Exhibit 4.1
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
(B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE
144A UNDER SUCH ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY THE SECURITIES.
SENIOR SECURED DEBENTURE
Issuance Date: December 20, 2007 Principal: U.S. $5,000,000
FOR VALUE RECEIVED, each of Global Aircraft Solutions Inc., a Nevada
corporation ("Parent"), and Hamilton Aerospace Technologies, Inc., a Delaware
corporation ("Hamilton"), World Jet Corporation, a Nevada corporation ("World
Jet"), and Hamilton Aerospace Mexico S.A. de C.V. a Mexican corporation
("Hamilton Mexico") as subsidiaries of the Parent (each, including the Parent,
an "Issuer" and together, including the Parent, the "Issuers"), and each Person
(as defined below) other than the Issuers which are parties hereto or which
becomes a party hereto pursuant to the joinder provisions of Section 24 hereof
(hereinafter each of the Issuers and such other Persons are collectively
referred to as the "Companies" or individually referred to as a "Company")
hereby, jointly and severely promises to pay to the order of Sandhurst Asset
Management, LLC or its registered assigns ("Holder") the amount set out above as
the Principal (the "Principal") when due, or upon the Maturity Date (as defined
below), acceleration, redemption, or otherwise (in each case in accordance with
the terms hereof) and to pay interest ("Interest") on any outstanding Principal
at a rate equal to 15.00% per annum (the "Interest Rate"), from the date set out
above as the Issuance Date (the "Issuance Date") until the same becomes due and
payable, whether upon an Interest Date (as defined below) or the Maturity Date,
acceleration, redemption, or otherwise (in each case in accordance with the
terms hereof). This Senior Secured Debenture (including all Senior Secured
Debentures issued in exchange, transfer, or replacement hereof, this
"Debenture") is one of an issue of Senior Secured Debentures issued pursuant to
the Securities Purchase Agreement (as defined below) on the Closing Date (as
defined below) (collectively, the "Debentures" together with the Junior Secured
Debenture in the principal amount of $2,000,000 and issued on the date hereof,
the "Other Debentures"). Certain capitalized terms used herein are defined in
Section 21 or in the Securities Purchase Agreement, as applicable.
(1) PAYMENTS OF PRINCIPAL. On the Maturity Date, the Companies shall pay to
the Holder an amount equal to the Principal, as well as all accrued but unpaid
Interest. The "Maturity Date" shall be December 19, 2007, as may be extended at
the option of the Holder (i) in the event that, and for so long as, no Event of
Default (as defined in Section 3(a)) shall have occurred and be continuing or
any event shall have occurred and be continuing which with the passage of time
and the failure to cure would result in an Event of Default or (ii) through the
date that is ten (10) days after the consummation of a Change of Control in the
event that a Change of Control is publicly announced or a Change of Control
Notice (as defined in Section 4(b)) is delivered prior to the Maturity Date.
(2) INTEREST; INTEREST RATE. Interest on this Debenture shall commence
accruing on the Issuance Date and shall be computed on the basis of a 365-day
year and actual days elapsed and shall be payable in arrears for each Payment
Quarter on the first day of the succeeding Payment Quarter during the period
beginning on the Issuance Date and ending on, and including, the Maturity Date
(each, an "Interest Date"). Interest shall be payable on each Interest Date, to
the record holder of this Debenture on the applicable Interest Date, in cash
("Cash Interest"). Prior to the payment of Interest on an Interest Date,
Interest on this Debenture shall accrue at the Interest Rate. Upon the
occurrence and during the continuance of an Event of Default, the Interest Rate
shall be increased to twenty-five percent (25.00%). In the event that such Event
of Default is subsequently cured, the adjustment referred to in the preceding
sentence shall cease to be effective as of the date of such cure; provided that
the Interest as calculated and unpaid at such increased rate during the
continuance of such Event of Default shall continue to apply to the extent
relating to the days after the occurrence of such Event of Default through and
including the date of cure of such Event of Default.
(3) RIGHTS UPON EVENT OF DEFAULT.
(a) Event of Default. Each of the following events shall constitute an
"Event of Default":
(i) the Companies' failure to pay to the Holder any amount of
Principal, Interest, Late Charges (as defined below) or other amounts when and
as due under this Debenture (including, without limitation, the Companies'
failure to pay any redemption payments or amounts hereunder) or any other
Transaction Document (as defined in the Securities Purchase Agreement), if such
failure continues for a period of at least five (5) Business Days;
(ii) any default occurs and is continuing under, or any
redemption of or acceleration prior to maturity of, any Indebtedness of the
Companies in excess of $50,000; provided, that in the event that any such
acceleration of indebtedness is rescinded by the holders thereof prior to
acceleration of this Debenture or the Other Debentures, no Event of Default
shall exist as a result of such rescinded acceleration;
(iii) any of the Companies, pursuant to or within the meaning of
Title 11, U.S. Code, or any similar federal, foreign, or state law for the
relief of debtors (collectively, "Bankruptcy Law"), (A) commences a voluntary
case, (B) consents to the entry of an order for relief against it in an
involuntary case, (C) consents to the appointment of a receiver, trustee,
assignee, liquidator or similar official (a "Custodian"), (D) makes a general
assignment for the benefit of its creditors, or (E) admits in writing that it is
generally unable to pay its debts as they become due;
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(iv) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law, which is not rescinded, vacated, overturned, or
otherwise withdrawn within thirty (30) days after the entry thereof, and that
(A) is for relief against any of the Companies in an involuntary case, (B)
appoints a Custodian of any of the Companies, or (C) orders the liquidation of
any of the Companies;
(v) a final non-appealable judgment or judgments for the payment
of money are rendered against any of the Companies and which judgments are not,
within thirty (30) days after the entry thereof, bonded, discharged or stayed
pending appeal, or are not discharged within thirty (30) days after the
expiration of such stay; provided, however, that any judgment which is covered
by insurance or an indemnity from a credit worthy party shall not be included at
the set forth above so long as the applicable Company provides the Holder a
written statement from such insurer or indemnity provider (which written
statement shall be reasonably satisfactory to the Holder) to the effect that
such judgment is covered by insurance or an indemnity and such Company will
receive the proceeds of such insurance or indemnity within thirty (30) days of
the issuance of such judgment;
(vi) any of the Companies breaches any representation, warranty,
covenant, or other term or condition of any Transaction Document, except, in the
case of a breach of a covenant or other term or condition of any Transaction
Document which is curable, only if such breach continues for a period of at
least five (5) consecutive Business Days, other than a breach of Sections 8(a)
through 8(d), 8(f), 8(p) through 8(r) of this Debenture, for which there shall
be no cure period;
(vii) any Company consummates a Fundamental Transaction contrary
to the provisions of Section 5 of this Debenture;
(viii) any Event of Default (as defined in the Other Debentures)
occurs and is continuing with respect to any of the Other Debentures;
(ix) the repudiation by any of the Companies of any of its
obligations under the Security Documents or the unenforceability of the Security
Documents against any of the Companies for any reason;
(x) any Event of Loss;
(xi) the failure of the Parent's Common Stock to be traded or
quoted on the Principal Market or on the New York Stock Exchange, the NASDAQ
Global Market, the NASDAQ Capital Market or the American Stock Exchange;
(xii) the material breach by any of the Companies of an agreement
to which it is a party; or
(xiii) the occurrence of any Material Adverse Effect.
(b) Redemption Right. Promptly after the occurrence of an Event of
Default with respect to this Debenture or any Other Debenture, the Companies
shall deliver written notice thereof via facsimile and overnight courier (an
"Event of Default Notice") to the Holder. At any time after the earlier of the
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Holder's receipt of an Event of Default Notice and the Holder becoming aware of
a Event of Default, the Holder may require the Companies to redeem all or any
portion of this Debenture (as "Event of Default Redemption") by delivering
written notice thereof (the "Event of Default Redemption Notice") to the
Companies, which Event of Default Redemption Notice shall indicate the portion
of this Debenture the Holder is electing to redeem; provided, that upon the
occurrence of any default described in Section 3(a)(iii) and 3(a)(iv), this
Debenture shall automatically, and without any action on behalf of the Holder,
be redeemed by the Companies. Each portion of this Debenture subject to
redemption by the Companies pursuant to this Section 3(b) shall be redeemed by
the Companies at a price equal to the Redemption Premium and accrued and unpaid
Interest and accrued and unpaid Late Charges and Interest with respect to such
portion of this Debenture subject to redemption (the "Event of Default
Redemption Price"). Redemptions required by this Section 3(b) shall be made in
accordance with the provisions of Section 7.
(4) RIGHTS UPON FUNDAMENTAL TRANSACTION AND CHANGE OF CONTROL.
(a) Assumption. None of the Companies shall enter into or be party to
a Fundamental Transaction unless (i) the Fundamental Transaction would result in
a Change of Control and the Companies comply with the provisions of Section
4(b), or (ii) if the Fundamental Transaction does not result in a Change of
Control, the Successor Entity assumes in writing all of the obligations of the
applicable Company under this Debenture and the other Transaction Documents in
accordance with the provisions of this Section 4(a) pursuant to written
agreements in form and substance reasonably satisfactory to the Required Holders
and reasonably approved by the Required Holders in their sole reasonable
discretion prior to such Fundamental Transaction, including agreements to
deliver to each holder of Debentures in exchange for such Debentures a security
of the Successor Entity evidenced by a written instrument substantially similar
in form and substance to the Debentures, including, without limitation, having a
principal amount and interest rate equal to the principal amounts and the
interest rates of the Debentures held by such holder and having similar ranking
to the Debentures, and satisfactory to the Required Holders. Upon the occurrence
of any Fundamental Transaction, the Successor Entity shall succeed to, and be
substituted for (so that from and after the date of such Fundamental
Transaction, the provisions of this Debenture referring to the "Companies" shall
refer instead to the Successor Entity), and may exercise every right and power
of the Companies and shall assume all of the obligations of the Companies under
this Debenture with the same effect as if such Successor Entity had been named
as the Companies herein. The provisions of this Section shall apply similarly
and equally to successive Fundamental Transactions and shall be applied without
regard to any limitations on the redemption of this Debenture.
(b) Redemption Right. No sooner than fifteen (15) days nor later than
ten (10) days prior to the consummation of a Change of Control with respect to
any of the Companies, but not prior to the public announcement of such Change of
Control, the Companies shall deliver written notice thereof via facsimile and
overnight courier to the Holder (a "Change of Control Notice"). At any time
during the period beginning after the Holder's receipt of a Change of Control
Notice and ending on the date of the consummation of such Change of Control (or,
in the event a Change of Control Notice is not delivered at least ten (10) days
prior to a Change of Control, at any time on or after the date which is ten (10)
days prior to a Change of Control and ending ten (10) days after the
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consummation of such Change of Control), the Holder may require the Companies to
redeem all or any portion of this Debenture by delivering written notice thereof
("Change of Control Redemption Notice") to the Companies, which Change of
Control Redemption Notice shall indicate the portion of this Debenture the
Holder is electing to redeem. The portion of this Debenture subject to
redemption pursuant to this Section 4 shall be redeemed by the Companies at a
price equal to 115% of the sum of the amount being redeemed together with
accrued and unpaid Interest with respect to such amount and accrued and unpaid
Late Charges with respect to such amount and Interest (the "Change of Control
Redemption Price"). Redemptions required by this Section 4 shall be made in
accordance with the provisions of Section 7 and shall have priority to payments
to stockholders in connection with a Change of Control.
(5) COMPANY REDEMPTIONS.
(a) Permitted Redemption. The Companies may elect to pay to the Holder
of this Debenture the Permitted Redemption Amount (as defined below), on the
Permitted Redemption Date (as defined below), subject to and in accordance with
the terms of this Section 5(a), by redeeming the Principal, in whole or in part
(but in minimum increments of Five Hundred Thousand Dollars ($500,000)), in
accordance with this Section 5(a), (a "Permitted Redemption"); provided that all
of the outstanding Principal must be redeemed by the Companies, subject to the
provisions of this Section 5. On or prior to the date which is the sixth (6th)
Business Day prior to the Permitted Redemption Date (each, a "Permitted
Redemption Notice Due Date"), the Companies shall deliver written notice (each,
a "Permitted Redemption Notice"), to the Holder stating the amount which the
Companies elect to redeem pursuant to a Permitted Redemption (the "Permitted
Redemption Amount"), which Permitted Redemption Amount shall be equal to (i)
115% of the outstanding Principal, or (ii) if such Permitted Redemption occurs
after three (3) months following the Closing Date and no Company has knowledge
that a Fundamental Change exists or will exist on the date of the Permitted
Redemption (the "Permitted Redemption Date") 100% of the outstanding Principal,
and in either case, together with accrued and unpaid Interest with respect to
such Permitted Redemption Amount and accrued and unpaid Late Charges with
respect to such Permitted Redemption Amount and Interest. Each Permitted
Redemption Notice shall be irrevocable. The Companies shall redeem the
applicable Permitted Redemption Amount of this Debenture pursuant to this
Section 5(a) together with the corresponding Permitted Redemption Amounts of the
Other Debentures pursuant to the corresponding provisions of the Other
Debentures. If the Companies elect to redeem pursuant to a Permitted Redemption,
then the Permitted Redemption Amount which is to be paid to the Holder on the
applicable Permitted Redemption Date shall be redeemed by the Companies on such
Permitted Redemption Date, and the Companies shall pay to the Holder on such
Permitted Redemption Date, by wire transfer of immediately available funds, an
amount in cash equal to the Permitted Redemption Amount.
(b) Mandatory Redemption. All proceeds of a Permitted Aircraft Sale or
BCI Receivables Collection shall be deposited immediately into the Controlled
Account and shall be used to redeem Principal as set forth in accordance with
this Section 5(b). Upon the occurrence of the events set forth in subparagraphs
(i), (ii), and (iii) below, the Companies shall pay to the Holder of this
Debenture on the date of the Mandatory Redemption, or if such date is prior to
the ninetieth (90th) day following the Issuance Date, then on the ninety-first
(91st) day following the Issuance Date ("Mandatory Redemption Date"), the amount
of the Mandatory Redemption (as defined below) ("Mandatory Redemption Amount")
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by redeeming Principal and outstanding Interest in accordance with this Section
5(b) ("Mandatory Redemption"). On or prior to the Business Day after each
deposit of funds into the Controlled Account in respect of the events set forth
in subparagraphs (i), (ii), and (iii) below (in each case, a "Mandatory
Redemption Notice Due Date"), the Companies shall deliver written notice (each a
"Mandatory Redemption Notice") to the Holder stating (i) the Mandatory
Redemption Date, which shall be (x) if occurring prior to the ninetieth (90th)
day following the Issuance Date, on the ninety-first (91st) day following the
Issuance Date, or (y) if occurring after the ninetieth (90th) day following the
Issuance Date, on or before the third (3rd) Business Day following the date of
the Mandatory Redemption Notice, (ii) the amount which the Companies shall
redeem pursuant to a Mandatory Redemption, (iii) the Mandatory Redemption Amount
which is to be paid to the Holder on the applicable Mandatory Redemption Date
shall be redeemed by the Companies on such Mandatory Redemption Date, and the
Companies shall pay to the Holder on such Mandatory Redemption Date, by wire
transfer of immediately available funds, an amount in cash equal to the
Mandatory Redemption Amount, (iv) any Mandatory Redemption Amount will be paid
only from the Controlled Account, and (v) any remaining proceeds in the
Controlled Account after making any applicable Mandatory Redemption shall be
transferred to an account of the Companies for working capital purposes.
(i) Permitted Aircraft Sale or Permitted Aircraft Deposit
Redemption. Upon the occurrence of a Permitted Aircraft Sale or any Permitted
Aircraft Deposit, the Companies shall become obligated to effectuate a Mandatory
Redemption in accordance with the procedures set forth in Section 5(b) above. On
the Mandatory Redemption Notice Due Date, the Companies shall deliver a
Mandatory Redemption Notice to the Holder setting forth the Mandatory Redemption
Date and the Mandatory Redemption Amount, which Mandatory Redemption Amount in
respect of a Permitted Aircraft Sale or Permitted Aircraft Deposit, as
applicable, shall be equal to 60% of the proceeds deposited into the Controlled
Account from any such Permitted Aircraft Sale or Permitted Aircraft Deposit, as
applicable. The Companies shall redeem the Mandatory Redemption Amount of this
Debenture pursuant to this Section 5(b)(i) together with the corresponding
Mandatory Redemption Amounts of the Other Debentures pursuant to the
corresponding provisions of the Other Debentures. The remaining 40% of the
proceeds from any such Permitted Aircraft Sale or Permitted Aircraft Deposit, as
applicable, shall be transferred to an account of the Companies for working
capital purposes within three (3) Business Days of the receipt of the funds into
the Controlled Account.
(ii) BCI Receivables Collection Redemption. Upon receipt of each
succeeding BCI Receivables Collections, the Companies shall become obligated to
effectuate a Mandatory Redemption. On the Mandatory Redemption Notice Due Date,
the Companies shall deliver a Mandatory Redemption Notice to the Holder setting
forth the Mandatory Redemption Date and the Mandatory Redemption Amount, which
Mandatory Redemption Amount in respect of the BCI Receivables shall be equal to
60% of the proceeds deposited into the Controlled Account from the aggregate
deposit of each succeeding BCI Receivables Threshold. The Companies shall redeem
the Mandatory Redemption Amount of this Debenture pursuant to this Section
5(b)(ii) together with the corresponding Mandatory Redemption Amounts of the
Other Debentures pursuant to the corresponding provisions of the Other
Debentures. The remaining 40% of the proceeds from any such BCI Receivables
Collections shall be transferred to an account of the Companies for working
capital purposes within three (3) Business Days of the receipt of the funds into
the Controlled Account.
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(iii) Borrowing Base Redemption. If at any time that the
Borrowing Base is tested pursuant to Section 8(o), the Borrowing Base, expressed
as a percentage is less than 100%, the Companies shall deliver a Mandatory
Redemption Notice to the Holder setting forth the Mandatory Redemption Date and
the Mandatory Redemption Amount, which Mandatory Redemption Amount shall be
equal to the amount which would result in the Borrowing Base, expressed as a
percentage, to equal 100%. The Companies shall redeem the Mandatory Redemption
Amount of this Debenture pursuant to this Section 5(b)(iii) together with the
corresponding Mandatory Redemption Amounts of the Other Debentures pursuant to
the corresponding provisions of the Other Debentures.
(c) All Permitted Redemptions and Mandatory Redemptions pursuant to
this Section 5, shall be made on a pro-rata basis together with all Permitted
Redemptions and Mandatory Redemptions under the Other Debentures.
(6) NON-CIRCUMVENTION. Each Company hereby covenants and agrees that no
Company will, by amendment of its Certificate of Incorporation, Bylaws, or
through any reorganization, transfer of assets, consolidation, merger, scheme of
arrangement, dissolution, issue or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Debenture, and will at all times in good faith carry out all of the
provisions of this Debenture and take all action as may be required to protect
the rights of the Holder of this Debenture.
(7) HOLDER REDEMPTIONS.
(a) Mechanics. Upon an Event of Default Redemption, the Companies
shall deliver the applicable Event of Default Redemption Price to the Holder
within five (5) Business Days after the Companies' receipt of the Holder's Event
of Default Redemption Notice. If the Holder has submitted a Change of Control
Redemption Notice in accordance with Section 4(b), the Companies shall deliver
the applicable Change of Control Redemption Price to the Holder concurrently
with the consummation of such Change of Control if such notice is received prior
to the consummation of such Change of Control and within five (5) Business Days
after the Companies' receipt of such notice otherwise. In the event of a
redemption of less than all of the Principal of this Debenture, the Companies
shall promptly cause to be issued and delivered to the Holder a new Debenture
(in accordance with Section 11(d)) representing the outstanding Principal which
has not been redeemed.
(b) Redemption by Holders. Any Event of Default Redemption Notice or
Change of Control Redemption Notice for redemption or repayment as a result of
an event or occurrence substantially similar to the events or occurrences
described in Section 3(b) or Section 4(b), is to be delivered to the Companies
by the Required Holders. If the Companies receive any Event of Default
Redemption Notice or Change of Control Redemption Notice and the Companies are
unable to redeem all Principal, Interest, and other amounts designated in such
Redemption Notice, then the Companies shall redeem a pro rata amount from each
holder of the Debentures (including the Holder) based on the principal amount of
the Debentures submitted for redemption pursuant to such Event of Default
Redemption Notice or Change of Control Redemption Notice received by the
Companies from the Required Holders.
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(8) COVENANTS.
(a) Rank. All payments due under this Debenture (a) shall rank pari
passu with all Other Debentures and (b) shall be senior in right of payment to
all other current and future Indebtedness of the Companies.
(b) Incurrence of Indebtedness. So long as this Debenture is
outstanding, no Company shall, directly or indirectly, create, incur or
guarantee, assume, or suffer to exist any Indebtedness, other than (i) the
Indebtedness evidence by this Debenture and the Other Debentures and (ii)
Permitted Indebtedness.
(c) Existence of Liens. So long as this Debenture is outstanding, no
Company shall, and no Company shall permit any of its Subsidiaries to, directly
or indirectly, allow or suffer to exist any mortgage, lien, pledge, charge,
security interest, or International Interest, or other encumbrance upon or in
any Property or assets (including accounts, contract rights and aircraft) owned
by any Company, or any of their Subsidiaries (collectively, "Liens") other than
Permitted Liens.
(d) Creation, Perfection, and Priority of Liens. Each Company
represents and warrants that the Security Documents are effective to create in
favor of Holder, for the benefit of Holder, a legal, valid, binding, and
enforceable security interest and Lien, and a first priority security interest
and Lien (to the extent that this Debenture obligates each Company to provide
such a perfected first priority security interest and Lien, and except to the
extent Permitted Liens have priority), in the Collateral described therein as
security for the Obligations to the extent that a legal, valid, binding, and
enforceable security interest and Lien in such Collateral may be created under
applicable law, and the State of Registration, including without limitation, the
Aviation Authority, and the Cape Town Treaty.
(e) Aircraft Reports. The Companies shall furnish to Holder all
reports, financial information, and information relating to the maintenance or
use of the Applicable Aircraft.
(f) Restricted Payments. No Company shall, and no Company shall permit
any of its Subsidiaries to, directly or indirectly,
(i) declare or pay any dividend or make any other payment or
distribution on account of any Company's Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving
any Company) or to the direct or indirect holders of any Company's Equity
Interests in their capacity as such;
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving any Company) any Equity Interests of any Company or any direct or
indirect parent of any Company in excess of $50,000 per calendar year; or
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(iii) make any payment on or with respect to, accelerate the
maturity of, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness of any Company, except for (i) payments of principal,
interest, and other amounts under this Debenture and the Other Debentures, and
(ii) payments in respect of other Permitted Indebtedness (i.e. other than
indebtedness under this Debenture and the other Debentures), provided that such
payments on such other Permitted Indebtedness shall not be in excess of $50,000
per month.
(g) Insurance. The Companies shall furnish Holder with proof
reasonably satisfactory to Holder that all insurance, including hull and
liability insurance for the Applicable Aircraft, required under the Security
Documents is in full force and effect at each renewal of any such contract or
policy of insurance or upon Holder's request.
(h) Event of Loss; Claims. The Companies shall inform Holder with
reasonable promptness upon the occurrence of (a) any event which, with or
without the passage of time, could reasonably be expected to constitute an Event
of Loss, or (b) any claim with respect to any liability filed against the
Companies in respect of the Applicable Aircraft.
(i) Asset Sales. No Company shall, and no Company shall permit any of
its Subsidiaries to, directly or indirectly, consummate any Asset Sale.
(j) Use of Proceeds. The Companies shall use the proceeds of sale of
the Debentures for: (i) the repayment of its existing Indebtedness (ii) working
capital, and (iii) payment of all fees and expenses required under the Fee
Letter as set forth on Schedule 4(d) to the Securities Purchase Agreement;
provided that proceeds from working capital shall not be used for payment of any
Company's litigation costs or expenses, including costs and expenses related to
settlements or any arbitration proceedings.
(k) Inspection. Upon reasonable notice, at such reasonable times and
as may be reasonably desired, allow the Holder or its respective representatives
access to and right of inspection of books and records for the purpose of
expense audit.
(l) Contracting State. Each Company, other than Hamilton Mexico, is
situated in a "Contracting State" (as defined in the Convention).
(m) Citizenship. Each Company, other than Hamilton Mexico, is a
"Citizen of the United States" as defined in 49 USC 401029(a)(15).
(n) Operating Cash Flow Report. Within ten (10) days of the end of
every calendar month, the Companies shall furnish or provide to the Holder a
monthly Operating Cash Flow report for the preceding calendar month, prepared in
reasonable detail in accordance with GAAP. The Companies' Operating Cash Flow on
a consolidated basis as reflected on the Operating Cash Flow Report shall not be
less than zero for any two (2) consecutive reported months.
(o) Borrowing Base Certificate. Beginning with the calendar month
ending January 31, 2008, within fifteen (15) days of the end of every calendar
month, the Companies shall provide the Holder with a Borrowing Base Certificate
setting forth the Borrowing Base as at the end of such calendar month.
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(p) Audit Rights. The Companies shall permit the Holders and their
representatives and agents to inspect the properties of the Companies, examine
the books of account of the Companies (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the Companies,
and to be advised as to the same by, its and their officers, and to conduct
examinations and verifications (whether by internal commercial finance examiners
or independent auditors) and all at such reasonable times and intervals at the
Companies' expense (i) so long as such inspections do not exceed four (4)
inspections in any twelve (12) months period, or (ii) upon the occurrence and
during the continuance of an Event of Default; otherwise such inspections shall
be made at the Holders' own cost and expense
(q) Capital Expenditures. The Companies shall not, and shall not
permit any of their Subsidiaries to, make any Capital Expenditures without
Holder's prior written consent, which consent shall not be unreasonably withheld
or delayed.
(r) Ordinary Course of Business Costs. No Company shall incur any
costs or payments in the ordinary course of business that shall exceed $250,000
for any single item or $500,000 in the aggregate for any trailing three (3)
months period.
(s) Litigation and Judgments. The Companies shall give Holder in
writing within ten (10) days of becoming aware of any litigation or any pending
litigation and proceedings affecting any of the Companies or their Subsidiaries
or to which the Companies or any of their Subsidiaries are or become a party
involving a claim against any Company stating the nature and status of such
litigation or proceedings. The Companies shall give notice to the Holder, in
writing, in form and substance reasonably satisfactory to the Holder, within ten
(10) days of any judgment not covered by insurance, final or otherwise, against
the Companies or their Subsidiaries.
(t) Additional Collateral. With respect to any Property acquired after
the Issuance Date by any Company as to which the Holder does not have a
perfected Lien, such Company shall promptly (i) execute and deliver to the
Holder or its agent such amendments to the Security Agreement or such other
documents as such Holder deems necessary or advisable to grant to the Holder a
security interest in such Property and (ii) take all actions necessary or
advisable to grant to the Holder, for the benefit of the Secured Parties (as
defined in the Security Agreement), a perfected first priority security interest
in such Property, including, without limitation, the filing of Mortgages and UCC
financing statements or any registrations with the FAA or the International
Registry, in such jurisdictions as may be required by the Security Agreement or
by law or as may be reasonably requested by such Holder.
(9) VOTE TO ISSUE, OR CHANGE THE TERMS OF, DEBENTURES. The affirmative vote
at a meeting duly called for such purpose or the written consent without a
meeting of the Required Holders shall be required for any change or amendment to
this Debenture or the Other Debentures.
10
(10) TRANSFER. Upon two (2) Business Days prior notice to the Company, this
Debenture may be offered, sold, assigned or transferred by the Holder without
the consent of the Companies, subject only to the provisions of Sections 2(f)
and 2(g) of the Securities Purchase Agreement.
(11) REISSUANCE OF THIS DEBENTURE.
(a) Transfer. If this Debenture is to be transferred, the Holder shall
surrender this Debenture to the Companies, whereupon the Companies will
forthwith issue and deliver upon the order of the Holder a new Debenture (in
accordance with Section 11(d)), registered as the Holder may request,
representing the outstanding Principal being transferred by the Holder and, if
less than the entire outstanding Principal is being transferred, a new Debenture
(in accordance with Section 11(d)) to the Holder representing the outstanding
Principal not being transferred.
(b) Lost, Stolen or Mutilated Debenture. Upon receipt by the Companies
of evidence reasonably satisfactory to the Companies of the loss, theft,
destruction or mutilation of this Debenture, and, in the case of mutilation,
upon surrender and cancellation of this Debenture, the Companies shall execute
and deliver to the Holder a new Debenture (in accordance with Section 11(d))
representing the outstanding Principal.
(c) Debenture Exchangeable for Different Denominations. This Debenture
is exchangeable, upon the surrender hereof by the Holder at the principal office
of the Companies, for a new Debenture or Debentures (in accordance with Section
11(d) and in principal amounts of at least $250,000) representing in the
aggregate the outstanding Principal of this Debenture, and each such new
Debenture will represent such portion of such outstanding Principal as is
designated by the Holder at the time of such surrender.
(d) Issuance of New Debentures. Whenever the Companies are required to
issue a new Debenture pursuant to the terms of this Debenture, such new
Debenture (i) shall be of like tenor with this Debenture, (ii) shall represent,
as indicated on the face of such new Debenture, the Principal remaining
outstanding (or in the case of a new Debenture being issued pursuant to Section
11(a) or Section 11(c), the Principal designated by the Holder which, when added
to the principal represented by the other new Debentures issued in connection
with such issuance, does not exceed the Principal remaining outstanding under
this Debenture immediately prior to such issuance of new Debentures), (iii)
shall have an issuance date, as indicated on the face of such new Debenture,
which is the same as the Issuance Date of this Debenture, (iv) shall have the
same rights and conditions as this Debenture, and (v) shall represent accrued
Interest and Late Charges on the Principal and Interest of this Debenture, from
the Issuance Date.
(12) REMEDIES, CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND
INJUNCTIVE RELIEF. The remedies provided in this Debenture shall be cumulative
and in addition to all other remedies available under this Debenture and any of
the other Transaction Documents at law or in equity (including a decree and/or
other injunctive relief), and nothing herein shall limit the Holder's right to
pursue actual damages for any failure by the Companies to comply with the terms
of this Debenture. Amounts set forth or provided for herein with respect to
11
payments and the like (and the computation thereof) shall be the amounts to be
received by the Holder and shall not, except as expressly provided herein, be
subject to any other obligation of the Companies (or the performance thereof).
The Companies acknowledge that a breach by it of its obligations hereunder will
cause irreparable harm to the Holder and that the remedy at law for any such
breach may be inadequate. The Companies therefore agree that, in the event of
any such breach or threatened breach, the Holder shall be entitled, in addition
to all other available remedies, to an injunction restraining any breach,
without the necessity of showing economic loss and without any bond or other
security being required.
(13) PAYMENT OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this
Debenture is placed in the hands of an attorney for collection or enforcement or
is collected or enforced through any legal proceeding or the Holder otherwise
takes action to collect amounts due under this Debenture or to enforce the
provisions of this Debenture or (b) there occurs any bankruptcy, reorganization,
receivership of any of the Companies or other proceedings affecting creditors'
rights and involving a claim under this Debenture, then the Companies shall pay
the costs incurred by the Holder for such collection, enforcement or action or
in connection with such bankruptcy, reorganization, receivership or other
proceeding, including, but not limited to, attorneys' fees and disbursements
(and including and such fees and disbursements related to seeking relief from
any stay, automatic or otherwise in effect under any Bankruptcy Law).
(14) CONSTRUCTION; HEADINGS. This Debenture shall be deemed to be jointly
drafted by the Companies and Holder and shall not be construed against any
Person as the drafter hereof. The headings of this Debenture are for convenience
of reference and shall not form part of, or affect the interpretation of, this
Debenture.
(15) FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of
the Holder in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
any other right, power or privilege.
(16) DISPUTE RESOLUTION. In the case of a dispute as to the determination
of the Event of Default Redemption Price, the Change of Control Redemption
Price, the Permitted Redemption Amount, the Mandatory Redemption Amount, or any
other similar or related amount, the Companies shall submit the disputed
determinations or arithmetic calculations via facsimile within three (3)
Business Days of receipt, or deemed receipt, of the applicable notice or dispute
in respect of the Event of Default Redemption Notice, Change of Control
Redemption Notice, the Permitted Redemption Notice, Mandatory Redemption Notice,
or any other similar or related notice or other event giving rise to such
dispute, as the case may be, to the Holder. If the Holder and the Companies are
unable to agree upon such determination or calculation within three (3) Business
Days of such disputed determination or arithmetic calculation being submitted to
the Holder, then the Companies shall, within three (3) Business Days submit via
facsimile the disputed arithmetic calculations to the Companies' independent,
outside accountant. The Companies, at the Companies' expense, shall cause the
accountant to perform the determinations or calculations and notify the
Companies and the Holder of the results no later than five (5) Business Days
from the time it receives the disputed determinations or calculations. Such
accountant's determination or calculation, as the case may be, shall be binding
upon all parties absent demonstrable error.
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(17) NOTICES; PAYMENTS.
(a) Notices. Whenever notice is required to be given under this
Debenture, unless otherwise provided herein, such notice shall be given in
accordance with Section 9(f) of the Securities Purchase Agreement. The Companies
shall provide the Holder with prompt written notice of all actions taken
pursuant to this Debenture, including in reasonable detail a description of such
action and the reason therefor.
(b) Payments. Whenever any payment of cash is to be made by any of the
Companies to any Person pursuant to this Debenture, such payment shall be made
in lawful money of the United States of America by a check drawn on the account
or accounts of the Companies and sent via overnight courier service to such
Person at such address as previously provided to the Companies in writing (which
address, in the case of each of the Purchasers, shall initially be as set forth
on the Schedule of Buyers attached to the Securities Purchase Agreement);
provided that the Holder may elect to receive a payment of cash via wire
transfer of immediately available funds by providing the Companies with prior
written notice setting out such request and the Holder's wire transfer
instructions. Whenever any amount expressed to be due by the terms of this
Debenture is due on any day which is not a Business Day, the same shall instead
be due on the next succeeding day which is a Business Day and, in the case of
any Interest Date which is not the date on which this Debenture is paid in full,
the extension of the due date thereof shall not be taken into account for
purposes of determining the amount of Interest due on such date. Any amount of
Principal or other amounts due under the Transaction Documents, other than
Interest, which is not paid when due shall result in a late charge being
incurred and payable by the Companies in an amount equal to interest on such
amount at the rate of twenty-five percent (25.00%) per annum from the date such
amount was due until the same is paid in full ("Late Charge").
(18) CANCELLATION. After all Principal, accrued Interest and other amounts
at any time owed on this Debenture have been paid in full in cash, this
Debenture shall automatically be deemed canceled, shall be surrendered to the
Companies for cancellation and shall not be reissued and the Holder shall
promptly file all documents necessary with the appropriate agencies to effect
the termination of such Debentures and any and all security interest, Liens and
UCC filings associated therewith.
(19) WAIVER OF NOTICE. To the extent permitted by law, the Companies hereby
waive demand, notice, protest and all other demands and notices in connection
with the delivery, acceptance, performance, default or enforcement of this
Debenture and the Securities Purchase Agreement.
(20) GOVERNING LAW/SUBMISSION TO JURISDICTION. This Debenture shall be
construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Debenture and all
disputes arising hereunder shall be governed by, the laws of the State of New
York, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of
New York. The parties hereto (a) agree that any legal action or proceeding with
13
respect to this Debenture or any other agreement, document, or other instrument
executed in connection herewith or therewith, shall be brought in any state or
federal court located within the City of New York in the State of New York, (b)
irrevocably waive any objections which either may now or hereafter have to the
venue of any suit, action or proceeding arising out of or relating to this
Debenture, or any other agreement, document, or other instrument executed in
connection herewith or therewith, brought in the aforementioned courts, and (c)
further irrevocably waive any claim that any such suit, action, or proceeding
brought in any such court has been brought in an inconvenient forum.
(21) Waiver of Jury Trial. THE HOLDER AND THE COMPANIES IRREVOCABLY WAIVE
THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT TO ENFORCE ANY
PROVISION OF THIS SECURITY AGREEMENT, THE NOTE, OR ANY TRANSACTION DOCUMENT.
(22) CERTAIN DEFINITIONS. For purposes of this Debenture, the following
terms shall have the following meanings:
(a) "Aircraft Security Agreements" shall mean each of the following
Agreements dated as of Closing Date by and among the Companies and the initial
Holders of the Debentures: Aircraft Security Agreement (23074); Aircraft
Security Agreement (23077); Aircraft Security Agreement (23078); Aircraft
Security Agreement (23080); Aircraft Security Agreement (23084); and Aircraft
Security Agreement (49364).
(b) "Applicable Aircraft" shall mean the "Aircraft" set forth in each
of the Aircraft Security Agreements.
(c) "Applicable Airframe" shall mean the "Airframe" set forth in each
of the Aircraft Security Agreements.
(d) "Applicable Engine" shall mean the "Engine" set forth in each of
the Aircraft Security Agreements.
(e) "Aviation Authority" shall mean, where the State of Registration
is the United States, the FAA, and in any other case, subject to the provisions
of this Debenture, the aviation authority of the State of Registration or any
other agency or office in the State of Registration which shall from time to
time be vested with the control and supervision of, or have jurisdiction over,
the registration, airworthiness and operation of aircraft or other matters
relating to civil aviation and/or the Aircraft in the State of Registration.
(f) "Avolar Receivables" means the accounts receivable due and owing
to the Companies from Avolar Aerolineas, S.A. de C.V.
(g) "Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any Applicable Aircraft, assets or rights other than in the
ordinary course of business, and (ii) the sale of Equity Interests in any of the
Companies or any of the Company's Subsidiaries.
(h) "Bad Debt" means bad debt as determined in accordance with GAAP.
14
(i) "BCI Receivables" means the accounts receivable due and owning to
the Companies from BCI Aircraft Leasing, Inc.
(j) "BCI Receivables Collection" means the collection or receipt of
any BCI Receivables.
(k) "Borrowing Base" means at the relevant time of reference thereto,
an amount determined by the Holder, by reference to the most recent Borrowing
Base Certificate, equal to the quotient of (i) the sum of (A) the Companies'
Eligible Accounts Receivable, (B) 67% of the OLV of that certain Company owned
B737-232A aircraft having serial number 23074 which OLV includes those certain
Company owned engines having serial numbers 709149 and 709154, (C) 67% of the
OLV of that certain Company owned B737-232A aircraft having serial number 23077
which OLV includes that certain Company owned engine having serial number
709155, (D) 67% of the OLV of those certain Company owned B737-232A aircraft
having serial numbers 23078, 23080 and 23084, (E) 67% of the OLV of that certain
Company owned MD-82 aircraft having serial number 49364, (F) 67% of the OLV of
those certain Company owned engines having serial numbers, 709151, 709178,
709179, 709118, 709169 and 709130 (G) 67% of the OLV of that certain Company
owned machinery and equipment, (H) 67% of the OLV of that certain Company owned
Inventory, divided by (ii) the sum of (A) the outstanding Principal under this
Debenture and the Other Debentures, and (B) outstanding and unpaid Interest,
less (C) the balance held in the Controlled Account.
(l) "Borrowing Base Certificate" means a Borrowing Base certificate
signed by a responsible officer of the Companies in substantially the form
attached hereto as Schedule A and reasonably satisfactory to the Holder.
(m) "Cape Town Treaty" shall mean collectively the Convention and the
Protocol, together with the Regulations for the International Registry and the
International Registry Procedures, and all other rules, amendments, supplements,
and revisions thereto.
(n) "Capital Asset" shall mean, with respect to any Person, any
tangible, fixed, or capital asset owned or leased (in the case of a Capital
Lease Obligation) by such Person.
(o) "Capital Expenditures" shall mean, with respect to any Person and
any period, all amounts expended by such Person during such period to acquire or
to construct Capital Assets computed in accordance with GAAP.
(p) "Capital Lease Obligation" means, at the time any determination is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet prepared in
accordance with GAAP.
(q) "Capital Stock" means (1) in the case of a corporation, corporate
stock; (2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock; (3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person, but excluding from all of the foregoing any debt securities
convertible into Capital Stock, whether or not such debt securities include any
right of participation with Capital Stock.
15
(r) "Change of Control" means, with respect to any Company, any
Fundamental Transaction other than (i) any reorganization, recapitalization or
reclassification of the shares of Common Stock in which holders of such
Company's voting power immediately prior to such reorganization,
recapitalization or reclassification continue after such reorganization,
recapitalization or reclassification to hold publicly traded securities and,
directly or indirectly, the voting power of the surviving entity or entities
necessary to elect a majority of the members of the board of directors (or their
equivalent if other than a corporation) of such entity or entities, or (ii)
pursuant to a migratory merger effected solely for the purpose of changing the
jurisdiction of incorporation of such Company.
(s) "Closing Date" shall have the meaning set forth in the Securities
Purchase Agreement, which date is the date the Companies initially issued this
Debenture pursuant to the terms of the Securities Purchase Agreement.
(t) "Collateral" shall mean the "Collateral" as defined in the
Security Agreement and the "Collateral" as defined in the Aircraft Security
Agreement.
(u) "Contra Account" means contra account as determined in accordance
with GAAP.
(v) "Controlled Account" shall have the meaning set forth in the
Security Documents.
(w) "Convention" shall mean the Convention on International Interests
in Mobile Equipment signed in Cape Town, South Africa on November 16, 2001, as
ratified by the United States.
(x) "Eligible Accounts Receivable" shall mean (i) 50% of the Avolar
Receivables, (ii) 25% of the BCI Receivables, (iii) 80% of the GALP Receivables,
(iv) 50% of any other foreign accounts receivable, and (v) 80% of any other
domestic accounts receivable, in each case, other than Ineligible Accounts
Receivable.
(y) "Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
(z) "Event of Loss" shall have the meaning set forth in the Aircraft
Security Agreements.
(aa) "FAA" shall mean the Federal Aviation Administration and any
successor thereto.
(bb) "Fee Letter" shall have the meaning as set forth in the
Securities Purchase Agreement.
16
(cc) "Fundamental Transaction" means, with respect to any Company,
that such Company shall, directly or indirectly, in one or more related
transactions, (i) consolidate or merge with or into (whether or not such Company
is the surviving corporation) another Person, (ii) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties or
assets of such Company to another Person, (iii) allow another Person to make a
purchase, tender or exchange offer that is accepted by the holders of more than
50% of the outstanding shares of Common Stock (not including any shares of
Common Stock held by the Person or Persons making or party to, or associated or
affiliated with the Persons making or party to, such purchase, tender or
exchange offer), (iv) consummate a stock purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with another Person whereby such other Person
acquires more than 50% of the outstanding shares of Common Stock, (v)
reorganize, recapitalize or reclassify its Common Stock, or (vi) any "person" or
"group" (as these terms are used for purposes of Sections 13(d) and 14(d) of the
Exchange Act) is or shall become the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of 50% of the aggregate
ordinary voting power represented by issued and outstanding Common Stock.
(dd) "GAAP" means United States generally accepted accounting
principles, consistently applied.
(ee) "GALP Receivables" means the accounts receivable due and owing to
the Companies from Global Aircraft Leasing Partners, LLC, a Delaware limited
liability company.
(ff) "Ineligible Accounts Receivable" shall mean any accounts
receivable (i) that is unpaid ninety (90) calendar days after the invoice date;
(ii) that is Bad Debt, (iii) that is a Contra Account, (iv) that is due and
owing from any affiliate of the Companies, (v) that is owed by an account debtor
that has filed, or has had filed against it, any bankruptcy case, assignment for
the benefit of creditors, receivership, or other insolvency proceeding or who
has become insolvent (as defined in the United States Bankruptcy Code) or who is
generally not paying its debts as they become due; (vi) Jet Global Receivables,
(vii) for which there has been any breach of any representation, warranty, or
covenant in this Agreement; or (viii) for which the account debtor asserts any
discount, allowance, return, dispute, counterclaim, offset, defense, right of
recoupment, right of return, warranty claim, or short payment, to the extent of
such assertion.
(gg) "International Interest" shall have the meaning given to it in
the Cape Town Treaty.
(hh) "International Registry" shall have the meaning given to it in
the Cape Town Treaty.
(ii) "Jet Global Receivables" means the accounts receivable due and
owing to the Companies from Jet Global, LLC.
17
(jj) "Mortgage" means a mortgage in form and substance reasonably
satisfactory to the Holder, as it may be amended, supplemented or otherwise
modified from time to time.
(kk) "OLV" shall mean the "Orderly Liquidation Value" (as adjusted
from time to time) as set forth in the VRG Appraisal.
(ll) "Operating Cash Flow" means with respect to any fiscal period, an
amount equal to the result of (i) the net profits, plus depreciation, plus any
change in accruals, plus any change in accounts payable, in each case during
such period and calculated in accordance with GAAP, minus (ii) any change in
accounts receivable, minus any change in inventory, in each case during such
period and calculated in accordance with GAAP.
(mm) "Operating Cash Flow Report" means an Operating Cash Flow report
signed by a responsible officer of the Companies in form and substance
reasonably satisfactory to the Holder.
(nn) "Payment Quarter" means each of: the period beginning on and
including the Issuance Date and ending on and including every successive
three-month anniversary thereof until the Maturity Date.
(oo) "Permitted Aircraft Sale" means the sale by any of the Companies
of any of the Applicable Aircraft with the prior written consent of the Required
Holders.
(pp) "Permitted Aircraft Deposit" means the receipt by any of the
Companies of a down payment toward the sale of any of the Applicable Aircraft
with the prior written consent of the Required Holders.
(qq) "Permitted Indebtedness" means (i) Indebtedness of the Companies
outstanding as of the Closing Date as set forth on Schedule 3(s) to the
Securities Purchase Agreement, and (ii) any additional Indebtedness incurred
during the ordinary course of business in an amount not to exceed $250,000 for
any single item or not to exceed $500,000 in the aggregate for any trailing
three (3) months period.
(rr) "Permitted Liens" shall mean (i) Liens securing the Companies'
obligations under the Debentures, (ii) Liens securing Permitted Indebtedness,
(iii) Liens on assets to secure the purchase price of such assets to be
acquired, which Liens cover only the assets acquired with such indebtedness,
(iv) statutory Liens of landlords and carriers, warehousemen, mechanics,
materialmen, repairmen or other like Liens (a) arising in the ordinary course of
business and (b) for amounts not overdue for more than 90 days or being
contested in good faith by appropriate proceedings, (v) judgment Liens and other
similar Liens arising in the ordinary course of business; provided that (a) the
enforcement of the Liens is stayed, (b) the claims secured by the Liens are
being actively contested, in good faith and by appropriate proceedings, and (c)
the judgment would not otherwise constitute a Default, and (vi) Liens for taxes,
assessments or governmental charges not yet due and payable or being contested
in good faith; provided that any reserve or other appropriate provision as shall
be required in conformity with GAAP shall have been made therefore.
18
(ss) "Person" means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization, any other entity and a government or any department or agency
thereof.
(tt) "Property" means any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, capital stock.
(uu) "Protocol" shall mean the Protocol to the Convention on
International Interests in Mobile Equipment on Matters Specific to Aircraft
Equipment signed in Cape Town, South Africa on November 16, 2001, as ratified by
the United States.
(vv) "Redemption Premium" means 115% of the Principal amount.
(ww) "Registrable Securities" shall have the meaning set forth in the
Registration Rights Agreement.
(xx) "Registration Rights Agreement" means that certain registration
rights agreement dated as of the Closing Date by and among the Companies and the
initial holders of the Debenture.
(yy) "Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
(zz) "Required Holders" means the Holders of Debentures representing
at least 70% of the aggregate principal amount of the Debentures then
outstanding.
(aaa) "Securities Purchase Agreement" means that certain securities
purchase agreement dated as of the Closing Date by and among the Companies and
the initial holders of the Debentures.
(bbb) "Security Agreement" means that certain Pledge and Security
Agreement dated as of Closing Date by and among the Companies and the initial
holders of the Debentures.
(ccc) "Security Documents" means the Security Agreement, the
Mortgages, if any, each Aircraft Security Agreement, and all other instruments,
documents and agreements delivered by the Companies or any of their Subsidiaries
in order to grant to any holder of a Debenture or Other Debenture, a Lien on any
real, personal or mixed Property of the Companies or one of their Subsidiaries
as security for the obligations under the Debentures and Other Debentures.
(ddd) "State of Registration" means the United States or such other
jurisdiction agreed to in writing, from time to time, by Holder and the
Companies in which the Applicable Aircraft is from time to time registered in
accordance with the terms of this Debenture.
19
(eee) "Successor Entity" means the Person, which may be any of the
Companies, formed by, resulting from or surviving any Fundamental Transaction or
the Person with which such Fundamental Transaction shall have been made.
(fff) "VRG Appraisal" means that certain preliminary appraisal summary
dated December 14, 2007 by Value Resource Group, Inc. for the benefit of the
Buyers.
(23) DISCLOSURE. Upon receipt or delivery by the Companies of any notice in
accordance with the terms of this Debenture, unless the Parent has in good faith
determined that the matters relating to such notice do not constitute material,
nonpublic information relating to itself, the other Companies or their
Subsidiaries, the Parent shall within three (3) Business Day after any such
receipt or delivery publicly disclose such material, nonpublic information on a
Current Report on Form 8-K or otherwise. In the event that the Parent believes
that a notice contains material, nonpublic information relating to itself, the
other Companies or their Subsidiaries, the Parent shall so indicate to such
Holder contemporaneously with delivery of such notice, and in the absence of any
such indication, the Holder shall be allowed to presume that all matters
relating to such notice do not constitute material, nonpublic information
relating to Parent or its Subsidiaries.
(24) JOINDER. The Companies shall notify the Holder within thirty (30) days
after the formation or acquisition of any Subsidiaries. For any Subsidiaries of
the Companies' formed or acquired after the Closing Date, the Companies shall at
their own expense and, if not previously completed, within thirty (30) days
after notice of such event is required to be provided, (A) cause each such
Subsidiary to execute an instrument of joinder (a "Joinder Agreement") in form
and substance reasonably acceptable to Holder obligating such Subsidiary to any
or all of the Security Documents deemed necessary or appropriate by Holder and
cause the applicable Company that owns the equity interests of such Subsidiary
to pledge to the Holder 100% of the equity securities owned by it of each such
Subsidiary formed or acquired after the Closing Date and execute and deliver all
documents or instruments required thereunder or appropriate to perfect the
security interest created thereby. In the event a party becomes a Company (the
"New Company") pursuant to the Joinder Agreement, upon such execution the New
Company shall be bound by all the terms and conditions hereof to the same extent
as though such New Company had originally executed this Debenture. The addition
of the New Company shall not in any manner affect the obligations of the other
Companies hereunder. Each Company hereto acknowledges that the schedules and
exhibits hereto may be amended or modified in connection with the addition of
any New Company to reflect information relating to such New Company.
[Signature Page Follows]
20
IN WITNESS WHEREOF, each of the Companies has caused this Debenture to be
duly executed as of the Issuance Date set out above.
GLOBAL AIRCRAFT SOLUTIONS, INC.
By:_____________________________
Name:
Title:
HAMILTON AEROSPACE TECHNOLOGIES, INC.
By:_____________________________
Name:
Title:
WORLD JET CORPORATION
By:_____________________________
Name:
Title:
HAMILTON AEROSPACE MEXICO S.A. DE C.V.
By:_____________________________
Name:
Title:
Schedule A
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Borrowing Base Certificate