Page | ||||
ARTICLE 1 Definitions | ||||
Section 1.01.Defined Terms | 1 | |||
Section 1.02.Terms Defined in the Cape Town Convention | 30 | |||
Section 1.03.Terms Generally | 30 | |||
Section 1.04.Accounting Terms; Changes in GAAP | 31 | |||
Section 1.05.Times | 31 | |||
ARTICLE 2 The Credits | ||||
Section 2.01.Commitment | 31 | |||
Section 2.02.Request to Advance Loans | 32 | |||
Section 2.03.Advances of Aggregate Requested Advance Amount | 32 | |||
Section 2.04.Interest | 33 | |||
Section 2.05.Payment at Maturity; Scheduled Payments; Evidence of Debt | 33 | |||
Section 2.06.Optional and Mandatory Prepayments | 34 | |||
Section 2.07.Fees | 35 | |||
Section 2.08.Taxes; Increased Costs; Etc. | 35 | |||
Section 2.09.Payments Generally; Pro Rata Treatment; Sharing of Set-offs | 41 | |||
Section 2.10.Changes to the Designated Pool; Intermediate Lessees; Release of a Subsidiary Holdco | 43 | |||
Section 2.11.Defaulting Lenders | 50 | |||
ARTICLE 3 Representations and Warranties | ||||
Section 3.01.Organization, etc. | 51 | |||
Section 3.02.Authorization; Consents; No Conflict | 51 | |||
Section 3.03.Validity and Binding Nature | 52 | |||
Section 3.04.Financial Statements | 52 | |||
Section 3.05.Litigation and Contingent Liabilities | 52 | |||
Section 3.06.Security Interest | 52 | |||
Section 3.07.Employee Benefit Plans | 53 | |||
Section 3.08.Investment Company Act | 53 | |||
Section 3.09.Regulation U | 53 | |||
Section 3.10.Information | 53 | |||
Section 3.11.Compliance with Applicable Laws, etc. | 54 | |||
Section 3.12.Insurance | 54 |
ii
Page | ||||
Section 3.13.Taxes | 54 | |||
Section 3.14.Obligor Information | 54 | |||
Section 3.15.Solvency | 54 | |||
Section 3.16.Sanctions | 55 | |||
Section 3.17.Description of Aircraft and Leases, Etc. | 55 | |||
Section 3.18.Ownership | 55 | |||
Section 3.19.Lessee Consent | 55 | |||
Section 3.20.Use of Proceeds | 55 | |||
ARTICLE 4 Conditions | ||||
Section 4.01.Effective Date | 56 | |||
Section 4.02.Advance Date | 58 | |||
Section 4.03.Quiet Enjoyment Letters | 61 | |||
ARTICLE 5 Covenants | ||||
Section 5.01.Legal Existence and Good Standing | 62 | |||
Section 5.02.Protection of Security Interest of the Lenders | 62 | |||
Section 5.03.Ownership, Operation and Leasing of Pool Aircraft; Ownership of Borrower and Each Subsidiary Holdco | 63 | |||
Section 5.04.Limitation on Disposition of Aircraft; Limitation on Disposition of Certain Equity Collateral | 64 | |||
Section 5.05.Payment of Taxes or Other Claims | 64 | |||
Section 5.06.Representations Regarding Operation | 64 | |||
Section 5.07.Compliance with Laws, Etc. | 64 | |||
Section 5.08.Notice of Adverse Claim or Loss | 65 | |||
Section 5.09.Reporting Requirements | 65 | |||
Section 5.10.Limitation on Transactions with Affiliates | 68 | |||
Section 5.11.Inspections | 68 | |||
Section 5.12.Use of Proceeds; Margin Regulations | 68 | |||
Section 5.13.Insurance | 69 | |||
Section 5.14.UNSC, EU and United States Sanctions and Export Restrictions | 69 | |||
Section 5.15.Sanctions | 69 | |||
Section 5.16.Loan-to-Value Ratio | 69 | |||
Section 5.17.Mergers, Consolidations and Sales of Assets | 71 | |||
Section 5.18.Limitation on Indebtedness | 72 | |||
Section 5.19.Limitation on Business Activity | 72 | |||
Section 5.20.Operational Covenants | 73 |
iii
Page | ||||
ARTICLE 6 Events of Default | ||||
ARTICLE 7 Guaranty | ||||
Section 7.01.Guaranty | 77 | |||
Section 7.02.Contribution | 77 | |||
Section 7.03.Guaranty Absolute | 77 | |||
Section 7.04.Waiver and Acknowledgments | 80 | |||
Section 7.05.Subrogation | 81 | |||
Section 7.06.Payment Free and Clear of Taxes | 82 | |||
Section 7.07.No Waiver; Remedies | 82 | |||
Section 7.08.Continuing Guaranty | 82 | |||
Section 7.09.Subordination of Certain Intercompany Indebtedness | 82 | |||
Section 7.10.Limit of Liability | 82 | |||
Section 7.11.Release | 82 | |||
Section 7.12.No ILFC Collateral | 83 | |||
ARTICLE 8 Agents | ||||
Section 8.01.Appointment and Authority | 83 | |||
Section 8.02.Rights as a Lender | 84 | |||
Section 8.03.Exculpatory Provisions | 85 | |||
Section 8.04.Reliance by each Agent | 86 | |||
Section 8.05.Delegation of Duties | 86 | |||
Section 8.06.Resignation and Removal of Administrative Agent | 86 | |||
Section 8.07.Non-Reliance on Agents and Other Lenders | 87 | |||
Section 8.08.No Other Duties, etc. | 88 | |||
Section 8.09.Administrative Agent May File Proofs of Claim | 88 | |||
Section 8.10.Collateral and Guaranty Matters | 89 | |||
Section 8.11.French Collateral | 89 | |||
ARTICLE 9 Miscellaneous | ||||
Section 9.01.Notices Generally | 89 | |||
Section 9.02.Waivers; Amendments | 91 | |||
Section 9.03.Expenses; Indemnity; Damage Waiver | 93 | |||
Section 9.04.Successors and Assigns | 95 | |||
Section 9.05.Assignments by Lenders | 96 | |||
Section 9.06.Replacement of Lenders | 99 | |||
Section 9.07.Survival | 100 | |||
Section 9.08.Counterparts; Integration; Effectiveness | 100 | |||
Section 9.09.Severability | 100 |
iv
Page | ||||
Section 9.10.Applicable Law | 101 | |||
Section 9.11.Jurisdiction; Consent to Service of Process | 101 | |||
Section 9.12.WAIVER OF JURY TRIAL | 101 | |||
Section 9.13.Headings | 102 | |||
Section 9.14.Confidentiality | 102 | |||
Section 9.15.Right of Setoff | 103 | |||
Section 9.16.No Advisory or Fiduciary Responsibility | 103 | |||
Section 9.17.Interest Rate Limitation | 105 | |||
Section 9.18.USA Patriot Act | 105 |
v
SCHEDULES: | ||||
Schedule 3.14 — Obligor Information | ||||
Schedule 3.17(a) — PS Pool Aircraft | ||||
Schedule 3.17(b) — Leases | ||||
Schedule 9.01 — Notices | ||||
EXHIBITS: | ||||
Exhibit A — Commitments and Applicable Percentages | ||||
Exhibit B — Form of Aircraft Mortgage and Security Agreement | ||||
Exhibit C — Form of Assignment and Assumption | ||||
Exhibit D-1A — Form of Opinion of Clifford Chance US LLP | ||||
Exhibit D-1B — Form of Opinion of In-House Counsel to the Obligors | ||||
Exhibit D-1C — Form of Opinion of A&L Goodbody | ||||
Exhibit E-1A — Form of Opinion of White & Case LLP, counsel to the Relevant Advance Parties | ||||
Exhibit E-1B — Form of Opinion of In-House Counsel to the Relevant Advance Parties | ||||
Exhibit E-1C — Form of Opinion of A&L Goodbody, counsel to the Relevant Advance Parties | ||||
Exhibit E-2 — Forms of Opinion of Daugherty, Fowler, Peregrin, Haught & Jenson | ||||
Exhibit F — Form of Note | ||||
Exhibit G —Form of Administrative Questionnaire | ||||
Exhibit H — Form of Intercreditor Agreement | ||||
Exhibit I — Form of LTV Certificate | ||||
Exhibit J — Form of Advance Request | ||||
Exhibit K — Form of Obligor Assumption Agreement | ||||
Exhibit L — Form of Incremental Lender Assumption Agreement | ||||
Exhibit M — Incremental Aircraft | ||||
ANNEXES: | ||||
Annex 1 — Prohibited Countries |
vi
Definitions
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
The Credits
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
Representations and Warranties
51
52
53
54
55
Conditions
56
57
58
59
60
61
Covenants
62
63
64
65
66
67
68
69
70
71
72
73
74
Events of Default
75
76
Guaranty
77
78
79
80
81
82
Agents
83
84
85
86
87
88
Miscellaneous
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
TEMESCAL AIRCRAFT INC. | ||||
By: | /s/ Pamela S. Hendry | |||
Name: | Pamela S. Hendry | |||
Title: | Treasurer | |||
INTERNATIONAL LEASE FINANCE CORPORATION | ||||
By: | /s/ Pamela S. Hendry | |||
Name: | Pamela S. Hendry | |||
Title: | Senior Vice President & Treasurer | |||
PARK TOPANGA AIRCRAFT INC. | ||||
By: | /s/ Pamela S. Hendry | |||
Name: | Pamela S. Hendry | |||
Title: | Treasurer | |||
CHARMLEE AIRCRAFT INC. | ||||
By: | /s/ Pamela S. Hendry | |||
Name: | Pamela S. Hendry | |||
Title: | Treasurer | |||
BALLYSKY AIRCRAFT IRELAND LIMITED | ||||
By: | /s/ Niall C. Sommerville | |||
Name: | Niall C. Sommerville | |||
Title: | Director | |||
106
CITIBANK, N.A., as Administrative Agent | ||||
By: | /s/ Thomas Hollahan | |||
Name: | Thomas Hollahan | |||
Title: | Managing Director and Vice President | |||
CITIBANK, N.A., as Collateral Agent | ||||
By: | /s/ Thomas Hollahan | |||
Name: | Thomas Hollahan | |||
Title: | Managing Director and Vice President | |||
CITIGROUP GLOBAL MARKETS INC., as Lead Agent | ||||
By: | /s/ Thomas Bliemel | |||
Name: | Thomas Bliemel | |||
Title: | Managing Director | |||
CREDIT SUISSE SECURITIES (USA) LLC, as Lead Agent | ||||
By: | /s/ Scott Corman | |||
Name: | Scott Corman | |||
Title: | Managing Director | |||
BNP PARIBAS, as Joint Agent | ||||
By: | /s/ Robert Papas | |||
Name: | Robert Papas | |||
Title: | Director, Transportation Group - Aviation Finance | |||
By: | /s/ Stephanie Klein | |||
Name: | Stephanie Klein | |||
Title: | Vice President, Aviation Finance Group - Americas |
107
CITIBANK N.A., as Lender | ||||
By: | /s/ Thomas Hollahan | |||
Name: | Thomas Hollahan | |||
Title: | Managing Director and Vice President | |||
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,as Lender | ||||
By: | /s/ Jay Chall | |||
Name: | Jay Chall | |||
Title: | Director | |||
By: | /s/ Kathrin Marti | |||
Name: | Kathrin Marti | |||
Title: | Assistant Vice President | |||
BNP PARIBAS, as Lender | ||||
By: | /s/ Robert Papas | |||
Name: | Robert Papas | |||
Title: | Director, Transportation Group - Aviation Finance | |||
By: | /s/ Stephanie Klein | |||
Name: | Stephanie Klein | |||
Title: | Vice President, Aviation Finance Group - Americas | |||
DVB BANK SE, as Lender | ||||
By: | /s/ Hassan Pirbhai | |||
Name: | Hassan Pirbhai | |||
Title: | Vice President | |||
By: | /s/ Masa Kubo | |||
Name: | Masa Kubo | |||
Title: | Senior Vice President | |||
108
DBS BANK LTD., as Lender | ||||
By: | /s/ Ong Sie Wei | |||
Name: | Ong Sie Wei | |||
Title: | Vice President | |||
SCOTIABANK EUROPE PLC, as Lender | ||||
By: | /s/ Richard Walsh | |||
Name: | Richard Walsh | |||
Title: | Associate Director | |||
SUMITOMO MITSUI BANKING CORPORATION, as Lender | ||||
By: | /s/ Natsuhiro Samejima | |||
Name: | Natsuhiro Samejina | |||
Title: | Senior Vice President | |||
UNITED OVERSEAS BANK LIMITED, as Lender | ||||
By: | /s/ Karunia W. Tjuradi | |||
Name: | Karunia W. Tjuradi | |||
Title: | Managing Director Corporate Banking Regional | |||
By: | /s/ Benny Lim | |||
Name: | Benny Lim | |||
Title: | Executive Director, Strategic Client Coverage, Corporate Banking Regional | |||
109
DEUTSCHE BANK AG, LONDON BRANCH,as Lender | ||||
By: | /s/ Pamela H. Smith | |||
Name: | Pamela H. Smith | |||
Title: | Managing Director | |||
By: | /s/ Ian Faraday | |||
Name: | Ian Faraday | |||
Title: | Director | |||
UNICREDIT BANK AG, LONDON BRANCH,as Lender | ||||
By: | /s/ George Gierhart | |||
Name: | George Gierhart | |||
Title: | Director | |||
By: | /s/ Whiteford | |||
Name: | Whiteford | |||
Title: | Vice President | |||
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (EUROPE) S.A.., as Lender | ||||
By: | /s/ Lu Hongqin | |||
Name: | Lu Hongqin | |||
Title: | Deputy General Manager | |||
THE TOKYO STAR BANK, LIMITED, as Lender | ||||
By: | /s/ Robert M. Berardy | |||
Name: | Robert M. Berardy | |||
Title: | Chief Executive Officer and Representative Executive Officer |
110
AOZORA BANK, LTD., as Lender | ||||
By: | /s/ Koji Yamakoshi | |||
Name: | Koji Yamakoshi | |||
Title: | General Manager | |||
NEC CAPITAL SOLUTIONS LIMITED, as Lender | ||||
By: | /s/ Shigeho Tanaka | |||
Name: | Shigeho Tanaka | |||
Title: | President | |||
CRÉDIT INDUSTRIEL ET COMMERCIAL,as Lender | ||||
By: | /s/ Adrienne Molloy | |||
Name: | Adrienne Molloy | |||
Title: | Vice President | |||
By: | /s/ Andrew McKuin | |||
Name: | Andrew McKuin | |||
Title: | Vice President | |||
111
Employer or | ||||||||
Taxpayer | ||||||||
Jurisdiction of | Identification | |||||||
Name of Obligor | Chief Executive Office | Incorporation | Entity Type | Number | ||||
INTERNATIONAL LEASE FINANCE CORPORATION | 10250 Constellation Blvd., Suite 3400 Los Angeles, CA 90067 | California | Corporation | 22-3059110 | ||||
TEMESCAL AIRCRAFT INC. | 10250 Constellation Blvd., Suite 3400 Los Angeles, CA 90067 | California | Corporation | 27-5306297 | ||||
PARK TOPANGA AIRCRAFT INC. | 10250 Constellation Blvd., Suite 3400 Los Angeles, CA 90067 | California | Corporation | 27-5306173 | ||||
CHARMLEE AIRCRAFT INC. | 10250 Constellation Blvd., Suite 3400 Los Angeles, CA 90067 | California | Corporation | 27-5304959 | ||||
BALLYSKY AIRCRAFT IRELAND LIMITED | 30 North Wall Quay, Dublin 1 Ireland | Ireland | Private limited liability company | IE 9778900 I |
3.14-1
Airframe | Engine Manufacturer | |||||||||||
Manufacturer and | Airframe | and | Country of | |||||||||
Model | MSN | Engine Model | Lessee | Registration | ||||||||
Airframe | Engine Manufacturer | |||||||||||
Manufacturer and | Airframe | and | Country of | |||||||||
Model | MSN | Engine Model | Lessee* | Registration* | ||||||||
1 | Airbus A319-100 | 1884 | CFM International CFM56-5B6/P | *** | Kingdom of Bahrain | |||||||
2 | Airbus A319-100 | 2004 | International Aero Engines V2524-A5 | *** | China | |||||||
3 | Airbus A319-100 | 2194 | International Aero Engines V2524-A5 | *** | United Kingdom | |||||||
4 | Airbus A319-100 | 2232 | International Aero Engines V2524-A5 | *** | China | |||||||
5 | Airbus A319-100 | 2720 | International Aero Engines V2524-A5 | *** | United Kingdom | |||||||
6 | Airbus A319-100 | 3114 | International Aero Engines V2527M-A5 | *** | China | |||||||
7 | Airbus A319-100 | 3116 | International Aero Engines V2527M-A5 | *** | China | |||||||
8 | Airbus A319-100 | 3124 | International Aero Engines V2527M-A5 | *** | China | |||||||
9 | Airbus A320-200 | 1424 | International Aero Engines V2527-A5 | *** | United Kingdom | |||||||
10 | Airbus A320-200 | 2024 | CFM International CFM56-5B4/P | *** | Switzerland | |||||||
11 | Airbus A320-200 | 2142 | CFM International CFM56-5B4/P | *** | Malta | |||||||
12 | Airbus A320-200 | 2594 | International Aero Engines V2527-A5 | *** | New Zealand |
*** | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
3.17(a)-1
Airframe | Engine Manufacturer | |||||||||||
Manufacturer and | Airframe | and | Country of | |||||||||
Model | MSN | Engine Model | Lessee* | Registration* | ||||||||
13 | Airbus A320-200 | 2768 | CFM International CFM56-5B4/P | *** | Malta | |||||||
14 | Airbus A320-200 | 4619 | International Aero Engines V2527-A5 | *** | China | |||||||
15 | Airbus A321-200 | 1658 | CFM International CFM56-5B3/P | *** | France | |||||||
16 | Airbus A321-200 | 1695 | International Aero Engines V2533-A5 | *** | Hong Kong | |||||||
17 | Airbus A321-200 | 3067 | International Aero Engines V2533-A5 | *** | China | |||||||
18 | Airbus A321-200 | 3075 | International Aero Engines V2533-A5 | *** | China | |||||||
19 | Airbus A321-200 | 3112 | International Aero Engines V2533-A5 | *** | China | |||||||
20 | Airbus A330-200 | 262 | Pratt & Whitney PW4168A | *** | Vietnam | |||||||
21 | Airbus A330-200 | 275 | Pratt & Whitney PW4168A | *** | Vietnam | |||||||
22 | Airbus A330-200 | 432 | Pratt & Whitney PW4168A | *** | Germany | |||||||
23 | Airbus A330-200 | 454 | Pratt & Whitney PW4168A | *** | Germany | |||||||
24 | Airbus A330-200 | 527 | Rolls Royce PLC TRENT 772B-60 | *** | Kingdom Of Bahrain | |||||||
25 | Airbus A330-200 | 811 | General Electric CF6-80E1-A3 | *** | Netherlands | |||||||
26 | Boeing B737-700 | 29372 | CFM International CFM56-7B24 | *** | China | |||||||
27 | Boeing B737-800 | 28252 | CFM International CFM56-7B27 | *** | Trinidad And Tobago | |||||||
28 | Boeing B737-800 | 30645 | CFM International CFM56-7B27 | *** | Trinidad and Tobago | |||||||
29 | Boeing B737-800 | 35274 | CFM International CFM56-7B24/3 | *** | Hong Kong | |||||||
30 | Boeing B737-800 | 35275 | CFM International CFM56-7B26/3 | *** | Czech Republic | |||||||
31 | Boeing B737-800 | 35279 | CFM International CFM56-7B26/3 | *** | France | |||||||
32 | Boeing B737-800 | 35280 | CFM International CFM56-7B26/3 | *** | Norway | |||||||
33 | Boeing B737-800 | 35283 | CFM International CFM56-7B26/3 | *** | Norway | |||||||
34 | Boeing B737-800 | 38819 | CFM International CFM56-7B26/3 | *** | France |
*** | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
3.17(a)-2
Airframe | Engine Manufacturer | |||||||||||
Manufacturer and | Airframe | and | Country of | |||||||||
Model | MSN | Engine Model | Lessee* | Registration* | ||||||||
35 | Boeing B737-800 | 38820 | CFM International CFM56-7B26/3 | *** | Not currently registered** | |||||||
36 | Boeing B737-800 | 38822 | CFM International CFM56-7B24/3 | *** | Not currently registered** | |||||||
37 | Boeing B737-800 | 38823 | CFM International CFM56-7B24/3 | *** | Not currently registered** | |||||||
38 | Boeing B777-200ER | 27607 | General Electric GE90-90B | *** | Vietnam | |||||||
39 | Boeing B777-200ER | 27608 | General Electric GE90-90B | *** | Vietnam | |||||||
40 | Boeing B777-200ER | 28686 | Pratt & Whitney PW4090 | *** | South Korea | |||||||
41 | Boeing B777-200ER | 29397 | General Electric GE90-94B | *** | Netherlands | |||||||
42 | Boeing B777-200ER | 29399 | General Electric GE90-94B | *** | Netherlands | |||||||
43 | Boeing B777-200ER | 29404 | Rolls Royce PLC TRENT 895-17 | *** | New Zealand | |||||||
44 | Boeing B777-200ER | 32719 | General Electric GE90-94B | *** | United States | |||||||
45 | Boeing B777-300ER | 32723 | General Electric GE90-115BG01 | *** | France | |||||||
46 | Boeing B777-300ER | 32728 | General Electric GE90-115BG02 | *** | United Arab Emirates |
* | As of the date of this Credit Agreement | |
** | Aircraft not yet delivered from manufacturer | |
*** | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
3.17(a)-3
ILFC Ireland Limited (“ILFC Ireland”)
3.17(b)-1
3.17(b)-2
3.17(b)-3
3.17(b)-4
3.17(b)-5
3.17(b)-6
3.17(b)-7
3.17(b)-8
10250 Constellation Blvd., Suite 3400
Los Angeles, CA 90067
Attention: Treasurer with a copy to the General Counsel
Telecopy No. (310) 788-1990
c/o ILFC Ireland Limited
30 North Wall Quay
Dublin 1, Ireland
Facsimile: 353-1-672-0270
Telephone: 353-1-802-8901
10250 Constellation Blvd., Suite 3400
Los Angeles, CA 90067
Attention: Treasurer with a copy to the General Counsel
Telecopy No. (310) 788-1990
2 Penns Way, Suite 1100
New Castle, Delaware 19720
Attention: Suzanna Gallagher
Facsimile No. (212) 994-0961
388 Greenwich Street, 14th Floor
New York, NY 10013
Attention: Jenny Cheng
Facsimile No. (212) 657-2762
9.01-1
390 Greenwich Street, 1st Floor
New York, NY 10013
Eleven Madison Avenue, 5th Floor
New York, NY 10010
Attention: Stephen Marchi
Facsimile No. (212) 743-5442
Aviation Finance Group
520 Madison Avenue, 3rd Floor
New York, NY 10022
Attention: Robert Papas/Stephanie Klein
Facsimile No. (212) 841-2748
9.01-2
AND APPLICABLE PERCENTAGES
Lender | Commitment | Applicable Percentage | ||||||
Citibank, N.A. | $ | 150,000,000 | 11.325028313 | % | ||||
Credit Suisse AG, Cayman Islands Branch | $ | 150,000,000 | 11.325028313 | % | ||||
BNP Paribas | $ | 200,000,000 | 15.100037750 | % | ||||
DVB Bank SE | $ | 200,000,000 | 15.100037750 | % | ||||
UniCredit Bank AG, London Branch | $ | 100,000,000 | 7.550018875 | % | ||||
DBS Bank Ltd. | $ | 75,000,000 | 5.662514156 | % | ||||
Scotiabank Europe plc | $ | 75,000,000 | 5.662514156 | % | ||||
Sumitomo Mitsui Banking Corporation | $ | 75,000,000 | 5.662514156 | % | ||||
United Overseas Bank Limited | $ | 75,000,000 | 5.662514156 | % | ||||
Deutsche Bank AG, London branch | $ | 75,000,000 | 5.662514156 | % | ||||
Crédit Industriel et Commercial | $ | 40,000,000 | 3.020007550 | % | ||||
Industrial and Commercial Bank of China (Europe) S.A. | $ | 34,500,000 | 2.604756512 | % | ||||
The Tokyo Star Bank, Limited | $ | 30,000,000 | 2.265005663 | % | ||||
Aozora Bank, Ltd. | $ | 25,000,000 | 1.887504719 | % | ||||
NEC Capital Solutions Limited | $ | 20,000,000 | 1.510003775 | % | ||||
Total | $ | 1,324,500,000 | 100.000000000 | % | ||||
A-1
B-1
as the Grantors
as the Collateral Agent
PAGE | ||||
ARTICLE I DEFINITIONS | 2 | |||
Section 1.01 Definitions | 2 | |||
Section 1.02 Construction and Usage | 7 | |||
ARTICLE II SECURITY | 8 | |||
Section 2.01 Grant of Security | 8 | |||
Section 2.02 Security for Obligations | 12 | |||
Section 2.03 Representations and Warranties of the Grantors | 12 | |||
Section 2.04 Grantors Remain Liable | 14 | |||
Section 2.05 Delivery of Collateral | 14 | |||
Section 2.06 As to the Assigned Documents | 15 | |||
Section 2.07 As to the Pool Aircraft Collateral | 16 | |||
Section 2.08 As to the Equity Collateral and Investment Collateral | 16 | |||
Section 2.09 Further Assurances | 17 | |||
Section 2.10 Place of Perfection; Records | 19 | |||
Section 2.11 Voting Rights; Dividends; Etc. | 19 | |||
Section 2.12 Transfers and Other Liens; Additional Shares or Interests | 20 | |||
Section 2.13 Collateral Agent Appointed Attorney-in-Fact | 20 | |||
Section 2.14 Collateral Agent May Perform | 21 | |||
Section 2.15 Covenant to Pay | 21 | |||
Section 2.16 Delivery of Collateral Supplements | 21 | |||
Section 2.17 Identification of Collateral Agent’s Interest | 22 | |||
Section 2.18 Insurance | 22 | |||
Section 2.19 Covenant Regarding Control | 22 | |||
Section 2.20 Covenant Regarding Collateral Account | 22 | |||
Section 2.21 As to Irish Law | 22 | |||
Section 2.22 Additional Charges Over Shares | 22 | |||
ARTICLE III REMEDIES | 23 | |||
Section 3.01 Remedies | 23 | |||
Section 3.02 Priority of Payments | 24 | |||
ARTICLE IV SECURITY INTEREST ABSOLUTE | 24 | |||
Section 4.01 Security Interest Absolute | 24 | |||
ARTICLE V THE COLLATERAL AGENT | 25 | |||
Section 5.01 Authorization and Action | 25 | |||
Section 5.02 Absence of Duties | 25 |
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Section 5.03 Representations or Warranties | 25 | |||
Section 5.04 Reliance; Agents; Advice of Counsel | 26 | |||
Section 5.05 Cape Town Convention | 27 | |||
Section 5.06 No Individual Liability | 27 | |||
ARTICLE VI SUCCESSOR COLLATERAL AGENT | 27 | |||
Section 6.01 Resignation and Removal of the Collateral Agent | 27 | |||
Section 6.02 Appointment of Successor | 28 | |||
ARTICLE VII INDEMNITY AND EXPENSES | 28 | |||
Section 7.01 Indemnity | 29 | |||
Section 7.02 Secured Parties’ Indemnity | 29 | |||
Section 7.03 No Compensation from Secured Parties | 30 | |||
ARTICLE VIII MISCELLANEOUS | 30 | |||
Section 8.01 Amendments; Waivers; Etc | 30 | |||
Section 8.02 Addresses for Notices; Delivery of Documents | 31 | |||
Section 8.03 Remedies | 32 | |||
Section 8.04 Severability | 32 | |||
Section 8.05 Continuing Security Interest | 32 | |||
Section 8.06 Release and Termination | 32 | |||
Section 8.07 Currency Conversion | 33 | |||
Section 8.08 Governing Law | 34 | |||
Section 8.09 Jurisdiction; Consent to Service of Process | 34 | |||
Section 8.10 Counterparts; Integration; Effectiveness | 34 | |||
Section 8.11 Table of Contents, Headings, Etc | 35 | |||
Section 8.12 Non-Invasive Provisions | 35 | |||
Section 8.13 Limited Recourse | 36 | |||
SCHEDULES | ||||
Schedule I Aircraft Objects | ||||
Schedule II Pledged Equity Interests; Pledged Debt | ||||
Schedule III Trade Names | ||||
Schedule IV Chief Place of Business and Chief Executive or Registered Office | ||||
Schedule V Insurance | ||||
EXHIBITS | ||||
Exhibit A-1 Form of Collateral Supplement | ||||
Exhibit A-2 Form of Grantor Supplement | ||||
Exhibit B Form of Charge Over Shares of Irish Subsidiary Holdco | ||||
Exhibit C Form of Account Control Agreement | ||||
Exhibit D Form of FAA Aircraft Mortgage |
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Exhibit E Form of FAA Aircraft Mortgage and Lease Assignment | ||||
Exhibit F Form of FAA Lease Assignment | ||||
Exhibit G Notice of Assignment |
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DEFINITIONS
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3
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SECURITY
8
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10
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12
13
14
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16
17
18
19
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REMEDIES
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SECURITY INTEREST ABSOLUTE
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THE COLLATERAL AGENT
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SUCCESSOR COLLATERAL AGENT
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INDEMNITY AND EXPENSES
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MISCELLANEOUS
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PARK TOPANGA AIRCRAFT INC., as a Grantor | ||||
By | ||||
Name: | ||||
Title: | ||||
TEMESCAL AIRCRAFT INC., as a Grantor | ||||
By | ||||
Name: | ||||
Title: | ||||
BALLYSKY AIRCRAFT IRELAND LIMITED, as a Grantor | ||||
By | ||||
Name: | ||||
Title: | ||||
CHARMLEE AIRCRAFT INC., as a Grantor | ||||
By | ||||
Name: | ||||
Title: |
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CITIBANK, N.A. not in its individual capacity but solely as the Collateral Agent | ||||
By | ||||
Name: | ||||
Title: | ||||
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AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
Airframe | ||||||||
Manufacturer and | Airframe | Engine Manufacturer and | ||||||
Model | MSN | Engine Model | Engine MSNs | |||||
1. | None | N/A | N/A | N/A |
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AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
Percentage of | ||||||||
Pledged Equity | Number of | Outstanding | ||||||
Party | Par Value | Certificate No(s). | Shares | Shares | ||||
Temescal Aircraft Inc. | N/A | 1 | 100 | 100% | ||||
Ballysky Aircraft Ireland Limited | $1 | 1 | 10 | 100% | ||||
Charmlee Aircraft Inc. | N/A | 1 | 100 | 100% |
Percentage of | ||||
Pledged Equity Party | Certificate No. | Beneficial Interest | ||
Percentage of | ||||
Pledged Equity Party | Certificate No. | Membership Interest | ||
Intercompany | Intercompany | Description of Instrument of | Amount of | |||
Lender | Borrower | Pledged Debt | Pledged Debt | |||
Temescal Aircraft Inc. | Charmlee Aircraft Inc. | Intercompany Demand Promissory Note | $3,000,000,000 | |||
Temescal Aircraft Inc. | Ballysky Aircraft Ireland Limited | Intercompany Demand Promissory Note | $3,000,000,000 |
AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
1. | Grantor: Park Topanga Aircraft Inc. Trade Name: Park Topanga Aircraft Inc. | |
2. | Grantor: Temescal Aircraft Inc. Trade Name: Temescal Aircraft Inc. | |
3. | Grantor: Charmlee Aircraft Inc. Trade Name: Charmlee Aircraft Inc. | |
4. | Grantor: Ballysky Aircraft Ireland Limited Trade Name: Ballysky Aircraft Ireland Limited |
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AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
Name of Grantor | Chief Executive Office, Chief Place of Business or Registered Office and Organizational ID (if applicable) | |
Park Topanga Aircraft Inc. | 10250 Constellation Blvd. | |
Suite 3400 | ||
Los Angeles, CA 90067 | ||
Facsimile: (310) 788-1990 | ||
Telephone: (310) 788-1999 | ||
Organizational ID: 27-5306173 | ||
Temescal Aircraft Inc. | 10250 Constellation Blvd. | |
Suite 3400 | ||
Los Angeles, CA 90067 | ||
Facsimile: (310) 788-1990 | ||
Telephone: (310) 788-1999 | ||
Organizational ID: 27-5306297 | ||
Ballysky Aircraft Ireland Limited | c/o ILFC Ireland Limited | |
30 North Wall Quay | ||
Dublin 1, Ireland | ||
Facsimile: 353-1-672-0270 | ||
Telephone: 353-1-802-8901 | ||
Corporation No. 495999 | ||
Charmlee Aircraft Inc. | 10250 Constellation Blvd. | |
Suite 3400 | ||
Los Angeles, CA 90067 | ||
Facsimile: (310) 788-1990 | ||
Telephone: (310) 788-1999 | ||
Organizational ID: 27-5304959 |
AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
1. | Obligation to Insure | |
So long as this Agreement shall remain in effect, the Grantors will ensure that there is effected and maintained appropriate insurances, maintained with insurers or reinsured with reinsurers of recognized responsibility or pursuant to governmental indemnities, in respect of each Pool Aircraft and the Collateral Agent and the Administrative Agent and its operation including insurance for: |
(a) | loss or damage to each Pool Aircraft and each part thereof; and |
(b) | any liability for injury to or death of persons and damage to or the destruction of public or private property arising out of or in connection with the operation, storage, maintenance or use of (in each case to the extent available) the Pool Aircraft and of any other part thereof not belonging to the Grantors but from time to time installed on the airframe. |
2. | Specific Insurances | |
The Grantors will maintain or will cause to be maintained the following specific insurances with respect to each Pool Aircraft (subject to paragraph 3): |
(a) | All Risks Hull Insurance —All risks hull insurance policy on the Pool Aircraft in an amount at least equal to 110% of the outstanding principal of the Loans allocable to such Pool Aircraft, calculated based on the most recent appraised value (the “Required Insured Value”) on an agreed value basis and naming the Collateral Agent (for and on behalf of itself and the Secured Parties) as a loss payee for the Required Insured Value (provided,however, that, if the applicable insurance program uses AVN67B or a successor London market endorsement similar thereto, the Grantor shall procure that the Collateral Agent is named as a “Contract Party” in respect of such hull insurance and shall ensure that the Collateral Agent is also named as such a “Contract Party” in respect of any new Lease entered into); | ||
(b) | Hull War Risk Insurance —Hull war risk and allied perils insurance, including hijacking, (excluding, however, confiscation by government of registry or country of domicile to the extent coverage of such risk is not generally available to the applicable Lessee in the relevant insurance market at a commercially reasonable cost or is not customarily obtained by operators in such jurisdiction at such time in accordance with Leasing Company Practice) on the Pool Aircraft where the custom in the industry is to carry war risk for aircraft operating on routes or kept in locations similar to the Pool Aircraft in an amount not less than the Required Insured Value on an agreed value basis and naming the Collateral Agent (for and on behalf of itself and the Secured Parties) as a loss payee for the Required Insured Value (provided,however, that, if the applicable insurance program uses AVN67B or a successor |
London market endorsement similar thereto, the Grantors shall procure that the Collateral Agent is named as a “Contract Party” in respect of such insurance and shall ensure that the Collateral Agent is also named as such a “Contract Party” in respect of any new Lease entered into); |
(c) | Legal Liability Insurance —Third party legal liability insurance (including war and allied perils) for a combined single limit (bodily injured and property damage) of not less than $500,000,000 for a Narrowbody Aircraft, and not less than $750,000,000 for Widebody Aircraft. The Collateral Agent and the Administrative Agent (for and on behalf of themselves and the Secured Parties) shall be named as additional insureds on such policies;provided that if the applicable insurance program uses AVN 67B or a successor London market endorsement similar thereto, the Grantors shall procure that the Collateral Agent and the Administrative Agent are named as “Contract Parties” in respect of such insurance and the Grantors shall ensure that the Collateral Agent and the Administrative Agent are also named as such a “Contract Party” in respect of any new Lease. |
(d) | Aircraft Spares Insurance —Insurance for the engines and the parts while not installed on the airframe for their replacement cost or an agreed value basis. |
Proceeds of insurance paid to the Collateral Agent shall be disbursed to the Borrower unless an Event of Default has occurred and is continuing, in which case such proceeds will be held in the Collateral Account until applied as provided in the Credit Agreement or herein;provided,however, that if, pursuant to a Lease, such insurance proceeds are payable to a Lessee, such insurance proceeds shall in all circumstances be paid to such Lessee in accordance with such Lease. |
3. | Variations on Specific Insurance Requirements | |
In certain circumstances, it is customary that not all of the insurances described in paragraph 2 be carried for the Pool Aircraft. For example, when a Pool Aircraft is not on lease to a passenger air carrier or is in storage or is being repaired or maintained, ferry or ground rather than passenger flight coverage for the Pool Aircraft are applicable. Similarly, indemnities may be provided by a Governmental Authority in lieu of particular insurances;provided,however, that the Grantors shall not, without the prior written consent of the Collateral Agent, be entitled to accept any new such governmental indemnities other than when such indemnities are granted by a Governmental Authority of a country or jurisdiction that is not a Prohibited Country. The relevant Grantor will determine the necessary coverage for the Pool Aircraft in such situations consistent with Leasing Company Practice with respect to similar aircraft. |
4. | Hull Insurances in Excess of Required Insurance Value | |
For the avoidance of doubt, any Grantor and/or any Lessee may carry hull risks and hull war and allied perils insurance on the Pool Aircraft in excess of the Required Insured Value which (subject in the case of the Grantors with respect to the insurance required to be carried by the Lessee under the Lease to no Event of Default having occurred and being |
continuing) will not be payable to the Collateral Agent. Such excess insurance proceeds, if paid under the insurances required to be carried by the Lessee under the Lease, will be payable to (i) if payable to the Grantors, to the relevant Grantor, unless an Event of Default has occurred and is continuing in which case the excess shall be payable to the Collateral Agent or (ii) if payable to the Lessee to the Lessee in all circumstances. |
5. | Currency | |
All insurance and reinsurances effected pursuant to this Schedule V shall be payable in Dollars, save that in the case of the insurances referred to in paragraph 2(c) (if such denomination is (a) required by the law of the state of registration of the Pool Aircraft; or (b) the normal practice of airlines in the relevant country that operate aircraft leased from lessors located outside such country; or (c) otherwise accepted in accordance with Leasing Company Practice) or paragraph 2(d). | ||
6. | Specific Terms of Insurances | |
Insurance policies which are underwritten in the London and/or other non-US insurance market and which pertain to financed or leased aircraft equipment contain the coverage and endorsements described in AVN67B or a successor London market endorsement as it may be amended or revised or its equivalent. Each of the Grantors agrees that, so long as this Agreement shall remain in effect, the Pool Aircraft will be insured and the applicable insurance policies endorsed either (i) in a manner consistent with AVN67B or a successor London market endorsement, as it may be amended or revised or its equivalent or (ii) as may then be customary in the airline industry for aircraft of the same type as the Pool Aircraft utilised by operators in the same country and whose operational network for such Pool Aircraft and credit status is similar to the type of business as the Lessee (if any) and at the time commonly available in the insurance market. In all cases, the relevant Grantor will set the standards, review and manage the insurances on the Pool Aircraft consistent with Leasing Company Practice with respect to similar aircraft. | ||
7. | Insurance Brokers and Insurers | |
In reviewing and accepting the insurance brokers (if any) and reinsurance brokers (if any) and insurers and reinsurers (if any) providing coverage with respect to the Pool Aircraft, the relevant Grantor will utilize standards consistent with Leasing Company Practice with respect to similar aircraft. It is recognized that airlines in certain countries are required to utilize brokers (and sometimes even no brokers) or carry insurance with local insurance brokers and insurers. If at any time any Pool Aircraft is not subject to a Lease, the relevant Grantor will cause its insurance brokers to provide the Collateral Agent with evidence that the insurances described in this Schedule V are in full force and effect. | ||
8. | Deductible Amounts, Self-Insurance and Reinsurance | |
With respect to the type of aircraft concerned, the nationality and creditworthiness of the airline operator, the airline operator’s use and operation thereof and to the scope of and the amount covered by the insurances carried by the Lessee, the relevant Grantor will apply standards consistent with Leasing Company Practice with respect to similar aircraft in |
reviewing and accepting the amount of any insurance deductibles, whether the Lessee may self-insure any of the risks covered by the insurances and the scope and terms of reinsurance, if any, including a cut-through and assignment clause. |
9. | Renewals | |
The Grantors will monitor the insurances on the Pool Aircraft and their expiration dates. The relevant Grantor shall, when requested by the Collateral Agent, promptly inform the Collateral Agent as to whether or not it has been advised that renewal instructions for any of the insurances have been given by the airline operator or its broker prior to or on the scheduled expiry date of the relevant insurance. The relevant Grantor shall promptly notify the Collateral Agent in writing if it receives notice that any of the insurances have in fact expired without renewal. Promptly after receipt, the relevant Grantor will provide to the Collateral Agent evidence of renewal of the insurances and reinsurance (if any). | ||
10. | Information | |
Subject to applicable confidentiality restrictions, each of the Grantors shall provide the Collateral Agent or shall ensure that the Collateral Agent is provided with any information reasonably requested by it from time to time concerning the insurances maintained with respect to the Pool Aircraft or, if reasonably available to the Grantors, in connection with any claim being made or proposed to be made thereunder. |
AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
388 Greenwich Street, 14th Floor
New York, NY 10013
Attn: Jenny Cheng
Fax: 212-657-2762
[Date] |
By: | ||||
Name: | ||||
Title: |
not in its individual capacity, but
solely as the Collateral Agent
By: | ||||
Name: | ||||
Title: |
COLLATERAL SUPPLEMENT
Airframe Manufacturer | Engine Manufacturer and | |||||
Airframe MSN | and Model | Engine MSNs | Model | |||
COLLATERAL SUPPLEMENT
Percentage of | ||||
Pledged Equity Party | Certificate No. | Beneficial Interest | ||
Percentage of | ||||
Pledged Equity Party | Certificate No. | Membership Interest | ||
Pledged Equity Party | Certificate No. | Percentage Stock | ||
COLLATERAL SUPPLEMENT
AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
388 Greenwich Street, 14th Floor
New York, NY 10013
Attn: Jenny Cheng
Fax: 212-657-2762
[Date] |
By: | ||||
Name: | ||||
Title: |
not in its individual capacity, but solely as the
Collateral Agent
By: | ||||
Name: | ||||
Title: |
GRANTOR SUPPLEMENT
Airframe Manufacturer | Engine Manufacturer | |||||
Airframe MSN | and Model | Engine MSNs | and Model | |||
GRANTOR SUPPLEMENT
Percentage of | ||||
Pledged Equity Party | Certificate No. | Beneficial Interest | ||
Percentage of | ||||
Pledged Equity Party | Certificate No. | Membership Interest | ||
Pledged Equity Party | Certificate No. | Percentage Stock | ||
GRANTOR SUPPLEMENT
GRANTOR SUPPLEMENT
Name of Grantor | Chief Executive Office, Chief Place of Business and Registered Office and Organizational ID (if applicable) |
COLLATERAL SUPPLEMENT
COLLATERAL SUPPLEMENT
AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
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(1) | TEMESCAL AIRCRAFT INC.,a company incorporated under the laws of California (theChargor); and | ||
(2) | CITIBANK, N.A.,a national banking association as the collateral agent under the Security Agreement (as defined below), (theChargee); |
A. | By a term loan credit agreement dated as of March__ 2011 made between Temescal Aircraft Inc. as borrower, ILFC, Topanga Park Aircraft Inc., Charmlee Aircraft Inc and Ballysky Aircraft Ireland Limited (theCompany) as obligors, the lenders identified therein as lenders, Citibank, N.A. as administrative agent and collateral agent (theCollateral Agent), Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC as joint lead structuring agents and joint lead placement agents and BNP Paribas as joint placement agent (theCredit Agreement) the Lenders have agreed to make available a term loan facility to the Borrower. | |
B. | By an aircraft mortgage and security agreement dated as of March__ 2011 between the Chargor and others and the additional grantors referred to therein as Grantors and the Chargee, as the Collateral Agent, such Grantors have agreed to grant certain security to the Chargee (theSecurity Agreement). | |
C. | Pursuant to the terms of the Credit Agreement, the Chargor has agreed to grant this charge over the shares in the Company. | |
D. | The terms and conditions of this Charge are acceptable to the Chargee. |
1. | DEFINITIONS AND INTERPRETATION | |
1.1. | In this Charge (including the Recitals), words and expressions defined in the Security Agreement shall (unless otherwise defined herein or the context requires otherwise) have the same meaning herein and the following words and expressions shall have the following meanings, except where the context otherwise requires: | |
Actmeans the Land and Conveyancing Law Reform Act 2009; | ||
thisChargemeans this share charge; | ||
Companymeans Ballysky Aircraft Ireland Limited (registered number 495999), a company incorporated in Ireland having its registered office at 30 North Wall Quay, Dublin 1, Ireland; | ||
Charged Propertymeans: |
(1) | all the issued shares in the capital of the Company as described in Schedule A and all other shares and share warrants in the capital of the Company from time to time legally or beneficially owned by the Chargor during the Security Period (together theCharged Shares); and | ||
(2) | including in each case all proceeds of sale thereof and all dividends, interest or other distributions hereafter declared, made, paid or payable in respect of the same and all allotments, accretions, offers, rights, benefits and advantages whatsoever at any time accruing, offered or arising in respect of or incidental to the same and all stocks, shares, rights, money or property accruing thereto or offered at any time by way of conversion, redemption, bonus, preference, option, substitution, capital redemption or otherwise in respect thereof; |
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provided,however, that notwithstanding any of the foregoing provisions, so long as no Event of Default shall have occurred and be continuing and the Loans have been accelerated and for so long as such acceleration shall not have been rescinded, the Chargor shall have the right, to the exclusion of the Chargee to (i) all distributions, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Charged Property, and once paid by Chargor to a non-Grantor under the Security Agreement, shall be free and clear of the Charge hereof and shall not constitute Charged Property, and if an Event of Default shall have occurred and be continuing and the Loans have been accelerated and for so long as such acceleration shall not have been rescinded, Chargor shall not make any such payment to a non-Grantor without the Chargee’s consent;providedfurther that the Charged Property shall not include any Excluded Property. | |||
Charged Shareshas the meaning assigned thereto in the definition of Charged Property; | |||
Event of Defaultmeans any Event of Default as defined in the Credit Agreement; | |||
Loan Documenthas the meaning given to it in the Credit Agreement; | |||
Partiesmean the parties to this Charge; | |||
Receivermeans a receiver (whether appointed pursuant to this Charge, pursuant to any statute, by a court or otherwise) of the Charged Property or any part of it; | |||
Secured Obligationshas the meaning given to it in the Security Agreement; | |||
Secured Partymeans any of or, in the plural form, all of the Chargee, the Lenders, the Administrative Agent and the Syndication Agent; and | |||
Security Periodmeans the period commencing on the date of execution of this Charge and terminating upon the date on which the Secured Obligations have been unconditionally and irrevocably paid and discharged in full. |
1.2. | In this Charge: |
1.2.1. | words and phrases the definition of which is contained in or referred to section 2 of the Companies Act, 1963 are to be construed as having the meaning attributed to them therein; | ||
1.2.2. | references to statutory provisions shall be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and shall include references to any provisions of which they are reenactments (whether with or without modification); | ||
1.2.3. | references to clauses, recitals and schedules are references to clauses hereof, recitals hereof and schedules hereto; references to sub-clauses or paragraphs are, unless otherwise stated, references to sub-clauses of the clause or paragraphs of the schedule in which the reference appears; | ||
1.2.4. | references to the singular shall include the plural and vice versa and references to the masculine shall include the feminine or neuter and vice versa; | ||
1.2.5. | references to persons shall include natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations, trusts, bodies of persons whether incorporated or unincorporated (in each case whether or not having a separate legal personality); | ||
1.2.6. | references to assets include property, rights and assets of every description; | ||
1.2.7. | references to any document are to be construed as references to such document as amended, varied, assigned, novated, restated or supplemented from time to time; | ||
1.2.8. | references to any person shall be construed so as to include that person’s successors, assigns and transferees; | ||
1.2.9. | any reference to a legal term for any action, remedy, method of judicial proceeding, legal |
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document, legal status, court, official or any legal concept or thing is, in respect of any jurisdiction other than Ireland, shall be deemed to include a reference to what mostly nearly approximates in that jurisdiction to the Irish legal term; | |||
1.2.10. | the headings are inserted for convenience only and are not to affect the construction of this Charge; and | ||
1.2.11. | any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression is to be construed as illustrative and shall not limit the sense of the words proceeding those terms. |
2. | COVENANT TO PAY AND PERFORM | |
2.1. | The Chargor hereby covenants and undertakes with the Chargee that it shall pay and discharge the Secured Obligations as and when they become due to be paid or discharged as and to the extent provided in the Credit Agreement, this Charge or any other Loan Document. | |
2.2. | The Chargor shall pay interest on any delinquent sum (before and after any judgment) from the date of demand until the date of payment calculated on a daily basis in accordance with the provisions of the Credit Agreement. | |
2.3. | Any payment made by the Chargor under this Charge shall be made free and clear of and without any deduction for or on account of any set-off or counterclaim. | |
3. | SECURITY | |
3.1. | As a continuing security for the payment and performance of the Secured Obligations, the Chargor as legal and beneficial owner hereby charges to the Chargee, by way of a first fixed charge, all of its right, title and interest in and to the Charged Property. | |
3.2. | The Chargor hereby agrees to deliver to the Chargee, on the date of execution of this Charge: |
3.2.1. | an undated stock transfer form (executed in blank by or on behalf of the Chargor) in respect of all the Charged Shares; | ||
3.2.2. | all share certificates, warrants and other documents of title representing the Charged Shares together with a certified copy of the up to date register of members of the Company; | ||
3.2.3. | an undated irrevocable proxy in respect of the Charged Shares executed by the Chargor, in the for set out in Schedule C to this Charge; | ||
3.2.4. | an irrevocable appointment signed by the Chargor in respect of the Charged Shares, in the form set out in Schedule D to this Charge; and | ||
3.2.5. | executed but undated letters of resignation and release from each of the directors, alternate directors and secretary of the Company appointed by the Chargor in the forms set out in Schedule B to this Charge. |
3.3. | The Chargor will procure that, for the duration of the Security Period, there shall be (a) no increase or reduction in the authorised or issued share capital of the Company, (b) no variation of the rights attaching to or conferred by the Charged Property or any part of it, and (c) no alteration to the constitutive documents of the Company, in each case, without the prior consent in writing of the Chargee (not to be unreasonably withheld), but the foregoing shall not be interpreted as requiring the Chargee’s consent to further capital contribution to the Company by the Chargor. |
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3.4. | The Chargor will deliver, or cause to be delivered, to the Chargee immediately upon (subject to clause 3.3) the issue of any further Charged Shares, the items listed in clauses 3.2.1 and 3.2.2 in respect of all such further Charged Shares. | |
3.5. | The Chargor will deliver or cause to be delivered, to the Chargee immediately upon (subject to clause 3.3) the appointment of any further director, alternate director or officer of the Company an undated, signed letter of resignation from such further director, alternate director or officer in a form acceptable to the Chargee. | |
3.6. | The Chargor hereby covenants that, except as otherwise provided in the Loan Documents, during the Security Period: |
3.6.1. | it will remain the legal and beneficial owner of the Charged Property; | ||
3.6.2. | it will not create or suffer the creation or existence of any Liens (other than Permitted Liens) on or in respect of the whole of any part of the Charged Property or any of its interest therein; | ||
3.6.3. | it will not sell, assign, transfer or otherwise dispose of any of its interest in the Charged Property in any such case, without the prior consent in writing of the Chargee; | ||
3.6.4. | it will not permit any person other than the Chargee (or such person as may be specified for this purpose in writing by the Chargee) to be registered as holder of the Shares or any part thereof; | ||
3.6.5. | it will duly and promptly pay all calls, instalments or other payments which may be or become due in respect of the Charged Shares as and when the same from time to time become due; | ||
3.6.6. | it will promptly give to the Chargee all material notices and other documents received in respect of the Charged Shares; | ||
3.6.7. | it will ensure that, except as required by law, the Charged Shares are, and at all times remain, free from any restriction on transfer to the Chargee, its nominee(s) or to any purchaser from the Chargee pursuant to the exercise of any rights or remedies of the Chargee under or pursuant to this Charge; | ||
3.6.8. | it will notify the Chargee immediately upon receipt of any notice issued under section 16(1) of the Companies Act, 1990 in respect of all or any of the Charged Shares or upon becoming aware that any such notice has been issued or that steps have been taken or are about to be taken to obtain an order for the sale of all or any of the Charged Shares under section 16(7) of the Companies Act 1990; | ||
3.6.9. | it will not claim any set-off or counterclaim against the Chargee or any Secured Party; | ||
3.6.10. | following the occurrence of an Event of Default which is continuing and the acceleration of the Loans and for so long as such acceleration shall not have been rescinded, it will not claim or prove in competition with the Chargee or any Secured Party in the bankruptcy or liquidation of the Company or have the benefit of, or share in, any payment from or composition with, the Company for any indebtedness of the Companyprovided thatif so directed by the Chargee, it will prove for the whole or any part of its claim in the liquidation or bankruptcy of the Company on terms that the benefit of such proof and of all money received by it in respect thereof shall be held on trust for the Chargee and applied in or towards the discharge of the liabilities and obligations of the Chargor to the Chargee under this Charge in such manner as the Chargee shall deem appropriate; | ||
3.6.11. | it will not exercise its rights of subrogation against the Company; | ||
3.6.12. | following the occurrence of an Event of Default which is continuing and the acceleration of the Loans and for so long as such acceleration shall not have been rescinded, it will take such action as the Chargee may, in its absolute discretion, direct in the event that it becomes possible (whether under the terms of issue of the Charged Shares, a reorganisation or otherwise) to convert or exchange the Charged Shares or have them repaid or in the event that any offer to purchase is made in respect of the Charged Shares or any proposal is made for varying or abrogating any rights attaching to them; and |
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3.6.13. | it will not permit any of the Charged Shares to be redeemed and repaid. |
3.7. | The Chargor shall remain liable to perform all the obligations assumed by it in relation to the Charged Property and the Chargee shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Chargor to perform its obligations in respect thereof. | |
3.8. | For the avoidance of doubt, the Chargee shall not in any circumstances incur and liability whatsoever in respect of any calls, instalments or otherwise in connection with the Charged Property. | |
3.9. | Upon the Chargee being satisfied that the Secured Obligations have been unconditionally and irrevocably paid and discharged in full, or as otherwise provided in the Credit Agreement or the other Loan Documents, and following a written request therefor from the Chargor, the Chargee will, subject to being indemnified to their reasonable satisfaction for the costs and expenses incurred by the Chargee in connection therewith, release the security constituted by this Charge. | |
4. | REPRESENTATIONS AND WARRANTIES OF THE CHARGOR | |
4.1. | The Chargor hereby represents and warrants to the Chargee and the Secured Parties that: |
4.1.1. | it is not in breach of any of its obligations under this Charge; | ||
4.1.2. | the Chargor is the sole legal and beneficial owner of all of the Charged Property free from any Lien (other than any Permitted Lien) and any options or rights of pre-emption; | ||
4.1.3. | the Chargor has not sold or otherwise disposed of or agreed to sell or otherwise dispose of or granted or agreed to grant any option in respect of the Charged Property and, except as otherwise permitted under the Loan Documents, will not do any of the foregoing at any time during the Security Period; | ||
4.1.4. | it is not necessary that this Charge be filed, recorded or enrolled with any court or other authority in Ireland or any other jurisdiction (except filing with the Irish Companies Registration Office pursuant to Section 111 of the Companies Act 1963 and under the Uniform Commercial Code enacted in any jurisdiction); | ||
4.1.5. | the Charged Shares constitute all of the issued share capital of the Company; | ||
4.1.6. | the Charged Shares have been duly authorised, validly issued and are fully paid or credited as fully paid, no calls have been made in respect thereof and remain unpaid and no calls can be made in respect of such Charged Shares in the future; | ||
4.1.7. | the terms of the Charged Shares and of the constitutive documents of the Company do not restrict or otherwise limit the Chargor’s right to transfer or charge the Charged Shares and the directors of the Company cannot refuse to register any transfer of the Charged Shares to the Chargee or any party nominated by the Chargee; | ||
4.1.8. | it will not be required to make any deduction or withholding from any payment it may make under this Charge. |
4.2. | The Chargor acknowledges that the Chargee has entered into this Charge in reliance on the representations and warranties set out in Clause 4.1. | |
5. | DEALINGS WITH CHARGED PROPERTY | |
5.1. | Unless and until the occurrence of an Event of Default which is continuing and the acceleration of the Loans and for so long as such acceleration shall not have been rescinded: |
5.1.1. | subject always to Clause 3.3, the Chargor shall continue to be entitled to exercise all voting and consensual powers pertaining to the Charged Property or any part thereof for all purposes not inconsistent with the terms of this Charge; and |
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5.1.2. | the Chargor shall be entitled to receive and retain any cash dividends, but not other moneys or assets accruing on or in respect of the Charged Property or any part thereof | ||
provided thatthe Chargor shall not exercise such voting rights in any manner which would, or would be reasonably likely to, violate the Credit Agreement or the Security Agreement. |
5.2. | The Chargor shall pay when due all calls, installments or other payments and shall discharge all other obligations, which may become due in respect of any of the Charged Property and following the occurrence of an Event of Default which is continuing and the acceleration of the Loans and for so long as such acceleration shall not have been rescinded, the Chargee may if it thinks fit (but shall not be obliged to) make such payments or discharge such obligations on behalf of the Chargor. Any sums so paid by the Chargee in respect thereof shall be repayable on demand by the Chargor with interest thereon calculated in accordance with clause 2.2 and pending such repayment shall constitute part of the Secured Obligations. | |
5.3. | The Chargee shall not have any duty to ensure that any dividends, interest or other moneys and assets receivable in respect of the Charged Property are duly and punctually paid, received or collected as and when the same become due and payable or to ensure that the correct amounts (if any) are paid or received on or in respect of the Charged Property or to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys or other property paid, distributed, accruing or offered at any time by way of redemption, bonus, rights, preference, or otherwise on or in respect of, any of the Charged Property. | |
5.4. | The Chargor hereby authorises the Chargee to arrange at any time and from time to time (after the occurrence of an Event of Default which is continuing and the acceleration of the Loans and for so long as such acceleration shall not have been rescinded) for the Charged Property or any part thereof to be registered in the name of the Chargee (or its nominee) thereupon to be held, as so registered, subject to the terms of this Charge. | |
5.5. | The Chargor may not take any action in relation to the Charged Property or this Charge under the provisions of Section 94 of the Act (Court order for sale). | |
6. | PRESERVATION OF SECURITY | |
6.1. | It is hereby agreed and declared that: |
6.1.1. | the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations; | ||
6.1.2. | the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them; | ||
6.1.3. | the Chargee shall not be bound to seek to recover any amounts due from the Borrowers or any other person, exercise any rights against a Borrower or any other person or enforce any other security before enforcing the security created by this Charge; | ||
6.1.4. | no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and | ||
6.1.5. | any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given. |
6.2. | Where any discharge is made in whole or in part or any arrangement is made on the faith of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by |
7
virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repayment. |
6.3. | Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount except as otherwise provided in the Loan Documents. | |
7. | ENFORCEMENT OF SECURITY | |
7.1. | The security hereby constituted shall become enforceable upon the occurrence of an Event of Default which is continuing and the acceleration of the Loans and for so long as such acceleration shall not have been rescinded. | |
7.2. | At any time after the occurrence of an Event of Default which is continuing and the acceleration of the Loans and for so long as such acceleration shall not have been rescinded, the rights conferred on the Chargee under this Charge or by law shall be immediately exercisable upon and at any time thereafter and, without prejudice to the generality of the foregoing, the Chargee or any Receiver appointed hereunder without further notice to the Chargor: |
7.2.1. | may solely and exclusively exercise all voting and/or consensual powers pertaining to the Charged Property or any part thereof and may exercise such powers in a such manner as the Chargee may think fit; and/or | ||
7.2.2. | may complete any share transfer forms then held by the Chargee pursuant to this Charge in the name of the Chargee (or its nominee) and the Chargor shall do whatever the Chargee requires in order to procure the prompt registration of such transfer and the prompt issue of a new certificate or certificates for the relevant Charged Property in the name of the Chargee; and/or | ||
7.2.3. | date any or all, as the Chargee in its absolute discretion may deem appropriate, of the letters of resignation of the Directors and Secretary of the Company provided to the Chargee pursuant to clause 3.2.5, the proxy provided to the Chargee pursuant to clause 3.2.3 and the appointment provided to the Chargee pursuant to clause 3.2.4 and sign, seal, execute, deliver, acknowledge, file and register all such documents, instruments, agreements, certificates and any other document (including, but not limited to, such letters of resignation) and do any and all such other acts or things as the Chargee may in its absolute discretion deem necessary or desirable to remove any or all of the Directors and/or Secretary from the office of director or, as the case may be, secretary of the Company. | ||
7.2.4. | may receive and retain all dividends, interest or other moneys or assets accruing on or in respect of the Charged Property or any part thereof, such dividends, interest or other moneys or assets to be held by the Chargee, as additional security charged under and subject to the terms of this Charge and any such dividends, interest and other moneys or assets received by the Chargor after such time shall be held in trust by the Chargor for the Chargee and paid or transferred to the Chargee on demand; and/or | ||
7.2.5. | may sell, transfer, grant options over or otherwise dispose of the Charged Property or any part thereof at such place and in such manner and at such price or prices as the Chargee may deem fit, and thereupon the Chargee shall have the right to deliver, assign and transfer in accordance therewith the Charged Property so sold, transferred, granted options over or otherwise disposed of. |
7.3. | At any time after the security constituted by this Charge has become enforceable: |
7.3.1. | the statutory power of sale conferred by section 100 (Power of sale) of the Act free from restrictions contained in section 100(1)(a), (b), (c), (2), (3) and (4) and without the requirement |
8
to serve notice (as provided for in section 100(1)); and | |||
7.3.2. | the incidental powers of sale conferred by section 102(Incidental powers) | ||
will immediately arise and be exercisable by the Chargee and/or any Receiver (as appropriate). |
7.4. | Upon any sale of the Charged Property or any part thereof by the Chargee, the purchaser shall not be bound to see or enquire whether the Chargee’s power of sale has become exercisable in the manner provided in this Charge and for the purposes and benefit of such purchaser the sale shall be deemed to be within the power of the Chargee, and the receipt of the Chargee for the purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefor. | |
7.5. | The Chargee shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by it under this Charge or to make any claim or to take any action to collect any moneys assigned by this Charge or to enforce any rights or benefits assigned to it by this Charge or to which the it may at any time be entitled hereunder. | |
7.6. | Neither the Chargee nor any of its respective agents, managers, officers, employees, delegates and advisers shall be liable for any claim, demand, liability, loss, damage, cost or expense incurred or arising in connection with the exercise or purported exercise of any rights, powers and discretions hereunder in the absence of gross negligence, dishonesty or willful default. | |
7.7. | The provisions of section 97 of the Act (Taking possession), section 99(1) (Mortgagee in possession) and section 101 (Applications under sections 97 and 100) shall not apply to this Charge. | |
7.8. | Receivers |
7.8.1. | At any time after the occurrence of an Event of Default and for so long as it is continuing and the acceleration of the Loans and for so long as such acceleration shall not have been rescinded, the Chargee may by a written instrument and without notice to any party appoint a Receiver of the Charged Property or any part of it. A Receiver so appointed shall be the agent of the Chargor and the Chargor shall be solely responsible for his acts, defaults and remuneration but the Chargee will have power from time to time to fix the remuneration of any Receiver and direct payment thereof out of the proceeds of the Charged Property. The restrictions contained in section 108(1) and the provisions of sub-sections 108(4) and (7) (Appointment of a Receiver) of the Act will not apply to the appointment of a Receiver under this clause 7.8.1; | ||
7.8.2. | The Chargee may by instrument in writing delegate to any such Receiver all or any of the rights, powers and discretions vested in it by this Charge pursuant to section 108(3) of the Act; | ||
7.8.3. | The Chargee may by instrument in writing delegate to any such Receiver all or any of the rights, powers and discretions vested in it by this Charge; | ||
7.8.4. | In addition to the powers conferred on the Chargee by this Charge, the Receiver appointed pursuant to Clause 7.8.1 shall have in relation to the Charged Property all the powers conferred by the Act (as extended by this Charge) on a Receiver appointed under that Act; | ||
7.8.5. | The Chargee shall not be responsible for any negligence on the part of a Receiver, provided that the Chargee shall have used bona fides in the appointment of such Receiver; | ||
7.8.6. | Neither the Chargee nor any Receiver appointed under this Charge shall be liable to account as mortgagee in possession in respect of any of the Charged Property or be liable for any loss upon realisation or for any neglect or default of any nature whatsoever (except to the extent that the same results from their or his gross negligence or willful default in connection with any of the Charged Property) for which a mortgagee in possession might as such be liable and all costs, charges and expenses incurred by the Chargee or any Receiver appointed hereunder (including the costs of any proceedings to enforce the security) together with all Value Added Tax thereon shall be paid by the Chargor on a solicitor and own client basis and shall form part of the Secured Obligations and be charged on and paid out of the Charged Property; and | ||
7.8.7. | All amounts realized by the Chargee in connection with the exercise of rights and remedies |
9
hereunder shall be applied by the Chargee as provided in section 3.02 (Priority of Payments) of the Security Agreement. To the extent relevant, the subordination arrangements set forth in Sections 2, 5 and 6 of the Intercreditor Agreement shall apply to this Charge. |
8. | FURTHER ASSURANCES | |
8.1. | The Chargor shall from time to time at its expense, but only to the extent required by the Express Perfection Requirements, execute and deliver any and all such further instruments and documents and take all such actions as the Chargee in its reasonable discretion may require for: |
8.1.1. | perfecting, protecting or ensuring the priority of the security hereby created (or intended to be created); | ||
8.1.2. | preserving or protecting any of the rights of the Chargee under this Charge; | ||
8.1.3. | ensuring that the security constituted by this Charge and the covenants and obligations of the Chargor under this Charge shall enure to the benefit of any assignee of the Chargee; | ||
8.1.4. | facilitating the appropriation or realisation of the Charged Property or any part thereof; or | ||
8.1.5. | the exercise of any power, authority or discretion vested in the Chargee under this Charge, | ||
in any such case, forthwith upon demand by the Chargee and at the expense of the Chargor. |
9. | INDEMNITIES | |
9.1. | The Chargor will indemnify and save harmless the Chargee and each of its agents or attorneys appointed under or pursuant to this Charge from and against any and all expenses, claims, liabilities, losses, taxes, costs, duties, fees and charges suffered, incurred or made by the Chargee or such agent or attorney: |
9.1.1. | in the exercise or purported exercise of any rights, powers or discretions vested in them pursuant to this Charge; | ||
9.1.2. | in the preservation or enforcement of the Chargee’s rights under this Charge or the priority thereof; or | ||
9.1.3. | on the release of any part of the Charged Property from the security created by this Charge, | ||
as provided in the Security Agreement and subject to the terms thereof. |
9.2 | If, under any applicable law or regulation, and whether pursuant to a judgment being made or registered against the Chargor or the bankruptcy or liquidation of the Chargor or for any other reason any payment under or in connection with this Charge is made or fails to be satisfied in a currency (thePayment Currency) other than the currency in which such payment is due under or in connection with this Charge (theContractual Currency), then to the extent that the amount of such payment actually received by the Chargee when converted into the Contractual Currency at the rate of exchange, falls short of the amount due under or in connection with this Charge, the Chargor, as a separate and independent obligation, shall indemnify and hold harmless the Chargee against the amount of such shortfall. For the purposes of this clause 9.2, rate of exchange means the rate at which the Chargee is able on or about the date of such payment to purchase the Contractual Currency with the Payment Currency and shall take into account any premium and other costs of exchange with respect thereto. | |
10. | POWER OF ATTORNEY |
10.1. | The Chargor by way of security hereby irrevocably appoints and constitutes the Chargee and any Receiver jointly and also severally the attorney or attorneys of the Chargor on the Chargor’s behalf and in the name of the Chargor or otherwise and to do all acts and to execute, seal or otherwise affect any deed, assurance, agreement, instrument, document or act which the Chargor could itself do in relation to the Charged Property or which may be required or which may be deemed proper for any of the |
10
matters provided for in this Charge. |
10.2. | The power hereby conferred shall be a general power of attorney and the Chargor hereby ratifies and confirms and agrees to ratify and confirm any instrument, act or thing which any such attorney may execute or do. In relation to the power referred to herein, the exercise by the Chargee of such power shall be conclusive evidence of its right to exercise the same. | |
10.3. | This power shall not become exercisable unless and until an Event of Default has occurred and is continuing and the Loans have been accelerated and for so long as such acceleration shall not have been rescinded. | |
11. | EXPENSES | |
11.1. | As and to the extent provided in the Credit Agreement and the Security Agreement, the Chargor shall pay to the Chargee within 10 Business Days of demand all costs, fees and expenses (including, but not limited to, legal fees and expenses) and taxes thereon incurred by the Chargee (or any Secured Party) or for which the Chargee may become liable in connection with: |
11.1.1. | the negotiation, preparation and execution of this Charge; | ||
11.1.2. | the preserving or enforcing of, or attempting to preserve or enforce, any of its rights under this Charge or the priority hereof; | ||
11.1.3. | any variation of, or amendment or supplement to, any of the terms of this Charge; and /or | ||
11.1.4. | any consent or waiver required from the Chargee in relation to this Charge, |
and in the case referred to in clauses 11.1.3 and 11.1.4 regardless of whether the same is actually implemented, completed or granted, as the case may be. | ||
11.2. | The Chargor shall pay promptly all stamp, documentary, registration and other like duties and taxes to which this Charge may be subject or give rise and shall indemnify the Chargee on demand against any and all liabilities with respect to or resulting from any delay or omission on the part of the Chargor to pay any such duties or taxes. | |
11.3. | The provisions of section 109 (Application of money received) of the Act shall not apply to this Charge. | |
12. | ASSIGNMENTS | |
12.1. | This Charge shall be binding upon and shall enure to the benefit of the Chargor and the Chargee and each of their respective successors and (subject as hereinafter provided) assigns and references in this Charge to any of them shall be construed accordingly. | |
12.2. | The Chargor may not assign or transfer all or any part of its rights and/or obligations under this Charge except as provided under the Credit Agreement or the Security Agreement. | |
12.3. | The Chargee may assign or transfer all or any part of its rights or obligations under this Charge as provided in the Security Agreement. The Chargee will be entitled to disclose any information concerning the Chargor to any proposed assignee or transferee. The Chargee shall notify the Chargor promptly following any such assignment or transfer. | |
12.4. | In the event of assignment or transfer by the Chargee as permitted by clause 12.3, the Chargor shall at the request of the Chargee join in such assignment or transfer so as to cause the full benefit of this Charge to be passed to the relevant assignee or transferee. | |
13. | MISCELLANEOUS | |
13.1. | The Chargee, at any time and from time to time, may delegate by power of attorney or in any other manner to any person or persons all or any of the powers, authorities and discretions which are for the time being exercisable by the Chargee under this Charge in relation to the Charged Property or any part thereof. Any such delegation may be made upon such terms and be subject to the regulations as |
11
the Chargee may think fit. The Chargee shall not be in any way liable or responsible to the Chargor for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate provided that the Chargee has acted reasonably in selecting such delegate. |
13.2. | If any of the clauses, conditions, covenants or restrictions (theProvision) of this Charge or any deed or document emanating from it shall be found to be void but would be valid if some part thereof were deleted or modified, then the Provision shall apply with such deletion or modification as may be necessary to make it valid and effective. | |
13.3. | This Charge (together with any documents referred to herein) constitutes the whole agreement between the Parties relating to its subject matter and no variations hereof shall be effective unless made in writing and signed by each of the Parties. | |
13.4. | This Charge may be executed in counterparts each of which when executed and delivered shall constitute an original but all such counterparts together shall constitute one and the same instrument. | |
13.5. | A certificate of the Chargee as to the amount of any Secured Obligation owed to it (whether for itself or in a representative capacity) shall, in the absence of manifest error, be conclusive evidence of the existence and amount of such Secured Obligation. | |
13.6. | If the Chargee causes or requires Charged Property to be registered in the name of a nominee for the Chargee, any reference in this Charge to the Chargee shall, if the context so permits or requires, be construed as a reference to each of the Chargee and such nominee. | |
13.7. | The rights and remedies of the Chargee under this Charge are cumulative and without prejudice and in addition to any rights or remedies which the Chargee may have at law or in equity. No exercise by the Chargee of any right or remedy under this Charge or at law or in equity shall (save to the extent, if any, provided expressly in this Charge, or at law or in equity) operate so as to hinder or prevent the exercise by it of any other right or remedy. Each and every right and remedy may be exercised from time to time as often and in such order as may be deemed expedient by the Chargee. | |
14. | LIMIT OF LIABILITY | |
The provisions of section 8.13 (Limited Recourse) of the Security Agreement shall apply mutatis mutandis to this Charge as if written out in full herein. | ||
15. | LAW AND JURISDICTION | |
15.1. | This Charge, and any non-contractual obligations arising out of or in connection with this Charge, shall be governed and construed in accordance with Irish law. | |
15.2. | The Chargor irrevocably agrees for the benefit of the Chargee that the courts of Ireland shall have jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, whether relating to a contractual or non-contractual obligation, which may arise out of or in connection with this Charge and, for such purposes, irrevocably submits to the jurisdiction of such courts. | |
15.3. | The Chargor irrevocably waives any objection which it might now or hereafter have to the courts referred to in Clause 15.2 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 Charge 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 convenient or any similar grounds or otherwise. | |
15.4. | The submission to the jurisdiction of the courts referred to in Clause 15.2 shall not (and shall not be construed so as to) limit the right of the Chargee to take proceedings against the Chargor 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. | |
15.5. | To the extent that the Chargor, or any of the property of the Chargor 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, |
12
or other legal process in any jurisdiction, the Chargor 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 or his, as the case may be, obligations, liabilities or any other matter under or arising out of or in connection with this Charge or the subject matter hereof or thereof. |
16. | SERVICE OF PROCESS AGENT | |
The Chargor hereby irrevocably appoints ILFC Ireland Limited of 30 North Wall Quay, Dublin 1 as its Agent with full authority to receive, accept and acknowledge, for itself and on its behalf, service of all process issued out of or relating to any proceedings referred to in clause 15 in the Courts of Ireland. | ||
17. | CONFLICTS | |
In the event of a conflict between the provisions of this Charge on the one hand and the Credit Agreement and the Security Agreement on the other hand, the provisions of the Credit Agreement or Security Agreement shall control. |
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Company | Number and Description of Shares | Registered Holder | ||
Ballysky Aircraft Ireland Limited | 10 Ordinary Shares of US$1.00 each | Temescal Aircraft Inc. |
14
(theChargee)
(Date of Charge)
15
Ballysky Aircraft Ireland Limited (theCompany)
Signed and Delivered | ||||
by [insert name of director/secretary] | ||||
in the presence of: |
Witness Signature: | ||||
Witness Name: | ||||
Witness Address: | ||||
16
17
18
SIGNEDby | ||||
TEMESCAL AIRCRAFT INC. | ||||
in the presence of: |
Witness Signature: | ||||
Witness Name: | ||||
Witness Address: | ||||
SIGNEDby CITIBANK, N.A., in the presence of: |
Witness Signature: | ||||
Witness Name: | ||||
Witness Address: | ||||
19
AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
388 Greenwich Street, 14th Floor
New York, NY 10013
Attention: Jenny Cheng
Facsimile No. (212) 657-2762
1. | The Securities Intermediary is instructed to register the pledge on its books. Securities Intermediary shall hold all certificated securities that comprise all or part of the Collateral with proper endorsements to the Securities Intermediary or in blank, or will deliver possession of such certificated securities to the Pledgee. The Securities Intermediary acknowledges the security interest granted by the Pledgor in favor of the Pledgee in the Collateral. | |
2. | The Securities Intermediary represents, warrants and agrees that the Collateral Account (i) has been established and is and will be maintained with the Securities Intermediary on its books and records and (ii) is and will be a “securities account” (as defined in Section 8-501(a) of the UCC) in respect of which the (A) Securities Intermediary is a “securities intermediary” (as defined in Section 8-102(a)(14) of the UCC), (B) the Pledgor is the “entitlement holder” (as defined in |
Section 8-102(a)(7) of the UCC) of the Collateral Account subject to the “control” (as defined in Section 8-106 of the UCC) of the Pledgee, (C) the “securities intermediary’s jurisdiction” (as defined in Section 8-110(e) of the UCC) of the Securities Intermediary in respect of the Collateral Account is New York and (D) all financial assets carried in the Collateral Account will have been duly credited thereto in compliance with Section 8-501 of the UCC. | ||
3. | The Securities Intermediary is instructed to deliver to the Pledgee copies of monthly statements on the Collateral Account. | |
4. | The Collateral Account will be styled: “#798628 Citi f/b/o Citibank, N.A. as Collateral Agent and Securities Intermediary f/b/o Temescal Aircraft, Inc. under the Aircraft Mortgage and Security Account Control Agreement.” | |
5. | All dividends, interest, gains and other profits with respect to the Collateral Account will be reported in the name and tax identification number of the Pledgor. | |
6. | (a) The Securities Intermediary may not, without the prior written consent of Pledgee, deliver, release or otherwise dispose of the Collateral or any interest therein unless the proceeds thereof are held or reinvested in the Collateral Account as part of the Collateral or applied by Securities Intermediary to the satisfaction of an Unsubordinated Obligation (as defined below) owed to it. Except for such limitation and unless and until the Securities Intermediary receives and has a reasonable period of time to act upon written notice from the Pledgee which states that Pledgee is exercising exclusive control over the Collateral Account (a “Notice of Exclusive Control”), the Securities Intermediary may comply with any investment orders or instructions from Pledgor concerning the Collateral Account, or as set forth in Section 6(b) below. A Notice of Exclusive Control (Exhibit A) may be delivered by the Pledgee at any time upon the occurrence and continuance of an Event of Default and the acceleration of the Loans and such acceleration has not been rescinded, and shall designate the account, person or other location to which the financial assets in the Collateral Account, and cash dividends, interest, income, earnings and other distributions received with respect thereto, shall thereafter be delivered. As between Pledgor and Pledgee, Pledgee agrees not to deliver a Notice of Exclusive Control until the occurrence of an Event of Default (as defined in the Security Agreement) that is continuing and the acceleration of the Loans and such acceleration has not been rescinded. For the avoidance of doubt, Securities Intermediary shall have no responsibility for monitoring or determining whether an Event of Default has occurred or is continuing. | |
(b) In accordance with the Loan Agreement, upon, as part of, or in the absence after the relevant period of an Interim Cure, the Pledgee shall issue an “entitlement order” to the Securities Intermediary to distribute from the Collateral Account to the Pledgor an amount equal to the Interim Cash deposited in connection with the related LTV Cure. | ||
(c) Upon deposit of any insurance proceeds in the Collateral Account, the Pledgee shall instruct the Securities Intermediary to distribute from the Collateral Account the amount of such insurance proceeds in accordance with the instructions of the Collateral Agent (who shall direct that such amounts be distributed as set forth in Schedule V of the Security Agreement). | ||
7. | The Pledgor authorizes the Securities Intermediary, and the Securities Intermediary agrees, to comply with any order or instruction from Pledgee concerning the Collateral Account, including an order or instruction directing sale, transfer (to the extent that the Collateral is transferable), release or redemption of all or part of the Collateral and the remittance of the proceeds thereof, if |
any, to Pledgee or as otherwise instructed by the Pledgee, without further consent by the Pledgor. Securities Intermediary shall have no responsibility or liability to Pledgor for complying with any order or instruction, whether oral or written, concerning the Collateral Account, the Collateral, any interest therein, or the proceeds thereof originated by Pledgee and shall have no responsibility to investigate the appropriateness of any such order or instruction, even if Pledgor notifies Securities Intermediary that Pledgee is not legally entitled to originate any such order or instruction. Securities Intermediary shall have no responsibility or liability to Pledgee for complying with any order or instruction, whether oral or written, concerning the Collateral Account, the Collateral, any interest therein, or the proceeds thereof originated by Pledgor except to the extent such compliance would cause Securities Intermediary to violate (i) paragraph 6 hereof or (ii) written orders or instructions previously received from Pledgee, including without limitation, a Notice of Exclusive Control, but only to the extent Securities Intermediary has had reasonable opportunity to act thereon. Securities Intermediary shall be able to rely upon any notice, order or instruction that it reasonably believes to be genuine. Securities Intermediary shall have no responsibility or liability to Pledgee with respect to the value of the Collateral Account or any of the Collateral. This Agreement does not create any obligation or duty on the part of Securities Intermediary other than those expressly set forth herein. | ||
8. | The Pledgor agrees to indemnify and hold the Securities Intermediary, its directors, officers, employees, and agents harmless from and against any and all claims, causes of action, liabilities, losses, lawsuits, demands, damages, costs and expenses, including without limitation court costs and reasonable attorneys’ fees and expenses, that may arise out of or in connection with this Agreement or any action taken or not taken pursuant hereto, except to the extent caused by Securities Intermediary’s gross negligence or willful misconduct. The obligations of the Pledgor set forth in this paragraph 8 shall survive the termination of this Agreement. | |
9. | The Securities Intermediary is instructed that the Collateral Account is to remain a “cash account” within the meaning of Regulation T issued by the Board of Governors of the Federal Reserve System. The Securities Intermediary represents that it has not received notice regarding any lien, encumbrance or other claim to the Collateral or the Collateral Account from any other person and has not entered into an agreement with any third party to act on such third party’s instructions without further consent of the Pledgor. The Securities Intermediary further agrees not to enter into any such agreement with any third party. | |
10. | The Securities Intermediary subordinates to the lien and security interest of the Pledgee any right of setoff, encumbrance, security interest, lien or other claim that it may have against the Collateral, except for any lien, claim, encumbrance or right of set off against the Collateral Account for (i) customary commissions and fees arising from permitted trading activity within the Collateral Account, and (ii) payment owed to Securities Intermediary for open trade commitments for the purchase and/or sale of financial assets in and for the Collateral Account (the “Unsubordinated Obligations”). | |
11. | To the extent a conflict exists between the terms of this Agreement and any account agreement between the Pledgor and the Securities Intermediary, the terms of this Agreement will control,provided that this Agreement shall not alter or affect any mandatory arbitration provision currently in effect between Securities Intermediary and Pledgor. | |
12. | The terms of this Agreement may not be modified except by a writing signed by all parties hereto. |
13. | Securities Intermediary reserves the right, unilaterally, to terminate this Agreement, such termination to be effective thirty (30) days after written notice thereof is given to Pledgor and Pledgee. At the end of such thirty (30) day period, Securities Intermediary will deliver all assets held in the Collateral Account to Pledgee unless Pledgee and Pledgor deliver joint instructions to Securities Intermediary during such thirty (30) day period to deliver or transfer the assets held in the Collateral Account to another party or securities intermediary. In the event that it is not possible or practicable, in the judgment of the Securities Intermediary, to transfer the Collateral or deliver the Collateral to any other party, the Securities Intermediary will sell such assets and deliver the proceeds according to the instructions provided by the Pledgee or the joint instructions given by the Pledgee and Pledgor. Nothing set forth in this provision shall be deemed to limit the right of Pledgee to issue orders or instructions to the Securities Intermediary pursuant to paragraph 6 hereof. Pledgee may terminate this Agreement by giving notice to Securities Intermediary and Pledgor. Termination shall not affect any of the rights or liabilities of the parties hereto incurred before the date of termination. | |
14. | This Agreement and the Loan Documents set forth the entire agreement of the parties with respect to the subject matter hereof, and, subject to paragraph 10 above, supersedes any prior agreement and contemporaneous oral agreements of the parties concerning its subject matter. | |
15. | Except as otherwise expressly provided herein, any notice, order, instruction, request or other communication required or permitted to be given under this Agreement shall be in writing and may be delivered in person, sent by facsimile or other electronic means if electronic confirmation of error free receipt is received, or sent by United States mail, postage prepaid, addressed to the party at the address set forth below. | |
16. | The Securities Intermediary will be excused from failing to act or delay in acting, and no such failure or delay shall constitute a breach of this Agreement or otherwise give rise to any liability of the Securities Intermediary, if (i) such failure or delay is caused by circumstances beyond the reasonable control of the Securities Intermediary, including without limitation legal constraint, emergency conditions, action or inaction of governmental, civil or military authority, terrorism, fire, strike, lockout or other labor dispute, war, riot, theft, flood, earthquake or other natural disaster, breakdown of public or private or common carrier communication or transmission facilities, equipment failure, or act, negligence or default of Pledgor or (ii) such failure or delay resulted from Securities Intermediary’s reasonable belief that the action would have violated any guideline, rule or regulation of any governmental authority. | |
17. | Pledgor agrees to pay Securities Intermediary, upon receipt of Securities Intermediary’s invoice, all reasonable costs, expenses and attorneys’ fees incurred in the preparation and administration of this Agreement (including any amendments hereto or instruments or agreements required hereunder). Pledgor agrees to pay Securities Intermediary, upon receipt of Securities Intermediary’s invoice, all reasonable costs, expenses and attorneys’ fees incurred by Securities Intermediary in connection with the enforcement of this Agreement or any instrument or agreement required hereunder, including without limitation any reasonable costs, expenses, and fees arising out of the resolution of any conflict, dispute, motion regarding entitlement to rights or rights of action, or other action to enforce Securities Intermediary’s rights hereunder in a case arising under Title 11, United States Code. This paragraph 17 shall survive termination of this Agreement. | |
18. | Notwithstanding any of the other provisions of this Agreement, in the event of the commencement of a case pursuant to Title 11, United States Code, filed by or against Pledgor, or in the event of the commencement of any similar case under then applicable federal or state law |
providing for the relief of debtors or the protection of creditors by or against Pledgor, Securities Intermediary may act as Securities Intermediary deems necessary to comply with all applicable provisions of governing statutes and Pledgor shall not assert any claim against Securities Intermediary for so doing. | ||
19. | If any term or provision of this Agreement shall be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall be construed in all respects as if such invalid or unenforceable term or provision were omitted. | |
20. | This Agreement may be executed in counterparts, each of which shall be an original, and all of which shall constitute one and the same agreement. | |
21. | This Agreement is being delivered in New York and shall be governed and construed in accordance with the law of the State of New York. |
PLEDGOR: | PLEDGEE: | |
TEMESCAL AIRCRAFT INC. | CITIBANK, N.A.,as Collateral Agent | |
By: | By: | |
Name: | Name: | |
Title: | Title: | |
Telephone No.: | Telephone No.: | |
Address: | Address: | |
10250 Constellation Blvd., Suite 3400 | 388 Greenwich Street, 14th Floor | |
Los Angeles, CA 90067 | New York, NY 10013 | |
Attention: Treasurer with a copy to the General Counsel | Attention: Jenny Cheng Facsimile No. (212) 657-2762 | |
Facsimile No. (310) 788-1990 | ||
Date: March 30, 2011 | Date: March 30, 2011 |
By: | ||||
Name: | ||||
Title: | ||||
Date: | ||||
New York, NY 10013
Attention: Jenny Cheng
Facsimile No. (212) 657-2762
388 Greenwich Street, 14th Floor
New York, NY 10013
Attention: Jenny Cheng
Facsimile No. (212) 657-2762
Re: | Temescal Aircraft Inc. Account No. 798628 |
[____________________________ | ||||
____________________________ | ||||
____________________________ | ||||
____________________________] |
Very truly yours, CITIBANK, N.A., as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
AIRCRAFT MORTGAGE AND SECURITY AGREEMENT
a. | each Pool Aircraft, including the Airframe and Engines with respect to such Pool Aircraft as the same is now and will hereafter be constituted, and in the case of such Engines, whether or not any such Engine shall be installed in or attached to the Airframe or any other airframe; | ||
b. | all Parts of whatever nature, which are from time to time relating to any Airframe or Engine, including all substitutions, renewals and replacements of and additions, improvements, accessions and accumulations to any Airframe or Engine (other than additions, improvements accessions and accumulations which constitute appliances, parts, instruments, appurtenances, accessories, furnishings or other equipment excluded from the definition of Parts); | ||
c. | all of the Grantor’s right, title and interest in the technical data, manuals and log books, and all inspection, modification and overhaul records and other service, repair, maintenance, technical records in respect of a Pool Aircraft that are Owned by a Grantor and required pursuant to applicable law to be maintained with respect to such Pool Aircraft, and such term shall include all additions, renewals, revisions and replacements of any such materials from time to time made, or required to be made, pursuant to applicable law, and in each case in whatever form and whatever means or medium (including, without limitation, microfiche, microfilm, paper or computer disk) such materials may be maintained or retained by the relevant lessee of the Pool Aircraft (collectively, the “Aircraft Documents”); | ||
d. | any money or non-money proceeds of an Airframe or Engine arising from the total or partial loss or destruction of such Airframe or its Engine or its total or partial confiscation, condemnation or requisition up to the amount of hull insurance in respect of such Pool Aircraft required to be carried hereunder; and | ||
e. | all proceeds, howsoever arising, of the foregoing. |
[ADDRESS]
Attention: [_____]
Fax: [_____]
388 Greenwich Street, 14th Floor
New York, NY 10013
Attention: Jenny Cheng
Fax: 212-657-2762
GRANTOR: | [_____] | |||
By: | ||||
Name: | ||||
Title: | ||||
COLLATERAL AGENT: | CITIBANK, N.A., not in its individual capacity but solely as Collateral Agent | |||
By: | ||||
Name: | ||||
Title: | ||||
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D-6
D-7
1 | Described on the International Registry drop down menu as [__]. | |
2 | Described on the International Registry drop down menu as [__]. | |
3 | Described on the International Registry drop down menu as [__]. |
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a. | each Pool Aircraft, including the Airframe and Engines with respect to such Pool Aircraft as the same is now and will hereafter be constituted, and in the case of such Engines, whether or not any such Engine shall be installed in or attached to the Airframe or any other airframe | ||
b. | all Parts of whatever nature, which are from time to time relating to any Airframe or Engine, including all substitutions, renewals and replacements of and additions, improvements, accessions and accumulations to any Airframe or Engine (other than additions, improvements accessions and accumulations which constitute appliances, parts, instruments, appurtenances, accessories, furnishings or other equipment excluded from the definition of Parts); | ||
c. | all of the Grantor’s right, title and interest in the technical data, manuals and log books, and all inspection, modification and overhaul records and other service, repair, maintenance, technical records in respect of a Pool Aircraft that are Owned by a Grantor and required pursuant to applicable law to be maintained with respect to such Pool Aircraft, and such term shall include all additions, renewals, revisions and replacements of any such materials from time to time made, or required to be made, pursuant to applicable law, and in each case in whatever form and whatever means or medium (including, without limitation, microfiche, microfilm, paper or computer disk) such materials may be maintained or retained by the relevant lessee of the Pool Aircraft (collectively, the “Aircraft Documents”); | ||
d. | any money or non-money proceeds of an Airframe or Engine arising from the total or partial loss or destruction of such Airframe or its Engine or its total or partial confiscation, condemnation or requisition up to the amount of hull insurance in respect of such Pool Aircraft required to be carried hereunder; | ||
e. | each Assigned Lease, including without limitation: (i) all rights of such Grantor to receive moneys due and to become due under or pursuant to such Assigned Leases, (ii) all rights of such Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to such Assigned Leases up to the amount of hull insurance in respect of such Pool Aircraft required to be carried under the Aircraft Mortgage, (iii) claims of such Grantor for damages arising out of or for breach or default under such Assigned Leases, (iv) all rights under any such Assigned Lease with respect to any subleases of the Pool Aircraft subject to such Assigned Lease and (v) the right of such Grantor to terminate such Assigned Leases and to compel performance of, and otherwise to exercise all remedies under, any Assigned Lease, whether arising under such Assigned Leases or by statute or at law or in equity; and | ||
f. | all proceeds, howsoever arising, of the foregoing. |
E-2
[ADDRESS]
Attention: [_____]
Fax: [_____]
E-3
388 Greenwich Street, 14th Floor
New York, NY 10013
Attention: Jenny Cheng
Fax: 212-657-2762
E-4
GRANTOR: | [_____] | |||
By: | ||||
Name: | ||||
Title: | ||||
COLLATERAL AGENT: | CITIBANK, N.A., not in its individual capacity but solely as Collateral Agent | |||
By: | ||||
Name: | ||||
Title: | ||||
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E-7
1 | Described on the International Registry drop down menu as [__]. | |
2 | Described on the International Registry drop down menu as [__]. | |
3 | Described on the International Registry drop down menu as [__]. | |
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3. | MISCELLANEOUS |
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[ADDRESS]
Attention: [_____]
Fax: [_____]
388 Greenwich Street, 14th Floor
New York, NY 10013
Attention: Jenny Cheng
Fax: 212-657-2762
3.6 | Collateral Agent. | ||
The Collateral Agent shall be afforded all of the rights, protections, immunities and indemnities set forth in the Aircraft Mortgage as if such rights, protections, immunities and indemnities were specifically set forth herein. | |||
3.7 | Cape Town Convention. | ||
The parties hereto agree that for the purposes of the Cape Town Convention, each Airframe and Engine are “aircraft objects” (as defined in the Protocol) and this Assignment constitutes, with respect to a Lease that constitutes an International Interest, an assignment of such International Interest and associated rights associated with each Airframe and Engine as regards the Assigned Lease. | |||
3.8Execution in Counterparts. This Assignment may be executed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures were upon the same instrument. |
F-3
GRANTOR: [_____] | ||||
By: | ||||
Name: | ||||
Title: | ||||
COLLATERAL AGENT: CITIBANK, N.A., not in its individual capacity but solely as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
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to FAA Lease Security Assignment (MSN [_____])
1 | Described on the International Registry drop down menu as [__]. | |
2 | Described on the International Registry drop down menu as [__]. | |
3 | Described on the International Registry drop down menu as [__]. |
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By: | ||||
Name: | ||||
Title: | ||||
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1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. | |
2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
3 | Select as appropriate. | |
4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. |
C-1
1. | Assignor[s]: | |||||
2. | Assignee[s]: | |||||
[for each Assignee, indicate [Affiliate] of [identify Lender]] |
3. | Borrower: | |||
4. | Administrative Agent: | Citibank, N.A., as the administrative agent under the Credit Agreement | ||
5. | Credit Agreement: | The Term Loan Credit Agreement dated as of March 30, 2011, among Temescal Aircraft Inc., as Borrower, International Lease Finance Corporation, Park Topanga Aircraft Inc., as an Obligor, Charmlee Aircraft Inc., as a Guarantor, Ballysky Aircraft Ireland Limited, as an Obligor, the Lenders from time to time party thereto, Citibank, N.A, as Administrative Agent, Citibank, N.A, as Collateral Agent, Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC as joint lead structuring agents and joint lead placement agents, and BNP Paribas as joint placement agent. | ||
6. Assigned Interest[s]: |
Aggregate | Percentage | |||||||
Amount of | Amount of | Assigned of | ||||||
Commitment/Loans | Commitment/Loans | Commitment/ | ||||||
Assignor[s]5 | Assignee[s]6 | for all Lenders7 | Assigned | Loans8 | ||||
$ | $ | % | ||||||
$ | $ | % | ||||||
$ | $ | % | ||||||
[7. Trade Date: __________________]9 |
5 | List each Assignor, as appropriate. | |
6 | List each Assignee, as appropriate. | |
7 | Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. | |
8 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
C-2
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Title: | ||||
ASSIGNEE [NAME OF ASSIGNEE] | ||||
By: | ||||
Title: | ||||
[Consented to and]10 Accepted: CITIBANK, N.A., as Administrative Agent | ||||
By | ||||
Title: | ||||
[Consented to:]11 TEMESCAL AIRCRAFT INC. | ||||
By | ||||
Title: |
9 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. | |
10 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. | |
11 | To be added only if the consent of the Borrower is required by the terms of the Credit Agreement. |
C-3
ASSIGNMENT AND ASSUMPTION
C-4
C-5
D-1A-1
To the Addressees Listed on Schedule 1 | ____________, 2011 |
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UCC Financing Statements
D-1B-1
, 2011 |
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Very truly yours, |
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2 Penns Way, Suite 1100
New Castle, Delaware 19720
Attention: Suzanna Gallagher
Facsimile No. (212) 994-0961
2 Penns Way, Suite 1100
New Castle, Delaware 19720
Attention: Suzanna Gallagher
Facsimile No. (212) 994-0961
2 Penns Way, Suite 1100
New Castle, Delaware 19720
Attention: Suzanna Gallagher
Facsimile No. (212) 994-0961
Eleven Madison Avenue, 5th Floor
New York, NY 10010
Aviation Finance Group
520 Madison Avenue, 3rd Floor
New York, NY 10022
Attention: Robert Papas/Stephanie Klein
Facsimile No. (212) 841-2748
D-1C-1
Tel: +353 1 649 2000 Fax: +353 1 649 2649 email: info@algoodbody.com website: www.algoodbody.com dx: 29 Dublin
1. | We have examined copies of |
1.1. | the Credit Agreement; | ||
1.2. | the Security Agreement dated as of March 30 2011 among the Borrower, Park Topanga Aircraft Inc. Charmlee Aircraft Inc., the Company and the additional grantors referred to therein as grantors and the Collateral Agent as collateral agent (as amended, supplemented or otherwise modified from time to time prior to the date hereof, theSecurity Agreement); | ||
1.3. | the Intercreditor Agreement dated as of March 30 2011 among the Borrower, ILFC, Park Topanga Aircraft Inc., Charmlee Aircraft Inc., the Company and the Collateral Agent (theIntercreditor Agreementand, together with the Credit Agreement and the Security Agreement, the New York Law Agreements); and | ||
1.4. | the Share Charge dated as of March 30 2011 between the Borrower as chargor and the Collateral Agent as chargee in respect of shares in the Company (theShare Chargeand, together with the New York Law Agreement, theAgreements); | ||
1.5. | a corporate certificate of the Company dated 30 March 2011 (theCertificate) attaching: |
1.5.1. | copies of the certificate of incorporation and memorandum and articles of association of the Company; | ||
1.5.2. | list of directors and secretary of the Company; | ||
1.5.3. | a copy of the resolutions passed at the meeting of the board of directors of the Company dated 28 March 2011; |
Dublin | Belfast | London | Boston | New York | ||||||||||||||||
S.C. Hamilton | C.E. Gill | V.J. Power | P.V. Maher | E. MacNeill | N. O’Sullivan | S.O’Croinin | J.B. Somerville | C. Widger | J. Cahir | A. J. Johnston | ||||||||||
R.B. Buckley | E.M. Fitzgerald | L.A. Kennedy | S. O’Riordan | K.P. Allen | M.J. Ward | J.W. Yarr | M.F. Barr | M. Dale | M. Traynor | M. Rasdale | ||||||||||
P.M. Law | B.M. Cotter | S.M. Doggett | M.P.McKenna | E.A. Roberts | A.C. Burke | D.R. Baxter | M.L. Stack | N. Coyne | P.M. Murray | |||||||||||
P.J. Carroll | J.G. Grennan | B.McDermott | K.A. Feeney | C. Rogers | J. Given | A.McCarthy | B.Walsh | C. McCourt | N. Ryan | |||||||||||
J.H. Hickson | J.Coman | C. Duffy | M.Sherlock | G. O’Toole | D. Widger | J.F. Whelan | A.M.Curran | R.M. Moore | K. Furlong | |||||||||||
M.F. O’Gorman | P.D. White | E.M. Brady | E.P. Conlon | J.N. Kelly | C. Christle | D.R. Conlon | A. Roberts | D. Main | P.T. Fahy |
1.5.4. | a copy of the power of attorney of the Company dated 28 March 2011; and |
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1.5.5. | a copy of the specimen signatures; |
and such other documents as we have considered necessary or desirable to examine in order that we may give this opinion. | ||
Terms defined in the Credit Agreement have the same meaning in this opinion letter. |
2. | For the purpose of giving this opinion we have assumed: |
2.1. | the authenticity of all documents submitted to us as originals and the completeness and conformity to the originals of all copies of documents of any kind furnished to us; | ||
2.2. | that the copies produced to us of minutes of meetings and/or of resolutions are true copies and correctly record the proceedings of such meetings and/or the subject-matter which they purport to record and that any meetings referred to in such copies were duly convened and held and that all resolutions set out in such minutes were duly passed and are in full force and effect; | ||
2.3. | the genuineness of the signatures and seals on all original and copy documents which we have examined; | ||
2.4. | that the memorandum and articles of association of the Company attached to the Certificate are correct and up to date; | ||
2.5. | the accuracy and completeness as to factual matters of the representations, warranties and certificates of the Company contained in the Certificate and the accuracy of all certificates provided to us by the Company; | ||
2.6. | that there are no agreements or arrangements in existence which in any way amend or vary the terms of the Transaction as disclosed by the Share Charge; | ||
2.7. | without having made any investigation that the terms of the New York Law Agreements are lawful and fully enforceable under the laws of the State of New York and any other applicable laws other than the laws of Ireland and that the Security Agreement creates valid and enforceable security interests in accordance with its terms under the laws of the State of New York; | ||
2.8. | without having made any investigation, that the Borrower is the legal and beneficial owner free from encumbrances of all right, title and interest in and to the Charged Property (as defined in the Share Charge) and that it has delivered, or will deliver, to the Collateral Agent each of the documents listed in Clause 3.2 of the Share Charge; | ||
2.9. | the accuracy and completeness of all information appearing on public records; and | ||
2.10. | that the Company has entered into the Transaction in good faith, for its legitimate business purposes, for good consideration, and that it derives commercial benefit from the Transaction commensurate with the risks undertaken by it in the Transactions. |
3. | We express no opinion as to any matters falling to be determined other than under the laws of Ireland and, without reference to provisions of other laws imported by Irish private international law, in Ireland as of the date of this letter. Subject to that qualification and to the other qualifications set out herein, we are of the opinion that: |
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3.1. | the Company is a company duly incorporated under the laws of Ireland and is a separate legal entity, subject to suit in its own name. Based only on searches carried out in the Irish Companies Registration Office and the Central Office of the High Court on the date hereof, the Company is validly existing under the laws of Ireland and no steps have been taken or are being taken to appoint a receiver, examiner or liquidator over it or to wind it up; | ||
3.2. | the Company has the necessary power and authority, and all necessary corporate and other action has been taken, to enable it to execute, deliver and perform the obligations undertaken by it under the Agreements to which it is a party, and the implementation by the Company of the foregoing will not cause: |
3.2.1. | any limit on it or on its directors (whether imposed by the documents constituting the Company or by statute or regulation) to be exceeded; or | ||
3.2.2. | any law or order to be contravened; |
3.3. | each of the Agreements to which it is a party has been duly executed on behalf ofthe Company; | ||
3.4. | the obligations on the part of the Borrower under the Share Charge are valid and legally binding on and are in a form capable of enforcement against the Borrower under the laws of Ireland in the courts of Ireland, in accordance with their terms; | ||
3.5. | no authorisations, approvals, licences, exemptions or consents of governmental or regulatory authorities with respect to the Agreements are required to be obtained in Ireland; | ||
3.6. | under the laws of Ireland in force at the date hereof, the claims of the Collateral Agent against the Company under the Agreements will rank at least pari passu with the claims of all other unsecured creditors, except claims which rank at law as preferential claims in a winding up, examinership or receivership; | ||
3.7. | it is not necessary or advisable under the laws of Ireland in order to ensure the legality, validity, enforceability or priority of the obligations or rights of any party to the Agreements, or the perfection or priority of any security interest created under the Agreements, that the Agreements be filed, registered, recorded, or notarised in any public office or elsewhere or that any other instrument relating thereto be signed, delivered, filed, registered or recorded other than the requirement to file particulars of the charges created pursuant to the Security Agreement and the Share Charge with the Irish Registrar of Companies within 21 days of their execution (in this regard, we have been instructed to, and will, make the requisite filings); | ||
3.8. | the Company is not entitled to claim any immunity from suit, execution, attachment or other legal process in Ireland; | ||
3.9. | in any proceedings taken in Ireland for the enforcement of the New York Law Agreements, the choice of the law of the State of New York as the governing law of the contractual rights and obligations of the parties under the New York Law Agreements would be upheld by the Irish Courts in accordance with and subject to the provisions of the Rome I Regulation EC No 593/2008 on the Law Applicable to |
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Contractual Obligations; | |||
3.10. | in any proceedings taken in Ireland for the enforcement of a judgment obtained against the Company in the courts of New York (aForeign Judgment) the Foreign Judgment should be recognised and enforced by the courts of Ireland save that to enforce such a Foreign Judgment in Ireland it would be necessary to obtain an order of the Irish courts. Such order should be granted on proper proof of the Foreign Judgment without any re-trial or examination of the merits of the case subject to the following qualifications: |
3.10.1. | that the foreign court had jurisdiction, according to the laws of Ireland; | ||
3.10.2. | that the Foreign Judgment was not obtained by fraud; | ||
3.10.3. | that the Foreign Judgment is not contrary to public policy or natural justice as understood in Irish law; | ||
3.10.4. | that the Foreign Judgment is final and conclusive; | ||
3.10.5. | that the Foreign Judgment is for a definite sum of money; and | ||
3.10.6. | that the procedural rules of the court giving the Foreign Judgment have been observed. |
Any such order of the Irish courts may be expressed in a currency other than euro in respect of the amount due and payable by the Company but such order may be issued out of the Central Office of the Irish High Court expressed in euro by reference to the official rate of exchange prevailing on the date of issue of such order. However, in the event of a winding up of the Company, amounts claimed by or against the Company in a currency other than the euro (theForeign Currency) would, to the extent properly payable in the winding up, be paid if not in the Foreign Currency in the euro equivalent of the amount due in the Foreign Currency converted at the rate of exchange pertaining on the date of the commencement of such winding up; |
3.11. | it is not necessary under the laws of Ireland (a) in order to enable the Collateral Agent to enforce its rights under the Agreements or (b) by reason of the execution of the Agreements, that the Collateral Agent should be licensed, qualified or otherwise entitled to carry on business in Ireland; | ||
3.12. | the Agreements will not be liable to any ad valorem tax or duty, registration tax, stamp duty or any similar tax or duty imposed by a competent authority of or within Ireland; | ||
3.13. | by reason only of the execution, delivery and performance of the Agreements by the Collateral Agent, it shall not be deemed to be resident, domiciled or carrying on a trade or business in Ireland; | ||
3.14. | there is no applicable usury or interest limitation law in Ireland which would restrict the recovery of payments in accordance with the Agreements; and | ||
3.15. | the Irish Courts will generally recognise the security interests created by the |
4
Company pursuant to the Security Agreement in accordance with its terms, provided that such interests or their enforcement are not illegal or contrary to public policy as a matter of Irish law, that all Irish law formalities with regard to security interests and their enforcement have been complied with and that the party creating the security has absolute title, free from encumbrances and other third party rights, to such assets. |
4. | The opinions set forth in this opinion letter are given subject to the following qualifications |
4.1. | an order of specific performance or any other equitable remedy is a discretionary remedy and is not available when damages are considered to be an adequate remedy; | ||
4.2. | this opinion is given subject to general provisions of Irish law relating to insolvency, bankruptcy, liquidation, reorganisation, receivership, moratoria, court scheme of arrangement, administration and examination, and the fraudulent preference of creditors and other Irish law generally affecting the rights of creditors; | ||
4.3. | this opinion is subject to the general laws relating to the limitation of actions in Ireland; | ||
4.4. | a determination, description, calculation, opinion or certificate of any person as to any matter provided for in the Share Charge might be held by the Irish courts not to be final, conclusive or binding if it could be shown to have an unreasonable, incorrect, or arbitrary basis or not to have been made in good faith; | ||
4.5. | additional interest imposed by any clause of the Share Charge might be held to constitute a penalty and the provisions of that clause imposing additional interest would thus be held to be void. The fact that such provisions are held to be void would not in itself prejudice the legality and enforceability of any other provisions of the Share Charge but could restrict the amount recoverable by way of interest under the Share Charge; | ||
4.6. | claims may be or become subject to defences of set-off or counter-claim; | ||
4.7. | an Irish court has power to stay an action where it is shown that there is some other forum having competent jurisdiction which is more appropriate for the trial of the action, in which the case can be tried more suitably for the interests of all the parties and the ends of justice, and where staying the action is not inconsistent with Council Regulation 2001/44/EC on Jurisdiction and the Enforcement of Judgments; | ||
4.8. | there is some possibility that depending on the actual course of dealing between the parties to the Share Charge, the fixed charges contained in the Share Charge may not be construed as fixed charges but as floating charges and so become subject to prior claims of certain statutory preferential creditors; | ||
4.9. | the enforceability of severance clauses is at the discretion of the court and may not be enforceable in all circumstances; | ||
4.10. | a waiver of all defences to any proceedings may not be enforceable; | ||
4.11. | provisions in the Share Charge providing for indemnification resulting from loss suffered on conversion of the amount of a claim made in a foreign currency into euro in a liquidation may not be enforceable; |
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4.12. | we express no opinion as to the priority of any of the security created by the Share Charge or whether the property or assets comprised in such security is owned by relevant chargor thereunder, or whether such property or assets is or are now or may become subject to any equities or subject to any rights or interests of any other person ranking in priority to or free of such security or whether they could be transferred to any other person free of any such security; | ||
4.13. | in the event of the Borrower seeking to dispose of the shares which are the subject of the security created pursuant to the Share Charge, an application for a clearance from the Competition Authority pursuant to the Competition Acts 2002 and 2006 may have to be made; | ||
4.14. | we express no opinion on any taxation matters other than as expressly set out in paragraph 3.12 or on the contractual terms of the relevant documents other than by reference to the legal character thereof. |
This opinion is addressed only to the Addressees and may be relied upon only by each such Addressee for its sole benefit in connection with the Transaction and may not be relied on by any assignees of any such persons or any other person. |
Yours faithfully, |
6
on behalf of the Lenders at the date hereof
2 Penns Way, Suite 1100
New Castle, Delaware 19720
on behalf of the Lenders at the date hereof
388 Greenwich Street, 14th Floor
New York, NY 10013
390 Greenwich Street, 1st Floor
New York, NY 10013
Eleven Madison Avenue, 5th Floor
New York, NY 10010
Aviation Finance Group
520 Madison Avenue
3rd Floor
New York, NY 10022
Attn: Robert Papas/Stephanie Klein
7
COUNSEL TO THE RELEVANT ADVANCE PARTIES
E-1A-1
Re: | One [ ] Aircraft bearing manufacturer’s serial number [ ] and [Two] [ ] Engines bearing manufacturer’s serial numbers [ ] and [ ], respectively (the “Aircraft”) |
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1 | Include if Irish Subsidiary Holdco executes a Collateral Supplement or if there is an Irish Subject Obligor. |
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2 | Include if there is a registration on the International Registry in respect of the Lease. |
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3 | Opinions as to the perfection of security interests in Collateral granted by Trust Subject Obligors will be provided by counsel to the Trustee, not W&C . | |
4 | Repeat as needed for DC or New York filings. |
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5 | Include if there is a registration in the International Registry in respect of the Lease, | |
6 | Include if there is a registration in the International Registry in respect of the Lease. | |
7 | Include Opinions 9, 10 and 11 only if Aircraft Owner is organized under the laws of the United States or a state thereof. | |
8 | Include this opinion only if the Aircraft Owners organized under the laws of Ireland or elsewhere outside the United States. |
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9 | Include only if Aircraft Owner is organized under the laws of the United States or a state thereof. |
- 8 -
- 9 -
- 10 -
- 11 -
- 12 -
TO THE RELEVANT ADVANCE PARTIES
E-1B-1
- 1 -
- 2 -
- 3 -
- 4 -
Very truly yours, |
- 5 -
2 Penns Way, Suite 1100
New Castle, Delaware 19720
Attention: Suzanna Gallagher
Facsimile No. (212) 994-0961
2 Penns Way, Suite 1100
New Castle, Delaware 19720
Attention: Suzanna Gallagher
Facsimile No. (212) 994-0961
2 Penns Way, Suite 1100
New Castle, Delaware 19720
Attention: Suzanna Gallagher
Facsimile No. (212) 994-0961
Eleven Madison Avenue, 5th Floor
New York, NY 10010
Aviation Finance Group
520 Madison Avenue, 3rd Floor
New York, NY 10022
Attention: Robert Papas/Stephanie Klein
Facsimile No. (212) 841-2748
COUNSEL TO THE RELEVANT ADVANCE PARTIES
E-1C-1
Tel: +353 1 649 2000 Fax: +353 1 649 2649 email: info@algoodbody.com website: www.algoodbody.com dx: 29 Dublin
ILFC-Citi/CS Facility -Term Loan Credit Agreement
1. | We have examined copies of |
1.1. | the agreements listed in Schedule 2 hereto (together theAgreements); | ||
1.2. | a contracting state search certificate (theContracting State Certificate) issued on ______ in respect of Ireland describing the declarations made by Ireland which is attached to this opinion as Exhibit I; | ||
1.3. | priority search certificates (thePriority Search Certificates) issued on ____ covering registrations describing the airframe and engines of each of the aircraft more particularly described in Schedule 3 (thePool Aircraft) which includes the registration of international interests in the airframe and engines of each of the Pool Aircraft on the International Registry and attached to this opinion as Exhibit II; | ||
1.4. | a corporate certificate of [_____] (theNew Irish Company) dated ____ (theNew Irish Company Certificate) attaching:1 |
1.4.1. | copies of the certificate of incorporation and memorandum and articles of association of the New Irish Company; | ||
1.4.2. | list of directors and secretary of the New Irish Company; | ||
1.4.3. | a copy of the resolutions passed at the meeting of the board of directors of |
1 | Include for each Irish entity that is becoming a Borrower Party as of the relevant Advance Date. |
S.C. Hamilton | C.E. Gill | V.J. Power | P.V. Maher | E. MacNeill | N. O’Sullivan | S.O’Croinin | J.B. Somerville | C. Widger | J. Cahir | A.J. Johnston | ||||||||||
R.B. Buckley | E.M. Fitzgerald | L.A. Kennedy | S. O’Riordan | K.P. Allen | M.J. Ward | J.W. Yarr | M.F. Barr | M. Dale | M. Traynor | M. Rasdale | ||||||||||
P.M. Law | B.M. Cotter | S.M. Doggett | M.P.McKenna | E.A. Roberts | A.C. Burke | D.R. Baxter | M.L. Stack | N. Coyne | P.M. Murray | |||||||||||
P.J. Carroll | J.G. Grennan | B.McDermott | K.A. Feeney | C. Rogers | J. Given | A.McCarthy | B.Walsh | C. McCourt | N. Ryan | |||||||||||
J.H. Hickson | J.Coman | C. Duffy | M.Sherlock | G. O’Toole | D. Widger | J.F. Whelan | A.M.Curran | R.M. Moore | K. Furlong | |||||||||||
M.F. O’Gorman | P.D. White | E.M. Brady | E.P. Conlon | J.N. Kelly | C. Christle | D.R. Conlon | A. Roberts | D. Main | P.T. Fahy |
the New Irish Company on ___________; | |||
1.4.4. | a copy of the power of attorney of the New Irish Company dated _____; and | ||
1.4.5. | a copy of the specimen signatures; |
1.5. | a corporate certificate of [_____] (theExisting Irish Company) dated ____ (theExisting Irish Company Certificate) attaching:2 |
1.5.1. | copies of the certificate of incorporation and memorandum and articles of association of the Existing Irish Company; | ||
1.5.2. | list of directors and secretary of the Existing Irish Company; | ||
1.5.3. | a copy of the resolutions passed at the meeting of the board of directors of the Existing Irish Company on _____; | ||
1.5.4. | a copy of the power of attorney of the Existing Irish Company dated _____; and | ||
1.5.5. | a copy of the specimen signatures; |
and such other documents as we have considered necessary or desirable to examine in order that we may give this opinion. | ||
Terms defined in the Credit Agreement have the same meaning in this opinion letter. The Irish Subsidiary HoldCo, the New Irish Company and the Existing Irish Company are together herein referred to as theCompaniesand each aCompany. The New Irish Company Certificate and the Existing Irish Company Certificate are together referred to herein as theCertificates. The Agreements listed at 4-7 of Schedule 2 are together referred to herein as theRelevant Agreements. The Security Agreement, [list each Grantor Supplement and each Equity Document] are together referred to herein as theSecurity Documents. The Credit Agreement, the Intercreditor Agreement, the Obligor Assumption Agreement, the Security Agreement, the Collateral Supplement and the Grantor Supplement are together referred to herein as theNew York Law Agreements. | ||
The Security Agreement as amended and supplemented by the[Grantor Supplements and Collateral Supplements], insofar as it relates to the Pool Aircraft, is referred to herein as theCape Town Agreement.3 | ||
For the purpose of this opinion, the following terms shall have the following definitions. TheConventionmeans the Convention on International Interests in Mobile Equipment signed in Cape Town on 16 November 2001 and the Protocol to the Convention on Matters Specific to Aircraft Equipment (Aviation Protocol) adopted by the Secretariats of International Civil Aviation Organisation (ICAO) and the International Institute for the Unification of Private Law (UNIDROIT), and adopted pursuant to Resolution No. 1 of the Final Act of the Diplomatic |
2 | Include for any Irish entity that is already a Borrower Party that is delivering a Collateral Supplement relating to the relevant Advance Date – define collectively with each new Irish entity as the Companies. | |
3 | Include Cape Town language in opinion only if an Aircraft Owned by an Irish entity is becoming a Pool Aircraft as of the relevant Advance Date. |
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Conference to adopt the Convention and the Aviation Protocol under the auspices of ICAO and UNIDROIT at Cape Town from 29 October to 16 November 2001. The Convention and the Aviation Protocol are read and interpreted together as a single document as required by Article 6(1) of the Convention and reference to the Convention in this opinion includes the Aviation Protocol. In this opinion, references are made to the Articles of the Consolidated Text which is a combination of the Convention and the Aviation Protocol authorised and created pursuant to Resolution No. 1 of the Diplomatic Conference to Adopt a Mobile Equipment Convention and an Aircraft Protocol. References to “Irish law” include the Convention as enacted into Irish law by the International Interests in Mobile Equipment (Cape Town Convention) Act, 2005. |
Terms used in this opinion in respect of the Convention (whether or not capitalised) and not otherwise defined in this opinion shall have the meanings given to such terms in the Consolidated Text or the Regulations issued by the Supervisory Authority for the International Registry pursuant to Article 27 of the Consolidated Text (theRegulations). | ||
2. | For the purpose of giving this opinion we have assumed: |
2.1. | the authenticity of all documents submitted to us as originals and the completeness and conformity to the originals of all copies of documents of any kind furnished to us; | ||
2.2. | that the copies produced to us of minutes of meetings and/or of resolutions are true copies and correctly record the proceedings of such meetings and/or the subject-matter which they purport to record and that any meetings referred to in such copies were duly convened and held and that all resolutions set out in such minutes were duly passed and are in full force and effect; | ||
2.3. | the genuineness of the signatures and seals on all original and copy documents which we have examined; | ||
2.4. | that the memorandum and articles of association of the Companies attached to the Certificates are correct and up to date; | ||
2.5. | the accuracy and completeness as to factual matters of the representations, warranties and certificates of the Companies contained in the Certificates and the accuracy of all certificates provided to us by the Companies; | ||
2.6. | that there are no agreements or arrangements in existence which in any way amend or vary the terms of the Transaction as disclosed by the Agreements; | ||
2.7. | without having made any investigation that the terms of the New York Law Agreements are lawful and fully enforceable under the laws of the State of New York and any other applicable laws other than the laws of Ireland and that the Security Documents that are New York Law Agreements (as defined in Schedule 2 hereto) creates valid and enforceable security interests in accordance with its terms under the laws of the State of New York; | ||
2.8. | without having made any investigation, that [___] is the beneficial owner free from encumbrances of all right, title and interest in and to the Charged Property (as defined in the Equity Document) and that it has delivered, or will deliver, to the Collateral Agent each of the documents listed in Clause [3.2] of the Equity |
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Document;4 | |||
2.9. | the accuracy and completeness of all information appearing on public records; |
2.10. | that each of the Companies has entered into the Transaction in good faith, for its legitimate business purposes, for good consideration, and that it derives commercial benefit from the Transaction commensurate with the risks undertaken by it in the Transactions; and | ||
2.11. | in relation to the Cape Town Agreement: |
2.11.1. | that the minimum technical requirements stipulated in the definition of “airframes” and/or “aircraft engines” in the Convention and the Regulations have been fulfilled; | ||
2.11.2. | that the airframe and engines of the Pool Aircraft are correctly identified and described by the manufacturer’s serial number, name of manufacturer and the manufacturer’s model designation; | ||
2.11.3. | that as a matter of the laws of the State of New York, the Cape Town Agreement is a “security agreement” and constitutes an international interest in respect of the Pool Aircraft[and an assignment of international interest and associated rights in respect of the Cape Town Lease in respect of the Pool Aircraft]in each case within the meaning of the Convention; | ||
2.11.4. | [that, at the time of execution of the Cape Town Agreement, the New Irish Company was “situated” in Ireland within the meaning of the Convention. In this regard we note that the New Irish Company is incorporated in Ireland]; | ||
2.11.5. | [that, at the time of execution of the Cape Town Lease, the Lessee was “situated” in a Contracting State with the meaning of the Convention]; | ||
2.11.6. | that the New Irish Company has “power to dispose” of the Pool Aircraft within the meaning of Convention; | ||
2.11.7. | no other agreements have been entered into including, without limitation, a subordination agreement, which would constitute international interests or determine the priority of interest of any of the parties; | ||
2.11.8. | that the Contracting State Certificate description of declarations made by Ireland and the date on which each such declaration is recorded is accurate in all respects. |
3. | We express no opinion as to any matters falling to be determined other than under the laws of Ireland and, without reference to provisions of other laws imported by Irish private international law, in Ireland as of the date of this letter. Subject to that qualification and to the other qualifications set out herein, we are of the opinion that: |
4 | Include language relating to Equity Document (or any other specific Agreement) only if being delivered with respect to the relevant Advance Date. Also, make changes as necessary if the Equity Document is governed by laws other than Irish laws (e.g. if the Prior Irish Company is delivering a French law share pledge).] |
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3.1. | each of the Companies is a company duly incorporated under the laws of Ireland and is a separate legal entity, subject to suit in its own name. Based only on searches carried out in the Irish Companies Registration Office and the Central Office of the High Court on the date of this Opinion, each of the Companies is validly existing under the laws of Ireland and no steps have been taken or are being taken to appoint a receiver, examiner or liquidator over it or to wind it up; |
3.2. | each of the Companies has the necessary power and authority, and all necessary corporate and other action has been taken, to enable it to execute, deliver and perform the obligations undertaken by it under the Relevant Agreements to which it is a party, and the implementation by the Companies of the foregoing will not cause: |
3.2.1. | any limit on it or on its directors (whether imposed by the documents constituting the Companies or by statute or regulation) to be exceeded; or | ||
3.2.2. | any law or order to be contravened; |
3.3. | each of the Relevant Agreements to which a Company is a party has been duly executed on behalf of that Company; | ||
3.4. | the obligations of [name equityholder] under the Equity Document are valid and legally binding on and are in a form capable of enforcement against [name equityholder] under the laws of Ireland, in the Courts of Ireland in accordance with its terms; | ||
3.5. | no authorisations, approvals, licences, exemptions or consents of governmental or regulatory authorities with respect to the Agreements are required to be obtained in Ireland; | ||
3.6. | under the laws of Ireland in force at the date hereof, the claims of the Collateral Agent against the [[name equityholder] under the Equity Document and the]5 Companies under the Relevant Agreements will rank at least pari passu with the claims of all other unsecured creditors, except claims which rank at law as preferential claims in a winding up, examinership or receivership; | ||
3.7. | it is not necessary or advisable under the laws of Ireland in order to ensure the legality, validity, enforceability or priority of the obligations or rights of any party to the Relevant Agreements, or the perfection or priority of any security interest created under any Relevant Agreements, that any of them be filed, registered, recorded, or notarised in any public office or elsewhere or that any other instrument relating thereto be signed, delivered, filed, registered or recorded other than: |
3.7.1. | the requirement to file particulars of the charges created pursuant to the Security Documents with the Irish Registrar of Companies within 21 days of their execution (in this regard, we have been instructed to, and will, make the requisite filings); and | ||
3.7.2. | in order to ensure the priority given to a registered interest pursuant to Article 42 of the Consolidated Text, it is necessary that the international interests[and assignments of international interests]constituted by the Cape |
5 | Only include if Chargor is an Irish company |
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Town Agreement be registered with the International Registry in the order agreed by the relevant parties; |
3.8. | none of the Companies are entitled to claim any immunity from suit, execution, attachment or other legal process in Ireland; |
3.9. | in any proceedings taken in Ireland for the enforcement of the New York Law Agreements, the choice of the law of the State of New York as the governing law of the contractual rights and obligations of the parties under the New York Law Agreements would be upheld by the Irish Courts; | ||
3.10. | in any proceedings taken in Ireland for the enforcement of a judgment obtained against the Companies in the courts of New York (aForeign Judgment) the Foreign Judgment should be recognised and enforced by the courts of Ireland save that to enforce such a Foreign Judgment in Ireland it would be necessary to obtain an order of the Irish courts. Such order should be granted on proper proof of the Foreign Judgment without any re-trial or examination of the merits of the case subject to the following qualifications: |
3.10.1. | that the foreign court had jurisdiction, according to the laws of Ireland; | ||
3.10.2. | that the Foreign Judgment was not obtained by fraud; | ||
3.10.3. | that the Foreign Judgment is not contrary to public policy or natural justice as understood in Irish law; | ||
3.10.4. | that the Foreign Judgment is final and conclusive; | ||
3.10.5. | that the Foreign Judgment is for a definite sum of money; and | ||
3.10.6. | that the procedural rules of the court giving the Foreign Judgment have been observed. |
Any such order of the Irish courts may be expressed in a currency other than euro in respect of the amount due and payable by the Companies but such order may be issued out of the Central Office of the Irish High Court expressed in euro by reference to the official rate of exchange prevailing on the date of issue of such order. However, in the event of a winding up of the Companies, amounts claimed by against the Companies in a currency other than the euro (theForeign Currency) would, to the extent properly payable in the winding up, be paid if not in the Foreign Currency in the euro equivalent of the amount due in the Foreign Currency converted at the rate of exchange pertaining on the date of the commencement of such winding up; | |||
3.11. | it is not necessary under the laws of Ireland (a) in order to enable the Collateral Agent to enforce its rights under the Agreements or (b) by reason of the execution of the Agreements, that the Collateral Agent should be licensed, qualified or otherwise entitled to carry on business in Ireland; | ||
3.12. | the Agreements will not be liable to any ad valorem tax or duty, registration tax, stamp duty or any similar tax or duty imposed by a competent authority of or within Ireland; |
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3.13. | by reason only of the execution, delivery and performance of the Agreements by the Collateral Agent, it shall not be deemed to be resident, domiciled or carrying on a trade or business in Ireland; | ||
3.14. | there is no applicable usury or interest limitation law in Ireland which would restrict the recovery of payments in accordance with the Agreements; |
3.15. | the Irish Courts will generally recognise the security interests created by each Company pursuant to the Security Agreement[Grantor Supplement and Collateral Supplement]in accordance with its terms, provided that such interests or their enforcement are not illegal or contrary to public policy as a matter of Irish law, that all Irish law formalities with regard to security interests and their enforcement have been complied with and that the party creating the security has absolute title, free from encumbrances and other third party rights, to such assets; | ||
3.16. | the International Interests in Mobile Equipment (Cape Town Convention) Act 2005 gave the force of law in Ireland to the Convention and Aviation Protocol; | ||
3.17. | the interest granted by the New Irish Company to and held by the Collateral Agent under the Cape Town Agreement constitutes an “international interest”[and “assignment”]under the Convention. In order to ensure the priority given to a registered interest pursuant to Article 42 of the Consolidated Text, it is necessary that the international interests[and assignment of international interests] constituted by the Cape Town Agreement should be registered in the order agreed by the relevant parties with the International Registry; | ||
3.18. | according to the Contracting State Certificate, Ireland is a Contracting State and as a Contracting State has made the declarations under the Convention listed in the Contracting State Certificate; | ||
3.19. | based upon the Priority Search Certificates, the international interests[and assignment of international interests]in respect of the airframe and engines of each of the Pool Aircraft created by the Cape Town Agreement (collectively, theCape Town Interests) have been duly registered on the International Registry and, accordingly, are effective against third parties in Ireland as a matter of Irish law subject in each case to the rights and interests described in paragraph 4.20 below; | ||
3.20. | each of the Cape Town Interests is entitled to the priorities, protections and benefits of the Convention subject to the assumptions and qualifications set forth herein; and | ||
3.21. | no further registration in the International Registry of any of the Cape Town Interests is required under the Convention in order to maintain the effectiveness and priority thereof. |
4. | The opinions set forth in this opinion letter are given subject to the following qualifications: |
4.1. | an order of specific performance or any other equitable remedy is a discretionary remedy and is not available when damages are considered to be an adequate remedy; | ||
4.2. | this opinion is given subject to general provisions of Irish law relating to insolvency, bankruptcy, liquidation, reorganisation, receivership, moratoria, court scheme of arrangement, administration and examination, and the fraudulent preference of |
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creditors and other Irish law generally affecting the rights of creditors; | |||
4.3. | this opinion is subject to the general laws relating to the limitation of actions in Ireland; |
4.4. | a determination, description, calculation, opinion or certificate of any person as to any matter provided for in the Agreements might be held by the Irish courts not to be final, conclusive or binding if it could be shown to have an unreasonable, incorrect, or arbitrary basis or not to have been made in good faith; | ||
4.5. | additional interest imposed by any clause of any Agreement might be held to constitute a penalty and the provisions of that clause imposing additional interest would thus be held to be void. The fact that such provisions are held to be void would not in itself prejudice the legality and enforceability of any other provisions of the relevant Agreement but could restrict the amount recoverable by way of interest under such Agreement; | ||
4.6. | claims may be or become subject to defences of set-off or counter-claim; | ||
4.7. | pursuant to section 1001 of the Taxes Consolidation Act, 1997, the Collateral Agent may become liable to make certain payments to the Irish Revenue Commissioners (theRevenue) by reason of having been granted a fixed charge on book debts of the Companies pursuant to the Security Agreement. Such liability would be computed by reference to (i) amounts of income tax deducted by the relevant Company from the wages of its employees and (ii) amounts of value added tax in each case owing but not paid by the relevant Company to the Revenue (Relevant Amounts). However, the liability to pay to the Revenue amounts received by it from the Companies will be limited to amounts received after the relevant Company shall have been notified in writing by the Revenue that such Relevant Amounts are due (theRevenue Notice). Further, if the Revenue have received, within 21 days of execution, prescribed details of the charge created thereby by the Security Agreement the liability of the Collateral Agent to discharge the Relevant Amounts will be limited to the Relevant Amounts accruing after the date of the Revenue Notice; | ||
4.8. | under Section 1002 of the Taxes Consolidation Act, 1997, any debt to a person (including any deposit with a financial institution) may be attached by the Revenue Commissioners in order to discharge any liabilities of that person in respect of outstanding tax whether the liabilities are due on its own account or as an agent or trustee. This right of the Revenue Commissioners (on which there is no case law) may override the rights of the holders of security (whether fixed or floating) in relation to the debt in question. Section 1002 could be relevant to the security created by the Security Agreement; | ||
4.9. | an Irish court has power to stay an action where it is shown that there is some other forum having competent jurisdiction which is more appropriate for the trial of the action, in which the case can be tried more suitably for the interests of all the parties and the ends of justice, and where staying the action is not inconsistent with Council Regulation 2001/44/EC on Jurisdiction and the Enforcement of Judgments; | ||
4.10. | there is some possibility that depending on the actual course of dealing between the parties to the Security Agreement, the fixed charges contained in the Security Agreement may not be construed as fixed charges but as floating charges and so become subject to prior claims of certain statutory preferential creditors; |
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4.11. | the enforceability of severance clauses is at the discretion of the court and may not be enforceable in all circumstances; | ||
4.12. | a waiver of all defences to any proceedings may not be enforceable; |
4.13. | provisions in any of the Agreements providing for indemnification resulting from loss suffered on conversion of the amount of a claim made in a foreign currency into euro in a liquidation may not be enforceable; | ||
4.14. | any undertakings contained in any of the Agreements by any of the Companies in respect of stamp duty may not be held to be binding on the relevant Company; | ||
4.15. | an Irish court may refuse to give effect to undertakings contained in any of the Agreements that the Companies will pay legal expenses and costs in respect of any action before the Irish courts; | ||
4.16. | we express no opinion as to the priority of any of the security created by the Security Documents or whether the property or assets comprised in such security is owned by a the relevant chargor thereunder, or whether such property or assets is or are now or may become subject to any equities or subject to any rights or interests of any other person ranking in priority to or free of such security or whether they could be transferred to any other person free of any such security; | ||
4.17. | we express no opinion on any taxation matters other than as expressly set out in paragraph 3.12 or on the contractual terms of the relevant documents other than by reference to the legal character thereof; | ||
4.18. | in the event of the Collateral Agent seeking to dispose of the shares which are the subject of the security created pursuant to the Equity Document, an application for a clearance from the Competition Authority pursuant to the Competition Acts 2002 and 2006 may have to be made; | ||
4.19. | the Convention and Aviation Protocol came into force on 1 March 2006. As such, practice and procedure with respect to legal opinions on the interpretation or applicability of the Convention and Aviation Protocol, and the registrations and searches made pursuant thereto, are still developing. The opinions set forth herein are based on our interpretation of the Convention and Aviation Protocol as at the date hereof, without the benefit of any precedent or established custom and practice; | ||
4.20. | the Convention provides that the rights and interests of the parties arising from international interests will only be subject to: |
4.20.1. | the rights and interests of persons evidenced on the Priority Search Certificates as having a registration in relation to each “aircraft object” that exists prior to the international interests constituted under the Cape Town Agreement.[In this regard, we confirm that the Priority Certificates do not reveal any existing interests in relation to any “aircraft object” comprised in the Pool Aircraft]; | ||
4.20.2. | the rights and interests of the New Irish Company in each “aircraft object” the subject of the Cape Town Agreement pursuant to the Convention and the quiet enjoyment provisions set out in any of the Leases; |
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4.20.3. | a pre-existing right or interest which enjoyed, under the applicable law before the effective date of the Convention, a priority greater than that international interest; |
4.20.4. | non-consensual rights or interests included in those categories covered by the declarations made by Ireland under the Convention, that under Irish law have priority over an interest registered against an aircraft object; and | ||
4.20.5. | the right of Ireland, or any State entity, intergovernmental organisation or other private provider of public services described in the declarations made by Ireland under the Convention, or of any Contracting State which may move such a declaration in the future, to arrest or detain an aircraft object under the laws of that Contracting State for payment of amounts owed to such entity, organisation or provider directly relating to those services in respect of that object or another aircraft object. Please note paragraph 4.20 in this regard; |
4.21. | Ireland has made a declaration under Article 39 of the Convention wherein Ireland declared that a non-consensual right or interest has priority over a registered international interest and providing that nothing in the Convention and Aviation Protocol affects the laws of Ireland in relation to the detention and sale of an aircraft to discharge payments in respect of a public service provided by Irish governmental and other service providers in relation to all aircraft (by way of example, landing fees charged by an Irish airport); and | ||
4.22. | Ireland has not made a declaration under Article XI of the Aviation Protocol on remedies on insolvency and, as a result, Irish national law will apply to the rights of the Collateral Agent under the Cape Town Agreement on the insolvency of the New Irish Company. |
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on behalf of the Lenders at the date hereof
2 Penns Way, Suite 1100
New Castle, Delaware 19720
on behalf of the Lenders at the date hereof
388 Greenwich Street, 14th Floor
New York, NY 10013
390 Greenwich Street, 1st Floor
New York, NY 10013
Eleven Madison Avenue, 5th Floor
New York, NY 10010
Aviation Finance Group
520 Madison Avenue
3rd Floor
New York, NY 10022
Attn: Robert Papas/Stephanie Klein
11
1. | The Credit Agreement. | |
2. | The Intercreditor Agreement dated as of __ March 2011 between ILFC, Parent Holdco, the Borrower, Irish Subsidiary Holdco, CA Subsidiary Holdco and the Collateral Agent. | |
3. | Aircraft Mortgage and Security Agreement dated as of __ March 2011 among the Borrower Parties (including the New Company, by way of the Grantor Supplement) and the additional grantors referred to therein as grantors and the Collateral Agent as collateral agent (theSecurity Agreement). | |
4. | [[Share Charge] between [insert relevant equityholder] as chargor and the Collateral Agent as chargee in respect of [the shares of the New Irish Company] (theEquity Document).][Describe any share charge or other pledge over equity interests being delivered by or in respect of an Irish entity on the relevant advance date.] | |
5. | [Obligor Assumption Agreement from the New Irish Company pursuant to the Credit Agreement (theObligor Assumption Agreement).][Describe any Obligor Assumption Agreement being delivered by an Irish entity on the relevant advance date.] | |
6. | [Grantor Supplement from the New Irish Company to the Collateral Agent in respect of the Collateral (as defined in the Security Agreement) granted by the New Irish Company, duly acknowledged and agreed to by the Collateral Agent (theGrantor Supplement).][Describe any Collateral Supplement being delivered by an Irish entity on the relevant advance date.] | |
7. | [Collateral Supplement from [__] to the Collateral Agent in respect of [__] duly acknowledged and agreed to by the Collateral Agent (theCollateral Supplement)[Describe any Collateral Supplement being delivered by an Irish entity on the relevant advance date.] |
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E-2-1
___/___/11
(For the Letterhead of Daugherty, Fowler, Peregrin, Haught & Jenson)
________ __, 2011
RE: | One (1) _______ model _______ aircraft bearing manufacturer’s serial number ______ (the “Airframe”) and two (2) ______ model _______ aircraft engines bearing manufacturer’s serial numbers ______ and ______ (the “Engines”) |
1. | the Airframe and the Engines constitute Aircraft Objects based upon the Interim Updatable List of Eligible Aircraft Objects compiled by the Federal Aviation Administration; | ||
2. | based upon the Priority Search Certificates dated ________ __, 2011 obtained from the IR, copies of which are attached hereto as Schedule 2 and incorporated herein by reference: |
Schedule 1 attached hereto
Page 2
(a) | the Airframe and the Engines are subject only to the Security Agreement International Interest; | ||
(b) | the Security Agreement International Interest has been duly registered on the IR and constitutes a first priority International Interest in the Airframe and the Engines; and, | ||
(c) | the Contract of Sale has been duly registered on the IR and constitutes a Sale, with respect to the Airframe and the Engines; |
3. | the CTT Interests are entitled to the priorities, protections and benefits of the CTT, subject to the statements on Exhibit A attached hereto; and, | ||
4. | no further registration on the IR of the CTT Interests is required under the CTT in order to maintain the effectiveness and priority thereof. |
Very truly yours, |
Robert M. Peregrin |
For the Firm |
(i) | the Priority Search Certificates are accurate in all respects, contain all the registered information and data on the IR in connection with the Airframe and the Engines to which they relate, and have not been altered since the date of such Priority Search Certificates; | ||
(ii) | the IR descriptions of the Airframe and the Engines are as noted above and are accurate and complete descriptions with respect to the registrations on the IR; | ||
(iii) | the CTT Interests are effective to constitute an International Interest or a Contract of Sale subject to the CTT and registration on the IR; | ||
(iv) | all of the registrations indicated on the Priority Search Certificates are fully and properly constituted and validly created under the CTT; | ||
(v) | any registrations on the IR pertaining to the Airframe and the Engines are valid, enforceable and sufficient under the relevant applicable law or the CTT to create, effect or terminate the rights and interests they purport to create, effect or terminate; | ||
(vi) | there has been no subordination or variation of any priority that would be acquired pursuant to the terms of the CTT, in connection with the registrations on the IR evidenced by the Priority Search Certificates other than pursuant to any subordination indicated on the Priority Search Certificates. |
(i) | a search on the IR pursuant to the CTT requires that the searching party enter the exact manufacturer, model or serial number of an airframe or engine being searched using the appropriate drop-down boxes, where available, and if a registration has been made on the IR against the Airframe and the Engines which describes the Airframe and the Engines differently (i.e. any space, comma, dash, added number or character, missing number or character, or any |
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other discrepancy whatsoever in the description of the manufacturer, model or serial number) the Priority Search Certificates will produce an inaccurate search result; accordingly, there may be registrations on the IR against the Airframe and the Engines which are not reflected on the Priority Search Certificates and which may have priority over subsequent registrations on the IR or filings with the FAA; | |||
(ii) | in respect of rights derived from registrations with the IR does not cover liens, claims or encumbrances which are perfected without the filing of notice thereof; | ||
(iii) | does not cover liens perfected in foreign jurisdictions, except to the extent applicable law would regulate their priority based on registration with the IR; and, | ||
(iv) | does not cover any rights to arrest or detain an airframe or an engine under any applicable law. |
___/___/11
(For the Letterhead of Daugherty, Fowler, Peregrin, Haught & Jenson)
RE: | One (1) _______ model _______ aircraft bearing manufacturer’s serial number ______ (the “Airframe”) and two (2) ______ model _______ aircraft engines bearing manufacturer’s serial numbers ______ and ______ (the “Engines”) |
1. | the Airframe and the Engines constitute Aircraft Objects based upon the Interim Updatable List of Eligible Aircraft Objects compiled by the Federal Aviation Administration; | ||
2. | based upon the Priority Search Certificates dated ________ __, 2011 obtained from the IR, copies of which are attached hereto as Schedule 2 and incorporated herein by reference: |
Schedule 1 attached hereto
Page 2
(a) | the Airframe and the Engines are subject only to: |
(i) | the Lease International Interest, which has been assigned to ___________ by the Lease Assignment Interest and to the Collateral Agent by the Lease Security Assignment Interest; and, | ||
(ii) | the Mortgage International Interest; |
(b) | the Lease International Interest has been duly registered on the IR and constitutes a first priority International Interest in the Airframe and the Engines; and, | ||
(c) | the Mortgage International Interest has been duly registered on the IR and constitutes an International Interest in the Airframe and the Engines; | ||
(d) | Right to Discharge A has been duly registered on the IR as a Transfer of the Right to Discharge the Lease International Interest in favor of the Collateral Agent; | ||
(e) | the Lease Assignment Interest has been duly registered on the IR as an Assignment of the Lease International Interest; | ||
(f) | Right to Discharge B has been duly registered on the IR as a Transfer of the Right to Discharge the Lease Assignment Interest in favor of the Collateral Agent; | ||
(g) | the Lease Security Assignment Interest has been duly registered on the IR as an Assignment of the Lease Assignment Interest; and, | ||
(h) | the Contract of Sale has been duly registered on the IR and constitutes a Sale, with respect to the Airframe and the Engines; |
Schedule 1 attached hereto
Page 3
3. | the CTT Interests are entitled to the priorities, protections and benefits of the CTT, subject to the statements on Exhibit A attached hereto; and, | ||
4. | no further registration on the IR of the CTT Interests is required under the CTT in order to maintain the effectiveness and priority thereof. |
Very truly yours, |
Robert M. Peregrin |
For the Firm |
(i) | the Priority Search Certificates are accurate in all respects, contain all the registered information and data on the IR in connection with the Airframe and the Engines to which they relate, and have not been altered since the date of such Priority Search Certificates; | ||
(ii) | the IR descriptions of the Airframe and the Engines are as noted above and are accurate and complete descriptions with respect to the registrations on the IR; | ||
(iii) | the CTT Interests are effective to constitute an International Interest, an Assignment of an International Interest, a Transfer of the Right to Discharge or a Contract of Sale subject to the CTT and registration on the IR; | ||
(iv) | all of the registrations indicated on the Priority Search Certificates are fully and properly constituted and validly created under the CTT; | ||
(v) | any registrations on the IR pertaining to the Airframe and the Engines are valid, enforceable and sufficient under the relevant applicable law or the CTT to create, effect or terminate the rights and interests they purport to create, effect or terminate; | ||
(vi) | there has been no subordination or variation of any priority that would be acquired pursuant to the terms of the CTT, in connection with the registrations on the IR evidenced by the Priority Search Certificates other than pursuant to any subordination indicated on the Priority Search Certificates. |
(i) | a search on the IR pursuant to the CTT requires that the searching party enter the exact manufacturer, model or serial number of an airframe or engine being searched using the appropriate drop-down boxes, where available, and if a registration has been made on the IR against the Airframe and the Engines which describes the Airframe and the Engines differently (i.e. any space, |
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comma, dash, added number or character, missing number or character, or any other discrepancy whatsoever in the description of the manufacturer, model or serial number) the Priority Search Certificates will produce an inaccurate search result; accordingly, there may be registrations on the IR against the Airframe and the Engines which are not reflected on the Priority Search Certificates and which may have priority over subsequent registrations on the IR or filings with the FAA; | |||
(ii) | in respect of rights derived from registrations with the IR does not cover liens, claims or encumbrances which are perfected without the filing of notice thereof; | ||
(iii) | does not cover liens perfected in foreign jurisdictions, except to the extent applicable law would regulate their priority based on registration with the IR; and, | ||
(iv) | does not cover any rights to arrest or detain an airframe or an engine under any applicable law. |
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__/__/11
(For the Letterhead of Daugherty, Fowler, Peregrin, Haught & Jenson)
Schedule 1 attached hereto
RE: | One (1) _______ model ______ (shown on the IR as ______ model ______) aircraft bearing manufacturer’s serial number ______ and U.S. Registration No. N______ (the “Airframe”) and two (2) ______ model ______ (shown on the IR as ______ model ______) aircraft engines bearing manufacturer’s serial numbers ______ and ______ (the “Engines”) |
Schedule 1 attached hereto
________ __, 2011
Page 2
(a) | AC Form 8050-2 Aircraft Bill of Sale dated ________ __, 2011 (the “FAA Bill of Sale”) by International Lease Finance Corporation (“ILFC”), as seller, conveying title to the Airframe to ____________, as owner trustee under the Trust Agreement (the “Owner Trustee”), as purchaser, which FAA Bill of Sale was filed at _____ __ .m., C.S.T.; | ||
(b) | AC Form 8050-1 Aircraft Registration Application dated ________ __, 2011 (the “Aircraft Registration Application”) by the Owner Trustee, as applicant, with respect to the Airframe, which Aircraft Registration Application was filed at _____ __.m., C.S.T.; | ||
(c) | Affidavit of Citizenship dated ________ __, 2011 (the “Owner Trustee Affidavit”) by the Owner Trustee pursuant to Section 47.7(c)(2)(iii) of the Federal Aviation Regulations, which Owner Trustee Affidavit was filed at _____ __.m., C.S.T.; | ||
(d) | Trust Agreement dated as of ________ __, 2011 (the “Trust Agreement”) between _______, as trustor, and the Owner Trustee, which Trust Agreement was filed at _____ __.m., C.S.T.; | ||
(e) | Assignment and Assumption Agreement dated ________ __, 2011 (the “Assignment”) between ILFC, as assignor, and the Owner Trustee, as assignee, assigning all right, title and interest of ILFC in the Lease, with respect to the Airframe and the Engines, in favor of the Owner Trustee, which Assignment was filed at _____ __.m., C.S.T.;and, | ||
(f) | FAA Aircraft Mortgage and Lease Security Assignment (MSN _______) dated as of ________ __, 2011 (the “Mortgage”) between the Owner Trustee, as grantor, and Citibank, N.A., as collateral agent (the “Collateral Agent”), with respect to the Airframe, the Engines and the Lease, as assigned by the Assignment, which Mortgage was filed at _____ __.m., C.S.T. |
Schedule 1 attached hereto
________ __, 2011
Page 3
1. | the Airframe and the Engines constitute Aircraft Objects based upon the Interim Updatable List of Eligible Aircraft Objects compiled by the FAA; | ||
2. | the Aircraft Registration Application, the Owner Trustee Affidavit and the Trust Agreement are in due form for filing and have been duly filed with the FAA pursuant to and in accordance with the Transportation Code; | ||
3. | the FAA Bill of Sale, the Assignment and the Mortgage are in due form for recordation by, and have been duly filed for recordation with, the FAA pursuant to and in accordance with the Transportation Code; | ||
4. | the Airframe is eligible for registration by the FAA for purposes of the Transportation Code in the name of the Owner Trustee and the filing with the |
Schedule 1 attached hereto
________ __, 2011
Page 4
FAA of the FAA Bill of Sale, the Aircraft Registration Application, the Owner Trustee Affidavit and the Trust Agreement will cause the FAA to register the Airframe, in due course, in the name of the Owner Trustee, at which time the FAA will issue an AC Form 8050-3 Certificate of Aircraft Registration in the name of the Owner Trustee, pursuant to and in accordance with the Transportation Code; | |||
5. | the owner of the Airframe for registration purposes at the FAA is the Owner Trustee and the Airframe and the Engines are free and clear of liens and encumbrances of record at the FAA except as created by: | ||
(a) | the Lease, as assigned by the Assignment, which has been assigned for security purposes to the Collateral Agent by the Mortgage; and, | ||
(b) | the Mortgage; | ||
6. | the Mortgage creates a duly perfected first priority security interest, subject to the rights of the parties under the Lease, as assigned by the Assignment, in favor of the Collateral Agent, pursuant to the Transportation Code, in the Airframe and the Engines, it being understood that no opinion is rendered herein as to the validity, priority or enforceability of such security interest under applicable local or foreign law, or as to recognition of the perfection of the security interest as against third parties in any legal proceeding outside the United States; | ||
7. | the rights of the Owner Trustee, as lessor, and _______, as lessee, under the Lease, as assigned by the Assignment, with respect to the Airframe and the Engines, are perfected at the FAA; | ||
8. | the Assignment creates a valid assignment of all of the right, title and interest of ILFC in the Lease, with respect to the Airframe and the Engines, in favor of the Owner Trustee; | ||
9. | the Mortgage creates a duly perfected assignment for security purposes in favor of the Collateral Agent of all of the right, title and interest of the Owner |
Schedule 1 attached hereto
________ __, 2011
Page 5
Trustee in, to and under the Lease, as assigned by the Assignment (insofar as such assignment affects an interest covered by the recording system established by the FAA pursuant to 49 U.S.C. Section 44107), it being understood that no opinion is herein expressed as to the validity, priority or enforceability of such assignment under local law or as to the recognition of the perfection of such assignment as against third parties in any legal proceeding outside the United States; | |||
10. | based upon the Priority Search Certificates dated ________ __, 2011 obtained from the IR, copies of which are attached hereto as Schedule 2 and incorporated herein by reference: |
(a) | the Airframe and the Engines are subject only to: |
(i) | the CTT Lease Interest, which has been assigned to the Owner Trustee by the CTT Assignment Interest and to the Collateral Agent by the CTT Security Assignment Interest; and, | ||
(ii) | the CTT Security Interest; |
(b) | the CTT Lease Interest has been duly registered on the IR and constitutes a first priority International Interest in the Airframe and the Engines; | ||
(c) | the CTT Security Interest has been duly registered on the IR and constitutes an International Interest in the Airframe and the Engines; | ||
(d) | CTT Right to Discharge A has been duly registered on the IR as a Transfer of the Right to Discharge the CTT Lease Interest in favor of the Collateral Agent; | ||
(e) | the CTT Sale has been duly registered on the IR and constitutes a Sale with respect to the Airframe and the Engines; |
�� Schedule 1 attached hereto
________ __, 2011
Page 6
(f) | the CTT Assignment Interest has been duly registered on the IR as an Assignment of the CTT Lease Interest in favor of the Owner Trustee; | ||
(g) | CTT Right to Discharge B has been duly registered on the IR as a Transfer of the Right to Discharge the CTT Assignment Interest in favor of the Collateral Agent; and, | ||
(h) | the CTT Security Assignment Interest has been duly registered on the IR as an Assignment of the CTT Assignment Interest in favor of the Collateral Agent; |
11. | the CTT Interests are entitled to the priorities, protections and benefits of the CTT, subject to the statements on Exhibit A attached hereto; | ||
12. | no further registration on the IR of the CTT Interests is required under the CTT in order to maintain the effectiveness and priority thereof and no other registration of the Airframe or filings other than filings with the FAA (which have been duly effected) are necessary in order to: |
(a) | maintain the registration of the Airframe in the name of the Owner Trustee; and, | ||
(b) | maintain the lien and priority of: |
(i) | the Lease, as assigned by the Assignment, with respect to the Airframe and the Engines; and, | ||
(ii) | the Mortgage, with respect to the Airframe, the Engines and the Lease, as assigned by the Assignment; and, |
13. | no authorization, approval, consent, license or order of, or registration with, or the giving of notice to, the FAA is required for the valid authorization, delivery and performance of the Trust Agreement, the Lease, as assigned by the Assignment, or the Mortgage, except for such filings as are referred to above and the prior filing of the Lease with the FAA. |
Schedule 1 attached hereto
________ __, 2011
Page 7
Very truly yours, Robert M. Peregrin For the Firm | ||||
(i) | the records maintained by the FAA are accurate in all respects; | ||
(ii) | the Priority Search Certificates are accurate in all respects, contain all the registered information and data on the IR in connection with the Airframe and the Engines to which they relate, and have not been altered since the date of such Priority Search Certificates; | ||
(iii) | the IR descriptions of the Airframe and the Engines are as noted above and are accurate and complete descriptions with respect to the registrations on the IR; | ||
(iv) | at the time each of the Lease and the Mortgage was concluded, the Debtor was situated, pursuant to the CTT, in the United States; | ||
(v) | the necessary parties under each of the Warranty Bill of Sale, the Lease, the Assignment and the Mortgage have given the consents in writing to the registration with the IR of the interests in the Airframe and the Engines created thereby; | ||
(vi) | each of the CTT Interests is effective under applicable local law to constitute an Interest, a Sale, an Assignment or a Transfer of the Right to Discharge subject to the CTT and registration on the IR; | ||
(vii) | all of the registrations indicated on the Priority Search Certificates are fully and properly constituted and validly created under the CTT; | ||
(viii) | all documents identified in this opinion, all documents in the records maintained by the FAA for the Airframe and the Engines, as well as any registrations on the IR pertaining to the Airframe and the Engines, are valid, enforceable and sufficient under the relevant applicable law or the CTT to create, effect or terminate the rights and interests they purport to create, effect or terminate; |
(ix) | in rendering this opinion, we have assumed that: |
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(a) | the Owner Trustee qualifies as a “citizen of the United States” as defined in the Transportation Code; | ||
(b) | the instruments described above are valid and enforceable under applicable local law; and, | ||
(c) | there are no documents with respect to the Airframe and the Engines which have been filed for recordation with the FAA under the FAA’s recording system but which have not yet been listed in the available records of such system as having been so filed; |
(x) | there has been no subordination or variation of any priority that would be acquired pursuant to the terms of the CTT, in connection with the registrations on the IR evidenced by the Priority Search Certificates other than pursuant to any subordination indicated on the Priority Search Certificates; | ||
(xi) | the Airframe is not registered under the civil aircraft registry of any other country; | ||
(xii) | the Interim Updatable List of Eligible Aircraft Objects compiled by the FAA, insofar as it relates to the Airframe and the Engines, is accurate in all respects; | ||
(xiii) | the Airframe and the Engines have been accurately described by manufacturer’s name, model and serial number by the parties in each of the Lease, the Assignment and the Mortgage; and, | ||
(xiv) | the United States Contracting State search certificate description of declarations, withdrawals of declarations and categories of non-consensual rights or interests, as communicated to the Registrar by UNIDROIT as the Depositary as having been declared by the United States, and the date on which each such declaration or withdrawal of declaration is recorded, are accurate in all respects. A copy of the United States Contracting State Search dated ________ __, 2011 is attached hereto as Schedule 4. |
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(i) | a search on the IR pursuant to the CTT requires that the searching party enter the exact manufacturer, model or serial number of an airframe or engine being searched using the appropriate drop-down boxes, where available, and if a registration has been made on the IR against the Airframe and the Engines which describes the Airframe and the Engines differently (i.e. any space, comma, dash, added number or character, missing number or character, or any other discrepancy whatsoever in the description of the manufacturer, model or serial number) the Priority Search Certificates will produce an inaccurate search result; accordingly, there may be registrations on the IR against the Airframe and the Engines which are not reflected on the Priority Search Certificates and which may have priority over subsequent registrations on the IR or filings with the FAA; | ||
(ii) | the opinion relating to the registration of the Airframe with the FAA is issued only as to its current eligibility for registration and not with respect to events which may occur in the future which may affect the continued eligibility for registration; | ||
(iii) | as to matters of United States Citizenship as defined in the Transportation Code, the undersigned has relied upon representations made in the Aircraft Registration Application; | ||
(iv) | because the FAA does not maintain registration records for engines for nationality purposes, we cannot independently verify the owner, make, model, or serial numbers of the Engines; | ||
(v) | in rendering this opinion, we are subject to the accuracy of the FAA, its employees and agents in the filing, indexing, cross-referencing, imaging and recording of instruments filed with the FAA; | ||
(vi) | no opinion is expressed herein as to laws other than the CTT and the Transportation Code; | ||
(vii) | this opinion as to the status of the records of the FAA as to the Airframe covers only that period of time during which the Airframe has been subject to United States Registration; and, | ||
(viii) | since our examination was limited to records maintained by the FAA and the IR, our opinion: |
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(a) | in respect of rights derived from FAA filings, does not cover liens, claims or encumbrances of which the parties have actual notice as contemplated by 49 U.S.C. §44108(a); | ||
(b) | in respect of rights derived from FAA filings or registrations with the IR, does not cover liens, claims or encumbrances which are perfected without the filing of notice thereof with the FAA or the IR, including without limitation, federal tax liens, liens arising under Section 1368(a) of Title 29 of the United States Code, liens arising under 49 U.S.C. §46304 and certain artisan’s liens; | ||
(c) | does not cover liens perfected in foreign jurisdictions, except to the extent applicable law would regulate their priority based on registration with the IR; and, | ||
(d) | does not cover any rights to arrest or detain an airframe or an engine under any applicable law. |
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F-1
TEMESCAL AIRCRAFT INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
F-2
Amount of Principal | Outstanding | |||||||||
End of Interest | or Interest Paid | Principal Balance | ||||||||
Date | Amount of Loan Made | Period | This Date | This Date | Notation Made By | |||||
F-3
G-1
Agent Address: | 2 Penns Way | Return form to: | Loan Syndications | |||
Suite 100 | Telephone: | 302-894-[XXXX] | ||||
New Castle, DE 19720 | Facsimile: | 212-994-0961 | ||||
E-mail: | oploanswebadmin@citi.com |
Signature Block | ||
Information: | ||
Signing Credit Agreement | o Yes | o No | ||||
Coming in via Assignment | o Yes | o No |
Type of Lender: | ||
Lender Parent: | ||
Domestic Address | Eurodollar Address | |
G-2
Primary Credit Contact | Secondary Credit Contact | |||
Name: | ||||
Company: | ||||
Title: | ||||
Address: | ||||
Telephone: | ||||
Facsimile: | ||||
E-Mail Address: | ||||
Primary Operations Contact | Primary Disclosure Contact | |||
Name: | ||||
Company: | ||||
Title: | ||||
Address: | ||||
Telephone: | ||||
Facsimile: | ||||
E-Mail Address: | ||||
Bid Contact | L/C Contact | |||
Name: | ||||
Company: | ||||
Title: | ||||
Address: | ||||
Telephone: | ||||
Facsimile: | ||||
E-Mail Address: | ||||
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Bank Name: | ||
ABA/Routing No.: | ||
Account Name: | ||
Account No.: | ||
FFC Account Name: | ||
FFC Account No.: | ||
Attention: | ||
Reference: | ||
Currency: | ||
Bank Name: | ||
Swift/Routing No.: | ||
Account Name: | ||
Account No.: | ||
FFC Account Name: | ||
FFC Account No.: | ||
Attention: | ||
Reference: | ||
Bank Name: | [Citibank N.A.] | |
ABA/Routing No.: | [021000089] | |
Account Name: | [Agency/Medium Term Finance] | |
Account No.: | [36852248] |
G-4
Reference: | [Company Name] |
G-5
H-1
1
“Intercompany Debt” means the Pledged Debt and the Unpledged Intercompany Debt. |
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4
5
6
10250 Constellation Blvd.
Suite 3400
Los Angeles, CA 90067
Attention: Treasurer with a copy to the General Counsel
Facsimile: (310) 788-1990
Telephone: (310) 788-1999
Email: legalnotices@ilfc.com
388 Greenwich Street, 14th Floor
New York, NY 10013
Attention: Jenny Cheng
Facsimile: (212) 657-2762
7
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CITIBANK, N.A., as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
INTERNATIONAL LEASE FINANCE CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
PARK TOPANGA AIRCRAFT INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
TEMESCAL AIRCRAFT INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
CHARMLEE AIRCRAFT INC. | ||||
By: | ||||
Name: | ||||
Title: |
10
BALLYSKY AIRCRAFT IRELAND LIMITED | ||||
By: | ||||
Name: | ||||
Title: | ||||
11
(i) | The [Initial Test Date]/[LTV Determination Date] is _______ __, 20__; | ||
(ii) | The aggregate outstanding principal amount of the Loans as of such [Initial Test Date]/[LTV Determination Date] is $[__________________]. For the avoidance of doubt, any payment or prepayment of the Loans on or before such [Initial Test Date]/[LTV Determination Date] has been taken into account; | ||
(iii) | The aggregate Appraised Value of all Pool Aircraft included in the Designated Pool as of such [Initial Test Date]/[LTV Determination Date] is $[_________________]; | ||
(iv) | The ratio of (ii) to (iii) is _____ (the “Loan-to-Value Ratio”); | ||
(v) | The aggregate outstanding principal amount of the Loans as of such LTV Determination Date, immediately prior to giving effect to each Removal and Deemed Removal and prior to giving effect to any related or prior payment, is $[__________________];[only include if the LTV Determination Date occurs because of a Removal or Deemed Removal] |
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(vi) | The aggregate Appraised Value of all Pool Aircraft included in the Designated Pool as of such LTV Determination Date, immediately prior to giving effect to each Removal or Deemed Removal, is $[_________________];[only include if the LTV Determination Date occurs because of a Removal or Deemed Removal] | ||
(vii) | The ratio of (v) to (vi) is _____ (the “Prior Loan-to-Value Ratio”);[only include if the LTV Determination Date occurs because of a Removal or Deemed Removal] | ||
(viii) | The Loan-to-Value Ratio [does] [does not] exceed [65.0%] [the Maximum LTV then in effect]; | ||
(ix) | The Loan-to-Value Ratio [does] [does not] exceed the Prior Loan-to-Value Ratio;[only include if the LTV Determination Date occurs because of a Removal] | ||
(x) | [The Borrower will, within [insert number of days required pursuant to Section 5.16] following the [Initial Test Date] [LTV Determination Date], prepay [all of the Loans][a portion of the Loans in the amount of $[____________];] | ||
(xi) | [The Borrower will, within [insert number of days required pursuant to Section 5.16] following the LTV Determination Date, deposit Interim Cash into the Collateral Account in the amount of $[____________];] | ||
(xii) | [The Obligors [have transferred][will, within [insert number of days required pursuant to Section 5.16] days following the delivery of this LTV Certificate, transfer] to an Owner Subsidiary the following Non-Pool Aircraft: _____________;] | ||
(xiii) | [The required Appraisals with respect to the Aircraft proposed to be added pursuant to an LTV Cure are not yet available, so this LTV Certificate (x) has been prepared using approximate Appraised Values estimated by ILFC in good faith and (y) when the required Appraisals are available and not later than the addition of such Aircraft, an updated and completed LTV Certificate with respect to and dated as of the LTV Determination Date attaching the three Appraisals required to be provided with respect to such Aircraft shall be delivered].[only include as applicable according to Section 5.09(a)(vii)] | ||
(xiv) | Set forth onAnnex I attached hereto is a complete list of all PS Pool Aircraft [identifying which are Pool Aircraft and Undelivered Pool Aircraft] as of the date hereof (which list shall replace Schedule 3.17(a) to the Credit Agreement upon delivery of this LTV Certificate); | ||
(xv) | Set forth onAnnex [II] attached hereto is a complete list of the Leases of all PS Pool Aircraft as of the date hereof (which list shall replace Schedule 3.17(b) to the Credit Agreement);[only include if an Annual Anniversary] |
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(xvi) | Set forth onAnnex [III] attached hereto is a calculation of the Pool Specifications of the PS Pool Aircraft as of the [Initial Test Date] / [LTV Determination Date], after giving effect to any LTV Cure described herein; | ||
(xvii) | Attached asAnnex [IV] [are three Appraisals, each conducted by a Qualified Appraiser, of] / [is a description of the approximate Appraised Values estimated in good faith by ILFC with respect to], any Aircraft added (or being proposed to be added pursuant to an LTV Cure) to the Designated Pool since the [Effective Date] [immediately preceding LTV Determination Date]; and | ||
(xviii) | Attached asAnnex [V] attached hereto is a lease report;[only include if an Annual Anniversary, in the form attached as Annex [V] to this form certificate]. |
By: | ||||
Name: | ||||
Title: | ||||
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Pool Aircraft: |
[ ] |
Undelivered Pool Aircraft: |
[ ] |
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(i) | the aggregate Appraised Value of a single type of Widebody Aircraft at such time is _______%, which does not exceed 35% of the aggregate Appraised Value of all PS Pool Aircraft at such time; | ||
(ii) | the aggregate Appraised Value of all Widebody Aircraft at such time is _______%, which does not exceed 55% of the aggregate Appraised Value of all PS Pool Aircraft at such time; | ||
(iii) | the aggregate Appraised Value of all Permitted Aircraft Types at such time is _______%, which is 100% of the aggregate Appraised Value of all PS Pool Aircraft at such time; | ||
(iv) | the aggregate Appraised Value of all PS Pool Aircraft leased to a single Lessee at such time is _______%, which does not exceed 25% of the aggregate Appraised Value of all PS Pool Aircraft at such time (excluding any PS Pool Aircraft leased to a Lessee that results from the merger of two or more Lessees, if the affected Lease of such PS Pool Aircraft was included in the Collateral prior to such merger); | ||
(v) | the aggregate Appraised Value of all PS Pool Aircraft leased to Lessees based or domiciled in any single country at such time is _______%, which does not exceed 40% of the aggregate Appraised Value of all PS Pool Aircraft at such time; and | ||
(vi) | the Average Age of all PS Pool Aircraft at such time is _______, which does not exceed 5.86 years, plus the amount of time elapsed since the date of the Credit Agreement, plus 6 months. |
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I-7
CONFIDENTIAL AND PROPRIETARY
MSN | Aircraft Type | Lessee | Country | Region | Date of Delivery | Lease End |
Leases under which the Lessee is in arrears for 90 or more days: |
Total Rent due from | ||||||||||||||||||||||||||||||
[__]* to scheduled | Early termination | Security deposits | ||||||||||||||||||||||||||||
Model | MSN | Lessee | Reg. # | Currency | Lease end | option | held as of [___]* | |||||||||||||||||||||||
* | Insert date on or about the date of the LTV Certificate. |
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Citibank, N.A., as Collateral Agent
Country | Relevant | |||||||||||||||||||||||||||||||||
Reg. | Airframe Mftr. and | Airframe | Engine | Relevant Owner | Intermediate Lessee | Relevant Advanced | Relevant Initial | |||||||||||||||||||||||||||
No. | Model | MSN | Engine Model | MSNs | Subsidiary | (if any) | Loans | Appraised Value | ||||||||||||||||||||||||||
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ABA Number:
Account No.:
J-2
TEMESCAL AIRCRAFT INC., as Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
[_______], as Owner Subsidiary | ||||
By: | ||||
Name: | ||||
Title: | ||||
[_______, as Intermediate Lessee] | ||||
By: | ||||
Name: | ||||
Title: | ||||
J-3
K-1
[__________], as New Obligor | ||||
By: | ||||
Name: | ||||
Title: | ||||
CITIBANK, N.A., as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
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L-1
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TEMESCAL AIRCRAFT INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
INTERNATIONAL LEASE FINANCE CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
PARK TOPANGA AIRCRAFT INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
CHARMLEE AIRCRAFT INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
BALLYSKY AIRCRAFT IRELAND LIMITED | ||||
By: | ||||
Name: | ||||
Title: | ||||
[_________], as the Incremental Lender | ||||
By: | ||||
Name: | ||||
Title: | ||||
L-3
CITIBANK, N.A., as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
L-4
TO INCREMENTAL LENDER ASSUMPTION AGREEMENT
AND APPLICABLE PERCENTAGES
Lender | Commitment | Applicable Percentage | ||||
[_______] | $[_______] | [_______] | % | |||
[_______] | $[_______] | [_______] | % | |||
Total | $[_______] | 100.000000000% |
L-5
TO INCREMENTAL LENDER ASSUMPTION AGREEMENT
L-6
TO INCREMENTAL LENDER ASSUMPTION AGREEMENT
L-7
Airframe | ||||||||||||
Manufacturer and | Airframe | Engine Manufacturer and | Country of | |||||||||
Model | MSN | Engine Model | Lessee* | Registration* | ||||||||
1 | Airbus A319-100 | 3020 | International Aero Engines V2524-A5 | *** | China | |||||||
2 | Airbus A320-200 | 2665 | CFM International CFM56-5B4/P | *** | Malta | |||||||
3 | Airbus A321-200 | 1734 | International Aero Engines V2533-A5 | *** | South Korea | |||||||
4 | Airbus A321-200 | 1926 | International Aero Engines V2533-A5 | *** | Macau | |||||||
5 | Airbus A330-200 | 911 | Pratt & Whitney PW4168A | *** | Germany | |||||||
6 | Boeing B737-700 | 29359 | CFM International CFM56-7B20 | *** | Hungary | |||||||
7 | Boeing B737-800 | 30724 | CFM International CFM56-7B26/3 | *** | Germany | |||||||
8 | Boeing B737-800 | 37159 | CFM International CFM56-7B26/3 | *** | Norway |
* | As of the date of this Credit Agreement |
ILFC Ireland Limited (“ILFC Ireland”)
*** | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
M-1
*** | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
M-2
*** | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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