and 18 (ASSIGNMENT AND TRANSFERS).
16.2 ENFORCEMENT EXPENSES
The relevant Export Lessee shall pay to the Agent within five (5)
Business Days of demand all Expenses and Losses incurred or sustained by
the Representatives, the Lenders and the Export Credit Agencies in
connection with (i) the appropriate enforcement or preservation or
attempted enforcement or preservation of their respective rights
(including, without limitation, with respect to any rights of
indemnity), powers or duties under this Agreement and/or any of the
other Transaction Documents or under any of the Support Agreements and
(ii) preventing or attempting to prevent the arrest, confiscation,
seizure, taking in execution, impounding, forfeiture or detention of any
of the Aircraft or in securing the release of any of the Aircraft from
arrest, confiscation, seizure, taking in execution, impounding,
forfeiture or detention.
16.3 INDEMNITY TO THE AGENT
Each Borrower and each Export Lessee shall promptly indemnify the Agent
against any cost, loss or liability reasonably incurred by the Agent as
a result of investigating any event which it reasonably believes is a
Termination Event or acting or relying on any notice, request or
instruction which it reasonably believes to be genuine, correct and
appropriately authorised.
16.4 BORROWER FEES
GFC shall procure that all fees payable to the Manager from time to time
are paid promptly when due.
17 INTENTIONALLY LEFT BLANK
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18 ASSIGNMENTS AND TRANSFERS
18.1 TRANSFERS BY OBLIGORS
Subject to Clause 7.9 (CHANGE OF OWNERSHIP AND LEASING STRUCTURE WITH
RESPECT TO AN AIRCRAFT) and clause 7.10 (CHANGE OF LEASING STRUCTURE IN
RESPECT OF AN AIRCRAFT), none of the Obligors shall assign any rights or
transfer any obligations arising from this Agreement without the prior
written consent of the Agent (acting on the instructions of the Majority
Lenders).
18.2 TRANSFERS BY LENDERS
Any Lender may transfer all or any of its rights, benefits and
obligations under this Agreement or change its Lending Office (whether
in the same or a different jurisdiction) provided always that:
(a) prior to the transfer or change in Lending Office becoming
effective, the relevant Lender gives notice to GFC (with a copy
to the Agent) of the identity of the Transferee or (as the case
may be), the new Lending Office and the jurisdiction of tax
residence of the Transferee or (as the case may be), the new
Lending Office;
(b) the Transferee (i) is a subsidiary or affiliate of the
transferor which is eligible for support from the applicable
Export Credit Agency or Agencies or (ii) is an Export Credit
Agency or (iii) is eligible for support from each of the Export
Credit Agencies and has been approved as a Transferee by GFC
(such approval, in the case of any transfer proposed to take
effect at any time after the Facility has ceased to be available
for Utilisation, not to be unreasonably withheld or delayed) or
(iv) is eligible for support from each of the Export Credit
Agencies and is designated as a Transferee by the relevant
Export Credit Agency;
(c) the Transferee shall deliver to the Agent the Internal Revenue
Service Forms required by Clause 4.12.2 (DEDUCTIONS AND
WITHHOLDINGS);
(d) the Transferee is neither resident in the United Kingdom for
United Kingdom tax purposes nor controlled by persons who are so
resident if the transfer to the Transferee would result in
Advances of Lenders resident in the United Kingdom for United
Kingdom tax purposes or controlled by persons who are so
resident constituting 50 per cent, (or more than 40 per cent. if
a further 40 per cent. is held by another person or persons
acting together) or more of the Advances as at the date of the
proposed transfer; and
(e) all costs and expenses of the Transfer shall be borne by the
transferring Lender and, with the exception of transfers
occurring as a result of sub-paragraphs (ii) and (iv) of Clause
18.2(b), no Obligor shall be under any obligation to pay any
greater amount or suffer any other increase in liabilities or
diminution in right or benefit under the Transaction Documents
following and as a consequence (directly or indirectly) of any
such transfer or change in Lending Office,
PROVIDED further that the provisos set out above shall not apply to the
extent that any Lender has so assigned or transferred its Relevant
Proportion of any Loan or changed its Lending Office in relation to any
Loan pursuant to, and in accordance with, Clause 15 (MITIGATION).
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18.3 TRANSFER CERTIFICATES
18.3.1 If any Lender (the Transferor) transfers all or any part of its rights,
benefits and/or obligations under the Transaction Documents to another
bank or financial institution (the Transferee), such transfer shall be
effected by way of a novation by the delivery to, and the execution by,
the Agent of a duly completed Transfer Certificate or in such other
manner as all parties hereto may agree.
18.3.1 On the date specified in the Transfer Certificate:
(a) to the extent that in the Transfer Certificate the Transferor
seeks to transfer its rights and obligations hereunder, each of
the Obligors and the Transferor shall each be released from
further obligations to each other under this Agreement and their
respective rights against each other shall be cancelled (such
rights and obligations being referred to in this Clause 18.3 as
DISCHARGED RIGHTS AND OBLIGATIONS);
(b) the Agent, the Joint Arrangers, the Lenders, the Security
Trustee and each of the Obligors and the Transferee shall each
assume obligations towards each other and/or acquire rights
against each other which, subject to Clause 18.2 above, differ
from the Discharged Rights and Obligations only insofar as, each
of the Obligors and the Transferee have assumed and/or acquired
the same in place of each of the Obligors and the Transferor;
(c) the Agent, the Joint Arrangers, the Security Trustee, each of
the Obligors, the Transferee and the other Lenders shall acquire
the same rights and assume the same obligations among themselves
as they would have acquired and assumed had the Transferee
originally been a party hereunder as a Lender with the rights
and/or the obligations acquired or assumed by it as a result of
the transfer; and
(d) the Transferee, the Agent, the Security Trustee, the Joint
Arrangers and each of the other Lenders shall acquire the same
rights and assume the same obligations amongst themselves as
they would have acquired and assumed had the Transferee
originally been a party to this Agreement as a Lender in the
place of the Transferor.
18.3.3 Each Obligor hereby confirms that the execution of any such Transfer
Certificate by the Agent on its behalf shall be binding upon and
enforceable against it as if it had executed the Transfer Certificate
itself,
18.3.4 The Agent shall promptly complete a Transfer Certificate on written
request by a Transferor and upon payment by the Transferee (other than
in the case of an Export Credit Agency (or a Transferee nominated
thereby) being a Transferee) of a fee of US$1,000 to the Agent. Each of
the Lenders, the Joint Arrangers and the Security Trustee hereby
irrevocably authorises the Agent and each Obligor hereby irrevocably
authorises the Agent to execute any duly completed Transfer Certificate
on its behalf provided that such authorisation does not extend to the
execution of a Transfer Certificate on behalf of either the Transferor
or the Transferee named therein.
18.4 COSTS AND EXPENSES
In relation to any transfer contemplated by this Clause 18 which is
undertaken voluntarily by any Lender (and, for the avoidance of doubt,
not a transfer pursuant to Clause 15 (Mitigation), the costs and
expenses thereby incurred by the Agent, the Security Trustee , the
Export Credit Agencies and each Lender shall be for the account of the
Transferee or the Transferor (as they may agree between themselves).
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18.5 CREDIT SALE AGREEMENT TRANSFERS/REGISTERED AGREEMENT
18.5.1 Each Credit Sale Agreement is a registered agreement. A manually signed
copy of each Credit Sale Agreement and the corresponding Head Lessor
Register (as defined in Clause 18.5.2) shall be the only evidence of a
Borrower's rights under such Credit Sale Agreement. Each Credit Sale
Agreement is not a bearer instrument.
18.5.2 At the expense of the relevant Export Lessee, the Security Trustee
agrees to keep, on behalf of the relevant Export Lessee in respect of
each Credit Sale Agreement, a record of ownership (the HEAD LESSOR
REGISTER) (in the form provided to it by the relevant Export Lessee) in
which it will record by book entry (and record by book entry any
transfer of) the relevant Borrower's right, title and interest in such
Credit Sale Agreement and in the rights to receive payments in
accordance with the terms of such Credit Sale Agreement.
18.5.3 No transfer by a Borrower of all or any part of its interest in any
Credit Sale Agreement or in any of its rights to receive any payments
pursuant to the relevant Credit Sale Agreement shall be permitted unless
a book entry of such transfer is made upon the Head Lessor Register.
18.5.4 A Borrower may only transfer its interest in any Credit Sale Agreement
and its light to receive any payments pursuant to such Credit Sale
Agreement only by giving written notice to the Security Trustee stating
the name of the proposed transferee. No such transfer shall be effective
until, and such transferee shall succeed to the rights of the relevant
Borrower under the relevant Credit Sale Agreement only upon, entry of
such transfer by the Security Trustee in the Head Lessor Register. The
party identified in the Head Lessor Register as the "Head Lessor" under
the relevant Credit Sale Agreement shall be treated as the owner of the
relevant Borrower's interest in and rights under the relevant Credit
Sale Agreement for all purposes.
19 SET-OFF AND PRO RATA PAYMENTS
19.1 SET-OFF
19.1.1 Each Lender and each of the Representatives may, at any time during the
continuance of a Termination Event, set off from any sum payable by it
to any one or more of the Obligors under any of the Transaction
Documents any sum due and unpaid by the relevant Obligor to such Lender
or Representative in each case under or in relation to any of the
Transaction Documents and any document or agreement entered into
pursuant to or in connection with any of the Transaction Documents.
19.1.2 No Obligor shall be entitled to deduct any sum which may be due to it
from the Lenders (or any of them) howsoever arising from any sum payable
by such Obligor under or in connection with any of the Transaction
Documents.
19.1.3 No Obligor shall be entitled to refuse or to postpone performance of any
payment or other obligation under any of the Transaction Documents by
reason of any claim which it may have or may consider that it has
against (i) the Lenders (or any of them) under or in connection with any
of the Transaction Documents, or any other agreement with any of the
Lenders and/or (ii) any other party under or in connection with any of
the Transaction Documents.
19.2 PRO-RATA SHARING
19.2.1 If a Lender (SHARING LENDER) receives or recovers any amount pursuant to
the Transaction Documents by voluntary or involuntary payment, set-off
or any other manner other than through the Agent in accordance with
Clause 12 (APPLICATION OF SUMS RECEIVED), then:
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(a) the Sharing Lender shall immediately notify the Agent of the
amount received or recovered and the manner of its receipt of
recovery;
(b) the Agent shall determine whether the amount discharged is in
excess of the amount which the Sharing Lender would have
received had the amount discharged been received by the Agent
and distributed in accordance with Clause 12 (APPLICATION OF
SUMS RECEIVED);
(c) the Sharing Lender shall pay the Agent an amount equal to that
excess (The EXCESS AMOUNT) within 5 Business Days of demand by
the Agent;
(d) the Agent shall treat the Excess Amount as it were a payment by
an Obligor under Clause 12 (APPLICATION OF SUMS RECEIVED) and
shall pay the Excess Amount to the Lenders (other than the
Sharing Lender) in accordance with Clause 12 (APPLICATION OF
SUMS RECEIVED); and
(e) as between the relevant Borrower and the Sharing Lender the
Excess Amount shall be treated as not having been received or
recovered, and accordingly such Borrower shall owe the Sharing
Lender an immediately payable debt equal to the Excess Amount.
19.2.2 Notwithstanding Clause 19.2.1 no Sharing Lender shall (i) be obliged to
share any Excess Amount which it receives or recovers pursuant to legal
proceedings taken by it to recover any sums owing to it under the
Transaction Documents with any other Lender which has a legal right to,
but does not, either join in such proceedings or commence and diligently
pursue separate proceedings to enforce its rights, unless the
proceedings instituted by the Sharing Lender are instituted by it
without prior notice having been given to such Lender through the Agent
and an opportunity to such Lender to join in such proceedings or (ii) no
Lender shall be obliged to exercise any right of set-off it may have
against any or all of the Obligors at any time, or to set-off against
any obligations of any of the Obligors in relation to the Transaction
Documents any sum which such Lender may hold on deposit or otherwise
from any Obligor, or any other right against any Obligor in favour of
such Lender which sum has been received or right has arisen unrelated to
and independent from the Transaction.
19.2.3 If any Excess Amount subsequently has to be wholly or partially refunded
to an Obligor by a Sharing Lender which has paid an amount equal to that
Excess Amount to the Agent under Clause 19.2.1, each Lender to which any
part of that amount was distributed shall on request from the Sharing
Lender repay to the Sharing Lender that Lender's proportionate share of
the amount which has to be so refunded by the Sharing Bank.
19.2.4 Each Lender shall on request supply to the Agent such information as the
Agent may from time to time request for the purpose of this Clause 19.2.
20 RIGHTS CUMULATIVE, WAIVERS, SEVERABILITY
20.1 CUMULATIVE RIGHTS
The respective rights of the Agent, the Security Trustee and the Lenders
pursuant to this Agreement and the other Transaction Documents:
(a) are cumulative, may be exercised as often as they consider
appropriate and are in addition to their respective rights under
the general law; and
(b) shall not be capable of being waived or varied otherwise than by
an express waiver or variation in writing.
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20.2 WAIVERS
Any failure to exercise, or any delay in exercising, on the part of any
Representative or Lender any right under any Transaction Document shall
not operate as a waiver or variation of that or any other right and any
defective or partial exercise of any such right shall not preclude any
other or further exercise of that or any other right, and no act or
course of conduct or negotiation shall in any way preclude any party
hereto from exercising any such right or constitute a suspension or any
variation of any such right.
20.3 SEVERABILITY
If at any time any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither
the legality, validity nor the enforceability of the remaining
provisions hereof nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be
affected or impaired.
21 FURTHER ASSURANCE
Each Obligor shall from time to time and at its own cost promptly sign,
seal, execute, acknowledge, deliver, file and register all such
additional documents, instruments, agreements, certificates, consents
and assurances and do all such other acts and things as may be required
by law or reasonably requested by the Agent from time to time in order
to give full effect to each Transaction Document or to establish,
maintain, protect or preserve the rights of the Security Trustee, the
Agent and the Lenders under the Transaction Documents or to enable any
of them to obtain the full benefit of each Transaction Document and to
exercise and enforce their respective rights and remedies under the
Transaction Documents.
22 NOTICES
22.1 Unless otherwise expressly provided herein, all notices, requests,
demands or other communications to or upon the respective parties hereto
in connection with any Transaction Document, the Facility, any
Utilisation or any Aircraft shall:
(a) in order to be valid be in English and in writing;
(b) be deemed to have been duly served on, given to or made in
relation to a party if it is:
(i) left at the address of that party set out herein or at
such other address as that party may notify to the other
parties hereto in writing from time to time or to any
officer of the addressee;
(ii) posted by first class airmail postage prepaid or sent
with an internationally recognised courier service in
each case in an envelope addressed to that party at such
address; or
(iii) sent by facsimile to the facsimile number of that party
set out herein or to such other number as that party may
notify to the other parties hereto from time to time;
(c) be sufficient if:
(i) executed under the seal of the party giving, serving or
making the same; or
Page 65
(ii) signed or sent on behalf of the party giving, serving or
making the same by any attorney, director, secretary,
agent or other duly authorised representative of such
party;
(d) be effective:
(i) in the case of a letter, when left at the address
referred to in Clause 22. l(b)(i) after being deposited
in the post first class airmail postage prepaid or
deposited with an internationally recognised courier
service and in each case in an envelope addressed to the
addressee at the address referred to in Clause
22.1(b)(i); and
(ii) in the case of a facsimile transmission, upon receipt of
a facsimile transmission slip indicating that the
correct number of pages have been sent to the correct
facsimile number;
22.2 For the purposes of this Clause 22, all notices, requests, demands or
other communications shall be given or made by being addressed as
follows:
(a) if to the Cayman Borrower to:
c/o Walkers SPV Limited
Xxxxxx Xxxxx
Xxxx Xxxxxx
XX Xxx 000 XX
Xxxxxx Xxxx
Grand Cayman
Cayman Islands
Facsimile No: x0 000 000 0000
Attention: The Directors
with copies to GFC and the Agent at the addresses detailed below
(b) if to the Irish Borrower to:
c/o AIB International Financial Services Limited
Xxxx Xxxxx Xxxxxxxx
Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Facsimile No: x000 0 000 0000
Attention: The Managing Director
with copies to GFC and the Agent at the addresses detailed
below.
(c) if to the Cayman Export Lessee, the Irish Export Lessee or GFC:
GATX Financial Corporation
Four Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx
Xxxxxxxxxx 00000
The United States of America
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Facsimile No: + 1 415 955 3424
Attention: Aircraft Portfolio Administration
with a copy to the Agent at the address detailed below.
(d) if to the Agent and the Security Trustee:
Credit Lyonnais
0 -0 xxx xxx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Facsimile No: x00 0 00 00 00 00
Attention: Transportation Group/Middle Office
(e) if to a Lender from any of the Obligor then to such Lender care
of the Agent.
(f) if to a National Agent, then to the address and/or facsimile
number set out opposite the name of such National Agent in the
relevant Part of Schedule 1.
23 GOVERNING LAW AND JURISDICTION
23.1 This Agreement shall be governed and construed in accordance with
English law.
23.2 Each Obligor irrevocably agrees for the benefit of each Finance Party
that the courts of England shall have jurisdiction to hear and determine
any suit, action or proceeding, and to settle any disputes, which may
arise out of or in connection with this Agreement or any other
Transaction Document and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
23.3 Each party irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 23.2 being nominated
as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with
this Agreement or any other Transaction Document and agrees not to claim
that any such court is not a convenient or appropriate forum in each
case whether on the grounds of venue or forum non conveniens or any
similar grounds or otherwise.
23.4 For the purpose of any suit, action, proceeding or settlement of dispute
in the English courts (whether under this Agreement or any other
Transaction Document), each Obligor:
(a) appoints the agent specified in Schedule 7 to accept service of
process in respect of any such suit, action, proceeding or
settlement of dispute;
(b) confirms that such agent is willing to accept service of such
process on its behalf in respect of this Agreement and the other
Transaction Documents; and
(c) if the agent specified in Schedule 7 no longer serves as its
agent, shall promptly appoint another such agent acceptable to
the Agent and advise the Agent thereof.
23.5 The submission to the jurisdiction of the courts referred to in Clause
23.2 shall not (and shall not be construed so as to) limit the right of
any Finance Party to take proceedings against any Obligor in any other
court of competent jurisdiction nor shall the taking of proceedings in
any one or more jurisdictions preclude the taking of proceedings in any
other jurisdiction, whether concurrently or not to the extent permitted
by Applicable Law.
Page 67
23.6 To the extent that any Obligor or any of the property of any Obligor is
or becomes entitled at any time to any immunity on the grounds of
sovereignty or otherwise from any legal action, suit or proceeding, from
set-off or counterclaim, from the jurisdiction of any competent court,
from service of process, from attachment prior to judgment, from
attachment in aid of execution, or from execution prior to judgment, or
other legal process in any jurisdiction, each such Obligor, for itself
and its property, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity with respect to its
obligations, liabilities or any other matter under or arising out of or
in connection with any of the Transaction Documents.
24 MISCELLANEOUS
24.1 A certificate given by any Finance Party as to the amount of any sum
required to be paid to it under any provisions of this Agreement or any
of the other Transaction Documents (including any Termination Amount)
shall, save in the case of manifest error, be prima facie evidence of
the amounts therein stated for all purposes of this Agreement and any of
the other Transaction Documents.
24.2 The parties hereto agree and acknowledge that this Agreement shall
continue in full force and effect for all purposes until all Secured
Loan Obligations have been paid in full notwithstanding that the
Commitments may at any time be reduced to zero.
24.3 Each of the parties hereto agrees that no amendments, variations,
supplements or modifications may be made to any of the Transaction
Documents other than by an instrument in writing executed by the
applicable Obligor(s) and the Agent or the Security Trustee as provided
in the applicable Transaction Document, or where expressly provided in
the applicable Transaction Document, the Agent on behalf and on the
instructions of the Majority Lenders (which consent shall not be
unreasonably withheld).
24.4 Each of the Obligors hereby acknowledges and accepts that under the
Support Agreements, the Export Credit Agencies have certain rights to
require the Lenders, the Agent and/or the Security Trustee to act, or to
omit to act, in accordance with the instructions of the Export Credit
Agencies. Accordingly, each of the Obligors hereby acknowledges and
accepts that if any of the Lenders, the Agent and/or (as the case may
be), the Security Trustee have to exercise a right, discretion or power
under any of the Transaction Documents "reasonably", "in good faith" or
"bona fide" or with any other restriction of whatsoever nature then such
Lender, the Agent and/or (as the case may be), the Security Trustee will
be deemed to be acting "reasonably", "in good faith" or "bona fide" or
in accordance with such other restrictions (as the case may be) if such
Lender, the Agent and/or the Security Trustee exercises, or refrains
from exercising, such right, discretion or power in accordance with the
instructions of the relevant Export Credit Agency.
25 CONFIDENTIALITY
25.1 At all times during the Security Period and after the termination
thereof, each party hereto shall use all reasonable endeavours to ensure
that its respective officer's, directors, employees and agents shall
keep secret and confidential and not, without the prior written consent
of GFC, the Agent and the Security Trustee, disclose to any third party
the terms of any of the Transaction Documents, any Lease, Sub-Lease,
Insurances, or Airbus Purchase Agreements or any of the information,
reports, invoices, or documents supplied by or on behalf of any of the
other parties hereto, save that any such party shall be entitled to
disclose any such terms, information, reports or documents:
Page 68
(a) in connection with any proceedings arising out of or in
connection with any of the Transaction Documents to the extent
that such party may consider necessary to protect its interest;
or
(b) to any potential permitted assignee or transferee of all or any
of such party's rights under any of the Transaction Documents or
any other permitted person proposing to enter into contractual
arrangements with such party in relation to or in connection
with the transactions contemplated by any of the Transaction
Documents, subject to it obtaining an undertaking from such
potential permitted assignee or permitted other person in the
terms similar to this Clause 25.1; or
(c) if required to do so by an order of a court of competent
jurisdiction whether in pursuance of any procedure for
discovering documents or otherwise; or
(d) pursuant to any law or regulation having the force of law
(including, without limitation, filing requirements of the
Securities & Exchange Commission of the United States); or
(e) to any fiscal, monetary, tax, governmental or other competent
authority; or
(f) to its auditors, bankers, legal or other professional advisers
(which are under an ethical obligation to or agree to hold such
information confidential); or
(g) to any of the Export Credit Agencies; or
(h) in any manner contemplated by any of the Transaction Documents;
or
(i) to GFC.
25.2 In addition, any party shall be entitled to disclose or use any such
information, reports or documents if the information contained therein
shall have emanated in conditions free from confidentiality bona fide
from some person other than the relevant party hereto and such party
would, but for the preceding provisions of this Clause 25 have been free
to disclose or use the same.
25.3 Each party may, notwithstanding any other provision of this Clause 25,
release to any potential assignee or transferee (permitted in each case
pursuant hereto or to the relevant Transaction Document), or other
person proposing to enter into contractual arrangements with such party
in relation to or in connection with the transactions contemplated by
any of the Transaction Documents, a copy of any of the Transaction
Documents, provided that each such potential assignee or transferee or
other person confirms in writing to the other parties to this Agreement
that it is bound by the terms of this Clause 25 as if it had been a
party to this Agreement.
26 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties thereto on separate counterparts and any single
counterpart or set of counterparts signed, in either case, by all the
parties hereto shall be deemed to constitute a full and original
agreement for all purposes but all counterparts shall constitute but one
and the same instrument.
Page 69
27 CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000
27.1 Subject to Clause 27.2, it is not intended by any of the Parties that
any term of this Agreement, save for those contained in Clause 1.3
(INDEMNITIES), shall be enforceable solely by virtue of the Contracts
(Rights of Third Parties) Xxx 0000 by any person who is not a Party.
27.2 Each Party agrees that, notwithstanding Clause 27.1, any provision in
this Agreement expressed to be for the benefit of the Export Credit
Agencies shall be enforceable by any such Export Credit Agency.
27.3 The Parties shall not require the consent of any person who is not a
Party in order to rescind, vary, waive, release, assign, novate or
otherwise dispose of all or any of their respective rights or
obligations under this Agreement, including those in Clause 13
(INDEMNITIES) pursuant to the terms of this Agreement.
EXECUTED AS A DEED by the Parties or their duly authorised representatives
Page 70
SCHEDULE 1- PART I: THE BRITISH LENDERS
MAXIMUM AMOUNT OF BRITISH
JURISDICTION OF LENDERS COMMITMENTS EXPRESSED
LENDER LENDING OFFICE ADDRESS FOR NOTICES INCORPORATION AS A PERCENTAGE
----------- -------------- ----------------------- --------------- -----------------------------
Halifax plc Halifax plc Structured Finance England 100%
Trinity Road Halifax plc
Halifax 00 Xxx Xxxxx Xxxxxx
Xxxx Xxxxxxxxx Xxxxxx
XX0 0XX XX0X 0XX
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Email: mike_gear@bankof
xxxxxxxx.xx.xx
Attention: Xxxx Gear
Page 71
SCHEDULE 1 - PART II : THE FRENCH LENDERS
MAXIMUM AMOUNT OF
JURISDICTION OF FRENCH LENDERS COMMITMENTS EXPRESSED
LENDER LENDING OFFICE ADDRESS FOR NOTICES INCORPORATION AS A PERCENTAGE
--------------- --------------- ------------------------ --------------- ------------------------------------
Credit Lyonnais 0-0 xxx xxx 0-0 xxx xxx Xxxxxxxx Xxxxxx Please see table below
Italiens 75009 Xxxxx
00000 Xxxxx Fiance
France
Tel: x00 0 00 00 0000
or x00 0 00 00 0000
Fax: x00 0 00 00 0000
or x00 0 00 00 00 00
Attention: Middle Office
Halifax plc Halifax plc Structured Finance England Please see table below
Trinity Road Halifax plc
Halifax 00 Xxx Xxxxx Xxxxxx
Xxxx Xxxxxxxxx Xxxxxx
XX0 0XX XX0X 0XX
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Attn: Xxxx Gear
DIVISION OF THE FRENCH PORTION BETWEEN FRENCH LENDERS
Credit Lyonnais Halifax plc
--------------- -----------
A319 CFM 50 50
A319 IAE 60 40
A320 CFM 50 50
A320 IAE 75 25
A321 CFM 50 50
A321 IAE 75 25
Page 72
Schedule 1 - Part III : THE GERMAN LENDERS
MAXIMUM AMOUNT OF
JURISDICTION OF GERMAN LENDERS COMMITMENTS EXPRESSED
LENDER LENDING OFFICE ADDRESS FOR NOTICES INCORPORATION AS A PERCENTAGE
--------------- ------------------- ------------------------ --------------- ------------------------------------
Bayerische Xxxxxxxx Xxxxxxx 00 Xxxxxxxx Xxxxxxx 00 Xxxxxxx 65%
Landesbank D-80333 X-00000
Xxxxxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Germany
Tel: x00 00 0000 000 00
Fax: x00 00 0000 000 00
Attention: Wolfgang
Schnull
Kreditanstalt Palmengartenstrasse Kreditanstalt fur Germany 35%
fur 0-0, Xxxxxxxxxxxx, Export and
Xxxxxxxxxxxx 00000 Xxxxxxxxx am Project Finance -
Main Aerospace -
Germany Xxxxxxxxxxxxxxxxxxx 0-0,
00000 Xxxxxxxxx xx Xxxx,
Xxxxxxx
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Attention:Aviation Group
K III b 2
Page 73
SCHEDULE 2 - FORM OF TRANSFER CERTIFICATE
To: [Agent]
TRANSFER CERTIFICATE
This transfer certificate (TRANSFER CERTIFICATE) relates to an Agreement dated
20 December 2001 and made between (1) the banks and financial institutions named
therein as Lenders, (2) Halifax plc, Credit Lyonnais and Bayerische Landesbank
Girozentrale (as NATIONAL AGENTS), (3) Kreditanstalt fur Wiederaufbau (as GERMAN
PARALLEL LENDER), (4) Credit Lyonnais (as AGENT), (5) Credit Lyonnais (as
SECURITY TRUSTEE), (6) EFG Aircraft Limited (as CAYMAN BORROWER) (7) EFG
Aircraft (Ireland) Limited (as IRISH BORROWER), (8) X'Xxxxxxx Leasing Limited
(as CAYMAN EXPORT LESSEE); (9) X'Xxxxxxx Leasing (Ireland) Limited (as IRISH
EXPORT LESSEE), (10) GATX Financial Corporation (as GFC) and (11) Halifax plc,
and Credit Lyonnais (as JOINT ARRANGERS) (the AGREEMENT which term shall include
any amendments or supplements thereto) and to each of the Loan Supplements made
between the Agent, the Security Trustee and the [** ](as the case may be)
in respect of an Advance under the Agreement.
Terms defined or incorporated by reference in the Agreement shall, unless
otherwise defined, have the same meanings when used in this Transfer
Certificate.
I. [Details of the Transferor] (the TRANSFEROR):
1. confirms that to the extent that details appear in the Schedule to
this Transfer Certificate under the headings "Transferor's
Commitment", "Amount of Commitment Transferred and the Related
Rights and Obligations of the Transferor to be Transferred",
"Transferor's Participation" and "Amount of Transferor's
Participation Transferred and Related Rights and Obligations of the
Transferor to be Transferred", those details accurately summarise
its Commitment and its participation in the Facility and its
participation in each Advance already made all or part of which is
to be transferred (as more particularly described in the Loan
Supplements);
2. requests [Details of Transferee] (the Transferee) to accept and
procure, in accordance with Clause 18.3 (Transfer Certificates) of
the Agreement, the substitution of the Transferor by the Transferee
in respect of the amount specified in the Schedule hereto of its
Commitment and its participation in the Facility and its
participation in each Advance already made (as more particularly
described in the Loan Supplements) by signing this Transfer
Certificate.
II. The Transferee hereby requests each of the Obligors, the Joint Arrangers,
the Lenders, the Agent and the Security Trustee to accept this executed
Transfer Certificate as being delivered under and for the purposes of
Clause 18.3 (Transfer Certificates) of the Agreement so as to take effect
in accordance with the terms thereof on the Transfer Date or on such later
date as may be determined in accordance with the terms thereof.
Page 74
III. The Transferee:
1. represents that it has received a copy of the Agreement and copies
of each Loan Supplement together with such other documents and
information as it has requested in connection with this transaction;
2. represents that it has not relied and will not rely on the
Transferor to check or enquire on its behalf into the legality,
validity, effectiveness, adequacy, accuracy or completeness of any
such documents or information; and
3. agrees that it has not relied and will not rely on any of the
Transferor, the Agent or any of the Lenders to assess or keep under
review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of any party to any of the
Transaction Documents or the legality, validity, priority, adequacy,
effectiveness or enforceability of any of the Transaction Documents.
4. represents that it has completed, signed and delivered to the Agent
the United States Internal Revenue Service form required by Clause
4.12.2 (Deductions and Withholdings) of the Agreement;
5. represents that it is neither resident in the United Kingdom for
United Kingdom tax purposes nor controlled by persons who are so
resident if the transfer hereunder would result in Advances of
Lenders resident in the United Kingdom for United Kingdom tax
purposes or controlled by persons who are so resident constituting
fifty per cent (50%) or more of the Advances as at the date of the
proposed transfer;
6. represents that it is acquiring the Transferor's right, title and
interest hereunder in the ordinary course of its lending business
and not with any present view to the distribution thereof in
violation of the registration requirements of the U.S. Securities
Act of 1933, as amended, and that the transfer is in compliance with
all applicable securities and other laws (if any); and
7. agrees that it will be bound by the provisions of the Agreement and
the other Transaction Documents and will perform in accordance with
the terms of the Agreement and the other Transaction Documents the
obligations which by their terms are required to be performed by a
Lender.
IV. The Transferee undertakes with the Transferor and each of the other
parties to the Agreement that it shall perform in accordance with their
terms all those obligations which by the terms of Clause V of this
Transfer Certificate will be assumed by it upon delivery of the executed
copy of this Transfer Certificate to the Agent and further undertakes with
the Transferor, each of the other Lenders, the Agent and the Security
Trustee that it shall perform in accordance with their terms all of the
obligations of the Transferor under the Agreement as if the Transferee had
originally been a party to the Agreement and each of the other Lenders,
the Agent and the Security Trustee undertake with the Transferee to
perform their obligations under the Agreement to the Transferor in favour
of the Transferee as if the Transferee had originally been a party to the
Agreement.
V. With effect from the Transfer Date as specified in the Schedule hereto the
parties hereto (including in particular but without limitation the
Transferee) agree that:
(i) to the extent of the Transferor's rights and obligations under
the Agreement and the other Transaction Documents the Obligors
and the Transferor shall each be released from further
obligations to each other under the Agreement and the other
Transaction Documents and their respective rights against each
Page 75
other shall be cancelled (such rights and obligations being
referred to in this Clause V as DISCHARGED RIGHTS AND
OBLIGATIONS); AND
(ii) each of the Obligors, the Agent, the Security Trustee, the
Arranger, each of the other Lenders and the Transferee shall
each assume obligations towards each other and/or acquire
rights against each other which differ from the Discharged
Rights and Obligations only insofar as each of the Obligors
and the Transferee have assumed and/or acquired the same in
place of each of the Obligors and the Transferor; and
(iii) the Agent, the Security Trustee, the Arranger, each of the
Obligors, the Transferee and the other Lenders shall acquire
the same rights and assume the same obligations among
themselves as they would have acquired and assumed had the
Transferee originally been a party to the Agreement and the
other Transaction Documents as a Lender in respect of the
participation; and
(iv) all costs and expenses of the transfer hereunder shall be
borne by the Transferor or Transferee (as the case may be),
and no Obligor shall be under any obligation to pay any
greater amount or suffer any other increase in liabilities or
diminution in right or benefit under the Transaction Documents
following and as a consequence (directly or indirectly) of any
such transfer (other than if the Transferee is an Export
Credit Agency or the transfer is at the instigation of an
Export Credit Agency in which case the cost shall be borne
jointly and severally by the Borrowers) or change in Lending
Office unless and until a Change in Law occurs and as a result
of such Change in Law (excluding any Change in Law which
occurs, or the intended implementation of which is officially
announced or proposed before the date of such transfer or
change in Lending Office).
VI. None of the Transferor, the Lenders, the Agent or the Security Trustee:
1. makes any representation or warranty or assumes any responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Agreement; or
2. assumes any responsibility for the financial condition of any of the
Obligors or for the performance and observance by any of the
Obligors or any other party to any of the Transaction Documents or
any other document relating thereto of any of the Obligor's or such
other party's obligations under any of the Transaction Documents or
any document relating thereto and any and all conditions and
warranties, whether express or implied by law or otherwise, are
excluded.
VII. None of the Obligors assumes any responsibility for the financial
condition of any party, or for the performance or observance by any party,
other than the Obligors, of any of the Transaction Documents or any other
document relating thereto or such party's obligations under the Agreement
or any document relating thereto (other than those of the Obligors and any
and all conditions and warranties whether express or implied by law or
otherwise, are excluded (other than in relation to the performance or
observance of the Obligors).
VIII. The Transferee confirms that its Lending Office and address for notices
for the purposes of the Agreement are as set out in the Schedule hereto.
IX. A. The Transferor hereby gives notice to the Transferee (and the
Transferee hereby acknowledges and agrees with the Transferor) that
the Transferor is under no obligation to re-purchase (or in any
other manner to assume, undertake or discharge any obligation or
liability in relation to) the transferred Commitment, and/or
Page 76
transferred participation in the Advances already made (as more
particularly described in the Loan Supplements) and/or the
transferred rights and/or obligations at any time after this
Transfer Certificate shall have taken effect.
B. Following the date upon which this Transfer Certificate shall have
taken effect, without limiting the provisions hereof, each of the
Transferee and the Transferor hereby acknowledges and confirms to
the other that in relation to the relative Commitment/participation
in the Advances already made (as more particularly described in the
Loan Supplements) and the rights and/or obligations under the
Agreement assumed by the Transferee (or part thereof), variations,
amendments or alterations to any of the terms of the Agreement
and/or any of the Loan Supplements arising in connection with any
re-negotiation or re-scheduling of the obligations hereunder shall
apply to and be binding on the Transferee alone.
X. The Transferor hereby gives notice that nothing herein or in the Agreement
(or any document relating thereto) shall oblige the Transferee to (i)
accept a re-transfer from the Transferee of the whole or any part of its
rights, benefits and/or obligations under the Agreement transferred
pursuant hereto or (ii) support any losses directly or indirectly
sustained or incurred by the Transferee for any reason whatsoever
including, without limitation, the non-performance by any other party to
the Agreement (or any document relating thereto) of its obligations under
any such document. The Transferee hereby acknowledges the absence of any
such obligation as is referred to in (i) or (ii) above.
XI The Transferee hereby confirms, pursuant to and in accordance with the
provisions of Clause 23.4 (GOVERNING LAW AND JURISDICTION) of the
Agreement, that its agent for service of process in England is as set out
in the Schedule to this Transfer Certificate and confirms that such agent
is willing to accept service of such process as is described in Clause
23.4 of the Agreement on behalf of the Transferee in respect of the
Agreement, any other Transaction Document.
XII. This Transfer Certificate shall be governed by and construed in accordance
with English Law,
Page 77
[Transferee]
By: _________________
(Duly Authorised)
[Transferor]
By: _________________
(Duly Authorised)
The Agent on behalf of itself and all other parties to the Agreement (other than
the Transferor and the Obligors).
By: _________________
(Duly Authorised)
The Agent on behalf of all the Obligors
By: _________________
(Duly Authorised)
Dated: **
*[N.B.
IRS FORMS SHOULD BE PROVIDED BY TRANSFEREE AT THE SAME TIME AS THIS CERTIFICATE
IF POSSIBLE.]
Page 78
SCHEDULE TO THE TRANSFER CERTIFICATE
Transferor's Commitment Amount of Commitment Transferred and the Related
Rights and Obligations of the Transferor to be
Transferred
Transferor's Participation Amount of Transferor's Participation in Advances
in Advances already made already made Transferred and Related Rights and
Obligations of the Transferor to be Transferred
Date:
[Transferee]
LENDING OFFICE: ADDRESS FOR NOTICES:
[ ] [ ]
Telephone: [ ]
Facsimile: [ ]
JURISDICTION OF INCORPORATION:
[ ]
English Process Agent:
[ ]
Transfer Date: [ ]
Page 79
SCHEDULE 3 - UTILISATION NOTICE
To: Credit Lyonnais
0-0 xxx xxx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Facsimile No: x00 0 00 00 00 00
Tel No: x00 0 00 00 00 00
Attention: Transportation Group/Middle Office
From: (the EXPORT LESSEE)
RE: AIRCRAFT FACILITY DATED 20 DECEMBER 2001 AND MADE BETWEEN (1) THE BANKS
AND FINANCIAL INSTITUTIONS NAMED THEREIN AS LENDERS, (2) HALIFAX PLC,
CREDIT LYONNAIS AND BAYERISCHE LANDESBANK GIROZENTRALE (AS NATIONAL
AGENTS), (3) KREDITANSTALT FUR WIEDERAUFBAU (AS GERMAN PARALLEL LENDER),
(4) CREDIT LYONNAIS (AS AGENT), (5) CREDIT LYONNAIS (AS SECURITY TRUSTEE),
(6) EFG AIRCRAFT LIMITED (AS CAYMAN BORROWER), (7) EFG AIRCRAFT (IRELAND)
LIMITED (AS IRISH BORROWER), (8) X'XXXXXXX LEASING LIMITED (AS CAYMAN
EXPORT LESSEE), (9) X'XXXXXXX LEASING (IRELAND) LIMITED (AS IRISH EXPORT
LESSEE), (10) GATX FINANCIAL CORPORATION (GFC) AND (11) HALIFAX PLC AND
CREDIT LYONNAIS (AS JOINT ARRANGERS) AS AMENDED, SUPPLEMENTED OR ACCEDED
TO FROM TIME TO TIME (THE AGREEMENT).
The Export Lessee hereby gives notice in accordance with Clause 3.1.1
(Utilisation Notices) of the Agreement that:
(i) the [Export Lessee] desires to effect a Utilisation on the [Delivery
Date], which is currently scheduled to be ** or in respect of a
Refinanced Aircraft on [ ];
(ii) the requested amount of the proposed Advance is US$ ** and the
currency of the Advance is [Dollars/Euros]
(iii) the Aircraft the subject of the Utilisation is one Airbus [A319/A320/A321]
Aircraft with manufacturer's serial number ** proposed **
Registration Xxxx ** ** installed Engines;
(iv) [the proposed [Lessee][Sub-Lessee] of the Aircraft the subject of the
Utilisation is ** a company incorporated in ** having its
principal place of business in ** it is proposed that the Aircraft
shall be [registered] in ** The Lessee will [and the Sub-Lessee]
[will] [will not] require quiet enjoyment covenants from the relevant
[Borrower] [Export Lessee] and the Security Trustee in the form agreed
between the Security Trustee and the relevant GATX Obligor.]
[A certified copy of the executed Lease, if any, is attached hereto;]
[The Aircraft will not be leased to a Lessee on Delivery. Title to the
Aircraft will be registered in the name of [Borrower/Export Lessee] in
[name of country].
(v) the Export Lessee desires the Lenders to disburse the Loan on**
Page 80
(vi) the Aircraft Purchase Price is US$**
(vii) [the Borrower/Alternative Borrower [was/is]** (the Borrower)];
(viii) the expected Delivery Date is**
The account into which the Loan should be paid is account no.** with**
The Export Lessee hereby certifies that as at the date of this notice no
Relevant Event or Termination Event, has occurred and is continuing or would
result from the drawdown of the Advance, the subject of this Utilisation.
The Export Lessee hereby certifies that all representations and warranties on
the part of each Obligor which is a party to a Transaction Document of such
Utilisation contained in Clause 6 of the Agreement or, in the case of GFC,
Clause 5 of the Guarantee remain true and correct at the date of this notice and
shall remain true and correct on the Utilisation Date and no event has occurred
which constitutes or, with the passing of time or the giving of notice or the
making of any determination or any combination thereof would constitute, a
Termination Event.
Capitalised terms used herein defined in the Agreement have the same meanings
herein.
EXPORT LESSEE
By:
Name:
Title:
Agreed by GATX Financial Corporation
By:
Name:
Title:
Page 81
SCHEDULE 4 PART I - DETAILS OF PROPOSED AIRCRAFT AND PROPOSED AIRCRAFT DELIVERY
SCHEDULE
SCHEDULED
DELIVERY ENGINE TYPE PROPOSED INITIAL
AIRCRAFT NO MONTH TYPE (IF KNOWN) LESSEE
----------- --------- -------- ------------------- ----------------
1 Nov-01 A319-100 CFM56-5B6 UNKNOWN
2 Dec-01 A321-200 CFM56-5B6 LTU
3 Jan-02 A320-200 CFM56-5B6 Air Luxor
4 Feb-02 A320-200 CFM56-5B6 UNKNOWN
5 Apr-02 A320-200 CFM56-5B6/P UNKNOWN
6 May-02 A320-200 CFM56-5B6/P UNKNOWN
7 June-02 A320-200 CFM56-5B6 TAP
8 July-02 A320-200 CFM56-5B6 TAP
9 Sept-02 A320-200 CFM56-5B6 UNKNOWN
10 Feb-03 A320-200 Not yet determined UNKNOWN
11 Mar-03 A320-200 Not yet determined UNKNOWN
12 Apr-03 A320-200 Not yet determined UNKNOWN
13 Sept-03 A320-200 Not yet determined UNKNOWN
14 Oct-03 A320-200 Not yet determined UNKNOWN
15 Jan-04 A320-200 Not yet determined UNKNOWN
16 Feb-04 A320-200 Not yet determined UNKNOWN
17 Mar-04 A320-200 Not yet determined UNKNOWN
18 Apr-04 A320-200 Not yet determined UNKNOWN
19 May-04 A320-200 Not yet determined UNKNOWN
NOTE: Scheduled Delivery months may be changed.
Page 82
SCHEDULE 4 PART II - FINANCE PORTIONS OF THE BRITISH LENDERS, FRENCH LENDERS AND
GERMAN LENDERS BY NATIONAL CONTENT
AIRCRAFT TYPE ENGINE UK PORTION FRENCH PORTION GERMAN PORTION
------------- ------ ---------- -------------- --------------
A319 CFM 18% 51% 31%
A319 IAE 28% 39% 33%
A320 CFM 20% 49% 31%
A320 IAE 32% 32% 36%
A321 CFM 17% 52% 31%
A321 IAE 33% 32% 35%
Page 83
SCHEDULE 5 - LEASE PROVISIONS AND UNDERTAKINGS
PART 1 MINIMUM LEASE PROVISIONS
"MINIMUM LEASE PROVISIONS", in relation to any Permitted Lease, means the
following provisions and conditions:
(a) Lessee
The Lessee of the Aircraft shall be a Permitted Lessee.
(b) Lease Term
The lease term under the first lease agreement to be entered into
with respect to any Aircraft shall, unless otherwise agreed by the
National Agents, be for a minimum of two (2) years.
(c) Payments
Subject to the terms of any Lease Security Assignment, all payments
to be made by the Lessee under the relevant Permitted Lease shall be
made to, and all Maintenance Reserves and Lessee Security will be
held by, GFC.
(d) Rental
(i) Currency
The Lessee will make rental and all other lease payments in
Dollars or Euros or a combination thereof.
(ii) Set-off and Counterclaim
The Lessee's obligation to pay rental and make other payments
in accordance with the Permitted Lease will be absolute and
unconditional.
(e) Maintenance Reserves and Security Deposit
The Lessee will be required to pay airframe and (unless and for such
time as the Lessee is a party to an engine maintenance agreement)
engine reserves (collectively in this Schedule 5 the MAINTENANCE
RESERVES) and/or any security deposit (the SECURITY DEPOSIT) in
circumstances where such Maintenance Reserves and such Security
Deposit (if any) as GFC deems appropriate in accordance with the
Standard on such terms as would be appropriate when acting in
accordance with the Standard.
(f) Disclaimer
(i) The Lessee shall, on delivery of the Aircraft to it, expressly
acknowledge to the relevant Export Lessee that (save as may be
permitted hereby) the relevant Export Lessee gives no
warranties, representations or guarantees of any kind with
respect to the Aircraft.
(ii) If the Lessee so requires or, if the Applicable Law limits the
extent to which such acknowledgement may be given, such
acknowledgement may be qualified so that it is given only to
the extent permitted by applicable law.
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(iii) The Lessee's obligation to accept delivery of the Aircraft may
be conditional on the Lessee having satisfied itself as to the
condition thereof or as to compliance with any specific
criteria prior to the execution of its certificate of
acceptance.
(iv) The relevant Export Lessee may warrant or undertake to the
Lessee that the Aircraft will comply with certain specific
factual criteria, provided such warranty or undertaking is
satisfied or discharged by the Lessee's acceptance of the
Aircraft upon the execution of the Lease acceptance
certificate (or, if the Lessee agrees to accept delivery
notwithstanding non-compliance, provided the relevant Export
Lessee undertakes to rectify such non-compliance (or provide
appropriate compensation)).
(g) Operational and Other Undertakings
(i) The Permitted Lease shall (1) contain provisions corresponding
in all material respects with those stated in Clauses 12 and
13 of the Model Lease Agreement (Operational Undertakings by
the Lessee and Maintenance and Repair) (the "MODEL LEASE
AGREEMENT" being the form of model lease agreement approved by
the National Agents prior to execution of this Agreement and
as initialled by the Agent and GFC) amended to the extent GFC
considers appropriate acting in accordance with the Standard
and (2) require that the Lessee obtain all necessary consents,
approvals and authorizations in connection with its leasing of
the relevant Aircraft thereunder.
(ii) The Permitted Lease shall require that the Lessee shall (1)
operate the Aircraft in accordance with all Applicable Laws,
(2) obtain and maintain all licenses, consents and permits
reasonably necessary in connection with its operation of the
Aircraft, (3) discharge all Liens from the Aircraft other than
Permitted Liens and (4) during the lease term, provide
periodic reports on the utilisation and status of the
Aircraft, Airframe and the Engines in such form as may be
agreed by GFC in accordance with the Standard.
(h) Indemnities
The Permitted Lease shall contain provisions corresponding in all
material respects with those stated in Clause 9 of the Model Lease
Agreement (Expenses and Indemnities) amended to the extent GFC
considers appropriate acting in accordance with the Standard.
(i) Insurance
The insurance obligations of the Lessee under the Permitted Lease
shall mutatis mutandis correspond and comply in all material
respects with those stated in Clause 16 (Insurances) of the Model
Lease Agreement, except that the Lessor may agree amendments to such
provisions which are consistent with the Standard but which:
(i) are required because the relevant provisions would otherwise
contain a requirement not available in the market; and
(ii) will not and are not likely adversely to prejudice the Finance
Parties.
(j) Representations and Warranties
The Lessee shall represent and warrant to the relevant Export
Lessee:
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(i) concerning the Lessee's corporate standing or legal status;
(ii) that the Permitted Lease has been duly authorised and executed
by the Lessee; and
(iii) that the Permitted Lease constitutes legal, valid and binding
obligations of the Lessee (if the Lessee so requires, this
representation and warranty may (to the extent appropriate in
accordance with the Standard) be qualified by reference to the
qualifications in the legal opinion relating to the Permitted
Lease).
(k) General Reporting
The Permitted Lease shall require that the Lessee provide the
following information:
(i) annual audited financial statements of the Lessee or, if the
Lessee's obligations are guaranteed by a more creditworthy
entity, the guarantor under such guarantee;
(ii) notice of any Total Loss of the Aircraft, Airframe or any
Engine; and
(iii) notice of any other loss event with respect to the Aircraft,
Airframe or any Engine not amounting to a Total Loss if the
estimated cost of repair exceeds an amount determined in
accordance with the Standard.
(l) Redelivery of the Aircraft
The redelivery obligations of the Lessee shall be consistent with
the Standard and shall correspond and comply in all material
respects with the following provisions:
(i) Date of Redelivery:
The Lessee will be obliged to redeliver the Aircraft and all
Technical Records to the relevant Export Lessee on the
expiration or earlier termination of the lease term (in this
Schedule 5, EXPIRY).
(ii) Technical Reporting:
At or prior to the Expiry, the Lessee will provide the
relevant Export Lessee with all technical information
reasonably requested by the relevant Export Lessee regarding
the Aircraft.
(iii) Redelivery Location:
On the Expiry, the Aircraft shall be technically accepted by
the relevant Export Lessee at such airport as may be mutually
agreed to by the Lessee and the Export Lessee. At such time,
the relevant Export Lessee and the Lessee shall execute a
return acceptance certificate.
(iv) Aircraft Inspection:
The Permitted Lease will oblige the Lessee immediately prior
to the proposed redelivery of the Aircraft, to carry out for
the relevant Export Lessee and/or the relevant Export Lessee's
representatives a demonstration flight of the Aircraft for a
period of not greater than two (2) hours.
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(v) Certificate of Airworthiness Matters:
The Aircraft will possess a current certificate of
airworthiness issued by the Aviation Authority.
(vi) General Condition of Aircraft at Redelivery
(aa) The Aircraft shall be in the same working order,
condition and appearance as when received pursuant to
the Permitted Lease (reasonable wear from normal airline
flight operations excepted), with all pilot
discrepancies and deferred maintenance items cleared,
clean by international commercial airline standards and
ready for flight with all of the Aircraft equipment,
components and systems operating within limits specified
in the maintenance manual and functioning in accordance
with their intended use. The Aircraft shall be free and
clear of all Liens other than Permitted Liens.
(bb) The Permitted Lease will oblige the Lessee to redeliver
the Aircraft to the relevant Export Lessee with the same
equipment as at the commencement of the Permitted Lease,
subject only to those additions and modifications which
may have been made and properly documented pursuant to
the Permitted Lease or as otherwise specifically
approved in writing by the relevant Export Lessee.
(cc) The Permitted Lease will provide that, at redelivery,
the Lessee will carry out all inspections and checks
then required on the Aircraft in accordance with the
Maintenance Programme, including the next sequential
C-Check (as defined in the Model Lease Agreement). All
such inspections and checks must be carried out by an
authorised maintenance performer. All discrepancies
discovered during such inspections and checks shall be
rectified to the relevant Export Lessee's satisfaction.
(vii) Export and Deregistration of Aircraft:
The Permitted Lease will provide that at the relevant Export
Lessee's request, the Lessee will (i) assist in providing an
export certificate of airworthiness or its equivalent from the
State of Registration so that the Aircraft can be exported to
the country designated by the relevant Export Lessee, and (ii)
assist with de-registration of the Aircraft from the register
of aircraft in the State of Registration.
(m) Lease Event of Default
The relevant Export Lessee shall be expressly entitled by the
Permitted Lease to terminate the leasing of the Aircraft by the
Lessee, and to repossess the same, at any time after the expiration
of the agreed grace period or remedy period, if any, of the
occurrence of certain events, which will be broadly consistent with
those set out in Clause 20 of such Model Lease Agreement, amended
mutatis mutandis to reflect the change in Lessee, but in any event
including in such events, failure of the concerned Lessee to pay
amounts payable by it thereunder or to affect Insurances in
accordance with the requirements of the relevant Permitted Lease or
the bankruptcy of such
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Lessee. The relevant Export Lessee may negotiate with the applicable
Lessee additional exceptions and qualifications which are consistent
with the Standard.
(n) Assignment
No assignment, novation, transfer, mortgage or other charge may be
made by the Lessee of any of its rights with respect to the
Airframe, any Engine or any Part or under the Permitted Lease.
(o) Governing Law
The relevant Export Lessee shall attempt to procure that the
governing law of the Permitted Lease shall be English law or New
York law. However, the governing law may be the law of another
country if the legal opinion (of counsel qualified in such country)
states that the Permitted Lease constitutes binding and enforceable
obligations of the Lessee under such law (such opinion may be
subject to qualifications acceptable to the Lessor, acting in
accordance with the Standard).
(p) Additional Documents
Any ancillary documents or letter agreements entered into by the
relevant Export Lessee with the Lessee shall not contain any
provisions which conflict with or qualify the provisions of this
Schedule.
(q) Required Insurance Value
The amount payable by the Lessee to the relevant Export Lessee under
the Permitted Lease at any time on the consequence of a Total Loss
of the Aircraft will not be less than the Required Insurance Value
with respect to such Aircraft at such time.
PART 2 OPERATIONAL UNDERTAKINGS
"OPERATIONAL UNDERTAKINGS" means the following:
(a) Possession
(i) The relevant Aircraft and the operations performed therewith
shall, subject to applicable laws, rules and regulations of
the Aviation Authority, be under the exclusive control of the
relevant Export Lessee or GFC or the duly authorised and
qualified agents of the relevant Export Lessee or GFC.
(ii) The relevant Export Lessee shall not without the prior written
consent of the Security Trustee (no such consent to be
unreasonably withheld or delayed), deliver, relinquish or
transfer possession of the relevant Aircraft except to a
Lessee pursuant to a Permitted Lease or except for transfer of
possession and replacement of Parts as provided in the
Replacement of Parts, Alterations, Modifications and Additions
Undertakings provided, however, that, so long as no
Termination Event shall have occurred and be continuing, the
relevant Export Lessee may, subject to (e) below),
(aa) deliver possession of the relevant Aircraft, any Engine
or any Part thereof to an authorised maintenance
performer for service, repair, maintenance or overhaul
work required by the terms hereof, or for modifications,
alterations or additions permitted by the provisions of
this Agreement, or
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(bb) install an Engine on any other Airframe, or
(cc) subject any Engine to normal interchange or pooling
agreements or arrangements customary in the airline
industry which pooling or interchange shall not
constitute a waiver of any right or remedies of any
Finance Party,
(dd) provided that no agreement or arrangement described in
(aa), (bb) or (cc) above contemplates or requires the
transfer of title to any Engine and any Engine or Part
so removed shall be subject to separate insurance
coverage.
(b) Export Lessee's responsibility for certain cost
The relevant Export Lessee shall:
(i) pay for and provide all electric power, oil, fuel and
lubricant consumed by and required for the operation of the
relevant Aircraft; and
(ii) promptly pay all navigation charges (including landing fees,
departure fees and airport taxes) the non-payment of which
could result in a Lien upon the Aircraft.
(c) Lawful insured operations
The relevant Export Lessee will not cause or permit the relevant
Aircraft, to be maintained, used or operated in violation of any
law, treaty, statute, rule, regulation or order of any Governmental
Entity having jurisdiction or contrary to the relevant
Manufacturer's operating manuals and instructions, or, in the case
of the relevant Aircraft and the Engines, in violation of any
airworthiness certificate or registration relating thereto. The
relevant Export Lessee agrees not to operate any the relevant
Aircraft:
(i) unless such Aircraft is covered by insurance as required by
the Insurance Undertakings or
(ii) contrary to the terms of the insurance required by the
provisions of Insurance Undertakings.
(d) Notice of maintenance
Regardless of the identity of the authorised maintenance performer
the relevant Export Lessee shall notify the Security Trustee, as
soon as reasonably practicable prior to the scheduled commencement
thereof, of each upcoming major structural inspection (complete or
partial), or other major check to be performed on the relevant
Airframe and of any Engine overhaul.
(e) Maintenance
The relevant Export Lessee, at its own cost and expense, or by
application of any available Maintenance Reserves and/or Security
Deposits, shall or shall procure that the authorised maintenance
performer shall:
(i) service, repair, maintain, overhaul and test, or cause the
same to be done to, the relevant Aircraft (A) so as to keep
the relevant Aircraft in the same condition as when delivered
pursuant to the Airbus Purchase Agreement,
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ordinary wear and tear excepted, and in good operating
condition, and (B) so as to keep the relevant Aircraft in the
condition necessary to enable the airworthiness certification
of the relevant Aircraft to be maintained in good standing at
all times under all Applicable Laws and regulations of the
Aviation Authority and to obtain an airworthiness certificate
from the applicable regulatory authorities of at least one of
the United States, the JAA, Japan and Australia;
(ii) maintain or procure the maintenance of all records, logs and
other materials (including, without limitation, all Technical
Records) required by the Aviation Authority or the FAA in
respect of the Aircraft;
(iii) prior to or promptly after the commencement of the next
succeeding Permitted Lease, incorporate into the relevant
Aircraft all mandatory Service Bulletins issued by the
Manufacturer or the relevant Engine Manufacturer and which are
required to be performed on or before the date of such
commencement;
(iv) carry out, on the relevant Aircraft, each applicable
Airworthiness Directive which the Aviation Authority may from
time to time issue on or by the date upon which the same is
required to be carried out;
(v) maintain all records and documents required by the Aviation
Authority or the Maintenance Program;
(vi) maintain, service, repair and overhaul the relevant Airframe
and the related Engines to comply with all warranty
requirements pursuant to the Airbus Purchase Agreement or, as
the case may be, any Warranties in relation to the relevant
Engine provided by the Engine Manufacturer;
(vii) equip each relevant Airframe at all times with two Engines
(except as may be required for maintenance); and
(viii) cause all maintenance and repairs to the relevant Aircraft to
be done by an authorised maintenance performer.
(f) Insignia and notices
The relevant Export Lessee will affix and maintain at all times on
and after the Delivery Date applicable to any relevant Aircraft in
the cockpit of such Aircraft adjacent to and in and equally
prominent position as the airworthiness certificate therein a
nameplate bearing the inscription "This Aircraft is owned by [name
of Borrower which is the owner] and [so long as such Aircraft is
subject to the Mortgage] is subject to a mortgage in favour of
Credit Lyonnais." or such other inscription as the Security Trustee
from time to time may reasonably request in order to show the
interests of the Finance Parties in such Aircraft or Engine, as the
case may be. The relevant Export Lessee will not allow any person to
place the name or other indication of any person to be placed on the
relevant Airframe or any Engine as a designation that might be
interpreted as a claim of ownership except that the relevant Export
Lessee may permit any Permitted Lessee or prospective Permitted
Lessee pursuant to a Permitted Lease to place its customary colours
and insignia on the relevant Airframe and any relevant Engine in
contemplation of the commencement of the leasing pursuant to such
Permitted Lease.
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(g) Use of Aircraft
(i) The relevant Export Lessee shall use, or permit the use of,
the relevant Aircraft solely in commercial operations for
which the relevant operator is duly authorised and not use, or
permit the use of, the Aircraft for any purpose for which it
is not suitable. Nothing herein shall prohibit the relevant
Export Lessee reasonable use and demonstration of the Aircraft
in remarketing thereof. The relevant Export Lessee shall
comply with all regulations of the Aviation Authority.
(ii) The relevant Export Lessee shall not permit the relevant
Aircraft to be (A) flown to or within an Prohibited Country or
operated or used by or for any person which is a national of,
or established under, the laws of, or whose principal place of
business or principal place of aircraft operations is located
in, an Prohibited Country, (B) principally used in, or
operated or used by or for any person which is a national of,
or established under the laws of, or whose principal place of
business or principal place of aircraft operations is located
in, a Prohibited Country, (C) "primarily based" in one or more
Prohibited Countries and for the purposes of this provision,
"primarily based" shall mean that during any consecutive seven
(7) day period, the aggregate amount of time spent on the
ground by the Aircraft in one or more Prohibited Countries
shall exceed fifteen per cent. (15%) of the total amount of
time spent on the ground during such seven (7) day period,
provided that the limitation imposed by this paragraph (C)
shall not prohibit, to the extent necessary, any non-recurring
emergency maintenance or other non-recurring emergency repairs
to be done with respect to the relevant Aircraft in a
Prohibited Country, (D) operated or used at any time for any
illegal purpose or in an illegal manner, or (E) operated or
located in an area excluded from coverage by required
insurance.
PART 3 REPLACEMENT OF PARTS, ALTERATIONS, MODIFICATIONS AND ADDITIONS
UNDERTAKINGS
"REPLACEMENT OF PARTS, ALTERATIONS, MODIFICATIONS AND ADDITIONS
UNDERTAKINGS" means the following:
(a) Replacement of Parts:
The relevant Export Lessee, at its own cost and expense or by
application of any available Maintenance Reserves and/or Security
Deposits, shall promptly replace all relevant Parts which may from
time to time become worn out, lost, stolen, destroyed, seized,
confiscated, damaged beyond repair, time-expired or permanently
rendered unfit for use for any reason whatsoever. In addition, in
the ordinary course of maintenance, service, repair, overhaul or
testing, the relevant Export Lessee may remove any relevant Part,
whether or not worn out, lost, stolen, destroyed, seized,
confiscated, damaged beyond repair or permanently rendered unfit for
use; provided that the relevant Export Lessee shall at its own cost
and expense replace such Part as promptly as practicable. All
replacement Parts shall be free and clear of all Liens (other than
Permitted Liens) and shall be in as good operating condition as, and
shall have a value and utility and modification status at least
equal to, the Parts replaced, assuming such replaced Parts were in
the condition and repair and of the value and utility required to be
maintained by the terms of the relevant Transaction Documents.
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(b) Title to replaced and replacement Parts:
(i) All Parts removed from the relevant Airframe or an Engine
shall remain the property of the relevant Borrower which is
the owner of such Airframe or Engine and subject to the
Mortgage (if any), no matter where located, until such time as
such Parts shall be replaced by Parts to which title shall
have vested in the relevant Borrower which is the owner of
such Airframe or Engine and subject to the Mortgage (if any)
and which have been incorporated or installed in or attached
to the relevant Airframe or such Engine and which meet the
requirements for replacement Parts specified in (a) above.
(ii) Immediately upon any replacement Part becoming incorporated,
installed or attached as provided above, without further act,
(A) title to the replaced Part shall thereupon vest in the
Borrower which is the owner of such Airframe or Engine, free
and clear of the Mortgage (if any) and (B) subject to (c)
below, such replaced Part shall no longer be deemed a Part
hereunder; (C) title to the replacement Part shall on
replacement vest in the relevant Borrower; and (D) such
replacement Part shall be deemed to be a Part to the same
extent as the Parts originally incorporated or installed in or
attached to the relevant Airframe or such Engine.
(iii) Any Part removed from the relevant Airframe or any Engine may
be subject to a normal pooling agreement or arrangement
customary in the airline industry; provided that a Part which
meets the requirements for replacement Parts specified in (a)
above shall be incorporated or installed in or attached to
such Airframe or Engine in accordance with (b)(i) and (b)(ii)
above as promptly as possible after the removal of such
removed Part.
(c) Any replacement part when incorporated or installed in or attached
to the relevant Airframe or an Engine from time to time may be owned
by an air carrier other than a Lessee, subject to a normal pooling
arrangement; provided that the relevant Borrower which is the owner
of such Airframe or Engine, at its expense, as promptly thereafter
as possible either (A) acquires title to such replacement part free
and clear of all Liens (other than Permitted Liens), or (B) replaces
such replacement part by incorporating or installing in or attaching
to the relevant Airframe or an Engine a further replacement part
owned by such relevant Borrower free and clear of all Liens (other
than Permitted Liens) such replacement part in either case thereupon
becoming a Part.
PART 4 INSURANCE UNDERTAKINGS
"INSURANCE UNDERTAKINGS" means the following:
(A) PUBLIC LIABILITY, BODILY INJURY AND PROPERTY DAMAGE LIABILITY
INSURANCE
The relevant Export Lessee, at its own expense, shall maintain or
cause to be maintained in effect to the fullest extent available in
the leading international insurance markets Aircraft Third Party
(Bodily Injury and Property Damage), Passenger, Baggage, Cargo and
Mail and Airline General Third Party (including Products) Legal
Liability for a Combined Single Limit (Bodily Injury/Property
Damage) and War and Allied Risks of an amount not less than six
hundred million Dollars ($600,000,000) any one occurrence (but in
respect of products liability this limit may be an aggregate limit
for any and all losses occurring during the currency of the policy
and in the case of baggage will extend to Lessee's liability solely
in instances of loss or damage to the Aircraft).
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All such policies shall be maintained in effect directly with
independent insurers (for the avoidance of doubt not being a
Government Entity) of recognised reputation and financial
responsibility satisfactory to the Security Trustee. Any policies of
insurance carried in accordance with these undertakings and any
policies taken out in substitution or replacement for any of such
policies shall:
(i) name the relevant Borrower, the relevant Export Lessee, each
of the Finance Parties and all other additional insureds, as
additional insureds (ADDITIONAL INSUREDS);
(ii) provide that, in relation to the interests of each of the
Additional Insureds, the Insurances will not be invalidated by
any act or omission (including misrepresentation and
non-disclosure) of any other person or party which results in
a breach of any term, condition or warranty of the policy,
provided that the additional insured party so protected has
not caused, contributed to or knowingly condoned the said act
or omission;
(iii) provide that if the insurers cancel such insurance for any
reason whatever, or the same is allowed to lapse for
non-payment of premium, or if there is any material change in
policy terms and conditions, such cancellation, lapse or
change shall not be effective until 30 days (and with respect
to war risk insurance, such shorter period as shall be
customary in the international aviation market for such
insurance in such area of the world) after prior written
notice to the Security Trustee from such insurers or brokers
of such cancellation, lapse or change;
(iv) be primary without right of contribution from any other
insurance which may be available to any Additional Insured;
(v) expressly provide that all of the provisions thereof, except
the limits of liability, shall operate in the same manner as
if there were a separate policy covering each insured, but
this provision shall not operate to include any claim arising
in respect of loss or damage to the Aircraft or Engines
insured under the hull insurance provided below, and provided
further that the foregoing shall not increase the total
liability of the insurers beyond the limits of liability
stated in the policy;
(vi) provide for world wide coverage in full force and effect
throughout any geographical areas traversed by the Aircraft or
Engines; and
(vii) provide, to the fullest extent customarily available in the
international aviation insurance markets, in respect of the
Aircraft at all times cover in respect of risks associated
with failure of any Computer System to be Year 2000 Compliant
(so that if at any time "Clause AVN2000 Date Recognition
Clause" or any equivalent clause is endorsed on the relevant
policies, "Clause AVN2001 Date Recognition Limited Coverage
Clause" and "Clause AVN2002 Date Recognition Limited Coverage
Clause" or equivalent clauses are similarly endorsed on such
policies), where;
(aa) "Computer System" means any computer hardware and
software or any equipment operated by electronic means;
and
(bb) "Year 2000 Compliant" means, in relation to any Computer
System, that any references to or use of a date before,
on or after
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31 December, 1999 in the operation of the Computer
System will not have an adverse effect on the use of
that Computer System.
Without increasing the scope of coverage under the airline
liability policies, the insurers thereunder shall acknowledge
the existence of the Mortgages and the relevant Borrower
Security Assignment and Lease Security Assignments and, if
available at no additional cost to the relevant Export Lessee,
provide coverage for the indemnification provisions of this
Agreement. The insurers shall also, where appropriate and
available, acknowledge that the Finance Parties have no
operational control over the Aircraft.
(B) INSURANCE AGAINST LOSS OR DAMAGE TO THE AIRCRAFT
The relevant Export Lessee, at its own or any Lessee's expense,
shall maintain or cause to be maintained directly in effect with
independent insurers (for the avoidance of doubt not being a
Government Entity) of recognised reputation and financial
responsibility satisfactory to the Security Trustee:
(i) all-risk ground and flight aircraft hull insurance covering
each Aircraft;
(ii) all-risk spares coverage with respect to Engines or Parts
while removed from each Aircraft; and
(iii) war risk, hijacking (air piracy), confiscation,
nationalisation, expropriation and related perils coverages
covering each Aircraft and its spares.
All such insurance shall be in full force and effect throughout any
geographical areas traversed at any time by the relevant Aircraft or
Engines, shall be payable in Dollars or Euro (or such other currency
as approved by the Agent) and shall be in an amount of not less than
the Required Insurance Value as to the relevant Aircraft and be the
subject of an Assignment of Insurances in form and substance
reasonably acceptable to the Security Trustee. Any hull insurance
carried in accordance with this paragraph shall not contain a
provision for deductible self-insurance amount in excess of one
million Dollars ($1,000,000). Each Engine, after removal from the
Aircraft of which it forms part and while not installed on any other
Airframe shall be insured for not less than six million Dollars
($6,000,000) under the policy referenced in (ii) above. Any policies
carried in accordance with this undertaking shall:
(aa) provide that if such insurance is cancelled or materially
changed for any reason whatever, or the same is allowed to
lapse for non-payment of premium, such cancellation, change or
lapse shall not be effective for 30 days (and with respect to
war risk insurance, such shorter period as shall be customary
in the International Aviation market for such insurance in
such area of the world) after prior written notice to the
Security Trustee from such insurers of such cancellation or
lapse or material change in policy terms and conditions;
(bb) provide that, in relation to the interests of each of the
Additional Insureds, the Insurances will not be invalidated by
any act or omission (including misrepresentation and
non-disclosure) of any other person or party which results in
a breach of any term, condition or warranty of the policy,
provided that the additional insured party so protected has
not caused, contributed to or knowingly condoned the said act
or omission;
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(cc) include waivers by the insurers of any rights of subrogation
or set-off, counterclaim or other deduction whether by
attachment or otherwise, in respect of any liability of the
relevant Export Lessee except in respect of premiums in
respect of the relevant Aircraft which are the subject of the
relevant Permitted Lease;
(dd) where appropriate and available, be primary without right of
contribution from any other insurance which may be available
to any Additional Insured;
(ee) provide that in the event of a dispute between the
underwriters subscribing to the Hull Risks Policy and the
insurance underwriters subscribing to the Hull War and Allied
Risks Policy each policy shall subscribe to 50% of the agreed
valid claim in accordance with "50/50" clause AVS 103.
(ff) without increasing the scope of coverage under the airline
liability policies, the insurers thereunder shall acknowledge
the existence of the Mortgage and the relevant Borrower
Security Assignment, the Lease Security Assignments and the
relevant Assignment of Insurances. The insurers shall also,
where appropriate and available, acknowledge that none of the
Finance Parties has any operational control over the relevant
Aircraft.
(C) CONTRACT PARTIES AND DOCUMENTS
If and for as long as the same shall be customary or available in
the international aviation insurance markets, the relevant Export
Lessee shall ensure that for the purposes of Lloyds Endorsement AVN
67B in relation to all policies of Insurance for an Aircraft:
(i) this Agreement and the Transaction Documents relevant to that
Aircraft are identified as Contracts; and
(ii) the Additional Insureds are named as the Contract Parties.
(D) APPLICATION OF TOTAL LOSS PROCEEDS
The proceeds of any policy of Insurance shall be applied in
accordance with the provisions of this Agreement.
(E) LOSS PAYEE
The Security Trustee shall be the sole loss payee in relation to
Total Loss Proceeds. If a Relevant Event has occurred and is
continuing under any of the Transaction Documents, any claim,
settlement (net of any policy deductible) shall be made to the order
of the Security Trustee in its capacity as sole loss payee entitled
to receive such funds or to its order.
(F) REPORTS, ETC.
The relevant Export Lessee and the relevant Export Lessee's
independent insurance broker shall advise the Security Trustee in
writing promptly of any default in the payment of any premium and of
any other act or omission on the part of the relevant Export Lessee
which might invalidate or render unenforceable, in whole or in part,
any insurance on any Aircraft. On the renewal date of any insurance
policy maintained with respect to any Aircraft pursuant to this
undertaking, the relevant Export Lessee shall provide the Security
Trustee with the insurance certificates executed by an independent
aircraft insurance broker together with their letter of undertaking.
Page 95
(G) ADDITIONAL INSURANCE
No additional insurance procured by the relevant Export Lessee shall
have the effect of suspending, impairing, defeating, invalidating or
rendering unenforceable or reducing, in whole or in part, the
coverage of or the proceeds payable under any insurance required to
be provided and maintained by the relevant Export Lessee pursuant to
this undertaking.
(H) ADDITIONAL INSUREDS NOT LIABLE FOR PREMIUMS
All policies of insurance carried hereunder shall clearly state that
none of the Finance Parties nor any other Additional Insureds nor
any assignee of such party, shall have any liability for or
obligation with respect to premiums, commissions, assessments or
calls, but shall have the right to pay the same with respect to any
Aircraft and/or Engines.
(I) CONTINUING INSURANCE
The Security Trustee and/or the Agent may require the relevant
Export Lessee to effect and to maintain (or procure) insurance after
the end of the Lease Period in relation to any Aircraft with respect
to its liability under the indemnities under Clause 13.1 of this
Agreement for such period as the Security Trustee or the Agent, as
the case may be, may require (but in any event not after the second
anniversary of the end of such Lease Period). The relevant Export
Lessee's obligation under this paragraph (i) shall not be affected
by the relevant Export Lessee ceasing and/or any of the Indemnitees
ceasing to have any interest in the relevant Aircraft.
(J) FAILURE TO INSURE
If the relevant Export Lessee fails to insure or procure insurance
for any Aircraft in accordance with this undertaking, the Security
Trustee may (but is not obliged to):
(i) pay outstanding premiums or effect alternative insurance in
respect of such Aircraft to rectify the relevant Export
Lessee's failure and any cost incurred by the Security Trustee
in the exercise of this right shall be reimbursed by the
relevant Export Lessee on demand together with interest
thereon equal to the Default Rate, and
(ii) require such Aircraft to be grounded at an airport of its
choice and to remain there until it is once again insured in
accordance with this undertaking.
(K) CHANGE IN INDUSTRY PRACTICE
(a) If there is a material change in the generally accepted
industry-wide practice with regard to the insurance of aircraft or
any material change with respect to the insurance of aircraft based
or operated in any jurisdiction in which the Aircraft may then be
based or operated (whether relating to all or any of the types of
Insurances required to be effected hereby) such that GFC or the
Security Trustee, having regard to the advice of its insurance
adviser, shall be of the reasonable opinion that the Insurances
required to be effected hereby are insufficient to protect the
respective interests of the Lessee in the Additional Assureds
(bearing in mind the nature and route of operation of the Aircraft),
these insurance requirements shall, following consultation with the
Lessee, be amended, as soon as practicable following notice by GFC
or the Security Trustee to the Lessee, so as to include such
additional or varied requirements as may be reasonably necessary to
ensure that the insurance as so varied shall provide
Page 96
comparable protection to the Lessee in the Additional Assureds to
that which it would have done if such change had not occurred.
(b) If, at any time, the Insurances required under Part 4 of Schedule 6
paragraph A in relation to War and Allied Risks cease, or will
cease, to be available in the worldwide aviation insurance market on
a per occurrence basis, then (without in any way limiting, reducing
or otherwise qualifying any of the Lessee's obligations under the
Lease Agreement in relation to such Insurances and/or the rights of
the lessor in relation thereto under the Lease Agreement) if there
occurs any event that gives rise to a claim under such Insurances in
relation to the Aircraft or any other aircraft operated by the
Lessee, the Lessee shall either (a) immediately cause to be
reinstated the coverage in relation to such Insurances that was in
place immediately prior to the occurrence of such event or (b)
immediately ground the Aircraft and ensure that the Aircraft is
covered by such ground risk coverage as is customary in accordance
with normal industry practice in an amount at least equal to that
required under Part 4 of Schedule 6 paragraph A.
(c) If, at any time, any of the Insurances required to be effected
hereby cease, or will cease, to be available on reasonable
commercial terms in the worldwide aviation insurance market, GFC,
the Security Trustee and the Lessee agree (without in any way
limiting, reducing or otherwise qualifying any of the Lessee's
obligations under the Lease Agreement in relation to such Insurances
and/or the rights of the lessor in relation thereto under the Lease
Agreement) to hold good faith discussions at such time for a period
of up to seven (7) days to ascertain what alternatives (if any) to
such Insurances exist. GFC and the Security Trustee shall not be
under any obligation to take any action, grant consents or waivers
or take other steps if to do so (a) would or would be likely to
involve it in any unlawful activity or would involve it in any loss,
cost, liability or expense or Tax disadvantage unless indemnified by
the Lessee to their satisfaction or (b) would be reasonably likely
to adversely affect the rights and interests of any of the Finance
Parties under the Transaction Documents.
(L) REINSURANCES
Where reinsurances are required to be placed according to the terms
of this Agreement such reinsurances shall (a) be on the same terms
as the original insurances and will include the provisions of this
Schedule, (b) provide that notwithstanding any bankruptcy,
insolvency, liquidation or similar proceedings or affecting the
reinsured that the reinsurers' liability will be to make such
payments as would have fallen due under the relevant policy of
reinsurance if the reinsured had (immediately before such
bankruptcy, insolvency, liquidation, dissolution or similar
proceedings) discharged its obligations in full under the original
insurance policies in respect of which the then relevant policy of
reinsurance has been effected; and (c) be at such levels as are
standard market practice for the jurisdiction of the primary insurer
and consistent with levels applied by GFC with respect to its other
aircraft operated in such jurisdiction or such other levels proposed
by GFC and agreed to by the Security Trustee; and (d) contain a
"cut-through" clause in the following form (or otherwise,
satisfactory to the relevant Export Lessee and reasonably
satisfactory to the Security Trustee): "The Reinsurers and the
Reinsured hereby mutually agree that in the event of any claim
arising under the reinsurances in respect of a total loss where such
claim is to be paid to the person named as loss payee under the
primary insurances, the Reinsurers will in lieu of payment to the
Reinsured, its successors in interest and assigns pay to the person
named as loss payee under the primary insurances effected by the
Reinsured, that portion of any loss due for which the Reinsurers
would otherwise be liable to pay the original Reinsured (subject to
proof of loss), it being understood and agreed that
Page 97
any such payment by the Reinsurers will (to the extent of such
payment) fully discharge and release the Reinsurers from any and all
further liability in connection therewith subject to such provisions
not contravening any law of the State of Incorporation.
(M) RENEWALS
The relevant Export Lessee will monitor the insurances on the
Aircraft and their expiration dates. Promptly after receipt, the
relevant Export Lessee will provide to the Security Trustee evidence
of renewal of the insurances and reinsurance (if any).
(N) INFORMATION
The relevant Export Lessee shall provide the Security Trustee or
shall ensure that the Security Trustee is provided with any
information reasonably requested by the Security Trustee from time
to time concerning the insurances maintained with respect to the
Aircraft or, if reasonably available to the relevant Export Lessee,
in connection with any claim being made or proposed to be made
thereunder.
(O) REPORTS AND BROKER'S UNDERTAKINGS
On or before the Delivery Date in respect of each Aircraft, and
thereafter on or prior to each renewal or replacement of the
insurance required hereby, but not less often than annually, the
relevant Export Lessee will obtain from the Lessee one or more
original certificates (in the case of renewal or replacement
confirmation shall be obtained prior to renewal/replacement with
certification to be delivered as soon as practicable), each executed
and delivered by an insurance broker appointed by Lessee and
approved by the relevant Export Lessee, and a certified English
translation thereof, which together shall describe in reasonable
detail insurance carried on the Aircraft. The relevant Export Lessee
will cause such approved insurance broker to agree to advise the
Additional Insureds:
(a) promptly in writing of the receipt by them of any notice of
cancellation or material change in the insurances;
(b) if any premiums are not paid to them in accordance with the
accounting procedures that exist between the Lessee and themselves
before they notify insurers of such non-payment of premiums;
(c) if requested, of the premium payment situation; and
(d) if they cease to be Insurance Brokers to the Lessee.
Page 98
SCHEDULE 6 - PART I: CONDITIONS PRECEDENT TO THE FACILITY
The obligations of each of the Lenders and the Representatives under this
Agreement with respect to the first Utilisation hereunder shall be subject to
the following conditions precedent having been fulfilled to the satisfaction of,
or waived in writing by, the Agent (acting on the instructions of the Majority
Lenders acting reasonably):
(a) certificates signed by a director or the company secretary of each
of the Cayman Borrower and the Irish Borrower setting out the
specimen signature of those persons authorised to sign the
Transaction Documents to which such Borrower is or is to be a party
and attaching and certifying as true copies of the originals, copies
of:
(i) the certificate of incorporation and the memorandum and
articles of association of such Borrower;
(ii) the resolutions of the board of directors of such Borrower
approving the execution and performance by such Borrower of
each Transaction Document to which such Borrower will or may
be a party; and
(iii) a power of attorney appointing those persons authorised to
sign on behalf of such Borrower each Transaction Document to
which such Borrower is, or may be, a party;
(b) certificates signed by a director, company secretary or assistant
company secretary of each of the Cayman Export Lessee and the Irish
Export Lessee setting out the specimen signature of those persons
authorised to sign the Transaction Documents to which such Export
Lessee is or is to be a party and attaching and certifying as true
copies of originals, copies of:
(i) the certificate of incorporation and the memorandum and
articles of association of such Export Lessee;
(ii) the resolutions of the board of directors of such Export
Lessee approving the execution and performance by such Export
Lessee of each Transaction Document to which such Export
Lessee will or may be a party; and
(iii) a power of attorney appointing those persons authorised to
sign on behalf of such Export Lessee each Transaction Document
to which such Export Lessee is, or may be, a party;
(c) a certificate signed by the General Counsel of GFC setting out the
specimen signature of those persons authorised to sign the
Transaction Documents to which GFC is or is to be a party and
attaching thereto, and certifying as true copies of the originals:
(i) copies of the Certificate of Incorporation and by-laws of GFC;
(ii) an Officer's Certificate of GFC given by the General Counsel
of GFC certifying that the person or persons who execute and
deliver such Transaction Documents on behalf of GFC are
authorised to take such action on behalf of GFC;
(iii) an incumbency and specimen signature certificate as to the
person or persons authorized to execute and deliver such
Transaction Documents on behalf of GFC;
Page 99
(d) a duly executed original of the Cayman Borrower Share Charge and the
Irish Borrower Share Charge together with originals of the share
certificates of such Borrower, as referred to therein and duly
executed originals of the letters of resignation, irrevocable proxy
and undated share transfer forms referred to therein;
(e) a duly executed original of the Cayman Borrower Floating Charge and
the Irish Borrower Floating Charge duly executed by the Cayman
Borrower and the Irish Borrower respectively together with duly
executed originals of the notices and acknowledgements referred to
herein;
(f) a duly executed original of the Cayman Export Lessee Share Charge
and the Irish Export Lessee Share Charge, duly executed by the
Cayman Export Lessee and the Irish Export Lessee respectively
together with originals of the share certificates of such Export
Lessee, as referred to therein and duly executed originals of the
letter of resignations, irrevocable proxy and undated share transfer
forms;
(g) originals of the Administration Agreements duly executed by all the
parties thereto;
(h) original of the Transaction Fee Letter duly executed by both parties
thereto;
(i) the Declaration of Trust duly executed by the parties thereto;
(j) an original Guarantee duly executed by all parties thereto;
(k) (to be provided by 31 January 2002) certificates of tax exemption in
respect of the Cayman Borrower and the Cayman Export Lessee from the
appropriate Cayman Islands authorities;
(l) a form W-8BEN duly executed by each of the Cayman Borrower and the
Irish Borrower as provided to the Export Lessees;
(m) the Fees Letter and the letter referred to in the definition of
Expenses, each duly executed by GFC;
(n) a letter from GATX International Limited accepting its appointment
as agent for service of process for the Cayman Borrower, the Irish
Borrower, the Cayman Export Lessee, the Irish Export Lessee and GFC;
(o) a legal opinion from Xxxxxx & Xxxxxx, Cayman Islands counsel to the
Lenders in relation to the Cayman Borrower and the Cayman Export
Lessee;
(p) a legal opinion from A & L Goodbody, Irish counsel to the Lenders in
relation to the Irish Borrower and the Irish Export Lessee;
(q) a legal opinion from Xxxxxx Xxxxx Sapte, English counsel to the
Lenders;
(r) a legal opinion from Xxxx Xxxxxxxx Xxxxxxxx and Xxxxxx, New York
counsel to the Lenders;
(s) a legal opinion from General Counsel to GFC in respect of GFC.
Page 100
SCHEDULE 6 - PART II: CONDITIONS PRECEDENT TO A UTILISATION
CONDITIONS PRECEDENT TO EACH UTILISATION
The obligations of each of the Lenders and the Representatives, under this
Agreement with respect to each Utilisation shall be subject to the following
conditions precedent having been fulfilled to the satisfaction of, or waived in
writing by, the Agent (acting on the instructions of the Majority Lenders acting
reasonably):
1 all representations and warranties made (or deemed repeated) by or on
behalf of the relevant Borrower and each other Obligor in Clause 6
(REPRESENTATIONS AND WARRANTIES), by GFC in the Guarantee and paragraph 2
of the relevant Accession Deed on the Utilisation Date shall be true and
accurate in the light of the circumstances and with reference to the facts
existing on the Utilisation Date (except to the extent that any
representation by GFC specifically relates to an earlier date).
2 prior to the Utilisation Date, or such lesser period as the Agent may have
agreed in writing, the Agent shall have received, in form and substance
satisfactory to it:
(A) duly executed originals of all previously undelivered Transaction
Documents to which the Agent and the applicable Obligor is to be a
party comprising the following documents for the relevant Aircraft:
(a) the Purchase Agreement Assignment;
(b) the BFE Xxxx of Sale;
(c) the relevant Engine Warranties Agreement;
(d) the Airframe Warranties Agreement;
(e) the Loan Supplement;
(f) the Mortgage (if applicable);
(g) the relevant Lease Security Assignment;
(h) a Xxxx of Sale;
(i) the relevant Borrower Security Assignment;
(j) the English Law Mortgage;
(k) the Credit Sale Agreement;
(l) the Acceptance Certificate;
(B) evidence that the initial rental payment due on the Delivery Date by
the relevant Export Lessee under the relevant Credit Sale Agreement
has been paid on such Delivery Date;
(C) with respect to such Utilisation, the Support Agreements or the
requisite approval of each of ECGD, COFACE and HERMES in lieu of
and/or as a precursor to the issue of the relevant Support
Agreement;
Page 101
(D) if applicable, evidence of registration of the Aircraft with the
applicable Aviation Authority;
(E) a certificate of the insurance broker in respect of the Insurances
together with a broker's letter of undertaking and any certificate
of reinsurance (if any) and reinsurance broker's letter of
undertaking (if any) in form and substance reasonably acceptable to
the Security Trustee;
(F) other than in relation to a Refinanced Aircraft, evidence
satisfactory to the Agent that the bills of sale/confirmation of
transfer by delivery of possession relating to the transfer of title
to the Aircraft and the installed Buyer Furnished Equipment and, if
applicable, lessee furnished equipment, will be delivered by the
Seller to the relevant Borrower (as the case may be);
(G) a commercial invoice for the Aircraft (including the installed Buyer
Furnished Equipment and, if applicable, lessee furnished equipment)
issued by the Seller specifying the net final contract price as
described in the relevant Airbus Purchase Agreement in relation to
the Aircraft;
(H) duly executed originals of all of the notices and acknowledgements
to the English law Mortgage and the Mortgage;
(I) Certified Copies of all consents, authorisations, approvals, filings
and registrations (if any) of or with any governmental or other
competent agency or authority (including in relation to exchange
control) which according to any of the legal opinions are required
to be obtained or made by any party to the Transaction Documents in
connection with the execution, delivery and performance of the
Transaction Documents or any documents contemplated thereby;
(J) Certified Copy of the Consent and Agreement;
(K) a Certified Copy of the Schedule of the Buyer Furnished Equipment
(and lessee furnished equipment, if applicable) (if not attached to
the relevant BFE Xxxx of Sale) together with confirmation that GFC
has paid for such Buyer Furnished Equipment;
(L) other than for the Refinanced Aircraft, a certificate from the
Manufacturer addressed to the Agent confirming that the Buyer
Furnished Equipment (and, lessee furnished equipment, if applicable)
has been installed on the Aircraft as at the Delivery Date in form
and substance satisfactory to the Export Credit Agencies;
(M) confirmation that a letter from the relevant Engine Manufacturer has
been sent to the Export Credit Agencies setting out the credit
memoranda deductible from the purchase price of the Aircraft in
respect of the relevant Engines;
(N) written confirmation from a duly authorised representative of the
relevant Export Lessee confirming that the conditions precedent to
the relevant Export Lessee's obligations to take on lease the
Aircraft from the relevant Borrower pursuant to the relevant Credit
Sale Agreement have been satisfied in full or waived by the relevant
Export Lessee;
(O) the Aircraft has not suffered a Total Loss, being a duly executed
Acceptance Certificate (as defined in the relevant Credit Sale
Agreement) duly executed by the relevant Export Lessee, and a duly
executed Certificate of Acceptance (as defined in the relevant
Purchase Agreement Assignment), duly executed by the relevant
Borrower;
Page 102
(P) certificates signed by a director or the company secretary of the
relevant [Borrower/Export Lessee/GFC] setting out the specimen
signature of those persons authorised to sign the documents to which
such [Borrower/Export Lessee/GFC] is or is to be a party and
attaching and certifying as true copies of the originals, copies of:
(i) the resolutions of the board of directors of such
[Borrower/Export Lessee/GFC] approving the execution and
performance by such Borrower of each document to which such
Borrower will or may be a party; and
(ii) a power of attorney appointing those persons authorised to
sign on behalf of such [Borrower/Export Lessee/GFC] each
document to which such [Borrower/Export Lessee/GFC] is, or may
be, a party;
(Q) written confirmation from the Manufacturer that the Purchase
Agreement is in full force and effect.
3 the following legal opinions:
(a) a legal opinion from Xxxxxx & Xxxxxx if the Cayman Borrower is to be
the owner of such Aircraft
(b) a legal opinion from A & L Goodbody, if the Irish Borrower is to be
the owner of such Aircraft
(c) a legal opinion from Xxxx Xxxxxxxx, Xxxxxxxx & Xxxxxx, New York
counsel to the Lenders;
(d) a legal opinion from Xxxxxx Xxxxx Sapte, English counsel to the
Lenders;
(e) a legal opinion from in-house counsel to the relevant Engine
Manufacturer;
(f) a legal opinion from in-house counsel to the Seller;
(g) a legal opinion from in-house counsel to GFC;
(h) a legal opinion from Xxxxxxxx Chance, Paris/Frankfurt/Munich
(depending on the delivery location of the relevant Aircraft) in
relation to the transfer of title to the Aircraft pursuant to the
Xxxx of Sale [and Lex Situs opinion with respect to Mortgage].
Page 103
SCHEDULE 6 - PART III : CONDITIONS PRECEDENT TO A UTILISATION FOR A REFINANCED
AIRCRAFT
The obligations of the Finance Parties to make an Advance under a Utilisation
relating to a Refinanced Aircraft are subject to the following conditions
precedent:
1 The relevant Refinanced Aircraft shall, on the relevant Utilisation, be
free and clear from all Liens other than Permitted Liens; and
2 The Agent shall have received on or before the Utilisation Date for any
Utilisation relating to a Refinanced Aircraft all of the following, each
in form and substance satisfactory to it (acting on the instructions of
the Majority Lenders) for each Refinanced Aircraft:
(a) a Certified Copy of the relevant Purchaser Xxxx of Sale duly
executed by the relevant seller;
(b) a Certified Copy of the Acceptance Certificate duly executed by the
Borrower;
(c) a legal opinion from counsel in the jurisdiction in which the
Aircraft is located at the time of title transfer approved by the
Agent in relation to the transfer of title of such Refinanced
Aircraft pursuant to the relevant Purchaser Xxxx of Sale;
(d) a certificate from GFC confirming that such Refinanced Aircraft
(including the Engines) was located in the jurisdiction in which the
counsel referred to above is located at the time of execution and
delivery of the relevant Purchaser Xxxx of Sale;
(e) a certificate from GFC that the representations and warranties made
by GFC remain true and correct as at the relevant Utilisation Date;
(f) evidence that relevant seller is authorised to enter into the
relevant Purchaser Xxxx of Sale and evidence of the authority of a
person or persons to sign and deliver such documents on behalf of
the Purchaser and any notices or other documents to be given or
entered into pursuant thereto;
(g) certified copy of the Purchaser Xxxx of Sale relating to the
transfer of title to the Aircraft will be delivered by the relevant
seller to the Borrower; and
(h) confirmation from the Seller that the Buyer Furnished Equipment in
respect of such Aircraft has been installed.
Page 104
SCHEDULE 6 - PART IV : CONDITIONS PRECEDENT TO LEASES OR RE-LEASING OF AN
AIRCRAFT
1. A Certified Copy of the Assignment of Insurances together with a notice of
assignment and, if available, an acknowledgement by the Insurers.
2. A certificate of the insurance broker in respect of the Insurances
together with a broker's letter of undertaking and any certificate of
reinsurance (if any) and reinsurance broker's letter of undertaking in
form and substance reasonably acceptable to the Security Trustee;
3. A Certified Copy of the relevant executed Lease, together with a
certificate from a duly authorised officer of GFC that such Lease complies
with the Minimum Lease Provisions.
4. Subject to Clause 7.8, a Mortgage in the agreed form with respect to the
Aircraft in a form suitable for registration in the State of Registration.
5. Executed Credit Sale Agreement and, where applicable, executed
Intermediate Lease, in each case in the agreed form.
6. A legal opinion from legal counsel acceptable to the Agent in each of:
(i) the State of Registration;
(ii) the jurisdiction of incorporation of the Borrower;
(iii) the jurisdiction of incorporation of any Export Lessee;
(iv) the jurisdiction of the Lessee;
(v) if different, the jurisdiction of the governing law of any document
to be executed in connection with the leasing of the Aircraft,
in each case in form and substance acceptable to the Agent.
8. An original, addressed to the Agent and the Export Credit Agencies, of any
legal opinion of any external counsel which the relevant Export Lessee or
GFC has obtained in connection with the leasing of the relevant Aircraft
to the relevant Lessee.
Page 105
SCHEDULE 7 - ENGLISH PROCESS AGENTS
Cayman Borrower: GATX International Limited
34th Floor
One Canada Square
Xxxxxx Xxxxx
Xxxxxx
X00 0XX
Irish Borrower: GATX International Limited
34th Floor
One Canada Square
Xxxxxx Xxxxx
Xxxxxx
X00 0XX
Cayman Export Lessee: GATX International Limited
34th Floor
One Canada Square
Xxxxxx Xxxxx
Xxxxxx
X00 0XX
Irish Export Lessee: GATX International Limited
34th Floor
One Canada Square
Xxxxxx Xxxxx
Xxxxxx
X00 0XX
GFC: GATX International Limited
34th Floor
One Canada Square
Xxxxxx Xxxxx
Xxxxxx
X00 0XX
Page 106
SCHEDULE 8 - FORM OF LOAN SUPPLEMENT
LOAN SUPPLEMENT NO. **
RELATING TO AN ADVANCE OF US$/EURO(EURO) FOR THE
FINANCING OF ONE AIRBUS [A319/320/321] AIRCRAFT WITH
MANUFACTURER'S SERIAL NUMBER **
DATED 200 [** ]
**
(as [Cayman/Irish] Borrower)
CREDIT LYONNAIS
(as Agent)
CREDIT LYONNAIS
(as Security Trustee)
XXXXXX XXXXX SAPTE
XXX XXXXX XXXXX
XXXXXX
XX0X 0XX
TEL: x00 (0)00 0000 0000
FAX: x00 (0)00 0000 0000
XXX.XXXXXXXXXXXXXXXX.XXX
Page 107
LOAN SUPPLEMENT NO. **
DATED 200 [** ]
BETWEEN
(1) ** a company incorporated in and existing under the laws of [the Cayman
Islands/Ireland] and having its registered office at ** (herein called the
[CAYMAN/IRISH] BORROWER);
(2) CREDIT LYONNAIS, a banking institution established under the laws of
France acting through its main office at 0-0 xxx xxx Xxxxxxxx, 00000
Xxxxx, Xxxxxx in its capacity as agent for and on behalf of itself and
each of the Lenders (herein in such capacity called the AGENT); and
(3) CREDIT LYONNAIS, a banking institution established under the laws of
France acting through its main office at 0-0 xxx xxx Xxxxxxxx, 00000
Xxxxx, Xxxxxx in its capacity as security trustee for and on behalf of
itself and each of the Lenders (herein in such capacity called the
SECURITY TRUSTEE).
RECITALS
A Pursuant to the Facility Agreement, the Lenders have agreed to make
available to the Borrowers (as defined in the Facility Agreement) a
facility of up to US$719,000,000 in respect of up to nineteen (19) Airbus
Industrie aircraft.
B A Utilisation Notice has been served in respect of the Aircraft.
C This Loan Supplement is supplemental to the Facility Agreement.
IT IS AGREED:
1 INTERPRETATION
1.1 Words and expressions defined in the Facility Agreement shall, unless
otherwise specifically defined herein or unless the context otherwise
requires, have the same respective meanings when used in this Loan
Supplement (including the Recitals and the Schedules).
1.2 In this Loan Supplement (including the Recitals and the Schedules) the
following words and expressions have, unless the context otherwise
requires, the following meanings:-
AIRCRAFT means the A[319/320/321] Airbus Aircraft with manufacturer's
serial number ** more particularly described in the relevant Mortgage.
BRITISH CREDITS shall have the meaning given thereto in Clause 2.1(b).
FACILITY AGREEMENT means the aircraft facility agreement dated [ ]
December 2001 between (1) the banks and financial institutions named
therein (as LENDERS), (2) Halifax plc, Credit Lyonnais and Bayerische
Landesbank Girozentrale (as NATIONAL AGENTS), (3) Kreditanstalt fur
Wiederaufbau (as GERMAN PARALLEL LENDER), (4) Credit Lyonnais (as AGENT),
(5) Credit Lyonnais (as SECURITY TRUSTEE), (6) EFG Aircraft Limited (as
CAYMAN BORROWER), (7) EFG Aircraft (Ireland) Limited (as IRISH BORROWER),
(8) XXxxxxxx Leasing Limited (as CAYMAN EXPORT Lessee), (9) X'Xxxxxxx
Leasing (Ireland) Limited (as IRISH EXPORT Lessee), (10) GATX
Page 108
Financial Corporation (GFC) and (12) Halifax plc and Credit Lyonnais (as
JOINT ARRANGERS), as amended, supplemented and acceded to from time to
time.
FRENCH CREDITS shall have the meaning given thereto in Clause 2. l(c).
GERMAN CREDITS shall have the meaning given thereto in Clause 2.1(d).
1.3 Clauses 1.3 and 1.4 of the Facility Agreement shall be deemed to be
incorporated herein, mutatis mutandis, as if reference therein to "this
Facility Agreement" were references to "this Loan Supplement".
2 AMOUNT OF CREDITS
2.1 (a) The aggregate amount of advances to be made by the Lenders in
respect of the Aircraft shall be ** Dollars/Euros (US$/(euro))
(b) The aggregate amount of advances to be made by the British Lenders
in respect of the Aircraft shall be ** Dollars/Euros (US$/
(euro)(herein called the BRITISH CREDITS) being ** per cent.
(** )of the Loan.
(c) The aggregate amount of advances to be made by the French Lenders in
respect of the Aircraft shall be ** Dollars/Euros (US$/(euro))
(herein called the FRENCH CREDITS) being ** per cent.
(** of the Loan.
(d) The aggregate amount of advances to be made by the German Lenders in
respect of the Aircraft shall not exceed ** Dollars/Euros
(USS(euro))(herein called the GERMAN CREDITS) being ** per
cent. (** of the Loan.
2.2 Each of the British Lenders shall only be responsible for the portion of
the British Credits specified opposite its name in Schedule 1, Part I,
each of the French Lenders shall only be responsible for the portion of
the French Credits specified opposite its name in Schedule 1, Part II and
each of the German Lenders shall only be responsible for the portion of
the German Credits set out opposite its name in Schedule 1, Part III.
3 REPAYMENT OF LOAN
Attached hereto as Schedule 2(1) are the repayment schedules in respect of
the Loan for each of the British Lenders, the French Lenders and the
German Lenders referred to in clause 3.6 (Repayment Schedules) of the
Facility Agreement.
4 APPLICABLE RATE
The [LIBOR/EURIBOR] rate for the first Interest Period shall be **
per annum.
5 UTILISATION DATE
For the purposes of clause 3.1 (Utilisation Notices) of the Facility
Agreement, the assumed Utilisation Date shall be **
Page 109
6 GOVERNING LAW AND JURISDICTION
6.1 This Loan Supplement shall be governed by and construed in accordance with
English law.
6.2 The [Cayman/Irish] Borrower hereby irrevocably agrees for the benefit of
the Agent and the Security Trustee that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceeding, and to
settle any disputes, which may arise out of or in connection with this
Loan Supplement and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
6.3 The [Cayman/Irish] Borrower hereby irrevocably waives any objection which
it might now or hereafter have to the courts referred to in Clause 6.2
being nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Loan Supplement and agrees not to claim that any such
court is not a convenient or appropriate forum in each case whether on the
grounds of venue or forum non conveniens or any similar grounds or
otherwise.
6.4 The [Cayman/Irish] Borrower hereby designates, appoints and empowers GATX
International Limited, 34th Floor, One Canada Square, Xxxxxx Xxxxx,
Xxxxxx, X00 0XX to accept service of process in respect of any suit,
action, proceeding or settlement under this Loan Supplement. If for any
reason such process agent no longer serves as agent to receive service of
process in England hereunder, the [Cayman/Irish] Borrower shall promptly
appoint such other agent acceptable to the Security Trustee.
6.5 The submission to the jurisdiction of the courts referred to in Clause 6.2
shall not (and shall not be construed so as to) limit the right of the
Agent or the Security Trustee to take proceedings against the
[Cayman/Irish] Borrower in any other court of competent jurisdiction nor
shall the taking of proceedings by the Agent or the Security Trustee in
any one or more jurisdictions preclude the taking of proceedings by the
Agent or the Security Trustee in any other jurisdiction, whether
concurrently or not.
6.6 To the extent that the [Cayman/Irish] Borrower or any of the property of
the [Cayman/Irish] Borrower is or becomes entitled at any time to any
immunity on the grounds of sovereignty or otherwise from any legal action,
suit or proceeding, from set-off or counterclaim, from the jurisdiction of
any competent court, from service of process, from attachment prior to
judgment, from attachment in aid of execution, or from execution prior to
judgment, or other legal process in any jurisdiction, the [Cayman/Irish]
Borrower for itself and its property does hereby irrevocably and
unconditionally waive, and agrees not to plead or claim, any such immunity
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with any of this Loan Supplement or the
subject matter hereof.
7 MISCELLANEOUS
7.1 This Loan Supplement may be executed in any number of counterparts and by
different parties hereto on separate counterparts each of which when
executed and delivered shall constitute an original but all counterparts
shall together constitute but one and the same instrument.
7.2 All amendments to this Loan Supplement shall be made in writing and in
accordance with the provisions of clause 24 (Miscellaneous) of the
Facility Agreement.
7.3 This Loan Supplement is supplemental to the Facility Agreement and the
Advance referred to herein is made in accordance with and shall be
regulated by the terms and conditions of the Facility Agreement, the other
Transaction Documents and the relevant Transaction Documents.
Page 110
AS WITNESS the hands of the duly authorised representatives of the parties
hereto on the date first-before written.
Page 111
SCHEDULE 1 - PART I - THE BRITISH LENDERS
PORTION OF THE
ADDRESS FOR JURISDICTION OF CREDITS
LENDER LENDING OFFICE NOTICES INCORPORATION (US$/EUROS (EURO))
Halifax plc Halifax plc Structured Finance England
Trinity Road Halifax plc
Halifax 00 Xxx Xxxxx Xxxxxx
Xxxx Xxxxxxxxx Xxxxxx
XX0 0XX XX0X 0XX
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Attn: Xxxx Gear
Page 112
SCHEDULE 1 - PART II - THE FRENCH LENDERS
PORTION OF THE
ADDRESS FOR JURISDICTION OF CREDITS
LENDER LENDING OFFICE NOTICES INCORPORATION (US$/EUROS (EURO))
Credit 0-0 xxx xxx 0-0 xxx xxx Xxxxxxxx Xxxxxx
Lyonnais Italiens 75009 Xxxxx
00000 Xxxxx Xxxxxx
France Tel: x00 0 0000 0000
x00 0 0000 0000
Fax: x00 0 0000 0000
x00 0 0000 0000
Attn: Transportation
Group/Middle Office
Halifax plc Halifax plc Structured Finance England
Trinity Road Halifax plc
Halifax 00 Xxx Xxxxx Xxxxxx
Xxxx Xxxxxxxxx Xxxxxx
XX0 0XX XX0X 0X0
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Attn: Xxxx Gear
Page 113
SCHEDULE 1 - PART III - THE GERMAN LENDERS
PORTION OF THE
ADDRESS FOR JURISDICTION OF CREDITS
LENDER LENDING OFFICE NOTICES INCORPORATION (US$/EUROS (EURO))
Bayerische Xxxxxxxx Xxxxxxx 00 Xxxxxxxx Xxxxxxx 00 Xxxxxxx
Landesbank D-80333 X-00000
Xxxxxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Germany
Tel: x00 00 0000 00000
Fax: x00 00 0000 00000
Attn: Wolfgang Schnull
Kreditanstalt fur Kreditanstalt fur Kreditanstalt fur Germany
Wiederaufbau Wiederaufbau Wiederaufbau
Palmengartenstras Export and Project
se 5-9, 60325 Finance - Aerospace,
Frankfurt am Xxxxxxxxxxxxxxxxxxx 0-0,
Xxxx, Xxxxxxx 00000 Xxxxxxxxx xx Xxxx,
Xxxxxxx
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Attn: Aviation Group K
III b 2
Page 114
SCHEDULE 2 (1) - REPAYMENT SCHEDULE - PART A - THE BRITISH LENDERS
Based on a purchase price of US$/Euros (euro) with a percentage split as
follows:
UK **
France **
Germany **
[4]
[1] [2] [3] PRINCIPAL AMOUNT
NUMBER DATES PRINCIPAL REPAYMENTS OUTSTANDING
------ ----- -------------------- ----------------
1
2
3
4
5
6
7
9
10
11
12
13
14
15
16
17
18
19
20
Page 115
SCHEDULE 2 (1) - REPAYMENT SCHEDULE - PART B - THE FRENCH LENDERS
Based on a purchase price of US$/Euros (euro) with a percentage split as
follows:
UK **
France **
Germany **
[4]
[1] [2] [3] PRINCIPAL AMOUNT
NUMBER DATES PRINCIPAL REPAYMENTS OUTSTANDING
------ ----- -------------------- ----------------
1
2
3
4
5
6
7
9
10
11
12
13
14
15
16
17
18
19
20
Page 116
SCHEDULE 2 (1) - REPAYMENT SCHEDULE - PART C - THE FRENCH LENDERS
Based on a purchase price of US$/Euros (euro) with a percentage split as
follows:
UK **
France **
Germany **
[4]
[1] [2] [3] PRINCIPAL AMOUNT
NUMBER DATES PRINCIPAL REPAYMENTS OUTSTANDING
------ ----- -------------------- ----------------
1
2
3
4
5
6
7
9
10
11
12
13
14
15
16
17
18
19
20
Page 117
SCHEDULE 2(2) - REPAYMENT SCHEDULE SUMMARY
Based on a purchase price of USS/Euros (euro) with a percentage split as
follows:
UK **
France **
Germany **
[4]
[1] [2] [3] PRINCIPAL AMOUNT
NUMBER DATES PRINCIPAL REPAYMENTS ONLY OUTSTANDING
------ ----- ------------------------- ----------------
1
2
3
4
5
6
7
9
10
11
12
13
14
15
16
17
18
19
20
Page 118
SCHEDULE 3 - PARTICULARS OF AIRFRAME AND ENGINE
Airframe: Airbus A[319/320/321] airframe having [ ] registration xxxx [ ] and
bearing manufacturer's serial number [ ]
Engines: Two (2) [ ] Engines with serial numbers [ ] and [ ]
Page 119
SIGNED by )
duly authorised for and )
on behalf of )
[CAYMAN/IRISH BORROWER] ) -----------------------------
SIGNED by )
duly authorised for and )
on behalf of )
CREDIT LYONNAIS ) -----------------------------
(AS AGENT)
SIGNED by )
duly authorised for and )
on behalf of )
CREDIT LYONNAIS ) -----------------------------
(AS SECURITY TRUSTEE)
AGREED by GATX FINANCIAL CORPORATION
Name:
Title:
Page 120
SCHEDULE 9 - FORM OF ACCESSION DEED
THIS ACCESSION DEED is dated the - day of - and made BETWEEN (1) the banks and
financial institutions named therein as Lenders, (2) Halifax plc, Credit
Lyonnais and Bayerische Landesbank Girozentrale (as NATIONAL AGENTS) (3)
Kreditanstalt fur Wiederaufbau (as GERMAN PARALLEL LENDER), (4) Credit Lyonnais
(as AGENT), (5) Credit Lyonnais (as SECURITY TRUSTEE), (6) EFG Aircraft Limited
(as CAYMAN BORROWER), (7) EFG Aircraft (Ireland) Limited (as IRISH BORROWER),
(8) X'Xxxxxxx Leasing Limited (as CAYMAN EXPORT LESSEE), (9) X'Xxxxxxx Leasing
(Ireland) Limited (as IRISH EXPORT LESSEE), (10) GATX Financial Corporation
(GFC), (11) Halifax plc and Credit Lyonnais (as JOINT ARRANGERS) [and (12) **
(the ACCEDING PARTY) and (13) ** (the OTHER OBLIGORS)].
WHEREAS:
(A) The Obligors, the [ ], the Joint Arrangers, the Agent, the Security
Trustee and the Lenders (each as referred to therein) are parties to a
facility agreement (THE FACILITY AGREEMENT) dated - 200[ ] which term
includes any amendments thereto which may at any time be made in relation
thereto and also any Transfer Certificates or Accession Deeds in respect
thereof.
(B) By and upon and subject to the terms of the Facility Agreement a facility
for the purchase of certain aircraft was made available to the Borrowers.
(C) The Acceding Party wishes to become party to the Facility Agreement as an
[Alternative Borrower/Alternative Export Lessee] [and Obligor] pursuant to
the procedures established in Clauses 3.3 (Alternative
Borrowers/Alternative Export Lessees) and 18.1 (Transfers by Obligors) of
the Facility Agreement by the execution of this Accession Deed.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
Terms used herein which are defined in or to which a meaning or
construction is assigned by or in the Facility Agreement (whether
expressly or by reference to another document) shall, unless otherwise
defined herein, have the same meaning and construction herein as therein.
2. AGREEMENTS, CONFIRMATIONS, REPRESENTATIONS AND COVENANTS
2.1 The Acceding Party hereby:
(a) confirms that it has received a copy of the Facility Agreement
together with such other documents and information as it has
required in connection herewith and therewith;
(b) agrees to become, with effect from the date of this Accession Deed,
an [Alternative Borrower/Alternative Export Lessee] [and Obligor]
under the Facility Agreement and agrees to be bound in each such
capacity with effect from such date by the terms of the Facility
Agreement by its terms applicable to it and undertakes accordingly
to perform its obligations as an [Alternative Borrower/Alternative
Export Lessee] [and Obligor] thereunder;
(c) confirms the accuracy of the information set out under its name at
the end of this Accession Deed;
Page 121
(d) represents and warrants as [an] Alternative Borrower/Alternative
Export Lessee] [and Obligor] to the Security Trustee, the Agent and
each of the Lenders in the terms of Clause 6 (Representations and
Warranties) of the Facility Agreement by reference to the facts and
circumstances existing at the date hereof and that it is duly
organised and validly existing under the laws of - ];
(e) confirms that it has not relied on the Security Trustee, the Agent
or any of the Lenders to access or inform it as to the legality,
validity, effect or enforceability of the Facility Agreement or any
other document referred to therein or the accuracy or completeness
of any such information as is referred to in paragraph (i) above or
the creditworthiness, affairs, condition or status of any of the
parties to the Facility Agreement or any such other document;
(f) confirms that its registered office is at:
-
and its address for notices pursuant to Clause 22 (Notices) of the
Facility Agreement is as follows:
-
2.2 Each Obligor (other than the Acceding Party), the Security Trustee, the
Agent and each Lender hereby agree amongst themselves and with the
Acceding Party that the Acceding Party shall become party to the Facility
Agreement as [an Alternative Borrower/Alternative Export Lessee] [and
Obligor] with effect from the date of this Accession Deed.
2.3 GFC hereby confirms that the Guarantee is in full force and effect and
covers the obligations of the Acceding Party (in the case of an
Alternative Export Lessee) under the Transaction Documents to which it is
or shall be a party.
3. LAW
3.1 This Accession Deed shall be governed by and construed in accordance with
English law.
3.2 The Acceding Party hereby irrevocably designates, appoints and empowers o
of o to receive, for and on behalf of itself, service of process out of
the English Courts in any proceedings with respect to the Facility
Agreement and/or this Accession Deed or any judgment in connection
therewith and agrees that failure by such process agent to give notice of
such service of process to the Acceding Party shall not impair or affect
the validity of such service or of any judgment based thereon.
4. COUNTERPARTS
This Accession Deed may be executed in any number of counterparts and by
different parties hereto on separate counterparts and any single
counterpart or set of counterparts signed, in either case, by each of the
parties hereto shall be deemed to constitute a full and original agreement
for all purposes but all counterparts shall constitute but one and the
same instrument.
IN WITNESS WHEREOF the parties hereto have caused this Accession Deed to be duly
executed as a deed and it is intended to be and is hereby delivered the day and
year first written above.
Page 122
SIGNATURES
SIGNED as a DEED, SEALED )
AND DELIVERED )
by [ACCEDING PARTY] )
attorney-in-fact for and on behalf of )
[ACCEDING PARTY] )
in the presence of: )
SECURITY TRUSTEE
SIGNED by CREDIT LYONNAIS )
for itself and as Security Trustee acting )
through its authorised signatories )
in the presence of: )
AGENT
SIGNED by CREDIT LYONNAIS )
for itself and as Agent for and on behalf of )
each Lender acting through its authorised )
signatories )
in the presence of: )
SIGNED as a DEED, SEALED AND )
DELIVERED by )
GATX FINANCIAL CORPORATION )
as GFC acting through its duly authorised )
attorney-in-fact )
in the presence of: )
Page 123
SIGNED as a DEED, SEALED AND )
DELIVERED by )
[ ] )
for and on behalf of itself and each other )
GATX Obligor each Borrower acting )
through its duly authorised attorney-in-fact )
in the presence of: )
Page 124
SCHEDULE 10 - FORM OF QUIET ENJOYMENT UNDERTAKING
To: [Lessee]
[Sub-Lessee]
Dated
AIRCRAFT FACILITY AGREEMENT DATED 20 DECEMBER 2001 AND MADE BETWEEN (1) THE
BANKS AND FINANCIAL INSTITUTIONS NAMED THEREIN (AS LENDERS), (2) HALIFAX PLC,
CREDIT LYONNAIS AND BAYERISCHE LANDESBANK GIROZENTRALE (AS NATIONAL AGENTS), (3)
KREDITANSTALT FUR WIEDERAUFBAU (AS GERMAN PARALLEL LENDER), (4) CREDIT LYONNAIS
(AS AGENT), (5) CREDIT LYONNAIS (AS SECURITY TRUSTEE), (6) EFG AIRCRAFT LIMITED
(AS CAYMAN BORROWER) (7) EFG AIRCRAFT (IRELAND) LIMITED (AS IRISH BORROWER), (8)
X'XXXXXXX LEASING LIMITED (AS CAYMAN EXPORT LESSEE); (9) X'XXXXXXX LEASING
(IRELAND) LIMITED (AS IRISH EXPORT LESSEE), (10) GATX FINANCIAL CORPORATION (AS
GFC) AND (11) HALIFAX PLC, AND CREDIT LYONNAIS (AS JOINT ARRANGERS) AS AMENDED,
SUPPLEMENTED OR ACCEDED TO FROM TIME TO TIME (THE FACILITY AGREEMENT)
1 Reference is made to one Airbus A3 - Aircraft Manufacturer's Serial Number
- (the AIRCRAFT) and the Aircraft Lease Agreement (the LEASE) dated - 20 -
between Export Lessee] (the LESSOR) and [name of Lessee] (the LESSEE).
2 The Borrower and the Security Trustee (for and on behalf of the Agent and
the Lenders) each confirms to you in respect of itself and, in relation
to the Security Trustee, in respect of the Agent and each Lender that none
of the Lenders, the Agent nor the Security Trustee nor the Borrower nor
any person lawfully claiming through the Lenders, the Agent or the
Security Trustee or the Borrower will interfere with the lawful use,
possession and quiet enjoyment of the Aircraft by the Lessee in accordance
with the Lease so long as no "event of default" under and as defined in
the Lease has occurred and is continuing.
----------------------------
[Lessor]
----------------------------
[Owner]
----------------------------
[Security Trustee]
Page 125
SCHEDULE 11 - APPOINTMENT OF SECURITY TRUSTEE, AGENT AND NATIONAL AGENTS AND
TRUST PROVISIONS
1. APPOINTMENT AND POWERS OF THE SECURITY TRUSTEE
1.1 Each of the Finance Parties and the Export Lessees irrevocably appoints
the Security Trustee as its trustee to hold the Collateral on its behalf
on the terms set out in this Agreement and in the Aircraft Security
Documents.
1.2 By virtue of the appointment set out above, each of the Finance Parties
and the Export Lessees hereby authorises the Security Trustee (whether or
not by or through its employees or agents) to take such action on its
behalf and to exercise such powers as are specifically delegated to the
Security Trustee by this Agreement together with such powers and rights as
are reasonably incidental thereto,
1.3 The Security Trustee shall have no duties, obligations or liabilities to
any of the parties by whom it has been appointed beyond those expressly
stated in this Agreement and specifically (but without prejudice to the
generality of the foregoing) the Security Trustee shall not be obliged to
take any action or exercise any rights, remedies or powers under or
pursuant to this Agreement beyond those which it is specifically
instructed in writing to take or exercise as provided in Paragraph 10 and
then only to the extent stated in such specific written instructions.
2. DECLARATION OF TRUST
2.1 The Security Trustee hereby accepts its appointment under Paragraph 1 as
trustee in relation to the Collateral with effect from the date of this
Agreement and irrevocably acknowledges and declares that from such date it
holds the same on trust for the respective Finance Parties and the Export
Lessees and that it shall apply, and deal with, such trust in accordance
with the provisions of this Agreement.
2.2 The trusts constituted or evidenced by this Agreement shall remain in full
force and effect until whichever is the earlier of the expiration of a
period of eighty (80) years from the date of this Agreement, and receipt
by the Security Trustee of written confirmation from the respective
Finance Parties and the Export Lessees that all the obligations and
liabilities for which the Aircraft Security Documents are constituted as
security have been discharged in full. The parties to this Agreement
declare that the perpetuity period applicable to this Agreement shall, for
the purposes of the Perpetuities and Accumulations Xxx 0000 be a period of
80 years from the date of this Agreement.
2.3 The Security Trustee may, in the conduct of any trusts constituted by this
Agreement, instead of acting personally, employ and pay any agent (whether
being a lawyer, chartered accountant or any other person) to transact or
concur in transacting any business and to do or concur in doing any acts
required to be done by the Security Trustee (including the receipt and
payment of money). Any such agent engaged in any profession or business
shall be entitled to be paid all usual professional and other charges for
business transacted and acts done by him or any partner or employee of his
in connection with such trusts. The Security Trustee shall not be bound to
supervise, or be responsible for any loss incurred by reason of any act or
omission of any such agent if the Security Trustee shall have exercised
reasonable care in the selection of such agent.
2.4 In its capacity as trustee in relation to the Aircraft Security Documents,
the Security Trustee shall, without prejudice to any of the powers and
immunities conferred upon trustees by law (and to the extent not
inconsistent with the provisions of this Agreement or any of the Aircraft
Page 126
Security Documents), have all the same powers as a natural person acting
as the beneficial owner of such property and/or as are conferred upon the
Security Trustee by this Agreement and/or any of the Aircraft Security
Documents.
2.5 In its capacity as trustee in relation to the Aircraft Security Documents,
the Security Trustee shall have full power to determine all questions and
doubts arising in relation to the interpretation or application of any of
the provisions of this Agreement or any of the Aircraft Security Documents
as it affects the Security Trustee and every such determination (whether
made upon a question actually raised or implied in the acts or proceedings
of the Security Trustee) shall be conclusive and shall bind all the other
parties to this Agreement.
2.6 It is agreed between all parties to this Agreement that in relation to any
jurisdiction the courts of which would not recognise or give effect to the
trusts expressed to be constituted by this Agreement, the relationship of
the Finance Parties and the Export Lessees to the Security Trustee shall
in the case of each of the trusts constituted hereby be construed simply
as one of principal and agent but, to the fullest extent permissible under
the laws of each and every such jurisdiction, this Agreement shall have
full force and effect as between the parties.
2.7 The Security Trustee shall be entitled (and bound) to assume that any
directions received by it from the Agent (or, once the Secured Loan
Obligations have been fully repaid and discharged, the Export Lessees)
under or pursuant to this Agreement or any of the other Transaction
Documents are the directions of the Lenders (or the Export Credit
Agencies) or the directions of the Agent itself (or, once the Secured Loan
Obligations have been fully repaid and discharged, to the Export Lessees)
acting pursuant to the provisions of the Transaction Documents. The
Security Trustee shall not be liable to the Finance Parties, or any of
them (or, once the Secured Loan Obligations have been fully repaid and
discharged, to the Export Lessees) for any action taken or omitted under
or in connection with this Agreement or any of the other Transaction
Documents in accordance with any such directions unless caused by the
gross negligence or wilful misconduct of the Security Trustee.
3. RESTRICTIONS AND LIMITATIONS ON AND EXCLUSIONS OF THE DUTIES AND
RESPONSIBILITIES OF THE SECURITY TRUSTEE
3.1 The Security Trustee shall not be obliged:
3.1.1 to request any certificate or opinion under any Transaction Document
unless so required in writing by the Agent, in which case, subject
to the provisions of Paragraph 10, the Security Trustee shall
promptly make the appropriate request of the relevant party; or
3.1.2 to make any enquiry as to any default by any party in the
performance or observance of any provision of any of the Aircraft
Security Documents or as to whether any event or circumstance has
occurred as a result of which the security constituted by any of the
Aircraft Security Documents shall have or may become enforceable.
3.2 The Security Trustee shall not have any duty or responsibility, either
initially or on a continuing basis:
3.2.1 subject to Paragraph 3.7, to provide any of the other parties hereto
with any information with respect to any Borrower, any Export Lessee
or GFC whenever coming into its possession; or
3.2.2 to investigate or make any enquiry into the title of any parry to
the Collateral or any part thereof.
Page 127
3.3 The Security Trustee shall not have any responsibility to any of the
Finance Parties or any Export Lessee (a) on account of the failure of any
other party to perform any of its or their obligations under any of the
Transaction Documents, (b) for the financial condition of any Borrower,
any Export Lessee or GFC, (c) for the completeness or accuracy of any
statements, representations or warranties in any of the Transaction
Documents or any document delivered under any of the Transaction
Documents, (d) for the execution, effectiveness, adequacy, genuineness,
validity, enforceability or admissibility in evidence of any of the
Transaction Documents or of any certificate, report or other document
executed or delivered under any of the Transaction Documents, (e) to
investigate or make any enquiry into the title of any party to the
property which forms the Collateral or any part thereof, (f) for the
failure to register any of the Transaction Documents on any register with
any authority, court or relevant body, (g) for the failure to take or
require any Borrower, any Export Lessee, GFC, the Manufacturer, the Engine
Manufacturer, any sub-lessee or any provider of insurances or
reinsurances, to take any steps to render any of the Collateral effective
or to secure the creation of any ancillary charge under the laws of the
jurisdiction concerned or (h) otherwise in connection with the Transaction
Documents or their negotiation or for acting (or, as the case may be,
refraining from acting) in accordance with the directions of the Agent or
the National Agents or in reliance upon information provided by the Agent
or the National Agents or any of the Lenders.
3.4 The Security Trustee shall be entitled to rely on any communication,
instrument or document believed by it to be genuine and correct and to
have been signed or sent by the proper person and shall be entitled to
rely as to legal or other professional matters on opinions and statements
of any legal or other professional advisers selected or approved by it.
3.5 The Security Trustee shall be entitled to place all Aircraft Security
Documents and any other Transaction Documents, certificates and other
documents relating thereto or any of them in any safe deposit, safe or
receptacle selected by the Security Trustee or with any solicitor or firm
of solicitors and may make any such arrangements as it thinks fit for
allowing each Finance Party access to, or its solicitors or auditors
possession of, such documents when necessary or convenient, and the
Security Trustee shall not be responsible for any loss incurred in
connection with any such deposit, access or possession.
3.6 The Security Trustee may refrain from doing anything which would, or might
in its reasonable opinion, be contrary to any law of any jurisdiction or
any directive, regulation or regulatory requirement of any state (or any
agency thereof) or which would or might render it liable to any person and
may do anything which is, in its opinion, necessary to comply with any
such law, directive, regulation or regulatory requirement.
3.7 The Security Trustee shall notify the Agent as soon as is reasonably
practicable, of the contents of any communication received by it from any
Borrower, any Export Lessee or GFC pursuant to any Transaction Document.
4. NO RESTRICTION ON OR LIABILITY TO ACCOUNT FOR OTHER TRANSACTIONS
4.1 The Security Trustee may, without any liability to account to any of the
Finance Parties or any Export Lessee, accept deposits from, lend money to,
and generally engage in any kind of trust or banking business with, or be
the owner or holder of any shares or other securities of, any Borrower,
any Export Lessee, GFC or any of their respective Subsidiaries or
associated companies or any of the Finance Parties as if it were not the
Security Trustee.
4.2 With respect to its own participation in the Transaction Documents, the
Security Trustee shall have the rights and powers thereunder and under the
Aircraft Security Documents of a Lender and may exercise the same as
though it were not performing the duties and functions delegated to it
under this Agreement.
Page 128
5. COMMON AGENT AND SECURITY TRUSTEE
Notwithstanding that the Agent, the Security Trustee and the French
National Agent may from time to time be the same legal entities, the
Agent, the Security Trustee and the French National Agent have each
entered into this Agreement in their separate capacities as agent for the
relevant Lenders, and as trustee for the Finance Parties under and
pursuant to the Transaction Documents; PROVIDED ALWAYS that, where this
Agreement provides for the Agent, the Security Trustee or the French
National Agent to communicate with or provide instructions to any of the
Agent, the Security Trustee or the French National Agent while the Agent,
the Security Trustee or the French National Agent are the same or related
entities, it will not be necessary for there to be any such formal
communication or instructions notwithstanding that this Agreement provides
in certain cases for the same to be in writing.
6. CHANGE OF SECURITY TRUSTEE
6.1 The Security Trustee may retire from its appointment as Security
Trustee of the Trusts under this Agreement without giving any reason
and without being responsible for any costs occasioned by such
retirement having given to the Finance Parties and GFC not less than
sixty (60) days written notice of its intention to do so Provided
always that no such retirement shall take effect unless there has
been appointed as a successor security agent and trustee in respect
of the Trust by instrument in writing signed by the Security
Trustee:
6.1.1 a trust corporation, bank or financial institution nominated by the
Agent and, provided no Relevant Event or Termination Event shall
have occurred and be continuing, approved by GFC (such approval not
to be unreasonably withheld or delayed), or at any time after the
Advance and all amounts owing in respect thereof have been repaid or
prepaid in full; or
6.1.2 failing such a nomination, any trust corporation, bank or financial
institution with offices in London nominated by the Security Trustee
after consultation with the Finance Parties and with the consent of
the Agent, or at any time after the Advance and all amounts owing in
respect thereof have been repaid or,
and, in either case, such successor security trustee shall have duly
accepted such appointment by delivering to the Agent and the other Finance
Parties written confirmation (in a form acceptable to the Agent) of such
acceptance agreeing to be bound by this Agreement in the capacity of
Security Trustee as if it had been an original party to this Agreement and
the other Aircraft Security Documents.
6.2 Upon any successor to the Security Trustee being appointed pursuant to
Paragraph 6.1, the retiring Security Trustee shall be discharged from any
further obligation under this Agreement and the other Aircraft Security
Documents with respect to the Collateral and its successor and each of the
other parties to this Agreement and the other Aircraft Security Documents
shall have the same rights and obligations among themselves as they would
have had if such successor had been a party to this Agreement and the
other Aircraft Security Documents in place of the retiring Security
Trustee.
6.3 Notwithstanding paragraph 6.1, the Security Trustee shall be entitled to
retire from its appointment as Security Trustee hereunder upon five (5)
days written notice to GFC at any time when the Secured Loan Obligations
have been fully repaid and discharged. GFC shall, at its own cost, at such
time assume the role of Security Trustee hereunder.
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7. NATIONAL AGENTS
7.1 Each of the British Lenders, the French Lenders and the German Lenders
irrevocably appoints respectively the British National Agent, the French
National Agent and the German National Agent as its agent for the purposes
of this Agreement and the other Transaction Documents and authorises such
National Agent (whether or not by or through employees or agents) to take
such action on the relevant Lender's behalf and to exercise such rights,
remedies, powers and discretions as are specifically delegated to such
National Agent by this Agreement, together with such power's and
discretions as are reasonably incidental thereto. The British National
Agent, the French National Agent and the German National Agent shall not,
however, have any duties, obligations or liabilities to their respective
Lenders beyond those expressly stated in this Agreement and the other
Transaction Documents.
7.2 Each National Agent may retire from its appointment as agent for the
relevant Lenders having given to the Agent, GFC and each of the relevant
Lenders not less than thirty (30) days written notice of its intention to
do so; PROVIDED ALWAYS that no such retirement by a National Agent shall
take effect unless there has been appointed by the relevant Lenders as a
successor agent either:
7.2.1 a Lender nominated by the relevant Lenders or, failing such a
nomination,
7.2.2 any reputable and experienced bank or financial institution
nominated by the retiring National Agent.
7.3 No National Agent shall be liable to any Lender for any action taken or
omitted under or in connection with this Agreement or any of the
Transaction Documents or any of the Advances except in the case of the
gross negligence or wilful misconduct of such National Agent.
For the purposes of this Paragraph 7 no National Agent shall be treated as
having actual knowledge of any matter of which any department or any
division other than that specified in a notice served in accordance with
Clause 22 of this Agreement hereof may become aware in the context of
corporate finance or advisory activities from time to time undertaken by
such National Agent for the Borrower, the Lessee or any of their
respective associates.
7.4 Each Lender acknowledges that it has not relied on any statement, opinion,
forecast or other representation made by any National Agent to induce it
to enter into any of the Transaction Documents and that it has made and
will continue to make, without reliance on any National Agent and based on
such documents as it considers appropriate, its own appraisal of the
creditworthiness of any Borrower, any Export Lessee or GFC and its own
independent investigation of the financial condition and affairs of the
Borrowers, the Export Lessees and GFC in connection with the making and
continuation of any of the Advances. No National Agent shall have any duty
or responsibility, either initially or on a continuing basis, to provide
the Lenders with any credit or other information with respect to the
Borrower or the Lessee whether coming into its possession before the
making of the relevant advance or at any time or times thereafter. No
National Agent shall have any duty or responsibility for the completeness
or accuracy of any information given by the Borrower or the Lessee in
connection with or pursuant to any of the Transaction Documents, whether
the same is given to such National Agent and passed on by it to any
Lenders or otherwise.
7.5 Upon any such successor as aforesaid being appointed, the retiring
National Agent, in accordance with this Agreement shall be discharged from
any further obligation under this Agreement and its successor and each of
the other parties to this Agreement shall have the same rights and
obligations among themselves as they would have had if such successor had
been a party to this Agreement in place of the retiring National Agent.
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8. AGENT
8.1 Each Lender and each National Agent irrevocably appoints the Agent as its
agent for the purposes of this Agreement, the Advances and the Transaction
Documents and authorises the Agent (whether or not by or through employees
or agents) to take such action on their behalf and to exercise such
rights, remedies, powers and discretions as are specifically delegated to
the Agent by this Agreement and the other Transaction Documents, together
with such powers and discretions as are reasonably incidental thereto. The
Agent shall not, however, have any duties, obligations or liabilities to
the Lenders or the National Agents beyond those expressly stated in this
Agreement and the Transaction Documents.
8.2 The Agent may retire from its appointment as Agent under this Agreement
and the Transaction Documents having given to GFC and each Lender not less
than thirty (30) days written notice of its intention to do so; PROVIDED
ALWAYS that no such retirement shall take effect unless there has been
appointed by the Lenders as a successor any reputable and experienced bank
or financial institution nominated by the Agent.
8.3 Upon any such successor as aforesaid being appointed, the retiring Agent
shall be discharged from any further obligation under this Agreement and
the Transaction Documents and its successor and each of the other parties
to this Agreement and the Transaction Documents shall have the same rights
and obligations among themselves as they would have had if such successor
had been a party to this Agreement in place of the retiring Agent.
8.4 The Agent undertakes that, in making any decision or forming an opinion or
exercising a discretion under the Transaction Documents, it shall so act
in accordance with the instructions of the National Agents.
8.5 The Agent shall:
(i) promptly inform each Lender of the contents of each notice,
certificate or document received by it in its capacity as Agent
hereunder or under any other relevant document;
(ii) promptly notify each Lender as soon as it becomes aware of the
existence of any Relevant Event or Termination Event;
(iii) act in accordance with instructions given to it by the National
Agents, the Export Credit Agencies and/or the Majority Lenders as
provided herein.
9. AGENTS AND SECURITY TRUSTEE
9.1 The Agent may assume that each relevant Lender's Lending Office is that
specified in Schedule 1 or (as the case may be) in the Transfer
Certificate (as defined in the Loan Supplements) whereby such Lender
became a party hereto until it has received from such Lender a notice
designating some other office of such Lender as its Lending Office and act
upon any such notice until the same is superseded by a further such
notice.
9.2 All moneys to be paid or distributed by the Agent or the Security Trustee
to the Lenders under this Agreement or any Transaction Document may be
effected by the payment to the relevant National Agent for the account of
the Lenders for whom it acts as agent of its portion of the amount so to
be paid or distributed. Each payment so received by any National Agent
shall be distributed between the relevant Lenders in accordance with their
respective participations.
9.3 Except with the prior written consent of each of the relevant Lenders for
whom the a Agent acts in such capacity and subject as otherwise provided
in this Agreement, no Agent shall
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have authority on behalf of the Lenders for whom it acts as agent to agree
with the Borrower any amendment (other than an amendment described in
Paragraph 9.4 below) to this Agreement or any other Transaction Document
which would:
9.3.1 reduce the Applicable Rate or the amount of any payment to be made
for account of any of the relevant Lenders under this Agreement or
the other Transaction Documents;
9.3.2 alter the due date, reduce the amount or alter the currency of any
payment of principal, interest or other amount payable for the
account of the relevant Lenders under this Agreement or any other
Transaction Document;
9.3.3 alter any relevant Lender's Commitment from time to time or subject
any relevant Lender to any obligations not expressly contemplated by
this Agreement or any Transaction Document;
9.3.4 alter the term of the Availability Period or any Repayment Date;
9.3.5 amend, modify or vary the definition of "Majority Lender";
9.3.6 amend, modify, vary, release or discharge any of the Aircraft
Security Documents or the Liens constituted thereby or consent to
any of the same save in accordance with the terms of this Agreement
and the other Transaction Documents; or
9.3.7 amend, modify or vary this Paragraph 9.3;
9.4 The Agent or the Security Trustee may, without the prior written approval
of the Majority Lenders, amend any provision of this Agreement or any
other Transaction Document if such amendment is necessary to correct any
manifest error herein or therein, and any such amendment shall be binding
on all the parties.
9.5 Except with the prior written consent of the Agent or the Security
Trustee, as the case may be, the Lenders shall not have authority to
amend, modify or vary any provision of this Agreement which regulates the
remuneration, rights, duties and/or powers of the Agent or the Security
Trustee, as the case may be.
9.6 With respect to its own Relevant Proportion (if any) in any Advance, the
Agent shall have the same rights and powers under this Agreement and the
Transaction Documents as any other Lender and may exercise the same as
though it were not performing the duties and functions delegated to it (as
agent) under this Agreement or, as the case may be, the Transaction
Documents, and the term "LENDER" shall, unless the context otherwise
indicates, include the Agent. Neither this Agreement nor any of the
Transaction Documents shall (nor shall the same be construed so as to)
constitute a partnership between the parties or any of them or so as to
establish a fiduciary relationship between the Agent (in any capacity) and
any other person.
9.7 The Agent shall not:
9.7.1 be obliged to make any enquiry as to any default by any Borrower,
any Export Lessee or GFC in the performance or observance of any of
the provisions of any of the Transaction Documents or as to the
existence of a default unless the Agent has actual knowledge thereof
or has been notified in writing thereof, in which case the Agent
shall promptly notify the Lenders for which it acts as agent of the
relevant event or circumstances;
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9.7.2 be liable to any Lender for any action taken or omitted under or in
connection with this Agreement or any of the Transaction Documents
or any of the Advances except in the case of the gross negligence or
wilful misconduct of the Agent.
For the purposes of this Paragraph 9 no Agent shall be treated as having
actual knowledge of any matter of which any department or any division
other than that specified in Clause 22 (NOTICES) of this Agreement may
become aware in the context of corporate finance or advisory activities
from time to time undertaken by the Agent for any Borrower, any Export
Lessee, GFC or any of their respective associates.
9.8 Each Lender acknowledges that it has not relied on any statement, opinion,
forecast or other representation made by the Agent to induce it to enter
into any of the Transaction Documents and that it has made and will
continue to make, without reliance on the Agent and based on such
documents as it considers appropriate, its own appraisal of the
creditworthiness of the Borrowers, the Export Lessees and GFC and its own
independent investigation of the financial condition and affairs of the
Borrower, the Export Lessees and GFC in connection with the making and
continuation of any of the Advances. The Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide the
Lenders with any credit or other information with respect to any Borrower,
any Export Lessee or GFC whether coming into its possession before the
making of the relevant advance or at any time or times thereafter, other
than as provided in sub-Paragraph 9.7.1. the Agent shall not have any duty
or responsibility for the completeness or accuracy of any information
given by the Borrower or the Lessee in connection with or pursuant to any
of the Transaction Documents, whether the same is given to the Agent and
passed on by it to any Lenders or otherwise.
9.9 The Agent shall not have any responsibility to any Lender:
9.9.1 on account of the failure of any Borrower, any Export Lessee or GFC
to perform their obligations under any of the Transaction Documents;
or
9.9.2 for the financial condition of any Borrower, any Export Lessee or
GFC; or
9.9.3 for the completeness or accuracy of any statements, representations
or warranties in any of the Transaction Documents or any document
delivered under this Agreement or any of the other Transaction
Documents; or
9.9.4 for the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of this Agreement or any
of the other Transaction Documents or of any certificate, report or
other document executed or delivered under this Agreement or any of
the other Transaction Documents; or
9.9.5 otherwise in connection with any of the Advances or the negotiation
of any Transaction Document; or
9.9.6 for acting (or, as the case may be, refraining from acting) in
accordance with the instructions of the Majority Lenders and/or in
accordance with any provision of any Transaction Document.
The Agent shall be entitled to rely on any communication, instrument or
document believed by it to be genuine and correct and to have been signed
or sent by the proper person and shall be entitled to rely as to legal or
other professional matters on opinions and statements of any legal or
other professional advisers selected or approved by it.
The Agent may, without any liability to account to any Lender, accept
deposits from, lend money to, and generally engage in any kind of banking
or trust business with any Borrower,
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any Export Lessee, any GATX Group Company or any of their respective
associates or any of the other Finance Parties as if it were not an agent
hereunder.
10. ENFORCEMENT OF AND OTHER ACTION UNDER THE AIRCRAFT SECURITY DOCUMENTS
10.1 NO ENFORCEMENT BY FINANCE PARTIES
None of the Finance Parties or any Export Lessee shall have any
independent power to enforce any of the Aircraft Security Documents, to
exercise any rights and/or powers or to grant any consents or releases
under or pursuant to any of the Aircraft Security Documents or otherwise
have direct recourse to the security constituted by any of the Aircraft
Security Documents. Notwithstanding the foregoing or any other provision
hereof or of any other Transaction Document it is hereby acknowledged and
agreed that the Agent shall be entitled to send an Acceleration Notice or
a Loan Acceleration Notice under Clause 10.2 of this Agreement.
10.2 ACCELERATION OF LOANS
Save as expressly provided in this Xxxxxxxxx 00, xxxx of the Finance
Parties shall have any independent power to take any steps to accelerate
or demand repayment of any Advance, to exercise any rights or powers or to
grant any consents or releases relating to or in connection with the
occurrence or existence of a Termination Event. Notwithstanding any other
provisions of this Paragraph 10 it is expressly agreed and acknowledged
that at any time the Agent shall if so instructed by any of the National
Agents (acting on the instructions of its Export Credit Agency):
(a) take the action set out in Paragraph 10.1; or
(b) following the occurrence of a Termination Event, accelerate the
relevant Advance or Advances.
10.3 ACTION UNDER AIRCRAFT SECURITY DOCUMENTS
If a Termination Event shall occur and be continuing at any time before
the Secured Loan Obligations have been fully repaid and discharged, then
subject to the Security Trustee being indemnified to its satisfaction, the
Security Trustee shall ensure that the appropriate person takes such
action (including, without limitation, the exercise of all rights and/or
powers and the granting of consents or releases) or, as the case may be,
refrains from taking such action under or pursuant to the Aircraft
Security Documents as the Agent shall specifically direct the Security
Trustee. If any Borrower is in breach of any obligation to any Export
Lessee under any Credit Sale Agreement at any time after the Secured Loan
Obligations have been fully repaid and discharged, then subject to the
Security Trustee being indemnified to its satisfaction the Security
Trustee shall ensure that the appropriate person takes such action
(including, without limitation, the exercise of all rights and/or powers
and the granting of consents or releases) or, as the case may be, refrains
from taking such action under or pursuant to the Aircraft Security
Documents. Unless and until the Security Trustee shall have received such
directions or instructions, the Security Trustee shall not be required to
ensure that any action is taken under any of the Aircraft Security
Documents.
10.4 ACTION FOLLOWING TERMINATION EVENT
If at any time before the Secured Loan Obligations have been fully repaid
and discharged, any party hereto becomes aware that a Termination Event
has occurred and is continuing, such party shall as soon as practicable
after becoming aware thereof give written notice to the
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Borrower, the Agent and the Security Trustee who shall thereupon give
notice (a "NOTICE OF EVENT") of the same to the National Agents;
(A) within a period of thirty (30) days following the giving of the
Notice of Event by the Security Trustee or the expiry of any period
specified in any Notice of Event issued by the Security Trustee or
any period specified in any Notice of Reservation of Rights issued
by the Security Trustee in accordance with Paragraph 10.5, the
National Agents shall not have given either:
(a) notice (a "NOTICE FOR INACTION") to the Agent requiring such
action not to be taken; or
(b) notice to the Agent and the Security Trustee requesting the
issue of a Notice of Reservation of Rights, or a further
Notice of Reservation of Rights, pursuant to Paragraph 10.5;
or
(B) any National Agent gives notice (a "NOTICE FOR ACTION") in writing
to the Agent requiring such action to be taken,
then, upon expiry of the relevant period referred to in Paragraph 10.4(A)
or upon the giving of a Notice of Action by the Agent (or, if one or more
Notices of Reservation of Rights have been delivered by the Security
Trustee in accordance with Paragraph 10.5, upon the expiry of the period
referred to in the last Notice of Reservation of Rights), to the extent
permitted by the Transaction Documents and applicable law (and provided
always that, at the relevant time, such Event of Default is continuing):
(C) the Agent shall give an Acceleration Notice or, as directed a Loan
Acceleration Notice declaring the Advance(s) immediately due and
payable and such Advance(s) shall become due and payable pursuant
to, and in accordance with, the terms of this Agreement; and
(D) the Security Trustee shall ensure that such steps as may be
available and as may be prudent are taken to enforce the security
constituted by the relevant Aircraft Security Documents,
PROVIDED ALWAYS that, for the avoidance of doubt, if any National Agent
shall have given a Notice for Action pursuant to Paragraph 10.4(B) and any
other National Agent shall have given or, as the case may be, shall give a
Notice for Inaction pursuant to Paragraph 10.4(A) or a Notice of
Reservation of Rights pursuant to Paragraph 10.5, the Agent shall
disregard the Notice(s) for Inaction and/or Notice(s) of Reservation of
Rights and shall act in accordance with the Notice for Action.
10.5 RESERVATION OF RIGHTS
If, within thirty (30) days after the Agent has given a Notice of Event,
each of the National Agents (at the request of their respective Export
Credit Agencies) have given to the Agent and the Security Trustee a notice
in writing requiring it to do so (provided that the Agent does not receive
a Notice for Action pursuant to Paragraph 10.4(B) within such period), the
Security Trustee shall by notice in writing to the Lessee and any other
relevant party (a "NOTICE OF RESERVATION OF RIGHTS") reserve all of its
rights under the Transaction Documents arising as a consequence of the
occurrence of the Termination Event in question, which notice shall
require GFC and/or any other relevant party to remedy such Termination
Event within a period of thirty (30) days after the date on which the
Notice of Reservation of Rights is given or such other period as the
National Agents may agree and notify to the Security Trustee in writing.
Upon the expiry of the period specified in any Notice of Reservation of
Rights, the
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Security Trustee shall, if it is instructed in writing to do so by all of
the National Agents (at the request of their respective Export Credit
Agencies) prior to the expiry of such period (provided the Agent does not
receive a Notice for Action pursuant to Paragraph 10.4(B) within such
period), give to the Lessee a further Notice of Reservation of Rights,
save only that the period given for remedying the relevant Event of
Default shall be thirty (30) days after the giving of the further Notice
of Reservation of Rights or such other period as the National Agents may
agree and notify to the Security Trustee in writing.
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APPENDIX X - DEFINITIONS
ACCEPTANCE CERTIFICATE means, in respect of an Aircraft, the certificate signed
by the relevant Export Lessee and given by the Export Lessee to the relevant
Borrower pursuant to Clause 5.1 of the relevant Credit Sale Agreement.
ACCELERATION NOTICE has the meaning ascribed to it in Clause 10.2(a) of the
Facility Agreement.
ACCESSION DEED means a deed of accession to the Facility Agreement to be entered
into by a proposed Alternative Borrower and/or Alternative Export Lessee in the
form of Schedule 9 to the Facility Agreement.
ADMINISTRATION AGREEMENTS means, in respect of the Cayman Borrower or the Irish
Borrower respectively, the agreements so entitled dated on or about the Signing
Date and made between the relevant Manager, the relevant Borrower, the Security
Trustee and GFC.
ADVANCE means, in respect of a Utilisation or an Alternative Utilisation, the
aggregate of the sums to be advanced or advanced by each of the Lenders to the
relevant Borrower in respect of that Utilisation or that Alternative
Utilisation.
AFFECTED BORROWER shall have the meaning given thereto in Clauses 15.1
(MITIGATION) and 15.2 (PREPAYMENT OF AFFECTED LOANS AND REPLACEMENT OF AFFECTED
LENDER) of the Facility Agreement.
AFFECTED LENDER shall have the meaning given thereto in Clauses 14.3
(ILLEGALITY) and 15.2 (PREPAYMENT OF AFFECTED LOANS AND REPLACEMENT OF AFFECTED
LENDER) of the Facility Agreement.
AGENT means Credit Lyonnais, a banking institution established under the laws of
France acting through its main office at 0-0 xxx xxx Xxxxxxxx, 00000 Xxxxx,
Xxxxxx.
AGREED BRITISH RATE means, in respect of an Advance and Interest Period, the sum
of (i) the Applicable Rate for such Advance and Interest Period, (ii) the
British Margin and (iii) the applicable ECA Premium.
AGREED FRENCH RATE means, in respect of an Advance and Interest Period, the sum
of (i) the Applicable Rate for such Advance and Interest Period, (ii) the French
Margin and (iii) the applicable ECA Premium.
AGREED GERMAN RATE means, in respect of an Advance and Interest Period, the sum
of (i) the Applicable Rate for such Advance and Interest Period, (ii) the German
Margin and (iii) the applicable ECA Premium.
AGREED RATE means, for any Advance and any Interest Period, (i) for the purposes
of the British Credit forming part thereof, the Agreed British Rate, (ii) for
the purposes of the French Credit forming part thereof, the Agreed French Rate
and (iii) for the purposes of the German Credit forming part thereof, the Agreed
German Rate, in each case referable thereto.
AGREEMENT means this aircraft facility agreement including the recitals,
schedules and appendices hereto.
AIRBUS PURCHASE AGREEMENT means the Aircraft Purchase Agreement between the
Seller and GFC dated 17 October 2001 pursuant to which GFC agreed to purchase 19
Airbus A319, A320 and A321 aircraft.
AIRCRAFT means, as the context may require, any or all of the Eligible Aircraft
financed hereunder by the relevant Borrower or financed pursuant to an
Alternative Utilisation (and, save where the context
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otherwise requires, includes any or all of the Replacement Aircraft) comprising,
with respect to each individual aircraft, the Airframe together with the
relevant Engines (whether or not any of the relevant Engines may from time to
time be installed on the Airframe) together with the relevant Technical Records.
AIRCRAFT PURCHASE PRICE means, in respect of an Aircraft, the final contract
price for that Aircraft (including any Buyer Furnished Equipment) on delivery,
after deduction of all credit memoranda in each case which are expressed to be
capable of being applied against the purchase price of that Aircraft as set out
in the relevant purchase agreement by the Seller and/or the Manufacturer and/or
the relevant Engine Manufacturer and exclusive of any capitalised interest.
AIRCRAFT SECURITY DOCUMENTS means, in respect of an Aircraft and at any time,
each of:
(a) the relevant Borrower Floating Charge, the relevant Lease Security
Assignment, the relevant Mortgage (if any), the Airframe Warranties
Agreement, the relevant Engine Warranties Agreement, the relevant Purchase
Agreement Assignment, the Guarantee, the relevant Borrower Share Charge,
the relevant Export Lessee Share Charge, the relevant Borrower Security
Assignment, the relevant Intermediate Lease Security Assignment (if any),
the relevant English Law Mortgage;
(b) (i) any other instrument, document or memorandum annexed to any of
the documents referred to in (a) above,
(ii) any notice or acknowledgement required pursuant to the terms of any
of the documents referred to in (a) above;
(iii) any document, instrument or memorandum (w) which is executed and
delivered in connection with or following a restructuring of any or
all of the arrangements contemplated by any of the documents
referred to in (a) above or (x) which the relevant Export Lessee
agrees constitutes an Aircraft Security Document or (y) which
secures the obligations of any one or more of the Obligors under any
of the Transaction Documents or (z) which is entered into in
substitution for or which amends or augments or varies all or any
part of any of the documents referred to in this definition
(including this part (b)(iii)(z)) in each case in accordance with
the terms of the Transaction Documents; and
(iv) any other document that is entered into in relation to an
Alternative Utilisation which GFC and the Agent agree constitutes an
Aircraft Security Document.
AIRFRAME means, in respect of an Aircraft, the airframe (except for the Engines)
more particularly identified in Schedule 3 to the relevant Loan Supplement
including all Parts installed in or on the airframe at the Delivery Date (or
which, having been removed therefrom, remain the property of the relevant
Borrower) and all substitutions, renewals and replacements of such Parts from
time to time made in or to or installed in or on the said airframe including any
Parts which are for the time being detached from the airframe but remain the
property of the relevant Borrower.
AIRFRAME WARRANTIES AGREEMENT means the airframe warranties agreement between
the Manufacturer, GFC, the Cayman Export Lessee, the Irish Export Lessee and the
Security Trustee including, in each case, any relevant amendment, modification,
letter agreements and supplements thereto.
ALTERNATIVE BORROWER means a company, approved by the Agent and incorporated in
a jurisdiction approved by the Agent (acting on the instructions of the Majority
Lenders) which accedes to the Facility Agreement as a borrower pursuant to
Clause 3.3 of the Facility Agreement (ALTERNATIVE OBLIGORS).
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ALTERNATIVE BORROWER COMFORT LETTERS means a letter agreement in respect of the
management of any Alternative Borrower by the Alternative Borrower Manager made
between the Alternative Borrower Manager Parent and the Security Trustee in form
and substance reasonably satisfactory to the Security Trustee.
ALTERNATIVE BORROWER FLOATING CHARGE means the floating charge to be granted by
the Alternative Borrower to the Security Trustee which shall be in form and
substance reasonably satisfactory to the Security Trustee.
ALTERNATIVE BORROWER ADMINISTRATION AGREEMENTS means a Administration Agreements
to be entered into by the Alternative Borrower Manager, the Security Trustee and
the relevant Alternative Borrower in form and substance reasonably satisfactory
to the Security Trustee.
ALTERNATIVE BORROWER MANAGER means the manager, if any, of any Alternative
Borrower as approved by the Agent pursuant to Clause 3.3 of the Facility
Agreement (ALTERNATIVE OBLIGORS).
ALTERNATIVE BORROWER MANAGER PARENT means the parent company of any Alternative
Borrower Manager as approved by the Agent pursuant to Clause 3.3 (ALTERNATIVE
OBLIGORS) of the Facility Agreement.
ALTERNATIVE BORROWER SHARE CHARGE means a pledge or charge granted or to be
granted by the holder of the entire issued share capital of an Alternative
Borrower to the Security Trustee over all the shares of such Alternative
Borrower, which charge or pledge shall be in form and substance reasonably
satisfactory to the Security Trustee.
ALTERNATIVE BORROWER TRUSTEES means, if applicable, the legal owners of an
Alternative Borrower as approved by the Agent pursuant to Clause 3.3 of the
Facility Agreement (ALTERNATIVE OBLIGORS) and ALTERNATIVE BORROWER TRUSTEE means
any of them.
ALTERNATIVE DECLARATION OF TRUST means, if applicable, a declaration of trust to
be entered into by the relevant Alternative Borrower Trustee in relation to the
shares such Alternative Borrower Trustee owns in an Alternative Borrower, in
form and substance reasonably satisfactory to the Security Trustee.
ALTERNATIVE EXPORT LESSEE means a company, approved by the Agent, who accedes to
the Facility Agreement as an Export Lessee pursuant to Clause 3.3 of the
Facility Agreement (ALTERNATIVE OBLIGORS).
ALTERNATIVE EXPORT LESSEE SHARE CHARGE means a pledge or charge granted or to be
granted by the holder of the entire issued share capital of an Alternative
Export Lessee to the Security Trustee over all the shares of such Alternative
Export Lessee, which charge or pledge shall be in form and substance reasonably
satisfactory to the Security Trustee.
ALTERNATIVE OBLIGOR means an Alternative Borrower or an Alternative Export
Lessee.
ALTERNATIVE UTILISATION means, in relation to an Eligible Aircraft, a
Utilisation which is part of a leveraged or tax-based financing of that Eligible
Aircraft in each such case to which the Lenders and the Agent shall have given
their consent under Clause 3.4.2 of the Facility Agreement.
APPLICABLE LAW includes, without limitation all applicable (i) laws, bye-laws,
statutes, decrees, acts, codes, legislation, treaties, conventions and similar
instruments and, in respect of any of the foregoing, any instrument passed in
substitution therefor or re-enactment thereof or for the purposes of
consolidation thereof with any other instrument or instruments; (ii) final
judgments, orders, determinations or awards of any court from which there is no
right of appeal or if there is a right of
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appeal such appeal is not prosecuted within the allowable time; and (iii) rules
and regulation of any state or government or any instrumentality, agency or
sub-division thereof.
APPLICABLE RATE means, in respect of any Advance and Interest Period, the LIBOR
or EURIBOR rate, as the case may be, determined by the Agent for such Advance
and Interest Period.
ASSIGNMENT OF INSURANCES means the assignment of insurance proceeds in respect
of each Aircraft made between the relevant Lessee (as assignor) and the relevant
Export Lessee (as assignee).
AVAILABILITY PERIOD means the period from the Signing Date up to and including
31 May 2004 or such later date as the parties hereto may agree, subject to
earlier termination as provided for in the Facility Agreement.
AVIATION AUTHORITY means, in respect of an Aircraft, any Government Entity which
under the laws of the State of Registration has from time to time:
(a) control or supervision of civil aviation in the State of Registration; and
(b) jurisdiction over the registration, airworthiness or operation of, or
other similar matters relating to, that Aircraft.
BANKING DAY means a day (other than a Saturday, Sunday or holiday scheduled by
law) (i) for the purposes of payments in or purchase of Dollars on which banks
are open for the transaction of domestic and foreign exchange business in
London, Paris and New York City and (ii) in relation to any payment in or
purchase of Euro, any TARGET Day.
BFE XXXX OF SALE means, in respect of an Aircraft, the xxxx of sale executed or
to be executed by GFC in favour of the Seller in the agreed form pursuant to
which title to the Buyer Furnished Equipment is transferred from GFC to the
Seller.
XXXX OF SALE means, in respect of an Aircraft, other than the LTU Aircraft , the
xxxx of sale executed or to be executed by the Seller in favour of the relevant
Borrower or, in the case of the Refinanced Aircraft, in favour of the relevant
Export Lessee and, except in the case of the LTU Aircraft, substantially in the
agreed form evidencing the transfer of title to that Aircraft or any
confirmation of sale if title to the Aircraft is to pass by way of physical
delivery of the Aircraft from the Seller to the relevant Borrower or the
relevant Export Lessee, as the case may be.
BORROWERS means the Cayman Borrower, the Irish Borrower and any Alternative
Borrower who accedes to the Facility Agreement as a borrower pursuant to Clause
3.3 of the Facility Agreement (ALTERNATIVE OBLIGORS) and BORROWER means any of
them.
BORROWER FLOATING CHARGE means each of the Cayman Borrower Floating Charge, the
Irish Borrower Floating Charge and any Alternative Borrower Floating Charge.
BORROWER'S LIEN means, in respect of an Aircraft, any Lien created by or through
a Borrower which is the owner of that Aircraft over that Aircraft, any Engine
or any Parts attached to that Aircraft or exercised, asserted or claimed against
that Aircraft, any Engine or any Parts attached to that Aircraft in respect of a
debt, liability or other obligation (whether financial or otherwise) of the
Borrower (other than (a) a debt, liability or other obligation imposed on the
Borrower as purchaser of that Aircraft pursuant to the Purchase Agreement and
the relevant Purchase Agreement Assignment or arising from the operation,
maintenance, insurance, repair and storage of that Aircraft, any Engine or any
Parts attached to that Aircraft by any Export Lessee, any Lessee or Sub-Lessee,
(b) any Lien over that Aircraft created pursuant to any of the Transaction
Documents or (c) any Lien over that Aircraft arising by Applicable Law where
such Lien does not arise as a result of an act or omission of the Borrower
unless such act or omission is permitted or contemplated by the Transaction
Documents or
Page 4
arises as a result of a breach by either (i) any GATX Obligor of its obligations
under the Transaction Documents) or (ii) any Lessee or Sub-Lessee of its
obligations under any Lease or Sub-Lease) and Borrower's Liens shall be
construed accordingly.
BORROWER SECURITY ASSIGNMENT means, in respect of an Aircraft, the security
assignment to be entered into between the relevant Borrower and the Security
Trustee relating inter alia, to the relevant Credit Sale Agreement, any Lease
Security Assignment, any Intermediate Lease Security Assignment, the Transaction
Fee Letter and the Guarantee.
BORROWER SHARE CHARGE means any or all, as the context may require, of the
Cayman Borrower Share Charge, the Irish Borrower Share Charge and each
Alternative Borrower Share Charge.
BORROWER TERMINATION EVENT has the meaning given to it in Clause 4.6.1 of the
Facility Agreement.
BRITISH CREDITS shall, in respect of an Advance, have the meaning given to that
term in the relevant Loan Supplement.
BRITISH LENDERS means together the Banks and Financial Institutions listed in
Part I of Schedule 1 to the Facility Agreement.
BRITISH MARGIN means zero point two per cent. (0.20%) per annum.
BRITISH NATIONAL AGENT means Halifax plc, a banking institution registered in
England whose registered office is at Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx, XX0
0XX.
BROKEN FUNDING GAINS shall have the meaning given to such term in Clause 13.3.3
of the Facility Agreement.
BUSINESS DAY means a day (other than a Saturday or Sunday or holiday scheduled
by law) on which banks are open for the transaction of domestic and foreign
exchange business and otherwise for the transaction of business of the nature
required hereof or the other Transaction Documents, as appropriate, in London,
Paris, Frankfurt, San Francisco and each such other City as may be from time to
time agreed in writing by the Agent and GFC in a Loan Supplement or otherwise.
BUYER FURNISHED EQUIPMENT means, in respect of an Aircraft, the buyer furnished
equipment relating to that Aircraft supplied by GFC to the Seller prior to the
Delivery Date of such Aircraft.
CALL OPTION means the right of GFC to acquire the shares of the Irish Borrower
pursuant to the Call Option Agreement.
CALL OPTION AGREEMENT means the agreement dated 14 December 2001 between the
Trustee and GFC granting GFC a right to purchase the entire issued share capital
of the Irish Borrower after the Secured Loan Obligations have been satisfied in
full.
CAYMAN BORROWER means EFG Aircraft Limited, a company incorporated under the
laws of the Cayman Islands and having its registered office at Walkers SPV
Limited, Xxxxxx House, Xxxx Street, PO Box 908GT, Xxxxxx Town, Grand Cayman,
Cayman Islands,
CAYMAN BORROWER FLOATING CHARGE means the floating charge dated on or about the
Signing Date and granted by the Cayman Borrower in favour of the Security
Trustee substantially in the agreed form.
CAYMAN BORROWER SHARE CHARGE means the agreement so entitled dated on or about
the Signing Date and made between the Trustee and the Security Trustee and
relating to the shares of the Cayman Borrower in the agreed form.
Page 5
CAYMAN EXPORT LESSEE means X'Xxxxxxx Leasing Limited, a company incorporated
under the laws of the Cayman Islands and having its registered office at Walkers
SPV Limited, Xxxxxx House, Xxxx Street, PO Box 908GT, Xxxxxx Town, Grand Cayman,
Cayman Islands.
CAYMAN EXPORT LESSEE SHARE CHARGE means the agreement so entitled dated on or
about the Signing Date and made between X'Xxxxxxx Leasing (Holdings) Limited and
the Security Trustee and relating to the entire issued share capital of the
Cayman Export Lessee in the agreed form.
CERTIFIED COPY means, in relation to a document, a copy of that document bearing
the endorsement "Certified a true, complete and accurate copy of the original,
which has not been amended otherwise than by a document, a Certified Copy of
which is attached hereto", which has been signed and dated by a person duly
authorised by the relevant company and which complies with that endorsement.
CFM means CFM International, Inc.
CMF ENGINE means an engine manufactured by CFM.
CHANGE IN LAW means, in each case after the Signing Date, (i) the introduction,
abolition, withdrawal or variation of any Applicable Law, regulation, practice
or concession or official directive, ruling, request, notice, guideline,
statement of policy or practice statement by the Bank of England, the Banque de
France, the Deutsche Bundesbank, the United States Federal Reserve, the European
Union, European Central Bank or any central bank, tax, fiscal, governmental,
international, national or other competent authority or agency (whether or not
having the force of law but in respect of which compliance by banks or other
financial institutions in the relevant jurisdiction is generally considered to
be mandatory), or (ii) any change in any interpretation after the Signing Date
of any Applicable Law by any court, tribunal, governmental, revenue,
international, national, fiscal or other competent authority, or (iii) the
compliance by banks or other financial institutions with any new or different
request or direction made after the Signing Date (in each case whether or not
having the force of law but in respect of which compliance by banks or other
financial institutions in the relevant jurisdiction is generally considered to
be mandatory) from any central bank, fiscal, governmental, revenue,
international, national, monetary or other authority.
CODE means the Internal Revenue Code of the United States of America of 1986, as
amended from time to time.
COFACE means the Export Credit Agency of the French Republic, represented by
Compagnie Francaise d'Assurance pour le Commerce Exterieur.
COLLATERAL means the security granted in favour of the Security Trustee pursuant
to the Aircraft Security Documents or any of them.
COMMITMENT means, in relation to a Lender, at any time the amount described as
such set out opposite the name of such Lender in Schedule 1 to the Facility
Agreement or (as the case may be), the Schedule to the relevant Transfer
Certificate, as the same may be cancelled pursuant to the terms of the Facility
Agreement (CANCELLATION OF THE FACILITY)) and as further reduced or increased
pursuant to any Transfer Certificate less the amount of such Lender's Relevant
Proportion of any Advances made before such time.
COMMONLY CONTROLLED ENTITY means an entity, whether or not incorporated, which
is under common control with GFC within the meaning of Section 4001 of ERISA or
is part of a group which includes GFC and which is treated as a single employer
under Section 414 of the Code.
COMPULSORY ACQUISITION means, in respect of an Aircraft or an Engine,
requisition of title or other compulsory acquisition of title (but excluding
requisition for use or hire) of such Aircraft or Engine (as the case may be), by
a Government Entity.
Page 6
CONSENT AND AGREEMENT has the meaning given to it in the Purchase Agreement
Assignment.
CREDIT SALE AGREEMENT means, in respect of an Aircraft, a credit sale agreement
entered into between the relevant Borrower, as lessor, and any Export Lessee, as
lessee, in each case, substantially in the agreed form.
DECLARATION OF TRUST means each or both, as the context may require, of the
declarations of trust to be entered into by the Trustee on 14 December 2001 in
respect of the entire issued share capital of the Cayman Borrower or the Irish
Borrower, as the case may be.
DEFAULT INTEREST PERIOD means, in relation to an Unpaid Amount, each period (not
exceeding six months) as the Agent selects in its absolute discretion (provided
that the first five (5) such periods shall in each case be of one (1) Banking
Day), the first such period commencing on the date on which the overdue payment
was due and each subsequent period commencing on the last day of the preceding
period for so long as the relevant default continues.
DEFAULT RATE means in respect of any Unpaid Amount and any relevant period, the
rate equal to the aggregate of (i) two per cent. (2%) per annum, (ii) the
applicable ECA Premium, (iii) twenty eight (28) basis points and (iv) (if such
Unpaid Amount is due in Dollars) LIBOR or (if such Unpaid Amount is due in Euro)
EURIBOR for such period or (if such Unpaid Amount is in another currency) the
cost of funds of such unpaid Finance Party for such period in the Relevant
Interbank Market, if applicable.
DELIVERY DATE means, (a) in respect of an Aircraft (other than a Refinanced
Aircraft), the date upon which that Aircraft is delivered to the relevant
Borrower by the Seller or (b) in respect of a Refinanced Aircraft, the date upon
which that Refinanced Aircraft was delivered to the first purchaser by the
Seller, which date shall be the date of the delivery of the relevant Xxxx of
Sale or (c) in respect of an Aircraft subject to any interim charter
arrangements from the Seller (if any), the date of delivery of such Aircraft
under such arrangements.
DOLLARS and US$ means the lawful currency for the time being of the United
States of America.
ECA BREAKAGE COST means, in relation to any Advance, the aggregate of the
following:
(1) such amount as the National Agent of the British Credits shall certify as
being equal to the aggregate instalments of the ECA Premium payable to ECGD
which would, but for a prepayment required in accordance with the Facility
Agreement or the declaration by the Agent of a Termination Event under Clause
10.2 of the Facility Agreement (ACCELERATION RIGHTS)(as the case may be), have
fallen due in respect of such Advance after the date of such prepayment or
declaration discounted at a rate of interest which will be determined by ECGD
and communicated to the National Agent of the British Credits.
(It being understood that the repayment of the British Credits is being
guaranteed by ECGD and that ECGD has agreed that the ECA Premium payable by the
British Lenders to ECGD in respect of such guarantee may be paid in instalments
on each Repayment Date and that in the event that the British Credits or any
part thereof is prepaid in accordance with Clause 4 of the Facility Agreement
(INTEREST, REPAYMENT AND PREPAYMENT) or in respect thereof a Termination Event
is declared under Clause 10.2 of the Facility Agreement (ACCELERATION RIGHTS),
all unpaid instalments of such ECA Premium in respect of the Advance or such
part thereof so prepaid will become payable.)
(2) such amount as the National Agent to the French Credits shall certify as
being equal to the aggregate instalments of the ECA Premium which would, but for
a prepayment required in accordance with the Facility Agreement or the
declaration by the Agent of a Termination Event under Clause 10.2 of the
Facility Agreement (ACCELERATION RIGHTS)(as the case may be), have fallen due
in
Page 7
respect of such Advance after the date of such prepayment or declaration
discounted at a rate which will be determined by COFACE and communicated to the
National Agent of the French Credits.
(it being understood that the whole of the ECA Premium owing to COFACE is
payable up-front but that the French Lenders have agreed notwithstanding the
obligation of the French Lenders to pay the ECA Premium in full up front, to
finance the ECA Premium from the payments of interest due under Clause 4 of the
Facility Agreement (INTEREST, REPAYMENT AND PREPAYMENT) and that the rate of
interest pursuant to Clause 4 of the Facility Agreement (INTEREST, REPAYMENT AND
PREPAYMENT) has been calculated on the basis, inter alia, of the obligations of
the French Lenders to make such payment and that, in the event that the French
Credits or any part thereof is prepaid in accordance with Clause 4 of the
Facility Agreement (INTEREST, REPAYMENT AND PREPAYMENT) or in respect thereof a
Termination Event is declared under Clause 10.2 of the Facility Agreement
(ACCELERATION RIGHTS), such up-front ECA Premium is not refundable pro rata
temporis by COFACE).
(3) such amount as the National Agent to the German Credits shall certify as
being equal to the aggregate instalments of the ECA Premium which would, but for
a prepayment required in accordance with the Facility Agreement or the
declaration by the Agent of a Termination Event under Clause 10.2 of the
Facility Agreement (ACCELERATION RIGHTS)(as the case may be), have fallen due
in respect of such Advance after the date of such prepayment or deduction
discounted at a rate which will be determined by the German Government acting
through the German Parallel Lender and communicated to the National Agent of the
German Credits.
(it being understood that the repayment of the German Credits to the German
Lenders is being insured by HERMES and that the whole of the ECA Premium owing
to HERMES is payable up front but the German Lenders have agreed to finance the
ECA Premium payable to HERMES from the payments of interest due under Clause 4
of the Facility Agreement (INTEREST, REPAYMENT AND PREPAYMENT) and that the rate
of interest pursuant to Clause 4 of the Facility Agreement (INTEREST, REPAYMENT
AND PREPAYMENT) has been calculated on the basis of, inter alia, the obligations
of the German Lenders to make such payments and that, in the event that the
German Credits or any part thereof is prepaid in accordance with Clause 4 of the
Facility Agreement (INTEREST, REPAYMENT AND PREPAYMENT) or in respect thereof a
Termination Event is declared under Clause 10.2 of the Facility Agreement
(ACCELERATION RIGHTS), such up-front ECA Premium is not refundable pro rata
temporis by HERMES).
ECA PREMIUM means the fee of fifty basis points (0.5 per cent.) or such other
amount as shall be notified in writing by any of the Export Credit Agencies to
GFC prior to the relevant Advance being made and which is payable to ECGD,
COFACE or HERMES in consideration for ECGD, COFACE and HERMES guaranteeing,
insuring or otherwise covering the relevant participation of the British
Lenders, the French Lenders and the German Lenders respectively in each Advance.
ECGD means Her Britannic Majesty's Secretary of State acting by the Export
Credits Guarantee Department.
EC TREATY means the Treaty establishing the European Community (signed in Rome
on 25 March, 1957), as amended by the Treaty on European Union (signed in
Maastricht on 7 February, 1992) and as amended by the Treaty of Amsterdam
(signed in Amsterdam on 2 October 1997).
ELIGIBLE AIRCRAFT means, as the context may require, any or all of the Airbus
A319, A320 and A321 Aircraft purchased or to be purchased pursuant to the
Purchase Agreement including the Aircraft referred to in Schedule 4 to the
Facility Agreement during the period from the Signing Date to 31 May 2004.
ENGINE or ENGINES means, in respect of an Aircraft, (a) each of the engines
described in Schedule 3 to the relevant Loan Supplement, whether or not from
time to time during the term of the relevant Loan installed on the Airframe or
any other airframe (for so long as it remains property of the relevant
Page 8
Borrower) but which, having been removed from the Airframe, remains the property
of the relevant Borrower or (b) any other Replacement Engine substituted
therefor which becomes the property of the relevant Borrower including, if
applicable, any other Engine which may from time to time be installed upon or
attached to the Airframe and which becomes the property of the relevant Borrower
and (c) insofar as the same belong to the relevant Borrower any and all Parts of
whatever nature from time to time relating to an engine referred to in (a) and
(b) above whether or not installed on or attached to such engine and (d) insofar
as the same belong to the relevant Borrower all substitutions, replacements or
renewals from time to time made on or to any item referred to in (a),(b) and
(c).
ENGINE MANUFACTURERS means together CFM and IAE, each an " ENGINE MANUFACTURER"
and their successors and permitted assigns.
ENGINE WARRANTIES means, in respect of the Engines relating to an Aircraft, the
warranties granted by the relevant Engine Manufacturer of such Engines under the
relevant Engine Warranties Agreement.
ENGINE WARRANTIES AGREEMENT means each of:
(a) in relation to any CFM Engine, the engines warranties agreement dated on
or about the Signing Date between CFM, GFC, the Export Lessees and the
Security Trustee in relation to certain Engine Warranties in relation to
the CFM Engines; and
(b) in relation to any IAE Engine, the engines warranties agreement to be
entered into or, as the case may be, entered into between IAE, GFC, the
Export Lessees and the Security Trustee in relation to certain Engine
Warranties in relation to the IAE Engines
including, in each case, any relevant amendment, modification, letter agreements
and supplements thereto.
ENGLISH LAW MORTGAGE means, in respect of an Aircraft, the mortgage subject to
English law relating to that Aircraft to be entered into between the relevant
Borrower and the Security Trustee in a form approved by the Security Trustee
acting reasonably.
ERISA means the Employee Retirement Income Security Act of the United States of
America of 1974, as amended from time to time.
ERISA AFFILIATE means, as applied to any person, (i) any corporation which is a
member of a controlled group of corporations within the meaning of Section
414(b) of the Code of which that person is a member; (ii) any trade or
business(whether or not incorporated) which is a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of the Code
of which that person is a member; and (iii) any member of an affiliated service
group within the meaning of Section 414(m) or 414(o) of the Code of which that
person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of GFC or
any of its Subsidiaries shall continue to be considered an ERISA Affiliate of
GFC and its Subsidiaries within the meaning of this definition with respect to
the liabilities arising after such period for which GFC or such Subsidiary could
be liable under the Code or ERISA..
EURIBOR means, in relation to any amount denominated in Euro and for any period:
(a) the rate per annum which appears on page 248 (or any replacement for that
page) on the Telerate Screen (or such other service as may replace it for
the purpose of displaying European Inter-bank offered rates of leading
reference banks for deposits in Euros); or
(b) if, pursuant to (a) above, no such quotation is then available on the
Telerate Screen, the percentage rate per annum equal to the offered
quotation which appears on the relevant page of the Reuters screen (being
currently page EURIBOR01) for such period at or about 11.00
Page 9
am (Brussels time) on the Quotation Date for such period or, if such page
shall cease to be available, such other page as the Agent, after agreement
with the National Agents and GFC, shall select; or
(c) if no such rate appears on the Telerate Screen or Reuters Screen (or such
other service as the case may be), the arithmetic mean (rounded upward to
4 decimal places) of the rates, as supplied to the Agent at its request,
quoted by the Reference Banks to leading banks in the Inter-bank market;
at or about 11.00 a.m (Brussels time) (in the case of (a) above) or 10.00 am
London time (in the case of (b) above) on the Quotation Date for the offering of
deposits in Euros for the same period as the relevant period (or, if the periods
are not the same, such period, if any, as the Agent reasonably determines to be
substantially the same);
EUROS AND (EURO) means the lawful currency for the time of the member states of
the European Union that adopt the single currency in accordance with the EC
Treaty.
EXISTING AIRCRAFT shall have the meaning given to such term in Clause 4.7 of the
Facility Agreement (SUBSTITUTION OF AIRCRAFT).
EXPENSES means any fees, out-of-pocket costs and expenses (including, without
limitation, the fees, out-of-pocket costs and expenses of any legal counsel)
which may be reasonably and properly incurred by any of the Finance Parties or
the Export Credit Agencies in connection with the negotiation, preparation,
execution of the Transaction Documents and delivery of the Aircraft (subject to
any cap agreed in writing in respect of legal counsel to the Finance Parties) or
in connection with any amendment requested by any Borrower with the agreement of
GFC, any change of Export Lessee, the accession of any Alternative Obligor in
accordance with Clause 3.3 of the Facility Agreement, an Alternative
Utilisation, any change of ownership or leasing structure, the accession of a
new Guarantor, enforcement, attempted enforcement or appropriate preservation of
their respective rights and duties hereunder or thereunder (including fees,
costs and expenses of legal counsel incurred or sustained in connection with the
enforcement or attempted enforcement of any indemnity contained herein or
therein) together with in each case, Value Added Tax thereon.
EXPORT CREDIT AGENCIES means together COFACE, ECGD and HERMES and EXPORT CREDIT
Agency means any of them.
EXPORT LESSEE TRANSFER CERTIFICATE means the certificate entitled as such in a
form to be agreed and appended to each Credit Sale Agreement.
EXPORT LESSEE SHARE CHARGE means any or all, as the context may require; of the
Cayman Export Lessee Share Charge, the Irish Export Lessee Share Charge and each
Alternative Export Lessee Share Charge (if any).
EXPORT LESSEES means the Cayman Export Lessee, the Irish Export Lessee, and any
Alternative Export Lessee which accedes to the Facility Agreement pursuant to
Clause 3.3 of the Facility Agreement (ALTERNATIVE OBLIGORS) and EXPORT LESSEE
means any of them.
FAA mean the Federal Aviation Administration (or its successor) of the United
States of America.
FACILITY means the term loan facility made available by the Lenders to the
Borrowers pursuant to the Facility Agreement.
FACILITY AMOUNT shall have the meaning given to that term in Clause 2.1 of the
Facility Agreement (FACILITY).
Page 10
FACILITY AGREEMENT means the aircraft facility agreement dated the Signing Date
between (1) the Lenders, (2) Halifax pic, Credit Lyonnais and Bayerische
Landesbank Girozentrale (as National Agents), (3) the German Parallel Lender,
(4) the Agent (5) the Security Trustee, (6) the Cayman Borrower, (7) the Irish
Borrower, (8) the Cayman Export Lessee (9) the Irish Export Lessee, (11) GFC and
(12) the Joint Arrangers.
Fees Letter means the letters dated on or about the Signing Date between GFC,
the Joint Arrangers, and the Agent specifying the fees payable pursuant to the
Facility Agreement.
FINAL DISPOSITION means, in relation to an Aircraft and following a Termination
Event:
(a) the sale by the relevant Borrower or by the Security Trustee as mortgagee
against immediate payment in cash or for other consideration, whether
through an agent on its behalf or otherwise, of all its right, title and
interest in and to such Aircraft (including, without limitation, a sale to
the relevant Lessee, GFC and/or to any other person other than to a
Borrower or a person who becomes a Borrower in accordance with the
Facility Agreement and whether pursuant to the terms of the relevant Lease
or otherwise howsoever); or
(b) completion by delivery of such Aircraft to the purchaser or lessee (as the
case may be), of a sale, lease or other disposition by or on behalf of the
relevant Borrower or by the Security Trustee as mortgagee, pursuant to a
conditional sale, hire purchase, full pay-out finance lease or other
arrangement providing for the payment in full of the purchase price of
such Aircraft over an agreed period of time and involving the retention by
or on behalf of the relevant Borrower or the Security Trustee as mortgagee
of title to, or a security or similar interest in, such Aircraft.
FINAL DISPOSITION PROCEEDS means, in relation to an Aircraft, the aggregate
amount of:
(a) all consideration (whether cash or otherwise) received and retained by or
on behalf of the relevant Borrower or the Security Trustee as mortgagee
upon or as a result of the Final Disposition of such Aircraft;
(b) any cash (including any non-refundable deposits) received and retained as
a result of the sale or proposed sale by the relevant Borrower or the
Security Trustee as mortgagee of its right, title and interest in and to
any agreement for the Final Disposition of such Aircraft in a manner
contemplated by paragraph (b) of the definition of Final Disposition or
any non-cash consideration received by either of them as a result of the
Final Disposition of such Aircraft or, in the case where the Final
Disposition provides for the payment in full of the purchase price of such
Aircraft over an agreed period of time, all cash receipts in respect of
such Final Disposition (as the case may be).
FINAL REPAYMENT DATE has the meaning given to that term in Clause 3.6.2 (c).
FINANCE PARTIES means the Lenders, the Representatives and the Joint Arrangers
and FINANCE PARTY means any of them.
FINANCE PARTY LIEN means any Lien on any Airframe, any Engine or any Part
arising solely as a result of:
(a) claims against any Finance Party (including, in the case of the Security
Trustee, such Person in its individual capacity or in its capacity as Security
Trustee) that are not related to the transactions contemplated by the
Transaction Documents,
Page 11
(b) any act or omission of any Finance Party (including, in the case of the
Security Trustee, such Person in its individual capacity or in its capacity as
Security Trustee) which is not related to the transactions contemplated by the
Transaction Documents, or
(c) Taxes (including claims therefor) or other Losses imposed on any Finance
Party (including, in the case of the Security Trustee, such Person in its
individual capacity or in its capacity as Security Trustee) for which an Obligor
is not obligated to indemnify pursuant to any Transaction Document.
FINANCIAL INDEBTEDNESS means any indebtedness in respect of:
(a) moneys borrowed at banks and other financial institutions;
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance credit;
(d) receivables sold or discounted (otherwise than on a non-recourse basis);
(e) the acquisition cost of any asset to the extent payable before or after
the time of acquisition or possession by the party liable where the
advance or deferred payment is arranged primarily as a method of raising
finance or financing the acquisition of that asset;
(f) any lease entered into primarily as a method of raising finance or
financing the acquisition of the asset leased;
(g) any currency swap or interest swap, cap or collar arrangements or any
other derivative instrument;
(h) any amount raised under any other transaction having the commercial
effect of a borrowing or raising of money; or
(i) any guarantee, indemnity or similar assurance against financial loss of
any person in respect of any indebtedness specified in (a)-(h) above.
FRENCH CREDITS shall, in respect of an Advance, have the meaning given to that
term in the relevant Loan Supplement.
FRENCH LENDERS MEANS TOGETHER THE BANKS AND FINANCIAL INSTITUTIONS listed in
Part II of Schedule 1 to the Facility Agreement.
FRENCH MARGIN means zero point two eight per cent. (0.28%) per annum.
FRENCH NATIONAL AGENT means Credit Lyonnais a banking institution established
under the laws of France acting through its main office at 0-0 xxx xxx Xxxxxxxx,
00000 Xxxxx, Xxxxxx.
GATX GROUP means GFC and its Subsidiaries from time to time.
GATX GROUP COMPANY means any member of the GATX Group.
GATX OBLIGOR means any Export Lessee, and GATX OBLIGORS means all of them.
GERMAN CREDITS shall, in respect of an Advance, have the meaning given to that
term in the relevant Loan Supplement.
GERMAN LENDERS means together the Banks and Financial Institutions listed in
Part III of Schedule 1 to the Facility Agreement.
Page 12
GERMAN MARGIN means zero point two eight per cent. (0.28%) per annum.
GERMAN NATIONAL AGENT means Bayerische Landesbank Girozentrale a banking
institution established under the laws of Germany and whose principal place of
business is at Xxxxxxxx Xxxxxxx 00, X-00000, Xxxxxx, Xxxxxxx.
GERMAN PARALLEL LENDER means Kreditanstalt Fur Wiederaufbau, a public
corporation established under the laws of Germany and having its principal place
of business at Xxxxxxxxxxxxxxxxxxx 0-0, 00000 Xxxxxxxxx xx Xxxx.
GFC means GATX Financial Corporation, a corporation incorporated under the laws
of the State of Delaware, United States of America and having an office at Four
Embarcadero Center, Suite 2200, San Francisco, California 94111, United States
of America.
GOVERNMENT ENTITY means (i) any national, state or local government or (ii) any
board, commission, department, division, courts or agency or political
sub-division thereof, howsoever constituted.
GUARANTEE means the guarantee dated the Signing Date between the Guarantors and
the Borrowers pursuant to which the Guarantors guarantee the performance of the
Guaranteed Obligations (as such term is defined therein) of the Export Lessees.
GUARANTORS means GFC and such other person or persons who shall from time to
time have acceded to the Guarantee as a "Guarantor" or "Guarantors" (as the case
may be) in accordance with the terms and conditions of the Transaction
Documents.
HEAD LESSOR TRANSFER CERTIFICATE means the certificate entitled as such in a
form to be agreed and appended to each Credit Sale Agreement.
HERMES means the Export Credit Agency of Germany, represented by Hermes
Kreditversicherungsaktiengesellschaft.
HOME COUNTRIES means the United Kingdom, the French Republic and Germany and
HOME COUNTRY shall mean anyone of them.
HOME COUNTRY AIRCRAFT means an Aircraft which is leased to an Operator Lessee
incorporated in a Home Country.
HOME COUNTRY NOTICE has the meaning given to it in Clause 7.2.4(a) of the
Facility Agreement.
IAE means IAE International Aero Engines A.G.
IAE ENGINE means an engine manufactured by IAE.
INDEMNITEE means each of the Agent, the Joint Arrangers, the Security Trustee
and each Lender together with their respective officers and employees.
INSURANCE UNDERTAKING shall have the meaning given to that term in Part 4 of
Schedule 5 to the Facility Agreement.
INSURANCES means, in relation to an Aircraft, any and all contracts or policies
of insurance taken out in respect of such Aircraft (or an indemnity from a
Government Entity if the consent thereto from the Export Credit Agencies in
accordance with the terms hereof has been obtained) and required to be effected
and maintained in accordance with the Facility Agreement.
Page 13
INTERMEDIATE LEASE means in respect of an Aircraft financed under a structure
where an Export Lessee leases the Aircraft to another Export Lessee a subject
and subordinate, lease agreement entered into between those Export Lessees as
lessor and lessee in the agreed form.
INTEREST PERIOD means, in respect of a Loan, each period commencing from (and
including) the Utilisation Date of the relevant Aircraft or (as the case may be)
a Repayment Date to (but excluding) the next succeeding Repayment Date.
INTERMEDIATE LEASE SECURITY ASSIGNMENT means, in respect of an Aircraft financed
under a structure involving an Intermediate Lease, the security assignment
relating to the relevant Intermediate Lease to be entered into between the
relevant Export Lessee and the Security Trustee, in each case substantially in
the agreed form.
INTRA GROUP FINANCING ARRANGEMENTS means (a) any agreement creating Financial
Indebtedness between an Intra-Group Counterparty as lender and an Export Lessee
as borrower in relation to an Aircraft, (b) any agreement creating Financial
Indebtedness between an Export Lessee as borrower and a Intra-Group Counterparty
as lender, (c) any put and/or call arrangement between an Intra-Group
Counterparty and an Export Lessee whereunder (subject always to the requirements
of the Transaction Documents) such Export Lessee has the right to transfer to
Intra-Group Counterparty, and/or an Intra-Group Counterparty has the right to
have transferred to it by such Export Lessee, all or some of such Export
Lessee's rights and obligations under the Transaction Documents with respect to
an Aircraft.
INTRA-GROUP COUNTERPARTY means any Export Lessee or any affiliate of any Export
Lessee or Guarantor.
IRISH BORROWER means EFG Aircraft (Ireland) Limited, a company incorporated
under the laws of Ireland and having its registered office at West Block
Building, International Financial Services Centre, Xxxxxx 0, Xxxxxxx.
IRISH BORROWER FLOATING CHARGE means the floating charge to be granted by the
Irish Borrower in favour of the Security Trustee substantially in the agreed
form.
IRISH BORROWER SHARE CHARGE means the agreement so entitled dated on or about
the Signing Date and made between the Trustee and the Security Trustee and
relating to the shares of the Irish Borrower in the agreed form.
IRISH EXPORT LESSEE means X'Xxxxxxx Leasing (Ireland) Limited, a company
incorporated under the laws of Ireland and having its registered office at 00
Xxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx.
IRISH EXPORT LESSEE SHARE CHARGE means the agreement so entitled dated on or
about the Signing Date and made between GATX Third Aircraft Corporation and the
Security Trustee and relating to the entire issued share capital of the Irish
Export Lessee in the agreed form.
JOINT ARRANGERS means together Credit Lyonnais, a banking institution
established under the laws of France acting through its main office at 0-0 xxx
xxx Xxxxxxxx, 00000 Xxxxx, Xxxxxx and Halifax plc, a banking institution
registered in England with company registration number 2367076 whose registered
office is at Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx, XX0 0XX.
LEASE means, in respect of an Aircraft, any lease agreement relating to that
Aircraft entered or to be entered into (including by novation or assignment)
between an Export Lessee as lessor and the relevant Lessee as lessee.
LEASE SECURITY ASSIGNMENT means, in respect of an Aircraft, the security
assignment relating to the Lease to be entered into between an Export Lessee and
the relevant Borrower substantially in the agreed form.
Page 14
LENDING OFFICE means, in relation to a Lender, its branch or office at the
address specified against its name in Schedule 1 to the Facility Agreement or
specified in the Transfer Certificate whereby such Lender becomes a party hereto
or such other branch or office determined in accordance with the provisions of
the Facility Agreement.
LENDERS means together the British Lenders, the French Lenders and the German
Lenders and severally a LENDER.
LESSEE means, in respect of an Aircraft and at any time, an Export Lessee's
airline customer who is the lessee of that Aircraft pursuant to a Lease.
LESSEE SECURITY means, in respect of an Aircraft, (i) any security deposit which
has been paid or which is payable in cash by the Lessee pursuant to the relevant
Lease and/or (ii) any letter of credit which any Lessee has procured the issue
of in lieu of such security deposit and which has not been applied by the
relevant Export Lessee or returned to the Lessee, in each case, in accordance
with the terms of the relevant Lease.
LIBOR means in relation to any amount denominated in any currency (other than
Euros) and for any period the offered rate (if any) for deposits in such
currency for such amount and for such period which is:
(a) determined by the Agent to be the rate, for such amount and for such
period, appearing on page 3750 for such currency on the Telerate screen at
or about 11:00 a.m. (London time) on the Quotation Date relating to such
period; or
(b) if the relevant page is not displayed on the Telerate screen or the
Telerate screen is not operating at the relevant time or if no such
offered rate appears on the Telerate screen, the arithmetic mean (rounded
to the nearest four-decimal places) of all rates, for such currency on
the Reuters screen LIBOR page at or about 11:00 a.m. (London time) on the
Quotation Date relating to such period; or
(c) if the LIBOR page is not displayed on the Reuters screen or the Reuters
screen is not operating at the relevant time or if no such offered rate
appears on the Reuters screen LIBOR page, the arithmetic mean (rounded to
the nearest four decimal places) determined by the Agent to be that of the
rates at which deposits in the relevant currency and in an amount
comparable with the amount in relation to which LIBOR is to be determined
and for a period equal to the relevant period were being offered by the
Reference Banks to the British National Agent and/or the French National
Agent and/or the German National Agent in the London Interbank Market at
or about 11:00 a.m. (London time) on the Quotation Date.
LIEN means, in relation to an Aircraft, any encumbrance or security interest
whatsoever, howsoever created or arising including any right of ownership,
security, mortgage, pledge, assignment by way of security, charge, lease, lien,
statutory right in rem, hypothecation, title retention arrangement, attachment,
levy, claim, right of detention or security interest whatsoever, howsoever
created or arising or any right or arrangement having a similar effect to any of
the above.
LOAN means, in respect of an Advance, the aggregate principal amount of the
British Credits, the French Credits and the German Credits owing to the Lenders
in respect of such Advance from time to time.
LOAN SUPPLEMENT means, in respect of an Aircraft, the loan supplement relating
to that Aircraft to be entered into between the relevant Borrower and the Agent
(for itself and as agent for the Security Trustee and the Lenders) substantially
in the form set out in Schedule 8 to the Facility Agreement.
LOAN TERMINATION NOTICE has the meaning ascribed to it in Clause 10,2(b) of the
Facility Agreement.
Page 15
LONDON BANKING DAY means a day when banks are open for the transaction of
domestic and foreign exchange business in London.
LOSSES means any losses, demands, liabilities, obligations, claims, actions,
proceedings, penalties, fines, damages, adverse judgments, orders or other
sanctions (in each case exclusive of loss of profit or income) and Loss shall be
construed accordingly.
LTU AIRCRAFT means the aircraft comprising Airbus A321-200 airframe having
manufacturer's serial number 1629 together with the relevant Engines (whether or
not the relevant Engines may from time to time be installed on such airframe)
together with the relevant Technical Records.
MAINTENANCE RESERVES means, in respect of an Aircraft, the maintenance reserves
or any letter(s) of credit or other security in respect thereof, if any, which
have been paid and/or issued and which are payable and/or to be issued from time
to time by the Lessee pursuant to the relevant Lease.
MAJORITY LENDERS means (i) in relation to any decision, discretion, action or
inaction under any of the Transaction Documents in respect of which any National
Agent either must follow the instructions of the relevant Export Credit Agency
under the relevant Support Agreement or, in its good faith opinion, believes the
consent of the relevant Export Credit Agency to be necessary, the relevant
National Agent(s) and (ii) in relation to any other decision, discretion, action
or inaction under any of the Transaction Documents that is provided to be made
by the Majority Lenders, the Lenders the aggregate of whose Relevant Proportions
of Advances already made and which remain outstanding at the relevant time, is
equal to or exceeds sixty-six and two thirds per cent. (66 2/3%) of the
aggregate of the Advances.
MANAGER means, in respect of the Cayman Borrower, Walkers SPV Limited, in its
capacity as manager of the Cayman Borrower, and in respect of the Irish
Borrower, AIB International Financial Services Limited, in its capacity as
manager of the Irish Borrower.
MANUFACTURER means Airbus Industrie G.I.E. currently of 0 Xxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000, Xxxxxx together with its successors and assigns.
MARGIN means, for any Interest Period, (i) for the purposes of the British
Credits, the British Margin, (ii) for the purposes of the French Credits, the
French Margin and (iii) for the purposes of the German Credits, the German
Margin.
MATERIAL ADVERSE EFFECT means a material adverse effect on (a) the validity of
any of the obligations of any Obligor under the Facility Agreement or any of the
other Transaction Documents to which it is a party or (b) the ability of any of
the Obligors to comply with its obligations under the Facility Agreement or any
of the other Transaction Documents to which it is a party.
MINIMUM LEASE PROVISIONS shall have the meaning given to that term in Part 1 of
Schedule 5 to the Facility Agreement.
MODEL LEASE AGREEMENT has the meaning given to it in paragraph (g)(i) of Part 1
of Schedule 5 to the Facility Agreement.
MORTGAGE means, in respect of an Aircraft, the first priority mortgage relating
to that Aircraft to be entered into between the relevant Borrower and the
Security Trustee in a form approved by the Security Trustee acting reasonably.
NATIONAL AGENTS means the British National Agent, the French National Agent and
the German National Agent.
Page 16
NET WORTH means, at any date, total shareholders' equity of the GATX Group on a
consolidated basis as set out in the most recent quarterly reporting form
currently known as "10Q" filed with the United States Securities and Exchange
Commission and/or annual audited consolidated financial statements of the GATX
Group, each delivered pursuant to Clause 7.4 of the Facility Agreement.
NO. 1 AIRCRAFT means the Aircraft comprising the Airbus A319-100 airframe having
manufacturers serial number 1612 together with the relevant Engines (whether or
not any of the relevant Engines may from time to time be installed on such
airframe) together with the relevant Technical Records.
OBLIGORS means each Borrower, each Export Lessee, GFC and the Guarantor and
OBLIGOR means any of them.
OFF-LEASE AIRCRAFT means, at any time, any Aircraft which is at such time not
being leased pursuant to a Lease.
OPERATIONAL UNDERTAKINGS shall have the meaning given to that term in Part 2 of
Schedule 5 to the Facility Agreement.
OPERATOR LESSEE shall have the meaning given thereto in Clause 7.2.2 of the
Facility Agreement.
PART means, in relation to an Aircraft, each module, appliance, part, accessory,
instrument, furnishing and other item of equipment of whatsoever nature
(including the Buyer Furnished Equipment), other than a complete Engine or
engine, which at any time of determination is incorporated or installed in or
attached to the relevant Airframe or any relevant Engine, in each case title to
which is vested in the relevant Borrower or having been removed therefrom, title
to which remains vested in the relevant Borrower.
PARTY shall mean any party hereof or any party that accedes to this agreement or
deed in accordance with the terms hereof.
PURCHASE AGREEMENT ASSIGNMENT means, in relation to an Aircraft, the Purchase
Agreement Assignment to be entered into (subject to the consent of the Seller)
between GFC and the relevant Borrower in the agreed form in respect of the right
to take title to that Aircraft under the relevant Purchase Agreement.
PENSION PLAN means at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which GFC or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
PERMITTED LEASE means a Lease which:
(i) is made with a Permitted Lessee; and
(ii) complies with the Minimum Lease Provisions and imposes on the relevant
Permitted Lessee the Operational Undertakings, the Replacement of Parts,
Alterations, Modifications and Additions Undertakings and the Insurance
Undertakings as a minimum requirement.
PERMITTED LESSEE means
(i) any person holding all relevant certificates and consents for the
operation of the relevant Aircraft whose habitual base of operation is not
located in a Prohibited Country; and
(ii) any other person or operator approved in writing by the Agent (acting on
the instructions of the National Agents).
Page 17
PERMITTED LIENS means, in relation to an Aircraft:
(a) any Lien affecting that Aircraft for Taxes or other governmental or
statutory charges or levies not yet assessed or, if assessed, not yet due
and payable or, if due and payable, which the relevant Borrower, the
relevant Export Lessee or the relevant Lessee or the relevant Sub-Lessee
(if any) is disputing or contesting in good faith by appropriate
proceedings (and when required in order to pursue such proceedings, an
adequate bond has been provided) so long as such proceedings, or the
continued existence of such Lien, do not at that time, in the reasonable
opinion of the Agent, involve the likelihood of the sale, forfeiture or
loss of the Aircraft or any relevant Engine or Part;
(b) any Lien affecting the Aircraft for the fees or charges of any airport or
air navigation authority arising in the ordinary course of business by
statute or by operation of law, in each case for amounts the payment of
which either is not yet due and payable or, if due and payable, is being
disputed or contested in good faith by appropriate proceedings (and when
required in order to pursue such proceedings, an adequate bond has been
provided) so long as such proceedings, or the continued existence of such
Lien, do not at that time, in the reasonable opinion of the Agent, involve
the likelihood of the sale, forfeiture or loss of the Airframe or, any
relevant Engine or Part;
(c) any Lien affecting that Aircraft for the fees or charges of any supplier,
mechanic, xxxxxxx, repairer, employee or like lien arising in the ordinary
course of business by contract or by statute or by operation of law, in
each case for amounts (i) the payment of which is not yet due and payable,
or (ii) which are not overdue for payment having regard to the custom of
the relevant trade, in circumstances where no enforcement action against
the Aircraft has yet been taken by the relevant lienholder or (iii) if due
and payable is being disputed or contested in good faith with the relevant
lienholder by appropriate proceedings (and when required in order to
pursue such proceedings, an adequate bond has been provided) so long as
such proceedings, or the continued existence of such Lien, do not at that
time, in the reasonable opinion of the Agent, involve the likelihood of
the sale, forfeiture or loss of the Airframe or, any relevant Engine or
Part;
(d) any Lien affecting that Aircraft (other than a Lien for Taxes) arising out
of judgments or awards against the relevant Borrower or the Export Lessee
or the relevant Lessee or the relevant Sub-Lessee (if any) with respect to
which at the time the period for an appeal has not expired or an appeal is
being presented in good faith and with respect to which within forty (40)
days thereafter there shall have been secured a stay of execution pending
such appeal (and when required in order to pursue such proceedings, an
adequate bond has been provided) so long as such judgment or award, or the
continued existence of such Lien, does not at that time, in the reasonable
opinion of the Agent, involve the likelihood of the sale, forfeiture or
loss of the Airframe, any relevant Engine or Part;
(e) any Lien created pursuant to any of the Transaction Documents for the
relevant Aircraft;
(f) any Finance Party Lien; and
(g) any other Lien created with the prior written consent of the Security
Trustee.
PROCEEDS means, in relation to an Aircraft or the Loan made in respect of such
Aircraft:
(a) any and all amounts received or recovered under the Facility Agreement
(other than (i) prior to the occurrence of a Termination Event, scheduled
payments of principal and interest or (ii) any amounts received by
application of Clause 12 of the Facility Agreement);
(b) any Final Disposition Proceeds;
Page 18
(c) any and all other proceeds of enforcement of the Aircraft Security
Documents relating to such Aircraft;
(d) any Total Loss Proceeds;
(e) any Requisition Proceeds;
(f) any and all amounts received or recovered from the Guarantors upon
enforcement of the Guarantee;
(g) any and all amounts received or recovered under any Lease after a Trigger
Event Notice has been received by the relevant Lessee and remains in
effect; and
(h) any and all other amounts received by the Agent, the Security Trustee or
any Lender from any of the Obligors (whether directly or through a
Borrower) pursuant to the provisions of the Transaction Documents.
PROCEEDS ACCOUNTS means, each of the Dollar account and the Euro account of the
Security Trustee with Credit Lyonnais designated by the Security Trustee to
which any Proceeds will be credited or such other account as the Security
Trustee may designate from time to time by notice to the other parties hereto.
PROHIBITED COUNTRY means, in relation to an Aircraft, any state, country or
jurisdiction which is subject from time to time to any United Sanctions Order,
US Export Controls, the United Kingdom Export of Goods (Control) Order 1992, the
Dual-Use and Related Goods (Export Control) (Amendment) Regulations 1997
pursuant to Xxxxxxxx Xxxxxxxxxxx Xxx 0000 or any statutory modification or
re-enactment thereof or successor or similar or corresponding legislation than
in effect in the United Kingdom, the French Republic or Germany, the effect of
which unless GFC or its applicable Subsidiary has obtained any applicable
consents or licences, prohibits GFC or such applicable Subsidiary from exporting
to and/or consigning for use of the relevant Aircraft in such country.
PURCHASER XXXX OF SALE means, in respect of a Refinanced Aircraft, the warranty
xxxx of sale executed or to be executed by the owner of such Refinanced Aircraft
in favour of the Borrower in a form reasonably acceptable to the Agent
evidencing the transfer of title to that Refinanced Aircraft from such owner to
such Borrower.
QUIET ENJOYMENT LEASE means a Lease which is a Permitted Lease and either:
(i) is entered into at a time when no Termination Event and no Trigger Event
has occurred and is continuing; or
(ii) requires the payment of rent in Dollars or Euros from time to time in such
amounts and on dates which are either:
(a) sufficient (assuming no change in prevailing interest rates from the
date on which the determination of such sufficiency is made) to
enable the relevant Borrower to pay to the Agent on each Repayment
Date an amount equal to not less than seventy five per cent. (75%)
of the relevant Repayment Instalment payable on each Repayment Date
in respect of the Advance for the relevant Aircraft; or
(b) reflective of rents generally available in the operating lease
market for new leases of the same type and age of aircraft as the
relevant Aircraft for the same or a similar term and to operators of
the same or a similar standing to the Lessee PROVIDED THAT, in the
case of a Permitted Lease meeting the requirements of (b) but not
the requirements of
Page 19
(a), the term of such Permitted Lease, during which the requirements
of (a) above are not satisfied, shall not be more than 24 months.
QUIET ENJOYMENT UNDERTAKING means, in respect of a Quiet Enjoyment Lease, a
quiet enjoyment undertaking from the Security Trustee and the relevant Borrower
to the Lessee and/or the Export Lessee in the agreed form or in such other form
as the Security Trustee may agree from time to time, acting reasonably.
QUOTATION DATE means, in relation to any period for which an interest rate is to
be determined:
(a) (if the currency is Euro) two TARGET Days before the first day of the that
period; or
(b) (if the currency is Dollars) two London Banking Days before the first day
of that period,
unless market practice differs in the Relevant Interbank Market for a currency,
in which case the Quotation Day for that currency will be determined by the
Agent in accordance with market practice in the Relevant Interbank Market (and
if quotations would normally be given by leading banks in the Relevant Interbank
Market on more than one day, the Quotation Day will be the last of those days).
RECEIVER means any receiver or receiver and manager appointed after a
Termination Event which is continuing by the Agent, the Security Trustee or the
Majority Lenders pursuant to any Aircraft Security Document.
REFERENCE BANKS means Credit Lyonnais, Halifax pic and Citibank, N.A.
REFERENCE DATE means the 16th day of each month.
REFINANCED AIRCRAFT means together the LTU Aircraft and the No.1 Aircraft.
RELEVANT EVENT means any event which with any one or more of the lapse of time,
the giving of notice, or the making of a determination, would become a
Termination Event.
RELEVANT INTERBANK MARKET means the London interbank market or, if the
applicable currency is not available in such market, the European interbank
market.
RELEVANT PROPORTION means, with respect to any Lender and a Loan, at any time,
the proportion which such Lenders share of the British Credits, the French
Credits or the German Credits (as the case may be) bears to the total amount of
the Loan at such time.
RELEVANT RATE means, in relation to any Advance, the aggregate of (a) the Ask
rate for 12 year US Dollar or Euros (as the case may be) interest rate swaps as
shown in the Financial Times five (5) Banking Days prior to the proposed date of
drawdown of Advance and (b) seventy eight (78) basis points or, if such Ask rate
is not available, such other rate as the Parties may agree from time to time.
RENTALS means, in respect of an Aircraft, the rentals payable by the Lessee to
the relevant Export Lessee pursuant to a Lease.
REPAYMENT DATE means, in relation to an Advance, each Reference Date as set
forth in Column 1 of Schedule 2 to the relevant Loan Supplement PROVIDED always
that if any Repayment Date would otherwise fall on a day which is not a Banking
Day, such Repayment Date shall be deemed to fall on the next succeeding Banking
Day unless such Repayment Date falls in the next succeeding calendar month, in
which case it shall fall on the immediately preceding Banking Day.
REPAYMENT INSTALMENT means, in relation to a Loan, with respect to each
Repayment Date, the principal amount due and payable on such Repayment Date, as
determined in accordance with
Page 20
Clause 4.2 of the Facility Agreement (REPAYMENT OF PRINCIPAL) together with
interest thereon payable pursuant to Clause 4.1 of the Facility Agreement
(PAYMENT OF INTEREST) all as set out in schedule 2 to the relevant Loan
Supplement,
REPLACEMENT ENGINE means an engine of an Engine Manufacturer, of the same or an
improved model and suitable for use on the relevant Airframe and having a
utility and value at least equal to the Engine in respect of which a Total Loss
or transfer of title has occurred.
REPLACEMENT OF PARTS, ALTERATIONS, MODIFICATIONS and ADDITIONS UNDERTAKING shall
have the meaning given to that term in Part 3 of Schedule 5 to the Facility
Agreement.
REPORTABLE EVENT means any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the thirty day notice period is waived under
subsection 23, 24, 26, 28 or 30 of PBGC Reg. Section 4043.
REPRESENTATIVES means together the Agent, the Security Trustee and the National
Agents.
REQUIRED INSURANCE VALUE means, in relation to an Aircraft and at any time of
determination 115% of the principal amount outstanding at such time in respect
of the Loan relating to such Aircraft.
REQUISITION PROCEEDS means, in relation to an Aircraft, any monies and/or other
compensation received directly by the relevant Borrower, the relevant Export
Lessee and/or the Security Trustee in its capacity as mortgagee in respect of
the Compulsory Acquisition of such Aircraft.
SCHEDULED DELIVERY DATE means, in respect of an Aircraft, the date nominated in
the relevant Utilisation Notice for the delivery of that Aircraft from the
Seller to the relevant Borrower.
SCHEDULED DELIVERY MONTH means, in respect of any Aircraft, the month in which
that Aircraft is scheduled to be delivered as set out in Schedule 4 to the
Facility Agreement as the same may be varied by any notice delivered by the
relevant Borrower to the Agent under Clause 2.2.2 of the Facility Agreement
(AVAILABILITY PERIOD).
SECURED OBLIGATIONS means any and all monies, liabilities and obligations
(whether actual or contingent, whether now existing or hereafter arising,
whether or not for the payment of money, and including any obligation or
liability to pay damages and including any interest which, but for the
application of bankruptcy or insolvency laws, would have accrued on the amounts
in question) which are now or which may at any time and from time to time
hereafter be due, owing, payable or incurred or expressed to be due, owing,
payable or incurred from or by any Obligor to any Secured Party under or in
connection with any of the Transaction Documents and references to Secured
Obligations includes references to any part thereof.
SECURED LOAN OBLIGATIONS means the Secured Obligations excluding the
Subordinated Secured Obligations.
SECURED PARTIES means together, the Finance Parties and the Export Lessees and
SECURED PARTY means any of them.
SECURITY PERIOD means the period commencing on the Signing Date and ending on
the date upon which the Secured Loan Obligations shall have been satisfied in
full.
SECURITY TRUSTEE means Credit Lyonnais a banking institution established under
the laws of France acting through its main office at 0-0 xxx xxx Xxxxxxxx, 00000
Xxxxx, Xxxxxx.
Page 21
SELLER means AVSA S.A.R.L., a French societe a responsabilite limitee, duly
organised and existing under the laws of the Republic of France and currently
having its registered office at 0 Xxxx Xxxxx Xxxxxxx-Xxxxxxxx 00000 Xxxxxxx,
Xxxxxx together with its successors and assigns.
SHARE CHARGES means together each of the Borrower Share Charges each of the
Export Lessee Share Charges.
SIGNING DATE means 20 December 2001
STANDARD means, in relation to any particular issue or matter, the standard
which a reputable international operating lessor would apply in the applicable
circumstances having regard, where relevant, to:
(i) the credit standing of the relevant Lessee or proposed Lessee;
(ii) the economic terms of the relevant Lease;
(iii) the negotiating position of the relevant Lessee or proposed Lessee and GFC
in its capacity as an operating lessor; and
(iv) the interests and particular concerns of the Export Credit Agencies.
STATE OF REGISTRATION means, in relation to an Aircraft, any state or territory
in which that Aircraft is registered from time to time pursuant to a Lease,
Sub-Lease or pursuant to the Facility Agreement (as the case may be).
SUB-LEASE means, in respect of an Aircraft, any sub-lease agreement entered or
to be entered into between a Lessee and a Sub-Lessee.
SUB-LESSEE means, in respect of an Aircraft, any sub-lessee thereof as permitted
by the terms of the relevant Lease.
SUBORDINATED SECURED OBLIGATIONS means the Secured Obligations to the extent
owed by a Borrower to an Export Lessee.
SUBSIDIARY means any person of which or in which GFC or its other Subsidiaries
own directly or indirectly more than 50% of:
(a) the combined voting power of all classes of stock or shares having general
voting power under ordinary circumstances to elect a majority of the board
of directors of such person, if it is a corporation or company;
(b) the capital interest or profits interest of such person, if it is a
partnership, limited liability company, joint venture or similar entity;
or
(c) the beneficial interest of such person, if it is a trust, association or
other unincorporated organisation.
SUPPORT AGREEMENTS means, in relation to a Utilisation, together (i) the
Guarantee Agreement to be entered into between ECGD and the British Lenders and
(ii) the Promesse de Garantie and the Police d'Assurance Credit to be entered
into between COFACE and the French National Agent for and on behalf of the
French Lenders and (iii) the Finanzkreditgarantie-Erklarung to be entered into
between HERMES and the German Lenders.
TARGET means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
Page 22
TARGET DAY means any day on which TARGET is open for settlement of payments in
Euro.
TAX means all present and future taxes, charges, imposts, duties, levies,
deductions, withholdings or fees of any kind whatsoever, or any amount payable
on account of or as security for any of the foregoing, payable at the instance
of or imposed by any statutory, governmental, international, state, federal,
provincial, local or municipal authority, agency, body or department whatsoever,
or European Union institution, together with any penalties, additions, whether
fines, surcharges or interest relating thereto; and TAXES and TAXATION shall be
construed accordingly.
TAX LIABILITY means, in respect of any person:
(a) any liability or any increase in the liability of that person to make any
payment or payments of or in respect of Tax;
(b) the loss or setting off against income, profits or gains or against any
liability to make a payment or payments of or in respect of Tax of any
relief, allowance, deduction or credit in respect of Tax (a RELIEF) which
would otherwise have been available to that person; and
(c) the loss or setting off against any liability to make a payment or
payments of or in respect of Tax of a right to repayment of Tax which
would otherwise have been available to that person,
(d) and in any case falling within (b) or (c) above the amount that is to be
treated as a Tax Liability shall be determined as follows:
(i) in a case which falls within (b) above and where the Relief that was
the subject of the loss or setting off was or would have been a
deduction from or offset against Tax, the Tax Liability shall be the
amount of that Relief;
(ii) in a case which falls within (b) above and which involves the loss
of a Relief which would otherwise have been available as a deduction
from or offset against gross income, profits or gains the Tax
Liability shall be the amount of Tax which would (on the basis of
the Tax rates current at the date of the loss and assuming that the
person has sufficient gross income, profits or gains to utilise the
Relief) have been saved but for the loss of the Relief;
(iii) in a case which falls within (b) above and which involves the
setting off of a Relief which would otherwise have been available as
a deduction from or offset against gross income, profits or gains,
the Tax Liability shall be the amount of Tax which has been or will
be saved in consequence of the setting off;
(iv) in a case which falls within (c) above, the Tax Liability shall be
the amount of the repayment that would have been obtained but for
the loss or setting off;
and for the purposes of this definition any question of whether or not any
relief, allowance, deduction, credit or right to repayment of Tax has been lost
or set off, and, if so, the date on which that loss or set off took place, shall
be certified by the relevant Lender or (as the case may be), the relevant
Representative.
TECHNICAL RECORDS means, in respect of an Aircraft, all technical data, manuals,
computer records, logbooks and other records required to be maintained pursuant
to any law or regulation or any requirement for the time being of the applicable
Aviation Authority and relating to that Aircraft or, any relevant Engine or
Part.
TERMINATION AMOUNT means, in respect of any Loan, the amount required to be paid
on the prepayment or acceleration of such Loan being the aggregate of:
Page 23
(i) the unpaid principal balance of such Loan at the relevant time;
(ii) all interest which has accrued in respect of such Loan to the date of such
prepayment or acceleration and remains unpaid;
(iii) the ECA Breakage Costs and all other amounts due pursuant to Clause 13.3
of the Facility Agreement in respect of such prepayment or acceleration
not being made on a Repayment Date; and
(iv) any other amounts due and payable with respect to such Loan by any
relevant Obligor hereunder at such date as shall remain unpaid.
TERMINATION EVENT means any of the events set out in Clause 10.1 of the Facility
Agreement (TERMINATION EVENTS) and any other event which GFC and the Agent may
agree in writing from time to time is a Termination Event for the purposes
hereof.
TOTAL COMMITMENTS means the aggregate from time to time of all of the
Commitments.
TOTAL LOSS means any of the following in relation to any Aircraft or any
Airframe and TOTAL LOSS DATE means the date set forth in parenthesis at the end
of each sub-clause:
(a) destruction, damage beyond repair or being rendered permanently unfit for
normal use for any reason (the date such event occurs);
(b) constructive, compromised, arranged or agreed total loss (the date on
which the insurers agree such constructive, compromised, arranged or
agreed total loss);
(c) requisition for title, or other compulsory acquisition of title for any
reason (exclusive of requisition for use or hire) (the date on which the
same takes effect);
(d) sequestration, confiscation, forfeiture, seizure, restraint, detention,
hijacking or theft for any reason, in any case resulting in loss of
possession by the relevant Borrower, the Export Lessee, the Lessee and the
Sub-Lessee for a period being in excess of one hundred and eighty (180)
consecutive days (the earlier of the date on which the insurers make
payment of the Total Loss Proceeds on the basis of such total loss and the
expiry of such one hundred and eighty (180) day period); or
(e) requisition for use by a Government Entity (other than a Government Entity
in the State of Registration or in the jurisdiction in which the Lessee, a
Sub-Lessee, the Export Lessee or the relevant Borrower has its principal
place of business) for more than one hundred and eighty (180) consecutive
days (the earlier of the date on which the insurers make payment of the
Total Loss Proceeds on the basis of such total loss proceeds and the
expiry of such one hundred and eighty (180) day period).
TOTAL LOSS PROCEEDS means the proceeds of the hull Insurances in respect of an
Aircraft or any compensation for a Compulsory Acquisition of an Aircraft, with
respect to a Total Loss.
TRANSACTION means the transaction contemplated by the Transaction Documents.
TRANSACTION DOCUMENTS means each of:
(a) the Facility Agreement, each Loan Supplement, each Utilisation Notice, the
Fees Letter, each Borrower Share Charge, each Borrower Floating Charge,
each Export Lessee Share Charge, each Alternative Borrower Share Charge,
each Alternative Borrower Floating Charge, the Guarantee, the Transaction
Fee Letter, the Declaration of Trust, any Alternative Declaration
Page 24
of Trust, each Xxxx of Sale, each BFE Xxxx of Sale, each Purchase
Agreement Assignment, each Engine Warranties Agreement, the Airframe
Warranties Agreement, each Credit Sale Agreement, each Intermediate Lease,
each Acceptance Certificate, any Accession Deed (if any), the Transaction
Fees Letter, the Purchaser Xxxx of Sale (in respect of a Refinanced
Aircraft), the Call Option Agreement, the Administration Agreements, the
Fees Letter, each of the Alternative Borrower Comfort Letters and the
other documents, instruments and agreements relating thereto referred to
in Schedule 6 of the Facility Agreement; and
(b) any other document, instrument or memorandum annexed to any of the
documents referred to in (a) above; and
(c) any notice or acknowledgement required pursuant to the terms of any of the
documents referred to in (a) above; and
(d) each of the Aircraft Security Documents; and
(e) any document, instrument or memorandum (x) which is executed and delivered
in connection with a restructuring in accordance with the terms of the
Facility Agreement of any or all of the arrangements contemplated by any
of the documents referred to in (a) above or (y) which GFC agrees
constitutes a Transaction Document or (z) which is entered into in
substitution for or which amends or augments or varies or novates all or
any part of any of the documents referred to in this definition (including
this part (e)) in each case in accordance with the terms of the
Transaction Documents; and
(g) any other document that is entered into in relation to an Alternative
Utilisation which GFC and the Agent agrees constitutes a Transaction
Document.
TRANSACTION FEE means the fee payable from time to time as set out in the
Transaction Fee Letter to the Irish Borrower by GFC in consideration for the
Irish Borrower entering into the Transaction.
TRANSACTION FEE LETTER means the letter dated the Signing Date herewith between
GFC and the Irish Borrower in respect of the Transaction Fee.
TRANSFER CERTIFICATE means a certificate in the form set out in Schedule 2 to
the Facility Agreement or if an Export Credit Agency were to become a Lender, in
such other form as shall be agreed by the Agent and the Cayman Export Lessee.
TRANSFEREE shall have the meaning given thereto in Clause 18.3 of the Facility
Agreement (TRANSFER CERTIFICATES).
TRANSFEROR shall have the meaning given to such term in Clause 18.3 of the
Facility Agreement (TRANSFER CERTIFICATES).
TRIGGER EVENT means that at any time either of the following:
(i) the long term debt obligations of GFC are not rated as investment grade by
at least one of Standard & Poor's Corporation, Xxxxx'x Investor Service,
Inc. or Fitch IBCA, Duff & Xxxxxx or any alternative service of equivalent
recognition approved by the National Agents and for the avoidance of doubt
investment grade shall mean BBB- if and as rated by Standard & Poor's
Corporation, Baa3 if and as rated by Xxxxx'x Investor Service, Inc., BBB-
if and as rated by Fitch IBBCA, Duff & Xxxxxx, or the equivalent by any
such alternative service approved by the National Agents; or
(ii) the Net Worth of GFC is less than nine hundred million Dollars
(US$900,000,000).
Page 25
TRIGGER EVENT NOTICE means any notice sent by the Security Trustee to a Lessee
or Sub-Lessee as described in Clause 9.1 of the Facility Agreement.
TRIGGER EVENT SECURITY shall mean any or all Lessee Security and/or any
Maintenance Reserves which shall be received by the Security Trustee (whether in
the form of cash or otherwise) pursuant to Clause 9 of the Facility Agreement
(TRIGGER EVENT).
TRUST means the trust arrangements settled on the Security Trustee as set out in
Schedule 11 to the Facility Agreement.
TRUSTEE means Walkers SPV Limited, in its capacity as trustee of the trust
created pursuant to a Declaration of Trust.
UNPAID AMOUNT has the meaning given to that term in Clause 4.11.1 of the
Facility Agreement.
UNUTILISED FACILITY means, at any time, the lesser of (i) the Total Commitments
and (ii)US$ 719,000,000 (seven hundred and nineteen million dollars) as such
amount may have been reduced by (a) the amount of each Advance made before such
time and (b) the amount of any reduction made to the Facility Amount pursuant to
Clause 2.5 of the Facility Agreement (CANCELLATION OF THE FACILITY).
US BANKRUPTCY CODE means Title 11 of the United States Code (11 U.S.C. Sections
101 et seq.).
US GAAP means the accounting principles, practices and policies generally
adopted and accepted in the United States of America.
US RESTRICTION NOTICE has the meaning given to it in 7.2.4(b).
UTILISATION means each utilisation of the Facility pursuant to Clause 3 of the
Facility Agreement (UTILISATION OF THE FACILITY) or, as the context may require,
the amount referred to in a Utilisation Notice as being that part of the
Facility Amount in Dollars or Euros, as the case may be, allocated by the
relevant Borrower for financing of the Aircraft referred to in that Utilisation
Notice.
UTILISATION BLOCK EVENT means any event described as such which GFC and the
Agent have agreed in writing may, if the same has occurred and is continuing,
result in the Borrower being unable to borrow an Advance as contemplated by the
Facility Agreement.
UTILISATION DATE means, in relation to a Utilisation, the Banking Day upon which
the Advance relating to that Utilisation is made available to the relevant
Borrower in accordance with Clause 3.7 of the Facility Agreement (DISBURSEMENT
OF THE LOAN) and otherwise subject to the terms and conditions of the Facility
Agreement.
UTILISATION DOCUMENTATION means, in respect of a Utilisation, all documents
entered into by the relevant parties to give effect to the financing of the
Aircraft the subject matter of the Utilisation as specified in Paragraph 2 Part
I of Schedule 6 to the Facility Agreement.
UTILISATION NOTICE means any notice given by the relevant Borrower pursuant to
Clause 3.1 of the Facility Agreement (UTILISATION NOTICES) and substantially in
the form of Schedule 3 to the Facility Agreement.
VALUE ADDED TAX means value added tax as provided for in the United Kingdom
Value Added Tax Xxx 0000 and legislation (whether delegated or otherwise)
supplemental thereto or in any primary or subordinate legislation promulgated by
the European Union or any body or agency thereof and any Tax similar or
equivalent to value added tax imposed by any country other than the United
Kingdom and any similar or turnover tax replacing or introduced in addition to
any of the same.
Page 26
WALKERS COMFORT LETTER means the letter agreement dated on or about the date
hereof from Walkers to the Security Trustee regarding Walkers SPV Limited.
Page 27
1. INTERPRETATION
Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of the Facility
Agreement.
2. In the Facility Agreement and each of the other Transaction Documents
unless the context otherwise requires:
(a) references to Clauses, Articles, Schedules and Appendices are to be
construed as references to the Clauses of, Articles of, Schedules
to, and Appendices to the Facility Agreement, each of the other
Transaction Documents, as applicable, and references to the Facility
Agreement, each of the Transaction Documents includes their
respective Schedules and Appendices;
(b) references to (or to any specified provision of) the Facility
Agreement, each of the other Transaction Documents or any other
document shall be construed as references to the Facility Agreement,
that other Transaction Document, that document or that provision as
in force for the time being and as amended, supplemented, novated or
substituted from time to time in accordance with the terms hereof or
thereof;
(c) references to any law or enactment shall be deemed to include
references to such law or enactment as re-enacted, amended,
extended, consolidated or replaced and any order's, decrees,
proclamations, regulations, instruments or other subordinate
legislation made thereunder;
(d) words importing the plural shall include the singular and vice
versa;
(e) words importing any gender shall be construed as including every
gender;
(f) references to a person shall be construed as including references to
an individual, company, corporation, firm, partnership, consortium,
joint venture, association, organisation, authority or other
unincorporated body of persons, trust or any state or government or
international organisation or agency, European Union institution,
committee or department, or any instrumentality, agency or political
sub-division thereof or authority, board or body created or
constituted thereby (in each case, whether or not having separate
legal personality);
(g) the words "other" and "otherwise" shall not be construed ejusdem
generis with any foregoing words where a wider construction is
possible;
(h) each of the Obligors and the Finance Parties shall include their
respective successors and permitted assigns and permitted
transferees;
(i) the words "including" and "in particular" shall be construed as
being by way of illustration or emphasis only and shall not be
construed as, nor shall they take effect as, limiting the generality
of any foregoing words;
(j) A MONTH is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next succeeding calendar month save that, where any such period
would otherwise end on a day which is not a Business Day, it shall
end on the next succeeding Business Day, unless that day falls in
the calendar' month succeeding that in which it would otherwise have
ended, in which case it shall end on the immediately preceding
Business Day, PROVIDED that if a period starts on the last Business
Day in the next succeeding calendar month (and references to MONTHS
shall be construed accordingly).
Page 28
References to a document being IN THE AGREED FORM means that document the
form and content of which has been agreed between GFC and the Agent
(acting on the instructions of the Majority Lenders) and which has
endorsed on it the words "in the agreed form" and which is signed under
such endorsement by or on behalf of GFC and the Agent.
Page 29
THE SECURITY TRUSTEE
EXECUTED AS A DEED by )
CREDIT LYONNAIS )
acting by: )
)
in the presence of: /s/ [ILLEGIBLE]
-------------------------------
Signature: /s/ [ILLEGIBLE]
Name:
Title:
THE AGENT
EXECUTED AS A DEED by )
CREDIT LYONNAIS )
acting by: )
)
in the presence of: /s/ [ILLEGIBLE]
-------------------------------
Signature: /s/ [ILLEGIBLE]
Name:
Title:
THE NATIONAL AGENTS
THE COMMON SEAL OF )
HALIFAX PLC )
was hereunto affixed )
)
in the presence of: /s/ [ILLEGIBLE]
-------------------------------
Signature: /s/ [ILLEGIBLE]
Name:
Title:
EXECUTED AS A DEED by )
CREDIT LYONNAIS )
acting by: )
)
in the presence of: /s/ [ILLEGIBLE]
-------------------------------
Signature: /s/ [ILLEGIBLE]
Name:
Title:
EXECUTED AS A DEED by )
BAYERISCHE LANDESBANK )
GIROZENTRALE )
acting by: )
)
in the presence of: /s/ [ILLEGIBLE] [ILLEGIBLE]
-------------------------------
Signature: /s/ [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
VP VP
Name: [ILLEGIBLE]
Title: VP
THE FRENCH LENDERS
EXECUTED AS A DEED by )
CREDIT LYONNAIS )
acting by: )
)
in the presence of: /s/ [ILLEGIBLE]
-------------------------------
Signature: /s/ [ILLEGIBLE]
Name:
Title:
THE COMMON SEAL OF )
HALIFAX PLC )
was hereunto affixed )
)
in the presence of: /s/ [ILLEGIBLE]
-------------------------------
Signature:
Name:
Title:
THE BRITISH LENDERS
THE COMMON SEAL OF )
HALIFAX PLC )
was hereunto affixed )
)
in the presence of: /s/ [ILLEGIBLE]
-------------------------------
Signature:
Name:
Title:
THE GERMAN LENDERS
EXECUTED AS A DEED by )
BAYERISCHE LANDESBANK )
GIROZENTRALE )
acting by: )
)
in the presence of: /s/ [ILLEGIBLE] [ILLEGIBLE]
-------------------------------
Signature: /s/ [ILLEGIBLE] VP VP
Name: [ILLEGIBLE]
Title: VP
EXECUTED AS A DEED by )
KREDITANSTALT FUR )
WEEDERAUFBAU )
acting by: )
)
in the presence of: /s/ X. Xxxx /s/ Xxxxxxxxx Xxxxx
---------------------------------------
Signature: /s/ [ILLEGIBLE] X. XXXX XXXXXXXXX XXXXX
VICE PRESIDENT PROJECT MANAGER
Name: [ILLEGIBLE]
Title: PROJECT MANAGER
GERMAN PARALLEL LENDER
EXECUTED AS A DEED by )
KREDITANSTALT FUR )
WIEDERAUFBAU )
acting by: )
in the presence of: /s/ X. Xxxx /s/ Xxxxxxxxx Xxxxx
---------------------------------------
Signature: /s/ [ILLEGIBLE] X. XXXX XXXXXXXXX XXXXX
VICE PRESIDENT PROJECT MANAGER
Name: [ILLEGIBLE]
Title: PROJECT MANAGER
GFC
EXECUTED AS A DEED by )
GATX FINANCIAL CORPORATION )
acting by: )
) /s/ XXXXX X. XXXX
in the presence of: -------------------------------
Signature: /s/ XXXXXXX XXXXXX
---------------------
Name: XXXXXXX XXXXXX
Title: SOLICITOR
CAYMAN BORROWER
EXECUTED AS A DEED by )
EFG AIRCRAFT LIMITED )
acting by: /s/ [ILLEGIBLE] )
)
in the presence of: /s/ [ILLEGIBLE]
-------------------------------
Signature: /s/ [ILLEGIBLE]
Name:
Title:
IRISH BORROWER
EXECUTED AS A DEED by )
EFG AIRCRAFT (IRELAND) LIMITED )
acting by: [ILLEGIBLE] )
)
in the presence of: /s/ [ILLEGIBLE]
-------------------------------
Signature: /s/ [ILLEGIBLE]
Name:
Title:
CAYMAN EXPORT LESSEE
EXECUTED AS A DEED by )
X'XXXXXXX LEASING LIMITED )
acting by: )
)
in the presence of: /s/ [ILLEGIBLE]
-------------------------------
Signature: /s/ [ILLEGIBLE]
Name:
Title:
IRISH EXPORT LESSEE
EXECUTED AS A DEED by )
X'XXXXXXX LEASING (IRELAND) )
LIMITED )
acting by: )
)
in the presence of: /s/ [ILLEGIBLE]
-----------------------------
Signature: /s/ [ILLEGIBLE]
Name:
Title:
JOINT ARRANGERS
THE COMMON SEAL OF )
HALIFAX PLC )
was hereunto affixed )
)
in the presence of: /s/ [ILLEGIBLE]
-----------------------------
Signature:
Name:
Title:
EXECUTED AS A DEED by )
CREDIT LYONNAIS )
acting by: [ILLEGIBLE] )
)
in the presence of: /s/ [ILLEGIBLE]
-----------------------------
Signature: /s/ [ILLEGIBLE]
Name: [ILLEGIBLE]
Title:
