Page 1 of 44 Pages
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
Report of Foreign Issuer
Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934
For the month of October 2003
AIRCRAFT LEASE PORTFOLIO SECURITISATION 92-1 LIMITED
4th Floor, Forum House
Grenville Street
St. Helier
Jersey JE2 4UF
Channel Islands
[Indicate by check mark whether the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F.]
Form 20-F X Form 40-F
----- -----
[Indicate by check mark whether the registrant by furnishing the information
contained in this Form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.]
Yes No X
----- -----
The Exhibit Index to this Form 6-K is located on page 3.
Page 2 of 44 Pages
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
AIRCRAFT LEASE PORTFOLIO
SECURITISATION 92-1 LIMITED
Date: October 16, 2003 By: /s/ Frederick W. Bradley, Jr.
------------------------------------
Name: Frederick W. Bradley, Jr.
Title: Director
Page 3 of 44 Pages
EXHIBIT INDEX
Sequentially
numbered
page
----
Title of Document
Aircraft Lease Portfolio Securitisation 96-1 Pass Through
Trust - Statement to Certificateholders dated October 15, 2003.................4
Notice of Termination, dated October 1, 2003, of Amended and Restated
Administrative and Secretarial Services Agreement among Arthur
Andersen, Andersen Corporate Services (Jersey) Limited and Aircraft
Lease Portfolio Securitisation 92-1 Limited....................................9
Administrative and Secretarial Services Agreement, dated October 1, 2003,
between Mourant & Co. Limited, as Administrative Agent, and Aircraft
Lease Portfolio Securitisation 92-1 Limited...................................12
Page 4 of 44 Pages
Aircraft Lease Portfolio Securitization
96-1 Pass Through Trust
Statement To Certificateholders
- ------------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTIONS IN DOLLARS
- ------------------------------------------------------------------------------------------------------------------------------------
PRIOR CURRENT
ORIGINAL PRINCIPAL REALIZED ACCRETED PRINCIPAL
CLASS FACE VALUE BALANCE INTEREST PRINCIPAL PREMIUM TOTAL LOSSES INTEREST BALANCE
----- -------------- ------------ ----------- ----------- ------- ------------ ------- ---------- -------------
A 25,000,000.00 8,440,854.93 10,515.90 75,400.58 0.00 85,916.48 0.00 0.00 8,365,454.35
A 60,000,000.00 20,258,051.66 25,238.16 180,961.40 0.00 206,199.56 0.00 0.00 20,077,090.26
A 160,673,000.00 54,248,699.08 67,584.83 484,593.52 0.00 552,178.35 0.00 0.00 53,764,105.56
B 56,868,750.00 40,063,750.00 69,276.90 0.00 0.00 69,276.90 0.00 0.00 40,063,750.00
B 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 50,044,500.00 39,559,903.71 81,592.30 0.00 0.00 81,592.30 0.00 0.00 39,559,903.71
D 40,945,500.00 34,022,700.00 0.00 0.00 0.00 0.00 0.00 0.00 34,022,700.00
E-1 82,918,250.00 82,918,250.00 0.00 0.00 0.00 0.00 0.00 0.00 82,918,250.00
E-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
TOTALS 476,450,000.00 279,512,209.38 254,208.09 740,955.50 0.00 995,163.59 0.00 0.00 278,771,253.88
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------- ------------------------
FACTOR INFORMATION PER $1000 OF ORIGINAL FACE PASS-THRU RATES
- ------------------------------------------------------------------------------------------------------- ------------------------
PRIOR CURRENT
PRINCIPAL PRINCIPAL
CLASS CUSIP BALANCE INTEREST PRINCIPAL PREMIUM TOTAL BALANCE * CURRENT NEXT
- ----- --------- ----------- -------- --------- -------- --------- ------------ ---------- ----------
A 02109PAA8 337.634197 0.420636 3.016023 0.000000 3.436659 334.618174 1.995000% 1.995000%
A U02029AA1 337.634194 0.420636 3.016023 0.000000 3.436659 334.618171 1.995000% 1.995000%
A 02109PAE0 337.634195 0.420636 3.016023 0.000000 3.436659 334.618172 1.995000% 1.995000%
B 0219PAF7 704.494999 1.218189 0.000000 0.000000 1.218189 704.494999 2.575000% 2.575000%
B U02029AB9 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000 2.575000% 2.575000%
C 02109PAG5 790.494534 1.630395 0.000000 0.000000 1.630395 790.494534 2.975000% 2.975000%
D 02109PAH3 830.926475 0.000000 0.000000 0.000000 0.000000 830.926475 13.750000% 13.750000%
E-1 AL9601108 1,000.000000 0.000000 0.000000 0.000000 0.000000 1,000.000000 10.000000% 10.000000%
E-2 AL9601109 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000 10.000000% 10.000000%
- ------------------------------------------------------------------------------------------------------------------------------------
SELLER: N/A ADMINISTRATOR: Michele Voon
SERVICER: Babcock & Brown Limited Deutsche Bank
LEAD UNDERWRITER: Lehman Brothers 4 Albany Street
RECORD DATE: September 30, 2003 New York, NY 10006
DISTRIBUTION DATE: October 15, 2003 FACTOR INFORMATION: (800) 735-7777
- ------------------------------------------------------------------------------------------------------------------------------------
* Current Libor has been updated to reflect correct rate.
Page 5 of 44 Pages
Aircraft Lease Portfolio Securitization
96-1 Pass Through Trust
Statement to Certificateholders
- ------------------------------------------------------------------------------------------------------------------------------------
ISSUE / COLLATERAL DETAIL REPORT
Distribution 15-Oct-03
- ------------------------------------------------------------------------------------------------------------------------------------
1. COLLATERAL SUMMARY:
- ----------------------
1.1. DUE PERI0D 01-Sep-2003 to 30-Sep-2003
1.2. ADDITIONAL REPORTED ITEMS
Initial Appraised Value of all Aircraft.......................................................................320,510,000.00
Aircraft Book Value...........................................................................................250,718,947.50
Rentals, Interest and Other Payments in Arrears.................................................................1,694,532.00
Is there an existing Event of Default?.................................................................................YES *
Number of Registration Defaults.........................................................................................0.00
Has an Enforcement Notice been Issued?....................................................................................NO
WFC Aircraft Sale Date...................................................................................................n/a
WFC Aircraft Payment Default Date........................................................................................n/a
2. SUMMARY OF AVAILABLE FUNDS
- -----------------------------
2.1. COLLECTIONS
Interim deposits, withdrawals and transfers Rents, Interest, Deferred Debt & Other..............................1,201,129.00
Swap Receipts...........................................................................................................0.00
Collections applied to excess aircraft Maintenance Expenses.............................................................0.00
Interim withdrawal of Defaulted Rent from the Lease Maintenance Reserve Account or the Lease Security Deposit Account...0.00
Transfer of Maintenance Reserve Receipts to Lessee Funded Account.......................................................0.00
Transfer of Security Deposit Receipts to Lessee Funded Account..........................................................0.00
Proceeds from sale or other disposition of any Aircraft, Engine or other asset..........................................0.00
Remaining Aircraft Purchase Account funds after Aircraft Sale Date......................................................0.00
------------
Sub Total: 1,201,129.00
Payment Date deposits and transfers
Investment Earnings:
Collections Sub Account.....................................................................................17,778.93
Expense Account..................................................................................................0.00
Aircraft Purchase Account........................................................................................0.00
Class D Note Interest Reserve Account............................................................................0.00
Contingency Reserve Account....................................................................................970.58
Maintenance Reserve Account......................................................................................0.00
Security Deposit Account.........................................................................................0.00
---------
Total Investment earnings for all accounts.....................................................................18,749.51
Investment Earnings retained within Maintenance Reserve Account.....................................................0.00
Investment Earnings retained within Security Deposit Reserve Account................................................0.00
---------
0.00
------------
Sub Total: 1,219,878.51
- ----------------------------
* The company had insufficient funds to pay all of the interest due to the
holders of the Class D Notes. The arrears owed to Class D Noteholders for the
Due Period are 3,889,432.74. See Item 1.2 "Interest Amounts-Unpaid Balance D
Note" below for total overdue interest owed to holders to Class D Notes.
Page 6 of 44 Pages
Aircraft Lease Portfolio Securitization
96-1 Pass Through Trust
Statement to Certificateholders
- ------------------------------------------------------------------------------------------------------------------------------------
ISSUE / COLLATERAL DETAIL REPORT
Distribution 15-Jun-03
- ------------------------------------------------------------------------------------------------------------------------------------
2. SUMMARY OF AVAILABLE FUNDS (cont.)
- -------------------------------------
2.1. COLLECTIONS (cont.)
After Enforcement Notice or Disposition of Last Aircraft Lessee Funded Account Transfers................................0.00
After Enforcement Notice, Aircraft Purchase Acct. funds.................................................................0.00
Remaining amounts in the Aircraft Purchase Account transferred due to WFC Aircraft Delivery Termination Date or WFC
Aircraft Payment Default Date..........................................................................................0.00
------------
Sub Total: 1,219,878.51
Other Miscellaneous amounts
For any aircraft which has undergone a total loss or for which the lease has been sold, conveyed or transferred:
Available Maintenance Reserves Amount............................................................................0.00
Available Security Deposit Amount................................................................................0.00
Miscellaneous Other Proceeds........................................................................................0.00
------------
Available Collections transferred to the Transaction Account:............................................1,219,878.51
============
Reserve Account transfers
Maintenance Reserve Amount withdrawals from the Collection Sub-Account..............................................0.00
Liquidity Reserve Amount withdrawals from the Collection Sub-Account................................................0.00
Amounts withdrawn from the Class D Interest Reserve Sub-Account.....................................................0.00
Amounts withdrawn from the Contingency Reserve Sub-Account..........................................................0.00
------------
Total Amounts transferred to the Transaction Account:....................................................1,219,878.51
============
2.2. PAYMENTS FROM TRANSACTION ACCOUNT
* Required Expense Amount plus Additional Company Expenses, Fees and Taxes..........................................224,714.92
Amounts transferred to the Collection Account for Maintenance Reserve Amount............................................0.00
Swap Payments due to Swap Provider0.00
Amounts transferred to the Collection Account for Liquidity Reserve Amount..............................................0.00
Amounts transferred to the Class D Note Interest Reserve Account........................................................0.00
Aggregate Swap Breakage Costs...........................................................................................0.00
Current plus prior unpaid Annual Dividends..............................................................................0.00
Deposit to the Lessee Funded Account for funds previously transferred from the Lessee Funded Account according to
Clause 7.07(a)(iv) of the Deed of Charge...............................................................................0.00
-----------
224,714.92
Payments to Noteholders...........................................................................................995,163.59
------------
Total payments from the Transaction Account:.............................1,219,878.51
============
* Monthly withdrawal from Collection Account for Carotene Account....................................................14,518.90
Page 7 of 44 Pages
Aircraft Lease Portfolio Securitization
96-1 Pass Through Trust
Statement to Certificateholders
- --------------------------------------------------------------------------------
CERTIFICATE PAYMENTS DETAIL REPORT
Distribution Date: 15-Oct-03
- --------------------------------------------------------------------------------
1. PAYMENT CALCULATIONS SUMMARY:
- --------------------------------
1.1. INDICES
Current LIBOR Index Rate.....................................1.1250%
Next LIBOR Index Rate........................................1.1250%
1.2. INTEREST AMOUNTS
CLASS ACCRUED and UNPAID INTEREST AMOUNTS
----- -----------------------------------------------
Note Other (1) Total
---------- ------------ --------------
A Note 103,338.89 672,144.32 775,483.21
B Note 69,276.90 271,182.76 340,459.66
C Note 81,592.30 256,266.41 337,858.71
D Note 3,889,432.74 745,618.51 4,635,051.25
E Note 47,177,841.55 0.00 47,177,841.55
------------- ------------ --------------
51,321,482.38 1,945,212.00 53,266,694.38
============= ============ ==============
CLASS UNPAID BALANCE
-----------------------------------------------
Note Other (1) Total
---------- ------------ --------------
A Note 0.00 672,144.32 672,144.32
B Note 0.00 271,182.76 271,182.76
C Note 0.00 256,266.41 256,266.41
D Note 3,889,432.74 745,618.51 4,635,051.25
E Note 47,177,841.55 0.00 47,177,841.55
------------- ------------ -------------
51,067,274.29 1,945,212.00 53,012,486.29
============== ============ =============
Notes: (1) 'Other' includes Step-Up, Default and Additional Interest.
1.3. PRINCIPAL AMOUNTS
CLASS Target Target Additional Target Amount
Balance Amount Principal Shortfall
------------- ------------ ---------- -------------
A Note 62,499,450.00 20,448,155.67 0.00 19,707,200.17
B Note 40,063,750.00 0.00 0.00 0.00
C Note 35,256,100.00 4,303,803.71 0.00 4,303,803.71
D Note 28,845,900.00 5,176,800.00 0.00 5,176,800.00
------------- ------------- ---- -------------
29,928,759.38 0.00 29,187,803.88
============= ===== =============
1.4. OTHER AMOUNTS
a) Class D Note Unpaid Makewhole Premium Amount...............0.00
b) Class E Contingent Interest Amount.........................0.00
c) Unpaid Annual Dividends Balance........................3,000.00
Page 8 of 44 Pages
Aircraft Lease Portfolio Securitization
96-1 Pass Through Trust
Statement to Certificateholders
- ---------------------------------------------------------------------------------------------------------------------------------
ADDITIONAL ITEMS REPORT
Distribution Date: 15-Oct-03
- ---------------------------------------------------------------------------------------------------------------------------------
1. ACCOUNT ACTIVITY SUMMARY:
- ----------------------------
Note: Amounts reflect activity which has occured during the relevant Due
Period, as well as transfers resulting from the current Payment Date.
Name Prior Balance Deposits Withdrawals Adjustments Balance
---------------------------------------- ------------- ------------ ------------ ----------- --------------
COLLECTION ACCOUNT
Collections Sub-Account* 22,691,000.00 1,219,878.51 1,219,878.51 0.00 22,691,000.00
Expense Sub-Account (0.00) 210,196.02 210,196.02 0.00 0.00
Aircraft Purchase Sub-Account 0.00 0.00 0.00 0.00 0.00
Class D Note Interest Reserve Sub-Account 0.00 0.00 0.00 0.00 0.00
Contingency Reserve Sub-Account 1,400,000.00 970.58 970.58 0.00 1,400,000.00
------------- ------------ ------------ ----- --------------
TOTALS: 24,091,000.00 1,431,045.11 1,431,045.11 0.00 24,091,000.00
LESSEE FUNDED ACCOUNT
Segregated Maintenance Reserve Sub-Account 0.00 0.00 0.00 0.00 0.00
Segregated Security Deposit Sub-Account 0.00 0.00 0.00 0.00 0.00
------------- ------------ ------------ ----- --------------
TOTALS: 0.00 0.00 0.00 0.00 0.00
Amounts held in respect of the Liquidity Reserve Amount within the Collection Account*....................22,691,000.00
2. MISCELLANEOUS:
2.1. AIRCRAFT DETAILS
Aircraft Aircraft Avg. Appraised Date Aircraft Event Event Sale/Insurance
Lessee Serial Number Value (1) Appraised Book Value Date Description (2) Proceeds
------------- ------------- -------------- ----------- ------------- ---------- -------------- -------------
N/A 127 0.00 31-Jul-2003 0.00 8/2/1999 S 5,525,217.00
N/A 283 0.00 31-Jul-2003 0.00 12/20/2002 S 20,757,041.00
N/A 11287 0.00 31-Jul-2003 0.00 7/2/1999 S 12,646,518.00
N/A 22381 0.00 30-Jun-2003 0.00 7/24/1997 S 35,000,000.00
Asiana 23869 16,080,000.00 31-Jul-2003 18,523,680.00 -
Travel Service 23870 17,170,000.00 31-Jul-2003 18,977,385.00 -
Skynet Airlines 24519 18,300,000.00 31-Jul-2003 19,532,782.50 -
China Southern 24898 15,150,000.00 31-Jul-2003 17,029,582.50 -
N/A 24914 0.00 31-Jul-2003 0.00 10/1/2002 S 11,577,067.00
Air Canada 24952 42,880,000.00 31-Jul-2003 53,052,195.00 -
Air Canada 25000 42,430,000.00 31-Jul-2003 53,106,592.50 -
Air 2000 25054 28,180,000.00 31-Jul-2003 34,332,952.50 -
Meridiana 49785 12,460,000.00 31-Jul-2003 18,023,040.00 -
Allegian Air 49786 13,170,000.00 31-Jul-2003 18,140,377.50 -
-------------- -------------- -------------
205,820,000.00 250,718,947.50 85,505,843.00
============== ============== =============
Notes: (1) Appraised Values have been provided by: Avitas Inc., Aircraft Information Services Inc. and BK Associates Inc.
(2) Event Description Key: S = sold, L = loss and PDE = Premium Disposition Event.
(3) Aircraft Best Value is currently in review.
2.2. AMENDMENTS TO THE LIST OF NON-ACCEPTABLE COUNTRIES
None
Page 9 of 44 Pages
Notice of Termination
From: Aircraft Lease Portfolio Securitisation 92-1 Limited (ALPS)
To: Arthur Andersen
Andersen Corporate Services (Jersey) Limited
1 October 2003
1. We refer to the Amended and Restated Administrative and Secretarial
Services Agreement dated 5 February 2001 between ALPS, Andersen Corporate
Services (Jersey) Limited and Arthur Andersen (the Agreement).
2. Further to the dissolution and liquidation of Arthur Andersen, Section
7.2(iii) of the Agreement applies.
3. In December 2002, Andersen Corporate Services (Jersey) Limited tendered its
resignation under Section 7.3(b) of the Agreement.
4. As of the date of this Notice, ALPS hereby accepts the resignation of
Andersen Corporate Services (Jersey) Limited as Administrative Agent under
the Agreement and terminates the Agreement, save for those rights and
obligations that are expressed thereunder as subsisting termination.
5. ALPS hereby reserves all of its rights against Arthur Andersen and Andersen
Corporate Services (Jersey) Limited.
6. This notice of termination shall be governed by and construed in accordance
with English law.
Page 10 of 44 Pages
ALPS signature page to the Notice of Termination of Amended and Restated
Administrative and Secretarial Services Agreement
Signed by:
/s/ Frederick W. Bradley, Jr.
- ----------------------------------------------------
for and on behalf of
Aircraft Lease Portfolio Securitisation 92-1 Limited
Page 11 of 44 Pages
Acknowledgement Notice of Termination
1 October 2003
Arthur Andersen and Andersen Corporate Services (Jersey) Limited each hereby
acknowledge receipt of the attached Notice, and Arthur Andersen agrees to
provide or procure such cooperation as is reasonably requested by Mourant & Co.
Limited to enable Mourant & Co. Limited to discharge its obligations as
Administrative Agent to ALPS during the period commencing on and including 1
October 2003 and ending on and including 1 October 2004.
Agreed and acknowledged by Agreed and acknowledged by
for and on behalf of for and on behalf of
Arthur Andersen Andersen Corporate Servicces (Jersey)
Limited
Page 12 of 44 Pages
1 October 2003
AIRCRAFT LEASE PORTFOLIO SECURITISATION 92-1 LIMITED
MOURANT & CO. LIMITED
==================================================
ADMINISTRATIVE AND SECRETARIAL SERVICES AGREEMENT
==================================================
Page 13 of 44 Pages
ADMINISTRATIVE AND SECRETARIAL SERVICES AGREEMENT dated 1 October 2003
BETWEEN:
AIRCRAFT LEASE PORTFOLIO SECURITISATION 92-1 LIMITED, a company incorporated
under the laws of Jersey (the Company); and
MOURANT & CO. LIMITED, a company incorporated in Jersey and having its
registered office at 22 Grenville Street, St. Helier, Jersey JE4 8PX (the
Administrative Agent).
WHEREAS
The Company and the Administrative Agent have resolved to enter into this
Agreement whereby the Administrative Agent will perform the Administrative
Services.
IT IS AGREED as follows:
SECTION 1: DEFINITIONS
1.1 Definitions
Unless otherwise defined herein, all capitalised terms used but not defined
herein have the meanings assigned to such terms in Appendix A hereto (Appendix
A).
1.2 Construction and Usage
The conventions of construction and usage set forth in Appendix A (subject as
provided in Section 9.1) are incorporated by reference herein.
SECTION 2 APPOINTMENT; SECRETARIAL AND ADMINISTRATIVE SERVICES
2.1 Appointment
(a) The Administrative Agent is hereby appointed by the Company as the
exclusive provider of the secretarial, administrative and related services
set forth in Sections 2.3, 2.4 and 2.6 (the Administrative Services) to the
Company and each ALPS 92-1 Subsidiary, and the Administrative Agent hereby
agrees to perform such services on the terms and subject to the conditions
set forth in this Agreement.
(b) The parties agree that with effect from the date hereof:
(i) all the Administrative Services shall be provided by the
Administrative Agent; and
(ii) all fee payments falling due pursuant to Section 6 on or after the
date hereof shall be paid by the Company to the Administrative Agent.
(c) The Administrative Agent hereby accepts such appointment and agrees to
perform the Administrative Services on the terms and subject to the
conditions set forth in this Agreement.
Page 14 of 44 Pages
2.2 Limitations
(a) The Administrative Agent agrees (with respect to the Administrative
Services agreed by it to be carried out hereunder) to comply with the terms
of the Memorandum and Articles of Association of the Company and all
agreements to which the Company or any ALPS 92-1 Subsidiary is a party
(including all Relevant Documents), provided that complete copies of such
documents have been delivered to the Administrative Agent and, without
prejudice to the foregoing, not to enter into, on behalf of the Company or
any ALPS 92-1 Subsidiary, any commitments, loans or obligations or charge,
mortgage, pledge, encumber or otherwise restrict or dispose of the property
or assets of the Company or any ALPS 92-1 Subsidiary save (i) as expressly
permitted by the terms of this Agreement; or (ii) upon the express
direction of the Board.
(b) The Administrative Agent further agrees not to take any action inconsistent
with the Business Objectives of the Company.
(c) In connection with the performance of the Administrative Services, the
Administrative Agent shall:
(i) in all cases be entitled to rely upon the instructions of the Company
or any of its Representatives and upon notices, reports or other
communications made by any Person providing services to the Company
(other than any Affiliate of the Administrative Agent) and shall not
be responsible for the accuracy or completeness of any such notices,
reports or other communications except to the extent that the
Administrative Agent has actual notice of any matter to the contrary;
and
(ii) not be obliged to act in any manner which the Administrative Agent
reasonably determines is likely to violate any Applicable Law.
(d) Unless (i) the Board has requested; and (ii) the Board and the
Administrative Agent have agreed as to the scope of the commercial
role and the limits of the commercial authority to be exercised by the
Administrative Agent the Administrative Agent shall be under no
obligation, and shall not be permitted, to engage in commercial
negotiations with the Persons providing services to the Company,
including where the context admits, the Servicer, the Cash Manager,
the Reference Agent, the Financial Consultant and other Persons
performing similar services or advising the Company (the Service
Providers) or with their Representatives.
(e) The Administrative Agent may rely on the advice of any law firm, accounting
firm, tax adviser, insurance adviser, aircraft appraiser or other
professional adviser appointed by the Company or any ALPS 92-1 Subsidiary
and shall not be liable for any claim by the Company or any ALPS 92-1
Subsidiary to the extent that the Administrative Agent was acting in good
faith upon the advice of any such Persons.
(f) Notwithstanding any other provision of this Agreement, the Administrative
Agent shall not be obliged, either initially or on a continuing basis, to
provide the Company or any ALPS 92-1 Subsidiary with, except to the extent
lawfully requested by the Commission or otherwise required by Applicable
Law to be provided by the Company or any ALPS 92-1 Subsidiary, any
confidential or proprietary information regarding its business (other than
its business with respect to the Company) or the
Page 15 of 44 Pages
business or finances of any Persons (other than the Company or any ALPS
92-1 Subsidiary) whose assets it manages from time to time.
2.3 Company Secretarial Services
The Administrative Agent shall provide or procure the provision of the following
services in Jersey:
(a) a registered office and administrative office for the Company;
(b) the services of a secretary to the Company to perform all the duties
properly required of a secretary of a Jersey public limited company by the
directors of the Company;
(c) the circulation of notices of directors' and shareholders' meetings and
requisitioning of meetings where necessary and the preparation, engrossment
and distribution of minutes of such meetings as appropriate;
(d) the arrangement of annual meetings and any other meetings of the
shareholders of the Company;
(e) the maintenance of the statutory books of the Company and any other books
and records required by Jersey law or required by the Company in the
interests of good business practice, and the preparation and issue of share
certificates;
(f) the preparation and submission of annual returns of the Company required by
Jersey law;
(g) the preparation, submission and/or distribution of any reports, filings or
other documents required by law to be prepared, submitted and/or
distributed by the Company in Jersey;
(h) the safekeeping of the company seal of the Company and arranging for
sealing of documents as authorised by the directors of the Company;
(i) the preparation of the annual exempt company application for the Company
for execution by a director and the filing thereof with the Comptroller of
Income Tax in Jersey;
(j) liaising with the auditors of the Company as necessary;
(k) (subject as hereinafter provided) the maintenance of a basic register of
noteholders; and
(l) the acceptance of service of process in Jersey on behalf of the Company and
of other notices sent to the Company.
The Administrative Agent shall not be required to continue the maintenance of a
register of noteholders after the number of registered holders exceeds twenty
but may agree to so continue upon condition as to the revision of the then
current fees payable hereunder.
The Company hereby agrees that all information and data held by the
Administrative Agent on any computer system of the Administrative Agent and
relating to the services specified in this Section 2.3 is the sole property of
the Administrative Agent and under its exclusive
Page 16 of 44 Pages
control. The Administrative Agent agrees to keep such information as relates to
the services provided under this Agreement confidential (subject to the
exceptions specified in Section 9.3) and to use it solely for the purposes of
this Agreement. The Administrative Agent agrees to keep a printed record of all
information and data with respect to the Company which is held on the
Administrative Agent's computer, and agrees that such printed record is the sole
property of the Company.
2.4 Administrative Services
The Administrative Agent hereby agrees to perform and provide the following
services for the Company and the Board:
General Administrative Services:
(a) general administrative services, including:
(i) preparation and distribution to the Board, at such time as shall be
agreed between the Administrative Agent and the Board, of draft Board
meeting agendas and any other papers required by the Board in
connection with Board meetings;
(ii) providing any administrative assistance reasonably necessary to assist
the Board in carrying out its obligations, including providing timely
notice of decisions to be made, or actions to be taken, by the Board
under any of the Relevant Documents to the extent notice is not
provided by the parties to such documents;
(iii)providing administrative assistance to the Company in complying with,
and monitoring the Company in connection with, its obligations
pursuant to Clause 10.01 of the Deed of Charge (other than with
respect to the Aircraft or with respect to the other services to be
provided by the other Service Providers); and
(iv) notifying the Cash Manager of any writedown by the Board in the
Aircraft Book Value of any Aircraft.
Monitoring Performance of Service Providers:
(b) subject to Section 2.5, to monitor the performance of the Service Providers
and to report on such performance to the Board, including;
(i) with respect to the Servicer;
(A) monitoring and reviewing the information and other reports
provided by the Servicer pursuant to Section 2.8 of the Servicing
Agreement, including with respect to the status of lease
payments, Lessee receivables, Maintenance Reserves, Security
Deposits, adjustments of rentals and claims against Maintenance
Reserves in accordance with Lease terms (to the extent provided
to the Administrative Agent);
(B) reviewing the maintenance reports prepared by the Servicer with
respect to each Aircraft and reporting to the Board with respect
to such reports;
Page 17 of 44 Pages
(C) assisting the Board in establishing a procedure to evaluate the
Servicer's performance relative to the Standard of Performance
and the Conflicts Standard;
(D) assisting the Board in establishing standards for evaluating the
Servicer's performance relative to the terms of the Servicing
Agreement generally, measuring such performance against such
standards and recommending action with respect thereto;
(E) reviewing and providing advice with respect to recommendations
made by the Servicer for approval by the Board; and
(F) monitoring the compliance of the Servicer with its obligations
under Section 5.4(a) of the Servicing Agreement;
(ii) with respect to the other Service Providers:
(A) to the extent not provided for in the relevant agreement,
assisting the Board in establishing standards for performance
evaluation and compliance with the terms of such agreement;
(B) measuring the performance and compliance of each Service Provider
against such standards set forth under (A) above;
(C) monitoring and reviewing the information and reports actually
provided by the Cash Manager to the Administrative Agent and the
Company and reviewing and providing advice to the Board with
respect to such reports; and
(D) implementing any other request by the Board to evaluate the
performance of the Service Providers under the relevant agreement
with the Company, at the Company's expense, to the extent
services are required that are materially greater in scope than
those being provided pursuant to the express terms of this
Agreement;
Liaison with Rating Agencies:
(c) to the extent that the relevant information is provided to the
Administrative Agent by the Company or the Service Providers, to act as
liaison with the Rating Agencies to confirm the rating impact of any
potential Board decisions;
Assistance relating to Aircraft Closings:
(d) to provide administrative assistance to the Board in connection with the
redelivery of Aircraft by Lessees to the Company and closings of re-leases
and/or sales of the Aircraft by the Company, including
(i) co-ordinating with the Service Providers to monitor the protection of
the Company's interests and rights (other than with respect to the
Aircraft and Leases and any other matter relating to the Aircraft that
is the responsibility of the Servicer) and co-ordinating the execution
of documentation required from the Company at closings;
Page 18 of 44 Pages
(ii) providing suitably qualified personnel to attend and provide
administrative support at the closings in connection with sales,
re-leases, re-deliveries or purchases of the Aircraft, if required (it
being understood that the Administrative Agent will not be obligated
to provide legal counsel or legal or technical services to the
Company);
(iii)co-ordinating with the Board and the Service Providers and assisting
in the management of the closing process with a view to ensuring that
closings occur on a timely basis; and
(iv) providing all necessary administrative support to complete any
documentation and other related matters;
Accounting Matters:
(e) to attend to the Company's accounting matters, based on the information
provided by the Service Providers and the Company to the Administrative
Agent, including:
(i) maintaining day to day accounting records of the Company;
(ii) preparing an annual budget and presenting it to the Board for
approval;
(iii) establishing an accounting system;
(iv) preparing quarterly and annual management accounts and furnishing such
accounts to the Company on a timely basis;
(v) arranging and managing the quarterly review of the management accounts
by the Company's auditors;
(vi) in conjunction with the Company's auditors, preparing and arranging
for the preparation of the Company's draft statutory accounts and
annual report of the Company for review by the Board;
(vii)arranging for, co-ordinating with and assisting the Company's auditors
in preparing the Company's annual audits;
(viii) preparing or arranging for the preparation of and arranging for the
filing of the Company's tax returns in conjunction with the Company's
tax advisers; and
(ix) reconciling the expected cash flows of the Company, as provided by the
Financial Consultant, and the budget to actual results;
(f) to co-ordinate with the Financial Consultant, including:
(i) reviewing the impact on the Company's operation and financial
condition and on the Notes of any proposal for the re-lease or sale of
an Aircraft; and
(ii) analyzing the effect of the budget developed pursuant to (e)(ii) above
on the expected cash flows of the Company with respect to the payment
of the Notes;
Page 19 of 44 Pages
Hedging Strategy:
(g) with respect to hedging strategy; (i) to obtain the opinion of third party
advisers, including the Financial Consultant, to assist the Board in making
decisions as to hedging strategy and swap counterparties; and (ii) to
provide administrative assistance with respect to any closings on behalf of
the Company in connection with any such hedging activities, including in
connection with swap agreements or other similar transactions approved by
the Board;
Preparing and Filing Reports:
(h) based on information provided to the Administrative Agent by the Service
Providers, to prepare, file and/or distribute, with the assistance of
outside counsel and auditors, if appropriate, all reports to be prepared,
filed and/or distributed by the Company or the Board, in each case subject
to Board approval other than (i) any reports or filings relating
specifically to the Aircraft, or the sale, purchase, lease or redelivery
thereof, which are the responsibility of the Servicer; and (ii) those
relating to the Luxembourg Stock Exchange that are the obligation of the
Trustee pursuant to Section 4.03(c) of the Trust Agreement, including:
(i) co-ordinating with legal counsel and other advisers to determine what
filings the Company is required to make in various jurisdictions and
preparing such filings or monitoring such counsel and advisers in
connection with the preparation and filing of such materials;
(ii) co-ordinating with special United States counsel to the Company and
the Company's accountants on a regular basis to monitor compliance by
the Company with the periodic reporting requirements of the Securities
Exchange Act of 1934, as amended (the Exchange Act), in particular,
working with such professional advisers to the Company and the Service
Providers, as appropriate, to prepare on behalf of the Company and to
arrange for the filing and distribution of an annual report on Form
20-F in respect of the Company and, as required from time to time and
to meet the periodic reporting requirements of the Exchange Act, any
required reports on Form 6-K in respect of the Company;
(iii)consulting with the Company's advisers to determine what reports are
required or recommended to be distributed to investors (including
press releases), and managing investor relations on behalf of the
Company, and preparing or arranging for the preparation and
distribution of such reports at the Company's expense (other than
those that are the responsibility of the Trustee pursuant to the Trust
Agreement); and
(iv) consulting with the Company's advisers to determine what reports are
required to be filed with any Governmental Authorities, and preparing
on behalf of the Company or arranging for the preparation of and
arranging for the filing of any reports required to be filed with any
other entity in order for the Company not to be in violation of
Applicable Law or any covenants contained in the Deed of Charge;
Amendments to Documents:
(i) with respect to amendments;
Page 20 of 44 Pages
(i) to report to the Board on the substance of any proposed amendments to
the Deed of Charge or any Relevant Documents (as defined in the Deed
of Charge) other than the Lease Documents, the Related Collateral
Documents, the Aircraft Sale Agreement and the Operational Documents;
and
(ii) to the extent requested by the Board, to coordinate with the Company's
legal counsel, the other parties thereto and their counsel the
preparation and execution of any amendments of the Relevant Documents
(other than amendments relating to the Aircraft, the Leases or the
Operational Documents) requested by the Company or by the parties
thereto, subject to approval by the Board, and to provide
administrative assistance in the implementation of such amendments;
and
Payment of Bills and Expenses
(j) to authorize payment of bills and expenses which are not in excess of the
amount authorized by the Board from time to time and are permitted to be
incurred pursuant to the terms of the Relevant Documents; and to execute
payment of other bills and expenses approved by the Board, by remitting
approved invoices to the Cash Manager for payment processing.
2.5 Qualification to Section 2.4(b)
The Administrative Agent shall not be obliged to make recommendations or give
advice to the Company under Section 2.4(b) outside the scope of its business as
a provider of trust and company administration services to special purpose
entities.
2.6 Additional Administrative Services
Upon request by the Board, the Administrative Agent may provide additional
Administrative Services, including (a) providing assistance in arranging a
refinancing of all or a portion of the Notes; (b) undertaking an effort to avoid
any adverse change in the tax status of the Company; and (c) such other actions
as may be appropriate to facilitate the Company's business operations and assist
the Board in carrying out its obligations.
2.7 ALPS 92-1 Subsidiaries
The Administrative Agent shall be responsible for coordinating with outside
legal counsel, auditors, tax advisers and other professional advisers with
respect to all corporate and administrative matters relating to the formation,
operation, corporate affairs and related matters with respect to ALPS 92-1
Subsidiaries, including identifying such outside advisers, a potential company
secretary and candidates for director of such ALPS 92-1 Subsidiaries to the
extent necessary, and shall be permitted to incur expenses in respect of such
ALPS 92-1 Subsidiaries without the Company's consent up to such aggregate amount
as shall be authorized by the Board from time to time. Notwithstanding the
foregoing, the Administrative Agent shall not have the authority to appoint any
director or company secretary to an ALPS 92-1 Subsidiary without the consent of
the Company nor shall the Administrative Agent or any of its personnel be
required to act in any such capacity under any circumstances.
Page 21 of 44 Pages
2.8 Company Responsibility
(a) The obligations of the Administrative Agent to the Company hereunder are
limited to those matters that are expressly the responsibility of the
Administrative Agent in accordance with the terms of this Agreement.
Notwithstanding the appointment of the Administrative Agent to perform the
Administrative Services, the Company shall remain responsible for all
matters and decisions related to its business, operations, assets and
liabilities.
(b) Notwithstanding the delegation to the Administrative Agent of authority and
responsibility with respect to the performance of certain of the
Administrative Services as set forth in this Agreement, it is hereby
expressly agreed and acknowledged that save as expressly permitted in
accordance with the terms of this Agreement, the Administrative Agent is
not authorized or empowered to make or enter into any agreement, contract
or other legally binding arrangement, in respect of or relating to the
business or affairs of the Company, or pledge the credit of or incur any
indebtedness on behalf of the Company or any ALPS 92-1 Subsidiary, all such
authorities and powers being reserved to the Company or the applicable ALPS
92-1 Subsidiary.
2.9 Professional Advice
The Administrative Agent may from time to time, on behalf of the Company or any
ALPS 92-1 Subsidiary, as the case may be, and at the Company's expense (subject
to Section 6.2), retain and instruct legal counsel, accounting, tax and other
professional advisers (from among professional advisers approved in advance by
the Board) to represent and advise the Company or such ALPS 92-1 Subsidiary when
the Administrative Agent considers in good faith that it is appropriate or
necessary for such advisers to be appointed to protect the interests and rights
of the Company or such ALPS 92-1 Subsidiary or for the Administrative Agent to
comply with its obligations under this Agreement; provided, however, that in any
twelve month period, the Administrative Agent shall not be permitted to
contractually oblige the Company to pay fees to such advisers pursuant to this
Section 2.9, Section 2.7 or any other section of this Agreement relating to the
engagement of advisers in an aggregate amount in excess of that authorized by
the Board from time to time.
SECTION 3 STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
3.1 Standard of Performance
The Administrative Agent will devote the same amount of time and attention to
and will be required to exercise the same level of skill, care and diligence in
the performance of its services as it would if it were administering such
services on its own behalf (the Standard of Performance).
3.2 Liability and Indemnity
(a) The Administrative Agent shall not be liable for any Losses or Taxes to or
of or payable by the Company at any time from any cause whatsoever or any
Losses or Taxes directly or indirectly arising out of or in connection with
or related to the performance by the Administrative Agent of this Agreement
except to the extent that such Losses or Taxes are the result of the
Administrative Agent's own recklessness, wilful misconduct or gross
negligence or that of any of its partners, officers, agents or employees,
as the case may be.
Page 22 of 44 Pages
(b) Notwithstanding anything to the contrary set forth in any other agreement
to which the Company is a party, the Company does hereby assume liability
for and does hereby agree, subject to the Deed of Charge, to indemnify and
hold harmless on an After-Tax Basis the Administrative Agent, its partners,
officers, employees and agents and each of them from any and all Losses or
Taxes (other than (i) Taxes imposed on net income by the Revenue
Authorities of Jersey in respect of any payment by the Company to the
Administrative Agent in respect of the performance of the Administrative
Services by the Administrative Agent; and (ii) Taxes imposed on net income
of the Administrative Agent by any Government Authority other than Jersey
Authorities to the extent such Taxes would not have been imposed in the
absence of any connection of the Administrative Agent with such
jurisdiction imposing such Taxes other than any connection that results
from the performance by the Administrative Agent of its obligations under
this Agreement) that may be imposed on, incurred by or asserted against any
of them arising out of, in connection with or related to the Administrative
Agent's performance of its services pursuant to this Agreement (including
any Losses or Taxes incurred by the Administrative Agent as a result of
indemnifying any Person to whom it shall have delegated its obligations
hereunder in accordance with Section 8.1, but only to the extent the
Administrative Agent would have been indemnified had it performed such
obligations), except as a result of the gross negligence, wilful misconduct
or recklessness of the Administrative Agent or any of its partners,
officers, employees or agents, or any breach of the Administrative Agent's
obligations hereunder.
The foregoing indemnity shall expressly inure to the benefit of any
partner, officer or employee of the Administrative Agent now existing or in
the future and to the benefit of any successor of the Administrative Agent
and shall survive the expiration of this Agreement.
(c) The Administrative Agent agrees to indemnify and hold harmless on an
After-Tax Basis the Company, its directors and its agents for any Losses
whatsoever which they or any of them may incur or be subject to in
consequence of the performance of the Administrative Services or any breach
of the terms of this Agreement by the Administrative Agent, but only to the
extent such Losses arise due to the gross negligence, wilful misconduct or
recklessness or fraud of the Administrative Agent or any of its partners,
officers or employees, as the case may be; provided, however, that this
indemnity shall not apply and the Administrative Agent shall have no
liability in respect of:
(i) Losses that arise from the wilful misconduct, recklessness or gross
negligence of the Company or any ALPS 92-1 Subsidiary, their
respective directors or agents,
(ii) Losses resulting from any breach by the Administrative Agent of its
obligations under this Agreement to the extent such breach is a result
of a Service Provider's failure to perform its obligations to the
Company or a failure by the Company to comply with its obligations
under this Agreement,
(iii)Losses resulting from any action that the Company requires the
Administrative Agent to take pursuant to a direction but only to the
extent that the Administrative Agent takes such action in accordance
with such direction and in accordance with the provisions hereof, or
Page 23 of 44 Pages
(iv) Losses resulting from a refusal by the Company to take action upon a
recommendation made in good faith by the Administrative Agent in
accordance with the terms hereof.
3.3 Conflicts of Interest
The Company acknowledges and agrees that:
(a) in addition to providing the Administrative Services under this Agreement,
the Administrative Agent may provide similar services for other third
parties;
(b) in the course of conducting such activities, the Administrative Agent will
from time to time have conflicts of interest in performing its duties on
behalf of the Company and any ALPS 92-1 Subsidiary and the various entities
in respect of which it provides such similar services; and
(c) the Board has approved the transactions contemplated by this Agreement and
desires that such transactions be consummated and in giving such approval
the Board has expressly recognized that such conflicts of interest may
arise and that when such conflicts of interest arise, the Administrative
Agent shall promptly report the same to the Company and shall act in a
manner that does not violate the Standard of Performance and would not be
reasonably likely to have a Material Adverse Effect on the Company.
SECTION 4 UNDERTAKINGS OF AGENT
4.1 Administrative Agent Undertakings
The Administrative Agent hereby covenants with the Company as follows:
(a) if the Administrative Agent receives any money whatsoever, which money
belongs to the Company or the Security Trustee or is to be paid to the
Company or the Security Trustee or into any Account pursuant to any
Relevant Document or otherwise, it will hold such money in trust for the
Company or the Security Trustee, as the case may be, and shall keep such
money separate from all other money belonging to the Administrative Agent
and shall forthwith upon receipt thereof pay the same into the relevant
Account in accordance with the terms hereof:
(b) it will comply with any proper and lawful directions, orders and
instructions which the Company may from time to time give to it in
accordance with the provisions of this Agreement;
(c) it will not knowingly fail to comply with any legal requirements in the
performance of the Administrative Services;
(d) it will not (save as may be requested by the Security Trustee) take any
steps for the purpose of procuring the appointment of any administrative
receiver or the making of an administrative order or for instituting any
bankruptcy, reorganization, arrangement, insolvency, winding up,
liquidation, composition or any like proceedings under the laws of Jersey
or any other jurisdiction in respect of the Company or any ALPS 92-1
Subsidiary or in respect of any of their liabilities;
Page 24 of 44 Pages
(e) it will promptly take or arrange for the taking of all such steps to
prepare and file the application for the Company to renew its annual
exemption from Jersey taxation, including coordinating and arranging for
the filing of all necessary papers with the appropriate Jersey fiscal and
other authorities; and
(f) it will cooperate with the Company and its agents and directors, including
by providing such information as may reasonably be requested, to permit the
Company or its authorized agents to monitor the Administrative Agent's
compliance with its obligations under this Agreement.
4.2 Approvals
The Administrative Agent recognizes that certain instructions hereunder and
under the other Relevant Documents to be given by the Company may also require
the approval of an ALPS 92-1 Subsidiary. In such circumstances, the
Administrative Agent will seek approval from the Relevant ALPS 92-1 Subsidiary
and shall report on such approval to the Board.
SECTION 5 UNDERTAKINGS OF THE COMPANY
5.1 Co-operation
The Company shall, and shall cause each ALPS 92-1 Subsidiary to, and shall use
commercially reasonable efforts to cause any Service Provider to, at all times
cooperate with the Administrative Agent to enable the Administrative Agent to
provide the Administrative Services, including providing the Administrative
Agent with all powers of attorney as may be reasonably necessary or appropriate
for the Administrative Agent to perform the Administrative Services.
5.2 Information
The Company will provide the Administrative Agent with the following information
in respect of itself and any ALPS 92-1 Subsidiaries:
(a) a list of all legal advisers;
(b) copies of all Relevant Documents, including the Memorandum and Articles of
Association (or equivalent documents) of each such Person, and copies of
all statutory books and records maintained on behalf of such Persons;
(c) details of all bank accounts and bank mandates maintained by or on behalf
of the Company and any ALPS 92-1 Subsidiaries;
(d) names of and contact information with respect to the board of directors,
company secretaries and registered offices of the Company and any ALPS 92-1
Subsidiary; and
(e) such other information as is necessary to the Administrative Agent's
performance of the Administrative Services; and
(f) a copy of any information provided to the Company pursuant to Section
2.8(b) and (c) of the Servicing Agreement;
Page 25 of 44 Pages
Provided, that such information as is referred to in this Section 5.2 (with the
exception of paragraph (e)) shall be provided to the Administrative Agent upon
execution of this Agreement and, in respect of any amendment or changes to the
information provided to the Administrative Agent upon execution of this
Agreement, promptly following the effectiveness of such amendments or changes.
5.3 Scope of Services
In the event the Company or any ALPS 92-1 Subsidiary shall enter into any
agreement, amendment or other modification of any Aircraft Assets Related
Document or shall take any other action that has the effect of increasing in any
material respect the scope, nature or level of the Administrative Services to be
provided under this Agreement without the Administrative Agent's express prior
written consent, the Company shall so notify the Administrative Agent and the
Administrative Agent shall not be obligated to perform the affected
Administrative Service to the extent of such increase unless and until the
Administrative Agent and the Company shall agree on the terms of such increased
Administrative Service, it being understood that:
(i) the Administrative Agent shall have no liability to the Company or
such ALPS 92-1 Subsidiary directly or indirectly arising out of, in
connection with or related to the Administrative Agent's failure to
perform such increased Administrative Service prior to any such
agreement; and
(ii) the Company shall be permitted to engage another Person to perform the
affected Administrative Service without the prior written consent of
the Administrative Agent.
5.4 Ratification
The Company hereby ratifies and confirms and agrees to ratify and confirm (and
shall furnish written evidence thereof upon request of the Administrative Agent)
whatever the Administrative Agent does in accordance with this Agreement in the
exercise of any of the powers or authorities conferred upon the Administrative
Agent under the terms of this Agreement, it being expressly understood and
agreed that neither the Company nor any ALPS 92-1 Subsidiary shall have any
obligation to ratify and confirm, and expressly does not ratify or confirm, any
act or omission of the Administrative Agent in violation of the Standard of
Performance or for which the Administrative Agent is obligated to indemnify the
Company or any ALPS 92-1 Subsidiary under Section 3 hereof.
SECTION 6 ADMINISTRATIVE FEES AND EXPENSES
6.1 Administrative Fees
(a) The Company shall pay to the Administrative Agent quarterly in arrears its
professional charges properly incurred for performing the services to be
performed by it under this Agreement (the Administrative Fee). The
Administrative Fee shall be payable in pounds sterling on each Payment Date
occurring in February, May, August and November. The first Administrative
Fee shall be payable in respect of the period from and including the date
hereof. The Administrative Fee shall be calculated on the basis of hourly
rates to be agreed between the Company and the Administrative Agent from
time to time.
Page 26 of 44 Pages
(b) The Administrative Agent will attach to any invoice issued by it to the
Company a schedule showing the fee-earners that have performed the work
which has enabled the Administrative Agent to provide the services
contemplated by this Agreement, the amount of hours spent by each
fee-earner and the hourly rate to be charged for such fee-earner.
(c) In addition, the Company shall pay to the Administrative Agent a
transaction fee to be determined at the time such services are agreed to
with respect to any Administrative Services to be provided pursuant to
Section 2.6.
6.2 Expenses
(a) The Company shall be responsible for the following expenses incurred by the
Administrative Agent in the performance of its obligations (Reimbursable
Expenses):
(i) telephone, fax and communication costs and expenses and reasonable out
of pocket expenses, including travel, accommodation and subsistence
and approved expenditures in respect of insurance coverage for the
Administrative Agent (up to a maximum annual amount of seven thousand
five hundred pounds sterling ((pound)7,500) for all such costs and
expenses);
(ii) expenses expressly authorized by the Company; and
(iii)expenses expressly authorized pursuant to other provisions of this
Agreement.
(b) The Administrative Agent shall be responsible for all other costs and
expenses relating to or associated with the Administrative Agent's
performance of its duties as set forth in this Agreement.
6.3 Taxes
The fees specified in Section 6.1 are net of any value added tax required to be
accounted by the Administrative Agent. Where the Administrative Agent is
required to account for value added tax in respect of any amounts payable by or
on behalf of the Company to the Administrative Agent, the Company shall pay to
the Administrative Agent such additional amounts as are necessary to discharge
such value added tax upon production of a valid value added tax invoice.
6.4 Payment of Expenses
No later than each Determination Date, the Administrative Agent shall deliver a
notice to the Cash Manager and the Company, setting forth the amounts of
Reimbursable Expenses by the Administrative Agent pursuant to Section 6.2 up to
and including such Determination Date (it being understood that if there are no
such expenses the Administrative Agent will be under no obligation to provide
such notice). On the next Payment Date following such Determination Date the
Company shall pay to the Administrative Agent all such amounts.
6.5 Deed of Charge
The Administrative Agent acknowledges that its right to payments made under this
Agreement shall be subject to the order of priorities specified in the Deed of
Charge.
Page 27 of 44 Pages
SECTION 7 TERM; REMOVAL OF OR TERMINATION BY THE ADMINISTRATIVE AGENT
7.1 Term
This Agreement shall have a non-cancellable term commencing on the date hereof
and expiring on 15 June 2006. During such term, this Agreement shall not be
terminable by either party except as expressly provided in this Section 7.
7.2 Company's Right to Terminate
At any time during the term of this Agreement, the Company shall be entitled to
terminate this Agreement in accordance with Section 7.4 if:
(i) the Administrative Agent shall be in material breach of any of its
obligations under this Agreement;
(ii) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking
relief in respect of the Administrative Agent, or of a substantial
part of the property or assets of the Administrative Agent, under any
bankruptcy, insolvency, receivership or similar law, and such
proceeding or petition shall continue undismissed for sixty (60) days,
or an order or decree approving or ordering any of the foregoing shall
be entered or the Administrative Agent shall go into liquidation,
suffer a receiver or mortgagee to take possession of all or
substantially all of its assets or have a liquidator, administrator,
trustee in bankruptcy or similar officer appointed over it, or if a
petition or proceeding is presented for any of the foregoing and not
discharged within sixty (60) days; or
(iii)the Administrative Agent shall (A) voluntarily commence any
proceeding or file any petition seeking relief under any bankruptcy,
insolvency, receivership or similar law; (B) consent to the
institution of, or fail to contest the filing of, any petition
described in clause (ii) above; (C) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding; (D) make a general assignment for the benefit of its
creditors; or (E) become insolvent or unable to pay its debts as they
fall due.
7.3 Agent's Right to Resign
(a) At any time during the term of this Agreement the Administrative Agent
shall be entitled to resign in accordance with Section 7.4 if:
(i) the Company shall fail to pay in full (A) any Administrative Fee; or
(B) any Reimbursable Expenses in an aggregate amount in excess of
twenty five thousand pounds ((pound)25,000) (or the equivalent in
other currencies); or (C) any other amount payable to the
Administrative Agent hereunder, in each case within the latter of the
date falling thirty (30) days after the due date and fifteen (15) days
after receipt by the Company of written notice from the Administrative
Agent of such failure; or
(ii) the Company or any ALPS 92-1 Subsidiary shall fail to perform or
observe or shall violate in any material respect any material term,
covenant, condition or agreement to be performed or observed by it in
respect of this Agreement
Page 28 of 44 Pages
for thirty (30) days after the Company shall have received notice of
such failure (other than with respect to payment obligations of the
Company referred to in clause (a)(i) of this Section 7.3); or
(iii)an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking
relief in respect of the Company, or of a substantial part of the
property or assets of the Company, under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other U.S.
Federal or state or foreign bankruptcy, insolvency, receivership or
similar law, and such proceeding or petition shall continue and
undismissed for sixty (60) days or an order or decree approving or
ordering any of the foregoing shall be entered or the Company shall go
into liquidation, suffer a receiver or mortgagee to take possession of
all or substantially all of its assets or have an examiner appointed
over it or if a petition or proceeding is presented for any of the
foregoing and not discharged within sixty (60) days; or
(iv) the Company shall (A) voluntarily commence any proceeding or file any
petition seeking relief under any U.S. Federal or state or foreign
bankruptcy, insolvency, receivership or similar law; (B) consent to
the institution of, or fail to contest the filing of, any petition
described in clause (a)(iii) above; (C) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding; or (D) make a general assignment for the benefit of its
creditors.
(b) The Administrative Agent may resign at any time on thirty (30) days'
written notice, subject to Section 7.4 and 7.5.
7.4 Method of Termination or Resignation
(a) No termination of this Agreement by the Company or resignation by the
Administrative Agent shall become effective prior to the date of
appointment by the Company of a successor Administrative Agent and the
acceptance of such appointment by such successor Administrative Agent.
(b) Upon action by either party pursuant to the provisions of this Section 7.4,
the Administrative Agent shall be entitled to the payment of any
compensation owed to it by the Company hereunder and to the reimbursement
of all Reimbursable Expenses incurred in connection with all services
rendered by it hereunder, as provided in Section 6, and for so long as the
Administrative Agent is continuing to perform any of the Administrative
Services for the Company or any ALPS 92-1 Subsidiary, the Company shall
continue to pay fees and expenses to the Administrative Agent net of any
amounts that shall have been finally adjudicated by a court of competent
jurisdiction to be owed by the Administrative Agent, until a successor
Administrative Agent shall have been appointed and shall have accepted such
appointment in accordance with the provisions of Section 7.5.
7.5 Consequences of Termination or Resignation
(a) Notices:
(i) Following the termination of this Agreement by the Company or
resignation of the Administrative Agent pursuant to Section 7.3, the
Administrative
Page 29 of 44 Pages
Agent will promptly forward to the Company and, where applicable, any
ALPS 92-1 Subsidiary, any notices received by it during the year
immediately after removal or resignation.
(ii) The Company or any ALPS 92-1 Subsidiary, as the case may be, will
notify promptly any relevant third party, including each Rating
Agency, of the termination of this Agreement by the Company or
resignation by the Administrative Agent under this Agreement and will
request that any such notices and accounting reports and
communications thereafter be made or given directly to the entity
engaged to serve as Administrative Agent, and the Company or any ALPS
92-1 Subsidiary, as the case may be.
(b) Accrued Rights: A termination of this Agreement by the Company or
resignation by the Administrative Agent hereunder shall not affect the
respective rights and liabilities of either party accrued prior to such
termination or resignation in respect of any prior breaches hereof or
otherwise.
(c) Replacement Agent:
(i) If this Agreement is terminated by the Company or the Administrative
Agent resigns under Section 7.3, the Administrative Agent will
co-operate with any person appointed to perform the Administrative
Services, including providing such person with all information and
documents reasonably requested.
(ii) The Administrative Agent may not resign from its obligations and
duties as Administrative Agent hereunder, nor may this Agreement be
terminated by the Company or the Administrative Agent unless (a) a
successor Administrative Agent has been appointed and has accepted
such appointment; and (b) the Company has received written
confirmation from each of the Rating Agencies that no lowering or
withdrawal of the then current Ratings of any subclass of Certificates
will result from such appointment.
7.6 Survival of Obligations
Notwithstanding any termination or the expiration of this Agreement, the
obligations of the Company and the Administrative Agent under Section 3.2
(insofar as such obligations subsist in respect of the period prior to such
termination or expiration) shall survive such termination or expiration, as the
case may be.
SECTION 8 ASSIGNMENT AND DELEGATION
8.1 No Assignment or Delegation
None of the parties to this Agreement shall assign or delegate or otherwise
subcontract this Agreement or all or any part of its rights or obligations
hereunder to any Person without the prior written consent of the other parties,
except that the Company may assign its rights hereunder under the Deed of Charge
and except that the Administrative Agent may assign or delegate with the prior
approval of the Board. Notwithstanding the foregoing, no delegation shall
relieve the Person who is a party to this Agreement from its obligations
hereunder.
Page 30 of 44 Pages
8.2 Accession of Successors
Without limiting the foregoing, any Person who shall become a successor by
assignment or otherwise of the Company or the Administrative Agent (or any of
their respective successors) in accordance with Section 8.1 shall be required as
a condition to the effectiveness of any such assignment or other arrangement to
become a party to this Agreement.
8.3 Notice of Assignment
The Company hereby gives notice to the Administrative Agent (receipt of which is
hereby acknowledged by the Administrative Agent) of the assignment pursuant to
Clause 3.04(i) of the Deed of Charge to the Security Trustee of all of the
Company's right, title and interest in, to and under this Agreement, and
authorises and instructs the Administrative Agent to comply with any instruction
given by the Security Trustee which, but for such assignment, the Administrative
Agent would have been obliged under this Agreement to comply with if such
instruction had been given by the Company.
SECTION 9 MISCELLANEOUS
9.1 Documentary Conventions
The Documentary Conventions (excluding paragraphs (b) Governing Law and (c)
Jurisdiction; Court Proceedings; Waiver of Jury Trial, and excluding paragraph
(d) Agent insofar as it relates to a United Kingdom process agent for the
Administrative Agent) shall govern this Agreement.
9.2 Governing Law and Jurisdiction
(a) This Deed shall be governed by and construed in accordance with the laws of
England.
(b) Each of the parties hereto irrevocably agrees that the courts of England
shall have jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and, for such purposes, irrevocably submits
to the jurisdiction of such courts. Each of the parties hereto irrevocably
waives any objection which it might now or hereafter have to the courts of
England or federal U.S. or New York State courts located in New York, New
York being nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and agrees not to claim that any such court
is not a convenient or appropriate forum.
(c) The Company hereby agrees that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in connection
with any suit, action or proceeding in England or New York, New York to the
Person named as the process agent of the Company in Exhibit R to the Deed
of Charge at the address set out therein or at the principal London or New
York City offices of such process agent, if not the same.
(d) The Administrative Agent shall at all times maintain an agent for service
of process in England and New York and hereby agrees that the process by
which any suit, action or proceeding is begun may be served on it by being
delivered in connection with any suit, action or proceeding in England to
its agent in England being Mourant
Page 31 of 44 Pages
& Co. Capital (SPV) Limited of 4 Royal Mint Court, London EC3N 4NJ and in
connection with any suit, action or proceeding in New York to its agent in
New York being CorpAssist, Inc, 1090 Vermont Avenue, N.W., Suite 910,
Washington D.C., 20005, U.S.A., fax 001 202 371 8090, attention John
Christel. If for any reason, such agent no longer serves as agent of the
Administrative Agent to receive service of process, the Administrative
Agent shall promptly appoint another agent and advise the other parties
hereto.
(e) The submission to the jurisdiction of the courts referred to in Section
9.2(b) shall not (and shall not be construed so as to) limit the right of
the Company to take proceedings against the Administrative Agent 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.
(f) Each of the parties hereto hereby consents generally in respect of any
legal action or proceeding arising out of or in connection with this
Agreement to the giving of any relief or the issue of any process in
connection with such action or proceeding, including the making,
enforcement or execution against any property whatsoever (irrespective of
its use or intended use) of any order or judgment which may be made or
given in such action or proceeding.
9.3 Restrictions on Disclosure
The Administrative Agent agrees that it shall not, prior to the termination or
expiration of this Agreement or within the three years after such termination or
expiration, disclose to any Person any confidential or proprietary information,
whether of a technical, financial, commercial or other nature, received directly
or indirectly from the Company or any of its Affiliates (including any ALPS 92-1
Subsidiary) regarding the Company or such Affiliates' business or the Aircraft
Assets, except as authorized in writing by the Company or otherwise permitted by
this Agreement, and except:
(a) in each case to its Representatives and any of its Affiliates in
furtherance of the purposes of this Agreement, provided that any such
Representatives or Affiliates shall have agreed to be bound by the
restrictions on disclosure set forth in this Section 9.3;
(b) to the extent (i) required by Applicable Law or by judicial or
administrative process or (ii) in the case of the Administrative Agent,
reasonably necessary in order to enable the Administrative Agent to perform
the Administrative Services, but in the case of (i) above, in the event of
proposed disclosure, the Administrative Agent shall seek the assistance of
the Company to protect information in which the Company has an interest to
the maximum extent achievable; and
(c) to the extent that the information:
(i) was generally available in the public domain;
(ii) was lawfully obtained form a source under no obligation of
confidentiality, directly or indirectly, to the Company;
(iii) was disclosed to the general public with the approval of the Company;
Page 32 of 44 Pages
(iv) was in the files, records or knowledge of the Administrative Agent or
any of its Affiliates prior to initial disclosure thereof to the
Administrative Agent or any of its Affiliates by the Company;
(v) was provided by a member of the Board to the Administrative Agent or
any of its Affiliates without any express written (or, to the extent
such information was provided in an oral communication, oral)
restriction on use of or access to such information, and such
information would not reasonably be expected to be confidential,
proprietary or otherwise privileged; or
(vi) was developed independently by the Administrative Agent or any of its
Affiliates; and
(vii)to the extent the Administrative Agent reasonably deems necessary to
protect and enforce its rights and remedies under this Agreement;
provided that prior to disclosure of such information the
Administrative Agent shall inform the Company of such disclosure.
9.4 No Partnership
(a) It is expressly recognized and acknowledged that this Agreement is not
intended to create a partnership, joint venture or other similar
arrangement between the Company or any ALPS 92-1 Subsidiary on the one part
and the Administrative Agent on the other part. It is also expressly
understood that any actions taken on behalf of the Company or any ALPS 92-1
Subsidiary by the Administrative Agent shall be taken as agent for the
Company or such ALPS 92-1 Subsidiary, either naming the Company or such
ALPS 92-1 Subsidiary, or naming the Administrative Agent as agent for an
undisclosed principal. Neither the Company nor any ALPS 92-1 Subsidiary
shall hold itself out as a partner of the Administrative Agent and the
Administrative Agent will not hold itself out as a partner of the Company
or any ALPS 92-1 Subsidiary.
(b) The Administrative Agent shall have no fiduciary duty or other implied
obligations or duties to the Company, any Lessee or any other person
arising out of this Agreement.
9.5 Further Assurances
The Administrative Agent agrees, from time to time upon request by the Company,
to execute, at its expense, any document or do any act or thing which the
Company may properly and reasonably specify with a view to perfecting or giving
effect to the Company's rights under this Agreement.
9.6 Representation
The Administrative Agent represents and warrants that it is registered under
Article 8 of the Financial Services (Jersey) Law 1998 (as amended) to carry on
trust company business.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
on the date first written above.
Page 33 of 44 Pages
Administrative and Secretarial Services Agreement Signature Page
MOURANT & CO. LIMITED
By: /s/ Daniel Le Blancq
-------------------------
Name: Daniel Le Blancq
Title: Authorised Signatory
AIRCRAFT LEASE PORTFOLIO
SECURITISATION 92-1 LIMITED
By: /s/ George Adrian Robinson
--------------------------
Name: George Adrian Robinson
Title: Director
Page 34 of 44 Pages
APPENDIX A
CONSTRUCTION AND USAGE; DEFINITIONS
Construction and Usage
The terms defined below have the meanings set forth below for all purposes.
"Include", "includes" and "including" shall be deemed to be followed by "without
limitation" whether or not they are in fact followed by such words or words of
like import. "Writing", "written" and comparable terms refer to printing,
typing, lithography or other means of reproducing words in a visible form. Any
agreement or instrument or any law, rule or regulation of any Governmental
Authority defined or referred to below or in any Operative Agreement means such
agreement or instrument or such law, rule or regulation as from time to time
amended, modified or supplemented in accordance with the provisions of the Deed
of Charge (as herein defined), including (in the case of agreements or
instruments) by waiver or consent and (in the case of such law, rule or
regulation) by succession of any comparable successor law, rule or regulation
and includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein. References to a Person
are also to its permitted successors and assigns. Any term defined below by
reference to any agreement or instrument or any law, rule or regulation of any
Governmental Authority has such meaning whether or not such agreement,
instrument or law, rule or regulation is in effect. "Agreement", "hereof",
"herein", "hereunder" and comparable terms refer to the agreement in which such
term appears (including all exhibits and schedules thereto) and not to any
particular article, section, clause or other subdivision thereof or attachment
thereto. References to any gender include, unless the context otherwise
requires, references to all genders, and references to the singular include,
unless the context otherwise requires, references to the plural and vice versa.
"Shall" and "will" have equal force and effect. References in any Operative
Agreement to "Article", "Section", "Clause" or another subdivision or to an
attachment are, unless the context otherwise requires, to an article, section,
clause or subdivision of or attachment to such agreement.
Definitions
Administrative Agency Agreement means the Administrative and Secretarial
Services Agreement dated as of October 1, 2003, between the Administrative Agent
and the Company.
Administrative Agent means Mourant & Co. Limited.
Affiliate means a Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by, or is under common Control with,
the Person specified.
After-Tax Basis means on a basis such that any payment received, deemed to have
been received or receivable by any Person shall, if necessary, be supplemented
by a further payment to that Person so that the sum of the two payments shall,
after deduction of all Federal, state, local and Irish or other foreign Taxes,
penalties, fines, interest, additions to Tax and other charges resulting from
the receipt (actual or constructive) or accrual of such payments imposed by or
under any Federal, state, local or Irish or other foreign law or Governmental
Authority (after taking into account any current deduction to which such Person
shall be entitled and on a present value basis (determined on the basis of
discounting at 8%) any deductions, credits, or other tax benefits in other years
to which such Person reasonably anticipates being entitled), with respect to the
amount that gave rise to the underlying payment), be equal to the payment
received, deemed to have been received or receivable.
Page 35 of 44 Pages
Agreed Value Payment has the meaning assigned to such term in Section
2.8(a)(viii)(1) of the Servicing Agreement.
Aircraft has the meaning assigned to such term in the Deed of Charge.
Aircraft Assets means all Aircraft owned by the Company or any ALPS 92-1
Subsidiary as of the Closing Date or at any time or from time to time
thereafter; provided further that Aircraft Assets shall not include any Aircraft
that shall have ceased to be an Aircraft Asset, including as a result of (a) the
sale or other transfer of such Aircraft Asset or (b) the appointment and
acceptance of a Replacement Servicer with respect to such Aircraft Asset in
accordance with Section 10.05(c) of the Servicing Agreement.
Aircraft Assets Related Documents means, with respect to any Aircraft, (i) the
Lease Documents and (ii) in addition thereto and thereafter, any other contracts
or agreements from time to time executed under or in connection with the Lease
relating to such Aircraft.
Aircraft Book Value has the meaning assigned to such term in the Deed of Charge.
Aircraft Sale Agreement means the Aircraft Sale Agreement dated as of June 27,
1996, between the Company and WFC.
ALPS 92-1 Subsidiary means Carotene Limited, an Irish company, any other
subsidiary of the Company and, where the context so requires, any Special
Lessor.
Applicable Law with respect to any Person means any law, directive, statute,
ordinance, rule or regulation or code of conduct or practice of any U.S.
Federal, state or local Governmental Authority, the EU or any Irish, Jersey or
other non-U.S. or international Governmental Authority that applies to such
Person or any of its properties or assets.
Available Funds means, with respect to any withdrawal to be made from the
Transaction Account on any Payment Date, all funds on deposit in the Transaction
Account on such date, in each case after giving effect to any withdrawal from
such account that, pursuant to the Deed of Charge, has a higher priority than
such withdrawal.
Board means the Board of Directors of the Company.
Business Day means a day on which commercial banks and foreign exchange markets
settle payments in U.S. dollars in New York, New York, and London, England.
Business Objectives has the meaning assigned to such term in the Deed of Charge.
Cash Management Agreement means the Cash Management Agreement dated as of June
27, 1996, between the Cash Manager and the Company.
Cash Manager means Deutsche Bank Trust Company Americas, in its capacity as Cash
Manager under the Cash Management Agreement.
Certificates means the Pass Through Certificates issued by ALPS 96-1
Pass-Through Trust in respect of the Trust Notes.
Class E Notes means, collectively, the 10% Class E-1 Note and the 10% Class E-2
Note, issued by the Company.
Page 36 of 44 Pages
Closing Date means June 27, 1996.
Commission means the United States Securities and Exchange Commission.
Company means Aircraft Lease Portfolio Securitisation 92-1 Limited, a company
incorporated under the laws of Jersey, and, where the context requires, any ALPS
92-1 Subsidiary.
Conflicts Standard has the meaning assigned to such term in Section 3.2(b)(ii)
of the Servicing Agreement.
Control (including, with its correlative meanings, "controlled by" and "under
common control with") means possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by contract
or otherwise).
Co-Security Trustee means Deutsche International Trust Co. (Jersey) Limited, in
its capacity as co-security trustee under the Deed of Charge.
Deed of Charge means the Deed of Charge, Assignment and Priorities dated as of
the Closing Date, among the Company, the Security Trustee, the Co-Security
Trustee, the Trustee, the Cash Manager, the Reference Agent, the Servicer, WFC,
Arthur Anderson (as the Administrative Agent at the Closing Date) and the
Financial Consultant.
Determination Date has the meaning assigned to such term in the Deed of Charge.
Disposition Event means the sale or other disposition of an Aircraft, including
by reason of the occurrence of a total loss under the Lease relating thereto.
Documentary Conventions with respect to any agreement, instrument or other
document that states it is governed thereby, means that, except as otherwise
expressly provided therein:
(a) Notices. Subject to paragraph (d) below, all notices, consents, directions,
approvals, instructions, requests and other communications required or permitted
by such agreement, instrument or other document to be given to any Person shall
be in writing, and any such notice shall become effective upon the earlier of
(i) receipt thereof and (ii) five Business Days after being deposited in the
mails, certified or registered, return receipt requested, with appropriate
postage prepaid for first class mail, delivered by hand or courier service or in
the form of a facsimile, when received (and, in the case of a facsimile, receipt
of such facsimile is confirmed to the sender), and shall be directed to the
address or facsimile number of such Person set forth below:
If to the Company, to it at:
22 Grenville Street
St. Helier, Jersey JE4 8PX, Channel Islands
Attention: Mourant & Co. Secretaries Limited
Telephone: 011-44-1534-609000
Telecopy: 011-44-1534-609333
If to the Cash Manager, the Trustee, the Reference Agent or the Financial
Consultant, to each of them at:
Page 37 of 44 Pages
Deutsche Bank Trust Company Americas
60 Wall Street
26th Floor MS NYC60-2606
New York, New York 10005
Attention: Corporate Trust and Agency Group, Structured Finance Team
Telephone: 212-250-8454
Telecopy: 212-797-8606
If to the Security Trustee, to it at:
Deutsche Trustee Company Limited
Winchester House
1 Great Winchester Street
London EC2N 2DB
England
Attention: Corporate Trust, ALPS 96-1
Telephone: 011-44-207-545-8000
Telecopy: 011-44-207-547-5919
If to the Co-Security Trustee, to it at:
Deutsche International Trust Co. (Jersey) Limited
St Paul's Gate
New Street
St. Helier, Jersey JE4 8YP, Channel Islands
Telephone: 011-44-1534-889900
Telecopy: 011-44-1534-889850
If to the Servicer, to it at:
Babcock & Brown Limited
West Pier
Dun Laoghaire
Co Dublin
Ireland
Telephone: 011-353-1-231-1900
Telecopy: 011-353-1-231-1901
If to the Guarantor, to it at:
Babcock & Brown LP
2 Harrison Street
6th Floor
San Francisco, California 94105-1603
Telephone: 415-512-1515
Telecopy: 415-267-1500
Page 38 of 44 Pages
If to the Administrative Agent, to it at:
Mourant & Co. Limited
22 Grenville Street
St. Helier, Jersey JE4 8PX, Channel Islands
Attention: Mourant & Co. Secretaries Limited
Telephone: 011-44-1534-609000
Telecopy: 011-44-1534-609333
From time to time any party to such agreement, instrument or other document may
designate a new address or number for purposes of notice thereunder by notice to
each of the other parties thereto.
(b) Governing Law. SUCH AGREEMENT, INSTRUMENT OR OTHER DOCUMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS (EXCLUDING
PRINCIPLES OF CONFLICTS OF LAWS) OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
(c) Jurisdiction; Court Proceedings; Waiver of Jury Trial. Any suit, action or
proceeding against any party to such agreement, instrument or other document
arising out of or relating to such agreement, instrument or other document, any
transaction contemplated thereby or any judgment entered by any court in respect
of any thereof may be brought in any New York State court located in the County
of New York, Federal court sitting in the Second Circuit or court located in
England, and each such party hereby submits to the nonexclusive jurisdiction of
such courts for the purpose of any such suit, action or proceeding. To the
extent that service of process by mail is permitted by applicable law, each
party hereto irrevocably consents to the service of process in any such suit,
action or proceeding in such courts by the mailing of such process by registered
or certified mail, postage prepaid, at its address for notices provided for
above. Each party to such agreement, instrument or other document irrevocably
agrees not to assert any objection which it may ever have to the laying of venue
of any such suit, action or proceeding in any New York State court located in
the County of New York, Federal court sitting in the Second Circuit or court
located in England, and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. To the
fullest extent permitted by Applicable Law, each party to such agreement,
instrument or other document waives any right it may have to a trial by jury in
respect of any litigation directly or indirectly arising out of, under or in
connection with such agreement, instrument or other document.
(d) Agent. Each of the Company and each ALPS 92-1 Subsidiary hereby appoints CT
Corporation System, 1633 Broadway, New York, N.Y., U.S.A. 10019, as its
nonexclusive agent for service of process in the United States. Each of the
Company and each ALPS 92-1 Subsidiary hereby appoints Freshfields, 65 Fleet
Street, London EC4Y 1HS, England, as its nonexclusive agent for service of
process in the United Kingdom, in each case in connection with each Operative
Agreement. The parties may use any legally available means of service of
process. The Company will promptly notify the Servicer and the other persons
listed in paragraph (a) of this definition of any change in the address of the
respective agents; provided that the Company will at all times maintain an agent
located within New York State
Page 39 of 44 Pages
for service of process in connection with each Operative Agreement, the identity
of any successor Agent to be reasonably satisfactory to the Servicer.
(e) Consequential Damages. In no event will any party to such agreement,
instrument or other document be liable to any other for incidental damages, lost
profits, income tax consequences, lost savings or any other consequential
damages, even if such party has been advised of the possibility of such damages,
or for punitive damages, resulting from the breach of any obligation under such
agreement, instrument or other document.
(f) Counterparts. Each such agreement, instrument or other document may be
executed by the parties thereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same agreement, instrument or other document.
All signatures need not be on the same counterpart.
(g) Entire Agreement; Amendment and Waiver. Such agreement, instrument or other
document, together with the other Operative Agreements, shall constitute the
entire agreement of the parties thereto with respect to the subject matter
thereof and supersedes all prior written and oral agreements and understandings
with respect to such subject matter. Neither any such agreement, instrument or
other document nor any of the terms thereof may be terminated, amended,
supplemented, waived or modified, except by an instrument in writing signed by
the party against which the enforcement of the termination, amendment,
supplement, waiver or modification shall be sought. No failure or delay of any
party to any such agreement, instrument or other document, in exercising any
power or right thereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.
(h) Table of Contents; Headings. The table of contents and headings of the
various articles, sections and other subdivisions of such agreement, instrument
or other document are for convenience of reference only and shall not modify,
define or limit any of the terms or provisions of such agreement, instrument or
other document.
(i) Parties in Interest; Limitation on Rights of Others. The terms of such
agreement, instrument or other document shall be binding upon, and inure to the
benefit of, the parties thereto and their permitted successors and assigns and,
to the extent applicable, their respective Affiliates and Representatives.
Except as expressly set forth in any such agreement, instrument or other
document with respect to Affiliates and Representatives of the parties thereto,
nothing in such agreement, instrument or other document, whether express or
implied, shall be construed to give any Person (including any past, present or
future employee of the Company or any of its Affiliates) (other than the parties
thereto and their permitted successors and assigns) any legal or equitable
right, remedy or claim under or in respect of such agreement, instrument or
other document or any covenants, conditions or provisions contained therein.
(j) Method of Payment. Except as otherwise agreed, all amounts required to be
paid by any party to such agreement, instrument or other document to any other
party thereunder (including in respect of any judgment or settlement entered in
respect of such agreement, instrument or other document) shall be paid in
dollars, by wire transfer, or other acceptable method of payment, of same day
funds to a Dollar account located in the United States as such party may specify
by notice to the other party.
Page 40 of 44 Pages
(k) Payment on Business Days. If any payment under such agreement, instrument or
other document is required to be made on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day and no additional
interest shall accrue thereon.
(l) Past Due Payments. Any amount payable to any party or any of its Affiliates
or Representatives under any such agreement, instrument or other document shall
be paid on the date therein specified for payment of such amounts. To the extent
that all or a portion of such amount is not paid on such date, such amount (or
the unpaid portion thereof) shall bear interest at the Stipulated Interest Rate
from such date until and through the date that such amount has been paid in full
(m) Severability. Any provision of such agreement, instrument or other document
that shall be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by Applicable Law, the Company and each other party to this Agreement
waives any provision of law that renders any provision of any agreement,
instrument or other document prohibited or unenforceable in any respect.
(n) Judgment Currency.
(i) If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum due under such agreement, instrument or
other document in dollars into another currency, the rate of exchange
used shall be that at which in accordance with normal banking
procedures the Security Trustee could purchase dollars with such other
currency in New York, New York, at 12:00 (noon), London, England time,
on the Business Day immediately preceding the day on which final
judgment is given.
(ii) The obligation of each party in respect of any sum due to any other
party under such agreement, instrument or other document in dollars
shall, to the extent permitted by applicable law, notwithstanding any
judgment in a currency other than dollars, be discharged only to the
extent that on the Business Day following receipt of any sum adjudged
to be so due in the judgment currency such party may in accordance
with normal banking procedures purchase dollars in the amount
originally due to such party with the judgment currency. If the amount
of dollars so purchased is less than the sum originally due to such
party, the other party will indemnify such party against the resulting
loss.
Dollar or $ means the lawful money of the United States of America.
EU means the European Union.
Final Maturity Date has the meaning set forth in the Deed of Charge.
Financial Consultant means Deutsche Bank Trust Company Americas, in its capacity
as Financial Consultant under the Financial Consulting Agreement.
Financial Consulting Agreement means the Financial Consulting Agreement dated as
of June 27, 1996, between the Company and the Financial Consultant.
Page 41 of 44 Pages
Governmental Authority means any court, administrative agency or commission or
other governmental agency or instrumentality (or any officer or representative
thereof) domestic, foreign or international, of competent jurisdiction
including, without limitation, the EU.
Guarantee means the Guarantee dated as of June 27, 1996, between the Guarantor
and the Company.
Guarantor means Babcock & Brown Inc., a California corporation.
Intercompany Lease means (i) any head lease entered into between a Special
Lessor, as lessor, and the Company or an ALPS 92-1 Subsidiary, as lessee, (ii)
any head lease entered into between the Company, as lessor, and an ALPS 92-1
Subsidiary, as lessee, or (iii) any intermediate lease entered into between an
ALPS 92-1 Subsidiary, as lessor, and another ALPS 92-1 Subsidiary, as lessee,
and in each case any documents related thereto.
Interest Accrual Period means, with respect to each Payment Date, each period
from and including the immediately preceding Payment Date through but excluding
such Payment Date, except that the initial Interest Accrual Period will commence
on and include the Closing Date and the final Interest Accrual Period will end
on but exclude the Final Maturity Date or, if earlier, the date upon which the
applicable class of Notes is paid in full.
Lease means any lease or other agreement or arrangement, including any
Intercompany Lease, as the same may be amended, extended, novated, supplemented
or varied from time to time, pursuant to which any Person has the right to
possession and use of any Aircraft Asset.
Lease Documents has the meaning assigned to such term in the Deed of Charge.
Lessee means the lessee in respect of a Lease.
LIBOR means the London Interbank Offered Rate for deposits in United States
Dollars, as determined pursuant to the Reference Agency Agreement.
Listing Agent means Kredietbank S.A. Luxembourgeoise.
Losses means any and all liabilities (including liabilities arising out of the
doctrine of strict liability), obligations, losses, damages, penalties, Taxes,
actions, suites, judgments, costs, fees, expenses (including reasonable legal
fees, expenses and related charges and costs of investigation) and
disbursements, of whatsoever kind and nature; provided, however, that the term
"Losses" shall not include any management time or overhead expenses.
Maintenance Reserves means the maintenance reserves under each of the Leases,
including any letters of credit, guarantees or other credit support held as part
of such maintenance reserves.
Makewhole Premium has the meaning assigned to such term in the Deed of Charge.
Marketing Report means the report described in Section 2.8(b) of the Servicing
Agreement.
Material Adverse Effect with respect to any Person means an event, condition,
matter, change or effect that impacts or, insofar as reasonably can be foreseen,
in the future is likely to impact, in a material adverse manner, the condition
(financial or otherwise), properties, assets, liabilities, earnings,
capitalization, shareholders' equity, licenses or franchises, businesses,
operation or prospects of such Person or the ability of such Person to
Page 42 of 44 Pages
consummate the Transactions or to perform fully any of its obligations under any
of the operative Agreements.
Memorandum and Articles of Association means the Memorandum and Articles of
Association of the Company registered on May 13, 1992, as amended and
supplemented from time to time.
Note Target Amounts means the Class A, Class B, Class C and Class D Note Target
Amounts, as such terms are defined in the Deed of Charge.
Notes means, collectively, the Trust Notes and the Class E Notes.
Operative Agreements means the Deed of Charge, the Cash Management Agreement,
the Administrative Agency Agreement, the Financial Consulting Agreement, the
Reference Agency Agreement and all other agreements, instruments or other
documents which are required by the terms of any thereof to be delivered in
connection with any of the foregoing documents.
Payment Date means the 15th day of each month (or, if such day is not a Business
Day, then the next succeeding Business Day) commencing August 15, 1996.
Person means any individual, firm, corporation, partnership, trust, body of
persons, joint venture, governmental authority or other entity, and shall
include any successor (by merger or otherwise) of such entity. Rating Agency
means each of Moody's Investors Service, Inc. and Standard & Poor's Ratings
Group, a division of McGraw-Hill Companies, and any other statistical rating
organizations that are nationally recognized in the United States of America and
contracted to rate the Certificates.
Ratings means the ratings assigned to the Certificates by the Rating Agencies.
Reference Agency Agreement means the Reference Agency Agreement dated as of June
27, 1996, among the Company and the Reference Agent.
Reference Agent means Deutsche Bank Trust Company Americas, in its capacity as
Reference Agent under the Reference Agency Agreement.
Relevant Documents means (a) the Deed of Charge, the Notes, the Aircraft Sale
Agreement, the Servicing Agreement, the Guarantee, the Cash Management
Agreement, the Trust Agreement, the Reference Agency Agreement, the Financial
Consulting Agreement, the Administrative Agency Agreement and any Swap
Agreements and (b) the Operational Documents, the Security Documents, the
Related Collateral Documents, the Lease Documents and any Swap Guarantees (each
of the terms in this clause (b) as defined in the Deed of Charge).
Rents means the rent payable pursuant to a Lease.
Replacement Servicer means a replacement servicer to perform some or all of the
services under the Servicing Agreement formerly performed by the Servicer,
appointed in accordance with Section 10.5(c) of the Servicing Agreement.
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Representatives with respect to any Person means the officers, directors,
employees, advisors and agents of such Person.
Security Trustee means Deutsche Trustee Company Limited, in its capacity as
Security Trustee under the Deed of Charge.
Servicer means Babcock & Brown Limited.
Servicing Agreement means the Servicing Agreement dated as of June 27, 1996,
among the Company and the Servicer.
Special Lessor has the meaning assigned to such term in the Deed of Charge.
Stipulated Interest Rate means, for any period, a rate per annum equal to LIBOR
in effect during such period plus 3.5% per annum.
Subsidiary of any Person means a corporation, company or other entity (i) more
than 50% of whose outstanding shares or securities (representing the right to
vote for the election of directors or other managing authority) are, or (ii)
which does not have outstanding shares or securities (as may be the case in a
partnership, joint venture or unincorporated association), but more than 50% of
whose ownership interest representing the right to make decisions for such other
entity is, now or hereafter owned or Controlled, directly or indirectly, by such
Person, but such corporation, company or other entity shall be deemed to be a
Subsidiary only so long as such ownership or Control exists.
Swap Agreement means any interest rate swap, cap or floor agreement or other
interest rate hedging mechanisms entered into between the Company and any
financial institution satisfying the criteria set forth in the Deed of Charge.
Target Balances means the Class A, Class B, Class C and Class D Note Target
Balances, as such terms are defined in the Deed of Charge.
Tax or Taxes means all fees (including documentation, license and registration
fees), taxes, assessments, levies, impositions, duties, withholdings and other
governmental charges of any nature whatsoever (including taxes based upon or
measured by gross receipts, income, profits, sales, use or occupation, and value
added, ad valorem, transfer, franchise, withholding, payroll, social security,
employment, excise, documentary, stamp, corporation, corporation profits,
advance corporation, capital duty, capital gains, capital acquisitions, wealth,
vehicle registration, social insurance, and property taxes), together with all
interest, fines, penalties and additions imposed with respect to such amounts.
Total Loss Proceeds has the meaning assigned to such term in the Deed of Charge.
Transaction Account has the meaning assigned to such term in Section 2.03 (b)
(iii) of the Cash Management Agreement.
Trust Agreement means the Trust Agreement dated as of June 27, 1996, between the
Trustee and the Company.
Trust Notes means, collectively, the Class A Notes, the Class B Notes, the Class
C Notes and the Class D Notes issued by the Company.
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Trustee means Deutsche Bank Trust Company Americas in its capacity as trustee
under the Trust Agreement.
WFC means Whirlpool Financial Corporation, a Delaware corporation.