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CONFORMED COPY
Exhibit 10.2
CASH MANAGEMENT AGREEMENT
among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AIRCRAFT FINANCE
BANKERS TRUST COMPANY
and
THE ENTITIES LISTED ON APPENDIX A HERETO
Dated as of March 3, 1998
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TABLE OF CONTENTS
_____________
PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions ............................................... 2
ARTICLE 2
APPOINTMENT; CASH MANAGEMENT SERVICES
SECTION 2.01. Appointment ............................................... 4
SECTION 2.02. Investments of Cash ....................................... 4
SECTION 2.03. Additional Aircraft ....................................... 4
ARTICLE 3
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
SECTION 3.01. Standard of Performance ................................... 4
SECTION 3.02. Liability and Indemnity ................................... 4
ARTICLE 4
CASH MANAGER UNDERTAKINGS
SECTION 4.01. Cash Manager Undertakings ................................. 5
ARTICLE 5
UNDERTAKINGS OF MSAF GROUP
SECTION 5.01. Cooperation ............................................... 7
SECTION 5.02. Information ............................................... 7
SECTION 5.03. Scope of Services ......................................... 7
SECTION 5.04. Ratification .............................................. 8
ARTICLE 6
CASH MANAGEMENT FEES AND EXPENSES
SECTION 6.01. Cash Management Fees ...................................... 8
SECTION 6.02. Expenses .................................................. 8
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ARTICLE 7
TERM; REMOVAL OF OR TERMINATION BY THE CASH MANAGER
SECTION 7.01. Term ...................................................... 9
SECTION 7.02. Right to Terminate ........................................ 9
SECTION 7.03. Consequences of Termination ............................... 9
SECTION 7.04. Survival .................................................. 10
ARTICLE 8
ASSIGNMENT AND DELEGATION
SECTION 8.01. Assignment and Delegation ................................. 10
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices ................................................... 11
SECTION 9.02. Governing Law ............................................. 12
SECTION 9.03. Jurisdiction .............................................. 12
SECTION 9.04. WAIVER OF JURY TRIAL ...................................... 12
SECTION 9.05. Counterparts; Third Party Beneficiaries ................... 12
SECTION 9.06. Entire Agreement .......................................... 13
SECTION 9.07. Table of Contents; Headings ............................... 13
SECTION 9.08. Restrictions on Disclosure ................................ 13
SECTION 9.09. No Partnership ............................................ 13
SECTION 9.10. Duties and Liabilities of the Cash Manager Generally ...... 14
SECTION 9.11. Concerning the Security Trustee ........................... 16
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CASH MANAGEMENT AGREEMENT dated as of March 3, 1998, among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Aircraft Finance ("MSAF"), a statutory trust established under the laws of the
State of Delaware, Bankers Trust Company, a New York banking corporation, in its
capacity as trustee under the Security Trust Agreement (the "SECURITY TRUSTEE")
and in its capacity as cash manager (the "CASH MANAGER") and the subsidiaries of
MSAF, each listed on Appendix A hereto (collectively with MSAF, the "MSAF
GROUP").
For the consideration set forth herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Cash Manager,
MSAF and the other MSAF Group Members agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have the
following meanings. Unless otherwise defined herein, all capitalized terms used
but not defined herein have the meanings assigned to such terms in the
Indenture.
"AIRCRAFT" has the meaning assigned to such term in the Asset Purchase
Agreement.
"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 U.S. federal, state, local and 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 U.S. federal, state, local or foreign law or Governmental Authority
(after taking into account any current deduction to which such Person shall be
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.
"ASSET PURCHASE AGREEMENT" means the Asset Purchase Agreement dated as of
November 10, 1997 between International Lease Finance Corporation and MSAF.
"CASH MANAGEMENT SERVICES" has the meaning assigned to such term in Section
2.01 hereof.
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"CLOSING DATE" means March 3, 1998.
"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 European Union.
"INDENTURE" means the Indenture dated as of March 3, 1998, between MSAF and
the Trustee.
"REPRESENTATIVES" with respect to any Person means the officers, directors,
employees, advisors and agents of such Person.
"STANDARD OF PERFORMANCE" has the meaning assigned to such term in Section
3.01 hereof.
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ARTICLE 2
APPOINTMENT; CASH MANAGEMENT SERVICES
SECTION 2.01. Appointment. (a) The Security Trustee, on behalf of the
MSAF Group Members, and is hereby directed by the MSAF Group Members to so
appoint, hereby appoints the Cash Manager as the provider to MSAF Group of the
cash management services set forth in Section 2.02 below herein and in Section
3.02 of the Indenture (the "CASH MANAGEMENT SERVICES").
(b) The Cash Manager hereby accepts such appointment and agrees to perform
the Cash Management Services on the terms and subject to the conditions set
forth in this Agreement.
SECTION 2.02. Investments of Cash. In connection with MSAF's acquisition
of the Aircraft and the issuance of the Notes, the Cash Manager shall at the
direction of MSAF (or, following the giving of a Default Notice at the direction
of the Security Trustee) invest and reinvest the funds on deposit in the
Accounts as permitted by and in accordance with Section 3.02 of the Indenture.
SECTION 2.03. Additional Aircraft. In the event that MSAF Group shall
acquire any Additional Aircraft and notwithstanding that MSAF Group may retain
different Service Providers for such Additional Aircraft, the Cash Manager, upon
receipt of written notice of such purchase, hereby agrees to provide the same
Cash Management Services with respect to all such Additional Aircraft.
ARTICLE 3
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
SECTION 3.01. Standard of Performance. The Cash Manager will devote the
same amount of time and attention to, and shall be required to exercise the same
level of skill, care and diligence in the performance of its services as a
prudent businessperson would in administering such services on its own behalf
(the "STANDARD OF PERFORMANCE").
SECTION 3.02. Liability and Indemnity. (a) The Cash Manager shall not be
liable for any Losses or Taxes to or of, or payable by, any MSAF Group Member 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 Cash
Manager of this Agreement, including Losses resulting from any investments in
any Permitted Account Investment or any investment losses resulting from such
investments or from the liquidation of such investments prior to the stated
maturity thereof unless such Losses or Taxes are the result of the
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Cash Manager's own gross negligence (or simple negligence in the handling of
funds), willful misconduct, deceit or fraud or that of any of its directors,
officers, agents or employees, as the case may be.
(b) Subject to and in accordance with the provisions of the Indenture, MSAF
and the other MSAF Group Members do hereby assume liability for and do hereby
jointly and severally agree to indemnify, reimburse and hold harmless on an
After-Tax Basis the Cash Manager, its directors, officers, agents and employees
and each of them from any and all Losses or Taxes of any nature that may be
imposed on, incurred by or asserted against any of them arising out of, in
connection with or related to the Cash Manager's performance under this
Agreement or any agreement, instrument or document executed in connection
herewith (including any Losses or Taxes incurred by the Cash Manager as a result
of indemnifying any Person to whom it shall have delegated its obligations
hereunder in accordance with Section 8.01, but only to the extent the Cash
Manager would have been indemnified had it performed such obligations), except
as a result of the gross negligence (or simple negligence in the handling of
funds), willful misconduct, deceit or fraud of the Cash Manager or any of its
directors, officers, agents or employees, as the case may be. This indemnity
shall expressly inure to the benefit of any director, officer, agent or employee
of the Cash Manager and to the benefit of any successor of the Cash Manager and
shall survive the expiration or termination of this Agreement and the
resignation of or the earlier removal of the Cash Manager.
ARTICLE 4
CASH MANAGER UNDERTAKINGS
SECTION 4.01. Cash Manager Undertakings. The Cash Manager hereby
covenants with MSAF Group as follows:
(a) if the Cash Manager receives any funds whatsoever under this Agreement
or any Relevant Document, which funds have been clearly identified as belonging
to any MSAF Group Member or are to be paid to any MSAF Group Member or into any
Account pursuant to this Agreement, any Relevant Document or otherwise, then the
Cash Manager shall (i) hold such funds in trust for the Security Trustee, (ii)
keep such funds separate from all other funds belonging to the Cash Manager and
(iii) as soon as administratively practicable following receipt thereof, pay the
same into the appropriate Account in accordance with the terms hereof;
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(b) the Cash Manager shall comply with all lawful directions, orders and
instructions which the Security Trustee may from time to time give to it in
writing which are in accordance with the provisions of this Agreement and the
Indenture;
(c) the Cash Manager shall not knowingly fail to comply with any legal
requirements in the performance of the Cash Management Services;
(d) the Cash Manager shall make all payments required to be made by it at
anytime and from time to time pursuant to this Agreement on the required date
for payment thereof and shall turn over any amounts owed to the Security Trustee
or the MSAF Group without set-off or counterclaim;
(e) the Cash Manager shall cooperate with MSAF Group, the Administrative
Agent and the Trustee and their respective agents, directors or trustees
(including by providing such information as may reasonably be requested at any
time and from time to time) to permit MSAF Group and the Administrative Agent to
monitor the Cash Manager's compliance with its obligations under this Agreement;
(f) the Cash Manager is acting hereunder as the agent of the Security
Trustee and, except in relation to any money erroneously received by the Cash
Manager by way of deposit into any of the Cash Manager's bank accounts (which
shall be held in trust by the Cash Manager on behalf of the Security Trustee and
deposited into the appropriate Account as soon as reasonably practicable),
neither the Cash Manager nor any of its affiliates shall be under any fiduciary
duty or other implied obligation or duty to any MSAF Group Member or any holder
of any securities issued by any MSAF Group Member, any Lessee or any other
Person arising out of this Agreement; and
(g) the Cash Manager shall not take any steps for the purpose of procuring
the appointment of any administrative receiver or the making of any
administrative order or for instituting any bankruptcy, reorganization,
arrangement, insolvency, winding up, liquidation, composition or any like
proceedings under the laws of any jurisdiction in respect of any MSAF Group
Member or in respect of any of their respective liabilities, including, without
limitation, as a result of any claim or interest of the Cash Manager or any of
its affiliates.
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ARTICLE 5
UNDERTAKINGS OF MSAF GROUP
SECTION 5.01. Cooperation. MSAF and the other MSAF Group Members shall
use commercially reasonable efforts to cause each other Service Provider,
including, without limitation, the Administrative Agent, to cooperate at all
times with the Cash Manager to enable the Cash Manager to provide the Cash
Management Services, including providing the Cash Manager with all powers of
attorney and such information as may be reasonably necessary or appropriate for
the Cash Manager to perform the Cash Management Services.
SECTION 5.02. Information. MSAF will provide the Cash Manager with the
following information in respect of itself and each other MSAF Group Member:
(a) names of and contact information with respect to the controlling
trustees or board for each MSAF Group Member and the Administrative Agent; and
(b) such other information as is necessary to the Cash Manager's
performance of the Cash Management Services;
provided, that such information referred to in paragraph (a) shall be
provided to the Cash Manager upon execution of this Agreement and, with respect
to the information noted in paragraph (b), upon request and, in respect of any
amendment or changes to the information provided to the Cash Manager upon
execution of this Agreement, promptly following the effectiveness of such
amendments or changes.
SECTION 5.03. Scope of Services. (a) In the event that any MSAF Group
Member enters into any agreement, amendment or other modification of any
Relevant Document or shall take any other action that has the effect of
increasing in any material respect the scope, nature or level of the Cash
Management Services, MSAF shall provide written notice thereof to the Cash
Manager, and the Cash Manager shall not be obligated to perform such affected
Cash Management Services to the extent of such increase unless and until the
Cash Manager and MSAF Group shall agree on the terms on which such increased
Cash Management Services shall be provided. MSAF Group shall engage another
Person, at its sole cost and expense, to perform the affected or increased Cash
Management Services without the prior written consent of the Cash Manager if
they determine, in their discretion, that timely agreement with the Cash Manager
for the performance of such services cannot be reached on commercially
reasonable terms.
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(b) In the event that MSAF Group shall acquire Additional Aircraft, MSAF
Group shall so notify in writing the Cash Manager and the Cash Manager shall be
obligated to provide the Cash Management Services with respect to such
Additional Aircraft in accordance with Section 2.03 hereof.
SECTION 5.04. Ratification. (a) MSAF and the other MSAF Group Members
hereby ratify and confirm, and agree to ratify and confirm (and shall furnish
written evidence thereof upon request of the Cash Manager), of any act or
omission of the Cash Manager in accordance with this Agreement in the exercise
of any of the powers or authorities conferred upon the Cash Manager under the
terms of this Agreement, it being expressly understood and agreed that none of
the foregoing shall have any obligation to ratify and confirm, and expressly do
not ratify and confirm, any act or omission of the Cash Manager in violation of
the this Agreement or the Standard of Performance.
(b) MSAF hereby undertakes to procure that any subsidiary of MSAF formed or
acquired after the date hereof shall execute an agreement with the Cash Manager
adopting and confirming, as regards such subsidiary, the terms of this Agreement
and agreeing to ratify anything done by the Cash Manager in connection herewith.
ARTICLE 6
CASH MANAGEMENT FEES AND EXPENSES
SECTION 6.01. Cash Management Fees. (a) In consideration of the Cash
Manager's performance of the Cash Management Services, MSAF shall pay to the
Cash Manager an annual fee (the "CASH MANAGEMENT FEE") as agreed pursuant to a
separate agreement between the Cash Manager and MSAF.
SECTION 6.02. Expenses. The Cash Manager shall be responsible for all
costs and expenses relating to or associated with the Cash Manager's performance
of its duties as set forth in this Agreement, other than such costs as are
expressly stated herein to be an expense or cost of MSAF Group.
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ARTICLE 7
TERM; REMOVAL OF OR TERMINATION BY THE CASH MANAGER
SECTION 7.01. Term. This Agreement shall have a term commencing on the
Closing Date and expiring on the date of payment in full of all amounts
outstanding to be paid on the MSAF Group Notes. During such term, this
Agreement shall not be terminable by either party except as expressly provided
in this Article 7.
SECTION 7.02. Right to Terminate. (a) At any time during the term of this
Agreement, MSAF Group shall be entitled to terminate this Agreement on 90 days
notice.
(b) At any time during the term of this Agreement, the Cash Manager shall
be entitled to terminate this Agreement on 90 days notice.
(c) No termination of this Agreement by MSAF Group pursuant to Section
7.02(a) and no termination by the Cash Manager pursuant to Section 7.02(b) shall
become effective prior to the date of appointment by MSAF Group of a successor
cash manager and the acceptance of such appointment by such successor cash
manager; provided, however, that in the event that a successor cash manager
shall not have been appointed within 90 days after such termination, the Cash
Manager may petition any court of competent jurisdiction for the appointment of
a successor cash manager. Upon action by either party pursuant to the
provisions of this Section 7.02(c), the Cash Manager shall be entitled to the
payment of any compensation owed to it hereunder in connection with all services
rendered by it hereunder, as provided in Article 6 hereof, and for so long as
the Cash Manager is continuing to perform any of the Cash Management Services
for any MSAF Group Member, the Cash Manager shall be entitled to continue to be
paid all amounts due to it hereunder, net of any amounts that shall have been
finally adjudicated by a court of competent jurisdiction to be owed by the Cash
Manager to MSAF Group or not to be due to the Cash Manager, until a successor
cash manager shall have been appointed and shall have accepted such appointment
in accordance with the provisions of Section 7.02(c).
SECTION 7.03. Consequences of Termination. (a) Notices. (i) Following
the termination of this Agreement by MSAF Group or the Cash Manager pursuant to
Section 7.02 and the replacement of the Cash Manager by a successor cash manager
pursuant to Section 7.02, the former Cash Manager will promptly forward to the
successor cash manager and MSAF Group any notices and accounting reports (or
copies thereof) received by it during the year immediately after termination.
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(ii) MSAF Group will promptly notify any relevant third party,
including the Rating Agencies, the Trustee and the Administrative Agent, of
the removal of the Cash Manager or the termination of this Agreement by
MSAF Group or by the Cash Manager and will request that all such notices
and accounting reports and communications to the Cash Manager thereafter be
made or given directly to the successor Cash Manager and MSAF Group.
(b) Accrued Rights. A termination of this Agreement by MSAF Group or by
the Cash Manager hereunder shall not affect the respective rights and
liabilities of any party accrued prior to such termination in respect of any
prior breaches hereof or otherwise.
(c) Replacement. If this Agreement is terminated by MSAF Group or by the
Cash Manager under Section 7.02 and the Cash Manager is replaced by a successor
cash manager under Section 7.02, such former Cash Manager will cooperate with
such successor cash manager, including providing such successor cash manager
with all information and documents reasonably requested.
SECTION 7.04. Survival. Notwithstanding any termination or the expiration
of this Agreement, the obligations of MSAF Group and the Cash Manager under
Sections 3.02 and 6.01 (to the extent any fees due and owing through such date
of termination remain unpaid) shall survive such termination or expiration, as
the case may be.
ARTICLE 8
ASSIGNMENT AND DELEGATION
SECTION 8.01. Assignment and Delegation. (a) No party 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 other person without the
prior written consent of the other parties, such consent not to be unreasonably
withheld.
(b) Without limiting the foregoing, any Person who shall become a successor
by assignment or otherwise of any party hereto shall be required, as a condition
to the effectiveness of any such assignment or other arrangement to become a
party to this Agreement.
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ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices. All notices, consents, directions, approvals,
instructions, requests and other communications required or permitted by this
Agreement to be given to any Person shall be in writing, and any such notice
shall become effective five Business Days after being deposited in the mails,
first-class, certified or registered, return receipt requested, with
appropriate postage prepaid for first class mail, or if 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 MSAF and the other MSAF Group Members, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Aircraft Finance
c/o Wilmington Trust Company
Attention: Corporate Trust Administration
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇
Fax: + ▇▇-▇▇▇-▇▇▇ 1400
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: + ▇▇-▇▇▇-▇▇▇ 4328
If to the Cash Manager, to it at:
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Bankers Trust Company
Attention: Corporate Trust and Agency Services Structured Finance
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
From time to time any party to such agreement may designate a new address
or number for purposes of notice thereunder by notice to each of the other
parties thereto.
SECTION 9.02. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9.03. Jurisdiction. Except as otherwise expressly provided in
this Agreement, the parties hereto agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or
in connection with, this Agreement or the transactions contemplated hereby may
be brought in the United States District Court for the Southern District of New
York or any other New York State court sitting in New York City, and each of
the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 9.01 shall
be deemed effective service of process on such party.
SECTION 9.04. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 9.05. Counterparts; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each
party hereto shall have received a counterpart hereof signed by the other party
hereto. No provision of this Agreement is intended to confer upon any Person
other than the parties hereto any rights or remedies hereunder.
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SECTION 9.06. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
SECTION 9.07. Table of Contents; Headings. The table of contents and
headings of the various articles, sections and other subdivisions of such
agreement are for convenience of reference only and shall not modify, define or
limit any of the terms or provisions of such agreement.
SECTION 9.08. Restrictions on Disclosure. The Cash Manager 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
MSAF Group regarding MSAF Group or its business or the Aircraft.
Notwithstanding anything herein to the contrary, the foregoing shall not
be construed to prohibit (i) disclosure of any and all information that is or
becomes publicly known, or information obtained by the Cash Manager from
sources other than a MSAF Group Member, (ii) disclosure of any and all
information (A) if required to do so by any applicable statute, law, rule or
regulation, (B) to any government agency or regulatory body having or claiming
authority to regulate or oversee any respects of the Cash Manager's business or
that of its affiliates, (C) pursuant to any subpoena, civil investigative
demand or similar demand or request of any court, regulatory authority,
arbitrator or arbitration to which the Cash Manager or an affiliate or an
officer, director, employer or shareholder thereof is a party, (D) in any
preliminary or final offering circular, registration statement or contract or
other document pertaining to the transactions contemplated by the Agreement
approved in advance by any MSAF Group Member or (E) to any affiliate,
independent or internal auditor, agent, employee or attorney of the Cash
Manager having a need to know the same, provided that the Cash Manager advises
such recipient of the confidential nature of the information being disclosed,
or (iii) any other disclosure authorized by any MSAF Group Member.
SECTION 9.9. 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 any MSAF Group Member or Members
on the one part and the Cash Manager on the other part. It is also expressly
understood that any actions taken on behalf of any MSAF Group Member by the
Cash Manager shall be taken as agent for such MSAF Group Member, either naming
the relevant MSAF Group Member, or naming the Cash Manager as agent for an
undisclosed principal. No MSAF Group Member shall
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hold itself out as a partner of the Cash Manager, and the Cash Manager will not
hold itself out as a partner of any MSAF Group Member.
(b) The Cash Manager shall not have any fiduciary duty or other implied
obligations or duties to any MSAF Group Member, any Lessee or any other Person
arising out of this Agreement.
SECTION 9.10. Duties and Liabilities of the Cash Manager Generally. (a)
The Cash Manager undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. The Cash Manager shall not have any
duties or responsibilities except those expressly set forth in this Agreement
or be a trustee for or have any fiduciary obligation to any party hereto.
(b) In the absence of bad faith on the part of the Cash Manager, the Cash
Manager may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Cash Manager which conform to the requirements of
this Agreement.
(c) The Cash Manager shall not be liable for any error of judgment made in
good faith by an officer or officers of the Cash Manager, unless it shall be
conclusively determined by a court of competent jurisdiction that the Cash
Manager was grossly negligent in ascertaining the pertinent facts (or simply
negligent in the handling of funds).
(d) The Cash Manager shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with any direction of
the Security Trustee or any MSAF Group Member, as the case may be, given under
this Agreement.
(e) None of the provisions of this Agreement shall require the Cash
Manager to expend or risk its own funds or otherwise to incur any liability,
financial or otherwise, in the performance of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
indemnity satisfactory to it against such risk or liability is not assured to
it.
(f) The Cash Manager may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(g) Whenever in the administration of the provisions of this Agreement the
Cash Manager shall deem it necessary or desirable that a matter be proved or
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established prior to taking or suffering any action to be taken hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence or bad faith on the part of
the Cash Manager, be deemed to be conclusively proved and established by an
Officer's Certificate of the Security Trustee or a MSAF Group Member, and
delivered to the Cash Manager and such certificate, in the absence of gross
negligence, willful misconduct, deceit or fraud on the part of the Cash
Manager, shall be full warrant to the Cash Manager for any action taken,
suffered or omitted by it under the provisions of this Agreement upon the faith
thereof.
(h) The Cash Manager may consult with counsel and the advice or any
opinion of counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by it hereunder in good faith and in
accordance with such advice or opinion of counsel.
(i) The Cash Manager shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, entitlement order, approval or other
paper or document.
(j) Any corporation into which the Cash Manager may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Cash Manager shall be a party,
or any corporation succeeding to the business of the Cash Manager shall be the
successor of the Cash Manager hereunder without the execution or filing of any
paper with any party hereto or any further act on the part of any of the
parties hereto except where an instrument of transfer or assignment is required
by law to effect such succession, anything herein to the contrary
notwithstanding.
(k) Neither the Cash Manager nor any of its officers, directors, employees
or agents shall be liable for any action taken or omitted under this Agreement
or in connection therewith except to the extent caused by the Cash Manager's
gross negligence (or simple negligence in the handling of funds), willful
misconduct, deceit or fraud, as determined by the final judgment of a court of
competent jurisdiction, no longer subject to appeal or review. The parties
each (for itself and any person or entity claiming through it) hereby releases,
waives, discharges, exculpates and covenants not to ▇▇▇ the Cash Manager for
any action taken or omitted under this Agreement except to the extent caused by
the Cash Manager's gross negligence (or simple negligence in the handling of
funds), willful misconduct, deceit or fraud. Anything in this Agreement to the
contrary notwithstanding, in no event shall the Cash Manager be liable for
special, indirect or consequential losses or damages of any kind whatsoever
(including but not limited to lost profits), even if the Cash Manager has been
advised of the likelihood of such losses or damages and regardless of the form
of action.
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SECTION 9.11. Concerning the Security Trustee. In respect of the
Security Trustee's performance of appointing the Cash Manager to provide the
Cash Management Services, the Security Trustee shall be afforded all of the
rights, protections, immunities and indemnities contained in the Security Trust
Agreement as if such rights, protections, immunities and indemnities were
specifically set forth herein.
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IN WITNESS WHEREOF, this Agreement has been duly executed on the date first
written above.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AIRCRAFT FINANCE
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Signatory Trustee
BANKERS TRUST COMPANY, as Cash Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY, not in its individual
capacity, but solely as Security Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Vice President
MSA I
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Signatory Trustee
REDFLY (UK) LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
SIGNED SEALED AND DELIVERED for and on behalf of
GREENFLY (IRELAND) LIMITED,
by ▇▇▇▇▇▇▇ ▇▇▇▇▇
its duly authorized attorney in fact in the
presence of:
AIRCRAFT SPC-5, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
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APPENDIX A
MSA I
Aircraft SPC-5, Inc.,
Greenfly (Ireland) Limited
Redfly (UK) Limited
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