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Exhibit 10.2
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EXECUTION COPY
CASH MANAGEMENT AGREEMENT
among
GPA CASH MANAGER II LIMITED,
a limited company organized
under the laws of Ireland,
as Cash Manager,
GPA GROUP PLC,
a public limited company organized
under the laws of Ireland,
as Guarantor,
AerCo LIMITED,
a limited liability company
organized under the laws of Jersey, Channel islands,
BANKERS TRUST COMPANY,
a New York banking corporation, not in its individual capacity, but solely as
trustee under the Indenture, dated as of the date hereof, among AerCo Limited,
as issuer, and Bankers Trust Company, as trustee, and as Security Trustee under
the Security Trust Agreement
and
THE ENTITIES LISTED ON APPENDIX A HERETO
Dated as of July 15, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions 3
ARTICLE 2
APPOINTMENT; CASH MANAGEMENT SERVICES
SECTION 2.01. Appointment.......................................... 4
SECTION 2.02. Establishment of Accounts............................ 5
SECTION 2.03. Description of Accounts.............................. 5
SECTION 2.04. Investments of Cash.................................. 7
SECTION 2.05. Calculations......................................... 8
SECTION 2.06. Withdrawals and Transfers............................ 8
SECTION 2.07. Ratings and the Accounts............................. 10
SECTION 2.08. Records.............................................. 10
SECTION 2.09. Reports.............................................. 10
SECTION 2.10. Additional Aircraft.................................. 10
SECTION 2.11. Professional Advice.................................. 10
ARTICLE 3
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
SECTION 3.01. Standard of Performance.............................. 11
SECTION 3.02. Liability and Indemnity.............................. 11
SECTION 3.03. Conflicts of Interest................................ 12
ARTICLE 4
CASH MANAGER UNDERTAKINGS
SECTION 4.01. Cash Manager Undertakings............................ 12
ARTICLE 5
UNDERTAKINGS OF AERCO GROUP
SECTION 5.01. Cooperation.......................................... 15
SECTION 5.02. Information.......................................... 15
SECTION 5.03. Scope of Services.................................... 16
SECTION 5.04. Ratification......................................... 17
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[S] [C]
SECTION 5.05. Accounts and Cash Arrangements........................ 17
SECTION 5.06. Further Assurances.................................... 18
SECTION 5.07. Covenants of AerCo Group.............................. 18
ARTICLE 6
EFFECTIVENESS
SECTION 6.01. Effectiveness.......................................... 19
ARTICLE 7
CASH MANAGEMENT FEES AND EXPENSES
SECTION 7.01. Cash Management Fees................................... 20
SECTION 7.02. Expenses............................................... 20
ARTICLE 8
TERM; REMOVAL OF OR TERMINATION BY THE CASH MANAGER
SECTION 8.01. Term................................................... 20
SECTION 8.02. Right to Terminate..................................... 20
SECTION 8.03. Consequences of Termination............................ 23
SECTION 8.04. Survival............................................... 23
ARTICLE 9
APPOINTMENT OF SUCCESSOR CASH MANAGER
SECTION 9.01. Appointment of Successor Cash Manager.................. 24
ARTICLE 10
ASSIGNMENT AND DELEGATION
SECTION 10.01. Assignment and Delegation............................. 24
ARTICLE 11
GUARANTEE
SECTION 11.01. Guarantee............................................. 25
SECTION 11.02. Reinstatement......................................... 26
SECTION 11.03. Unconditional Nature of Guarantee..................... 26
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ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Notices............................................... 27
SECTION 12.02. Governing Law......................................... 29
SECTION 12.03. Jurisdiction.......................................... 29
SECTION 12.04. Agent for Service of Process.......................... 29
SECTION 12.05. WAIVER OF JURY TRIAL.................................. 29
SECTION 12.06. Counterparts; Third Party Beneficiaries............... 29
SECTION 12.07. Entire Agreement...................................... 30
SECTION 12.08. Table of Contents; Headings........................... 30
SECTION 12.09. Restrictions on Disclosure............................ 30
SECTION 12.10. No Partnership........................................ 31
APPENDIX A - Subsidiaries
SCHEDULE 1 - Accounts
EXHIBIT A - Certificate Authorizing Direct Funds Transfer to Expense Payee
EXHIBIT B - Certificate Authorizing Delegation of Certain Cash Management
Services
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CASH MANAGEMENT AGREEMENT dated as of July 15, 1998, among AerCo Limited,
a limited liability company incorporated in Jersey, Channel Islands ("AERCO"),
Bankers Trust Company, a New York banking corporation ("BANKERS TRUST"), not in
its individual capacity, but solely as trustee under the Indenture, dated as of
the date hereof (the "INDENTURE"), among AerCo, as issuer and Bankers Trust,
as trustee (the "TRUSTEE"), GPA Group plc, a public limited company organized
under the laws of Ireland (the "GUARANTOR" or "GPA GROUP"), GPA Cash Manager II
Limited, a limited company organized under the laws of Ireland, as Cash Manager
(the "CASH MANAGER") and the subsidiaries of AerCo, each listed on Appendix A
hereto (collectively with AerCo, the "AERCO GROUP").
For the consideration set forth herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Cash Manager,
AerCo and the other AerCo Group Members agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. 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 and the Security Trust 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 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 U.S. 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 with respect to the amount
that gave rise to the underlying payment 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)) be equal to the payment received, deemed to have been received or
receivable.
"CASH MANAGEMENT SERVICES" has the meaning assigned to such term in
Section 2.01 hereof.
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"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 July 15, 1998, between each of
AerCo and the Trustee.
"LOSSES" means any and all liabilities (including liabilities arising out
of the doctrine of strict liability), obligations, losses, damages, penalties,
Taxes, actions, suits, judgments, costs, fees, expenses (including reasonable
legal fees, expenses and related charges and costs of investigation) and
disbursements, of whatsoever kind and nature; provided, that the term "Losses"
shall not include any indemnified party's management time or overhead expenses.
"OFFERING MEMORANDUM" means the offering memorandum in connection with the
purchase by AerCo of Aircraft Lease Portfolio Securitization 94-1 Limited and
the Transferring Companies and the issuance by AerCo of the Notes.
"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.
ARTICLE 2
APPOINTMENT; CASH MANAGEMENT SERVICES
SECTION 2.1. Appointment. (a) The Security Trustee, on behalf of the
Secured Parties, having been duly authorized by AerCo, hereby appoints the Cash
Manager as the provider to AerCo Group of the cash management services set
forth herein and in the Indenture (the "CASH MANAGEMENT SERVICES") and
delegates to the Cash Manager its authority to administer the Accounts, to
undertake the transactions contemplated hereby (including the power to direct
withdrawals or transfers from the Accounts in accordance with this Agreement
and the Indenture) and to otherwise perform the Cash Management Services on
behalf of AerCo Group on the terms and subject to the conditions set forth in
this Agreement.
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(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 2.2. Establishment of Accounts. (a) Operating Bank. The
Operating Bank shall be the Senior Trustee, initially Bankers Trust Company,
located at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(b) Establishment of Accounts. The Cash Manager shall establish and
maintain each of the Accounts set forth on Schedule 1 hereto, in each case in
the manner described herein and in Section 3.01 of the Indenture. The Cash
Manager shall take all actions necessary to establish, and shall establish,
additional or replacement Accounts from time to time as required by and in
accordance with the terms of Section 3.01 of the Indenture. In addition, the
Cash Manager shall take all actions necessary to cause the Security Trustee to
be granted, to the extent possible, a security interest pursuant to Section
2.01 of the Security Trust Agreement in the interest of each AerCo Group Member
in the cash balances from time to time deposited in the Accounts.
(c) Successor Operating Bank. If the Operating Bank should change as a
result of (A) the resignation of the Senior Trustee or replacement of the
Senior Trustee by an Eligible Institution pursuant to the terms of the
Indenture, (B) the repayment in full of the Senior Class of Notes or (C) such
Operating Bank's failure to meet the criteria necessary to qualify as an
Eligible Institution, then the Cash Manager, acting on behalf of the Security
Trustee, shall thereupon promptly establish replacement accounts as necessary
at the successor Operating Bank and transfer the balance of funds in each
Account then maintained at the former Operating Bank to such successor
Operating Bank.
SECTION 2.3. Description of Accounts. (a) Collection Account. The Cash
Manager shall establish and maintain the Collection Account in accordance with
Section 3.01(b) of the Indenture.
(b) The Lessee Funded Account. The Cash Manager shall establish and
maintain the Lessee Funded Account in accordance with Section 3.01(c) of the
Indenture.
(c) Expense Account. The Cash Manager shall establish and maintain the
Expense Account in accordance with Section 3.01(d) of the Indenture.
(d) Rental Accounts. The Cash Manager shall establish and maintain the
Rental Accounts, and from time to time shall establish and maintain one or more
additional Rental Accounts (including one or more Non-Trustee Accounts
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that, for tax or other regulatory or legal purposes, cannot be established in
the name of the Security Trustee), each in accordance with Section 3.01(e) of
the Indenture.
(e) Refinancing Account. The Cash Manager shall establish and maintain a
Refinancing Account with respect to each subclass of Notes in accordance with
Section 3.01(f) of the Indenture.
(f) Defeasance/Redemption Account. The Cash Manager shall establish and
maintain the Defeasance/Redemption Account in accordance with Section 3.01(g)
and Article XI of the Indenture.
(g) Aircraft Purchase Account. The Cash Manager shall establish and
maintain the Aircraft Purchase Account in accordance with Section 3.01(h) of
the Indenture.
(h) Note Account. The Cash Manager shall establish and maintain the Note
Account in accordance with Section 3.01(i) of the Indenture.
(i) Lessee Payment Instructions. (i) The Cash Manager shall furnish
transfer instructions in the form set forth in Exhibit D to the Security Trust
Agreement to each bank other than the Operating Bank at which a Rental Account
is located and take all necessary steps to ensure that all funds on deposit in
each such Rental Account are transferred from such Rental Account to the
Collection Account within one Business Day of receipt thereof.
(ii) Not later than one month after the Closing Date and from time
to time thereafter, the Cash Manager shall (A) transmit payment
instructions directing each Lessee which, in accordance with the terms
of the relevant Lease, made payments into any bank accounts prior to the
Closing Date to make all future Rental Payments to a designated Rental
Account at the Operating Bank, (B) transmit payment instructions to the
bank in which such Accounts are maintained, directing such bank to
forward to a designated Rental Account at the Operating Bank any
payments made into any such Account after the Closing Date and (C) close
any such Accounts as soon as practicable after all AerCo Group Lessees
have been given payment instructions pursuant to this Section 2.03(i)
and the Cash Manager has become satisfied that all such Lessees are
making and will continue to make payments in accordance with such
payment instructions.
(j) Bank Account Statements. The Cash Manager shall take all necessary
steps to ensure that the Operating Bank and each other bank at which
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a Rental Account is located shall furnish as of the close of business on each
Calculation Date a statement providing the then current balance of each
applicable Account to the Security Trustee, AerCo, the Trustee, the Servicer
and the Cash Manager.
(k) Maintaining the Non-Trustee Accounts. So long as any Secured
Obligations remain Outstanding:
(i) The Cash Manager shall maintain, or cause to be maintained,
each Non-Trustee Account in the name of the related Grantor (as defined
in the Security Trust Agreement) only with a bank (an "ACCOUNT BANK")
that has entered into a letter agreement in substantially the form of
Exhibit D to the Security Trust Agreement (or made such other
arrangements as are acceptable to the Cash Manager and the Security
Trustee) with such Grantor and the Security Trustee (an "ACCOUNT
LETTER").
(ii) The Cash Manager (x) shall promptly instruct each Person
obligated at any time to make any payment to any Grantor for any reason
(an "OBLIGOR") to make such payment to a Non-Trustee Account meeting the
requirements of clause (i) above, (y) shall instruct each such Account
Bank to transfer to the Collection Account, in immediately available
funds, within one Business Day of receipt thereof, an amount equal to
the credit balance of the Non-Trustee Account in such Account Bank
(other than any amount required to be left on deposit in such Account
Bank for local tax or other regulatory or legal purposes), and (z) shall
transfer or cause each such Account Bank to transfer to the Security
Trustee for deposit in the Collection Account, within one Business Day
of receipt thereof, all other Cash Collateral and any proceeds of any of
the Collateral.
(iii) Upon the termination of any Account Letter or other
arrangement with respect to the maintenance of a Non-Trustee Account by
any Grantor or any Account Bank, the Cash Manager shall immediately
notify all Obligors that were making payments to such Non-Trustee
Account to make all future payments to another Non-Trustee Account
meeting the requirements of clause (i) above or, if practicable at such
time, to an Account in the name of the Security Trustee.
SECTION 2.4. Investments of Cash. The Cash Manager shall invest and
reinvest the funds on deposit in the Accounts as permitted by and in accordance
with Section 3.02 of the Indenture.
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SECTION 2.5. Calculations. Pursuant to Section 3.06 of the Indenture,
the Cash Manager shall, at the times and in the manner set forth therein,
determine or calculate each of the amounts required to be determined or
calculated by it pursuant to Sections 3.06(a) through (f) of the Indenture.
SECTION 2.6. Withdrawals and Transfers. The Cash Manager shall make the
following withdrawals and transfers in accordance with the terms of the
Indenture:
(a) Closing Date Deposits, Withdrawals and Transfers. On the Closing
Date, the Cash Manager shall or shall instruct, in writing, the Trustee or the
Security Trustee, as the case may be, to make each of the transfers described
in Section 3.03 of the Indenture.
(b) Interim Withdrawals and Transfers for Expenses and Certain Lease
Obligations. From time to time, the Cash Manager shall or shall instruct, in
writing, the Trustee or the Security Trustee, as the case may be, to make the
withdrawals and transfers provided for in Section 3.04(a) of the Indenture in
accordance with such Section.
(c) Interim Withdrawals and Transfers in Respect of Undelivered Related
Collateral. From time to time, the Cash Manager shall make the withdrawals and
transfers provided for in Section 3.04(b) of the Indenture in accordance with
such Section.
(d) Interim Deposits and Withdrawals for Modification Payments or
Dispositions of Aircraft. From time to time, the Cash Manager shall or shall
instruct, in writing, the Trustee or the Security Trustee, as the case may be,
to make the withdrawals and transfers provided for in Section 3.05 of the
Indenture in accordance with such Section.
(e) Interim Deposits and Withdrawals for Aircraft Purchases. From time to
time, the Cash Manager shall or shall instruct, in writing, the Trustee or the
Security Trustee, as the case may be, to make the deposits, withdrawals and
transfers provided for in Section 3.04 of the Indenture in accordance with such
Section.
(f) Payment Date First Step Withdrawals and Transfers. On each Payment
Date, the Cash Manager shall or shall instruct, in writing, the Trustee or the
Security, as the case may be, to make the withdrawals and transfers provided
for in Section 3.07 of the Indenture in accordance with such Section.
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(g) Payment Date Second Step Withdrawals. Subject to Section 2.06(h)
hereof, on each Payment Date, after the withdrawals and transfers provided for
in Section 2.06(f) hereof have been made, the Cash Manager shall or shall
instruct, in writing, the Trustee or the Security Trustee, as the case may be,
to distribute funds on deposit in the Collection Account and the Expense
Account as provided in Section 3.08 of the Indenture; provided, that any such
direct funds transfer shall have been authorized on or prior to the date
thereof by the Cash Manager in the form of a certificate, substantially in the
form of Exhibit A hereto, delivered to and acknowledged by the Trustee.
(h) Event of Default and Default Notice Withdrawals and Transfers.
Notwithstanding anything to the contrary contained in Section 2.06(f) or
2.06(g) hereof, following the delivery of a Default Notice to the Cash Manager
or AerCo pursuant to the Indenture or during the continuation of an
Acceleration Default, after the withdrawals and transfers provided for in
Section 2.06(f) hereof have been made, the Cash Manager shall distribute funds
on deposit in the Collection Account and the Expense Account in the amounts and
in the order of priority provided for in Section 3.08(b) of the Indenture.
(i) Defeasance/Redemption Transfers. The Cash Manager shall or shall
direct, in writing, the Trustee or the Security Trustee, as the case may be, to
transfer from time to time amounts on deposit in the Defeasance/Redemption
Account to the applicable Note Account in connection with either the redemption
of any subclass of Notes in accordance with Section 3.10 of the Indenture or
the exercise of the defeasance provisions set forth in Article XI of the
Indenture.
(j) Tax Defeasance Account Transfers. The Cash Manager shall or shall
direct, in writing, the Trustee or the Security Trustee, as the case may be, to
transfer from time to time amounts on deposit in the Defeasance/Redemption
Account to the Note Account or to the relevant Investors in connection with any
tax defeasance transactions in accordance with Section 3.10(b) of the
Indenture.
(k) Refinancing Transfers. The Cash Manager shall or shall direct, in
writing, the Trustee or the Security Trustee, as the case may be, to transfer
from time to time amounts on deposit in the Refinancing Account to the Note
Accounts in connection with any Refinancing in accordance with Section 2.10 of
the Indenture.
(l) Currency Conversions. If and to the extent that any AerCo Group
member incurs any payment obligation or other cost in a currency other than
U.S. dollars, the Cash Manager shall, to the extent practicable, convert U.S.
dollars into such other currency at the then prevailing market rate as
necessary
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to discharge such payment obligations or costs, at the expense of AerCo in
accordance with Section 13.07 of the Indenture.
For the purposes of this Section 2.06(b), neither the Trustee nor the
Security Trustee shall be liable for withdrawals or transfers made solely by
the Cash Manager without direction of either the Trusteee or Security Trustee.
SECTION 2.7. Ratings and the Accounts. Each Account shall at all times
be maintained at the Operating Bank or another Eligible Institution selected by
the Cash Manager in accordance with the Security Trust Agreement and the
Indenture; provided that one or more Rental Accounts may be maintained at any
other reputable and responsible bank in accordance with Section 3.01 of the
Indenture.
SECTION 2.8. Records. The Cash Manager shall provide such information
relating to the Accounts and the Permitted Account Investments to the Security
Trustee, the Trustee or the Rating Agencies as any of them may reasonably
request from time to time.
SECTION 2.9. Reports. The Cash Manager shall provide the reports and
other information required to be provided by it pursuant to Section 3.06(f) of
the Indenture, together with copies of such additional reports or other
information as the Trustee, the Security Trustee or the Trustee may reasonably
request, all in accordance with the terms of the Indenture.
SECTION 2.10. Additional Aircraft. In the event that AerCo Group shall
acquire any Additional Aircraft and notwithstanding that AerCo Group may retain
different Service Providers for such Additional Aircraft, the Cash Manager
hereby agrees to provide the same Cash Management Services with respect to all
such Additional Aircraft.
SECTION 2.11. Professional Advice. The Cash Manager may, on behalf of
AerCo Group, retain and instruct legal counsel and accounting, tax and other
professional advisers to represent and advise AerCo Group when the Cash Manager
considers in good faith that it is appropriate or necessary for such advisers
to be appointed to protect the interests and rights of any AerCo Group Member
or for the Cash Manager to comply with its obligations under this Agreement;
provided, however, that, in any one-month period, the Cash Manager shall not be
permitted contractually to obligate AerCo Group to pay fees to such advisers
pursuant to this Section 2.11 or any other section of this Agreement relating
to the engagement of advisers in an aggregate amount in excess of $100,000
without the prior written consent of the Board of ▇▇▇▇▇.
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ARTICLE 3
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
SECTION 3.1. 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 3.2. Liability and Indemnity. (a) The Cash Manager shall not be
liable for any Losses or Taxes to or of, or payable by, any AerCo Group Member
at any time including Losses resulting from the investment in any Permitted
Account Investment or any investment losses resulting from such investment,
unless such Losses or Taxes shall arise in connection with the 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,
AerCo and the other AerCo Group Members do hereby agree to indemnify and hold
harmless the Cash Manager, its respective directors, officers, agents and
employees and each of them against any Losses or Taxes whatsoever which they or
any of them may incur or be subject to as a consequence of this Agreement or as
a result of the performance of the functions and services hereunder (including
any Losses or Taxes incurred by the Cash Manager as a result of its
indemnifying any permitted delegate of any of its functions hereunder) except
as a result of the negligence, willful default, 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 existing or
future director, officer, agent or employee of the Cash Manager and to the
benefit of any successor of the Cash Manager and shall survive the termination
or expiration of this Agreement.
(c) Each of the Cash Manager, the Security Trustee, the Trustee and AerCo
acknowledges and agrees that the terms of this Agreement contemplate that the
Cash Manager shall receive the Relevant Information in order for the Cash
Manager to make required credit and debit entries and to make the calculations
and supply the information and reports required herein, and that the Cash
Manager will do the foregoing to the extent such information is so provided by
such relevant parties and on the basis of such information, without undertaking
any independent verification or recalculation of such information.
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(d) The Cash Manager agrees to indemnify, reimburse and hold harmless (on
an after-tax basis) each AerCo Group Member, the Trustee and the Security
Trustee and their respective directors, trustees and agents for any Losses
whatsoever which they or any of them may incur or be subject to in consequence
of the performance of the Cash Management Services or any breach of the terms
of this Agreement by the Cash Manager, but only to the extent such Losses arise
due to the gross negligence (or simple negligence in the handling of funds),
wilful misconduct, deceit or fraud of the Cash Manager or any of its directors,
trustees, officers, agents, permitted delegates or employees, as the case may
be.
SECTION 3.3. Conflicts of Interest. AerCo acknowledges and agrees that
(a) in addition to providing the Cash Management Services under this Agreement,
GPA Cash Manager II Limited may provide similar services for other third
parties, (b) in the course of conducting such activities, the Cash Manager may
from time to time have conflicts of interest in performing its duties on behalf
of the Security Trustee and the Trustee and the various entities in respect of
which it provides such similar services, (c) GPA Administrative Services
Limited, an Affiliate of the Cash Manager, is acting as the Administrative
Agent, (d) an Affiliate or Affiliates of the Cash Manager hold all of the Class
E Notes and (e) the Directors of AerCo Limited have approved the transactions
contemplated by this Agreement and desire that such transactions be consummated
and, in giving such approval, the Board of AerCo has expressly recognized that
such conflicts of interest may arise from time to time and that, when such
conflicts of interest arise, the Cash Manager shall promptly report the same to
the Security Trustee, AerCo and the Trustee and shall act in a manner that (i)
treats each AerCo Group Member equally with such other entities, (ii) does not
violate the Standard of Performance and (iii) would not be reasonably likely to
have a material adverse effect on the Noteholders.
ARTICLE 4
CASH MANAGER UNDERTAKINGS
SECTION 4.1. Cash Manager Undertakings. The Cash Manager hereby
covenants with the Security Trustee and the Trustee that it will conduct its
business such that it is a separate and readily identifiable business from, and
independent of, that of each AerCo Group Member (it being understood that any
AerCo Group Member may publish financial statements that are consolidated with
those of GPA Group and any of its Affiliates, if to do so is
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required by any applicable law or accounting principles from time to time
in effect) and further covenants as follows:
(a) if the Cash Manager receives (including in its capacity as agent for
the Security Trustee after the delivery of a Default Notice) any funds
whatsoever under this Agreement or any Relevant Document, which funds belong to
the Security Trustee, AerCo or the Trustee, or are to be paid to the Security
Trustee, AerCo or the Trustee 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, AerCo, or the Trustee, as the case may
be, (ii) keep such funds separate from all other funds belonging to the Cash
Manager and (iii) as soon as possible following receipt thereof, pay the same
into the appropriate Account in accordance with the terms hereof;
(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
any time 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, AerCo or the Trustee without set-off or counterclaim;
(e) the Cash Manager shall cooperate with the Security Trustee 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 the Security Trustee and the Trustee or their
respective authorized agents to monitor the Cash Manager's compliance with its
obligations under this Agreement; and
(f) the Cash Manager is acting hereunder as the agent of the Security
Trustee and the 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
AerCo Group Member or any holder of any equity or debt security issued by
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any AerCo Group Member, any Lessee or any other Person arising out of this
Agreement;
(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 AerCo 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.
(h) the Cash Manager shall cooperate with the Security Trustee, AerCo
Group and their respective agents, trustees and directors, including any
providing such information as may reasonably be requested, to permit AerCo
Group or its authorized agents to monitor the Cash Manager's compliance with
its obligations under this Agreement;
(i) during the term of this Agreement, the Cash Manager shall observe all
corporate formalities necessary to remain a legal entity separate and distinct
from each AerCo Group Member;
(j) during the term of this Agreement, the Cash Manager shall maintain its
assets and liabilities separate and distinct from each AerCo Group Member;
(k) during the term of this Agreement, the Cash Manager shall maintain
records, books, accounts and minutes separate from those of each AerCo Group
Member;
(l) during the term of this Agreement, the Cash Manager shall pay its
obligations in the ordinary course of its business as a legal entity separate
from each AerCo Group Member;
(m) during the term of this Agreement, the Cash Manager shall keep its
funds separate and distinct from the funds of each AerCo Group Member, and it
will receive, deposit, withdraw and disburse such funds separately from the
funds of each AerCo Group Member;
(n) during the term of this Agreement, the Cash Manager shall conduct its
business in its own name and not in the name of any AerCo Group Member;
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(o) during the term of this Agreement, the Cash Manager shall not pay or
become liable for any debt of any AerCo Group Member, other than to make
payments in the form of indemnity as required by the express terms of this
Agreement;
(p) during the term of this Agreement, the Cash Manager shall not hold out
that it is a division of any AerCo Group Member, or that any AerCo Group Member
is a division of it;
(q) during the term of this Agreement, the Cash Manager shall not induce
any third party to rely on the creditworthiness of any AerCo Group Member in
order that such third party will be induced to contract with it;
(r) during the term of this Agreement, the Cash Manager shall not enter
into any agreements between it and any AerCo Group Member that are more
favorable to either party than agreements that the parties would have been able
to enter into at such time on an arm's-length basis with a non-affiliated third
party, other than any agreements in effect on the date hereof (it being
understood that the parties hereto do not intend by this covenant to ratify any
self-dealing transactions); and
(s) during the term of this Agreement, it shall observe all corporate or
other procedures required under applicable law and each of their constitutive
documents.
ARTICLE 5
UNDERTAKINGS OF AERCO GROUP
SECTION 5.1. Cooperation. The Trustee shall use its best efforts and
AerCo shall, and shall cause each AerCo Subsidiary, and, to the extent within
its power each other Service Provider, 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 5.2. Information. AerCo will provide the Cash Manager with the
following information in respect of itself and each other AerCo Group Member:
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(a) a list of all legal advisers;
(b) copies of all Relevant Documents, including the Memorandum and
Articles of Association of AerCo, and copies of all statutory books and records
maintained on behalf thereof by such Persons;
(c) details of all bank accounts and bank mandates maintained by the Cash
Manager on behalf of the Security Trustee, the Trustee and each AerCo Group
Member;
(d) names of and contact information with respect to the board of each
AerCo Group Member and the secretary and registered office of each AerCo Group
Member;
(e) such other information as is necessary to the Cash Manager's
performance of the Cash Management Services;
The information referred to in this Section 5.02 (with the exception of
paragraph (e)) shall be provided to the Cash Manager upon execution of this
Agreement and, with respect to the information noted in paragraph (e), 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 5.3. Scope of Services. (a) Subject to subsection (b) below, in
the event that any AerCo 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, the Trustee shall provide written notice
thereof to the Cash Manager (provided the Trustee has actual knowledge of
same), 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, the Security Trustee and the Trustee shall agree on the terms on
which such increased Cash Management Services shall be provided. In each such
case, the Cash Manager shall not be obligated or permitted to take any action
that might reasonably be expected to result in the business of AerCo Group
ceasing to be separate and readily identifiable from, and independent of, that
of the Cash Manager and its Affiliates. The Security Trustee and the Trustee
shall, as directed in writing by AerCo, engage another Person 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 AerCo Group shall acquire Additional Aircraft, AerCo
Group shall so notify 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 2.10 hereof.
SECTION 5.4. Ratification. (a) AerCo and the other AerCo 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 whatever the
Cash Manager does 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 no AerCo Group
Member shall have any obligation to ratify and confirm, and expressly does not
ratify and confirm, any act or omission of the Cash Manager in violation of the
Standard of Performance or for which the Cash Manager is obligated to indemnify
any AerCo Group Member under Article 3 hereof.
(b) AerCo hereby undertakes to cause, if so requested by the Cash Manager,
any subsidiary of AerCo formed or acquired after the date hereof to execute an
agreement with the Cash Manager adopting and confirming, as regards such
subsidiary, the terms of this Agreement and agreeing to ratify whatever the
Cash Manager does in accordance with this Agreement in the exercise of any
powers or authorities conferred upon the Cash Manager under the terms of this
Agreement, it being expressly understood and agreed that no AerCo Group Member
shall have any obligation to ratify and confirm, and expressly does not ratify
and confirm, any act or omission of the Cash Manager in violation of the
Standard of Performance or for which the Cash Manager is obligated to indemnify
any AerCo Group Member under Article 3 hereof.
SECTION 5.5. Accounts and Cash Arrangements. (a) No new bank or other
account shall be established other than in accordance with this Agreement, the
Security Trust Agreement and the Indenture. The Security Trustee shall not
authorize the Trustee, AerCo, any other AerCo Group Member or any other Person
other than the Cash Manager and its authorized agents to make disbursements
from any such accounts on their behalf or on behalf of the Trustee, AerCo, or
any AerCo Group Member.
(b) Except as provided in Section 2.07, neither the Cash Manager nor any
AerCo Group Member shall modify any arrangement with respect to the flow of
cash in connection with payments, remittances and investment of funds or the
creation, maintenance or termination of any Account (other than in accordance
with this Agreement and the Indenture) without the written consent of the
Security Trustee, the Trustee and ▇▇▇▇▇.
▇▇
▇▇
SECTION 5.6. Further Assurances. Each of the Cash Manager and AerCo
agrees that, at any time and from time to time, upon the written request of the
Security Trustee or the Trustee, it shall execute and deliver such further
documents and do such further acts and things and, solely with respect to
AerCo, shall cause each AerCo Subsidiary to execute and deliver such further
documents and do such further acts and things, in each case as the Security
Trustee or the Trustee may reasonably request in order to effect the purposes
of this Agreement.
SECTION 5.7. Covenants of AerCo Group. Each AerCo Group Member covenants
with the Cash Manager that it shall conduct its business in every way possible
such that it is a separate and readily identifiable business from that of the
Cash Manager and its Affiliates (it being understood that any AerCo Group
Member may publish financial statements that are consolidated with those of GPA
Group plc and any of its Affiliates, if to do so is required by any applicable
law or accounting principles from time to time in effect) and, to the extent
possible, shall cause each of its Subsidiaries to do the same, and further
covenants as follows:
(a) during the term of this Agreement, it will observe, and shall cause
each AerCo Subsidiary to observe, all corporate formalities necessary to remain
legal entities separate and distinct from the Cash Manager;
(b) during the term of this Agreement, it will maintain, and shall cause
each AerCo Subsidiary to maintain, its assets and liabilities separate from
those of the Cash Manager;
(c) during the term of this Agreement, it will maintain, and shall cause
each AerCo Subsidiary to maintain, records, books, accounts, and minutes
separate from those of the Cash Manager;
(d) during the term of this Agreement, it shall pay, and shall cause each
AerCo Subsidiary to pay, its obligations in the ordinary course of business as
a legal entity separate from the Cash Manager;
(e) during the term of this Agreement, it shall keep, and shall cause each
AerCo Subsidiary to keep, its funds separate and distinct from any funds of the
Cash Manager, and shall receive, deposit, withdraw and disburse such funds
separately from any funds of the Cash Manager;
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(f) during the term of this Agreement, it shall conduct, and shall cause
each AerCo Subsidiary to conduct, its business in its own name, and not in the
name of the Cash Manager;
(g) during the term of this Agreement, it shall conduct, and shall cause
each AerCo Subsidiary not to agree, to pay or become liable for any debt of the
Cash Manager, other than to make payments in the form of indemnity as required
by the express terms of this Agreement;
(h) during the term of this Agreement, it shall not hold out, and shall
cause each AerCo Subsidiary not to hold out, that it or any of them is a
division of the Cash Manager, or that the Cash Manager is a division of any of
them;
(i) during the term of this Agreement, it shall not induce, and shall
cause each AerCo Subsidiary not to induce, any third party to rely on the
creditworthiness of the Cash Manager in order that such third party will be
induced to contract with it.
(j) during the term of this Agreement, it shall not enter into, and shall
cause each AerCo Subsidiary not to enter into, any transaction between any of
them and the Cash Manager that is more favorable to either party than
transactions that the parties would have been able to enter into at such time
on an arm's-length basis with a non-affiliated third party; other than any
agreements in effect on the date hereof (it being understood that the parties
hereto do not intend by this covenant to ratify any self-dealing transactions);
and
(k) during the term of this Agreement, it shall observe, and shall cause
each other AerCo Group Member to observe, all material corporate procedures and
other procedures required under applicable law and each of their constitutive
documents.
ARTICLE 6
EFFECTIVENESS
SECTION 6.1. Effectiveness. The effectiveness of this Agreement and all
obligations of the parties hereunder shall be conditions upon the executive
hereof by all parties to this Agreement.
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ARTICLE 7
CASH MANAGEMENT FEES AND EXPENSES
SECTION 7.1. Cash Management Fees. (a) In consideration of the Cash
Manager's performance of the Cash Management Services, AerCo shall pay to the
Cash Manager an annual fee (the "CASH MANAGEMENT FEE") equal to $250,000 (as
such amount may be adjusted for each annual period by reference to the
inflation factor at the commencement of such annual period on each March 15),
payable monthly in arrears in equal installments on the Payment Date commencing
August 17, 1998; provided that the Cash Manager shall receive payment for the
period between the Closing Date and August 17, 1998 in arrears on August 17,
1998.
SECTION 7.2. 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 AerCo Group or costs
incurred as a result of the breakage of investments.
ARTICLE 8
TERM; REMOVAL OF OR TERMINATION BY THE CASH MANAGER
SECTION 8.1. 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 Notes and any other securities issued by AerCo as
relating to Additional Aircraft owned by AerCo Group. During such term, this
Agreement shall not be terminable by either party except as expressly provided
in this Article 8.
SECTION 8.2. Right to Terminate. (a) At any time during the term of this
Agreement, the Security Trustee, on behalf and at the written direction of the
Secured Parties, or AerCo shall be entitled to terminate this Agreement on 120
days written notice if:
(i) the Cash Manager shall materially breach its obligations under
this Agreement and, after written notice from AerCo, the Cash Manager
has failed to cure such breach within 30 days; or
(ii) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction
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seeking relief in respect of the Cash Manager, or of a substantial
part of the property or assets of the Cash Manager, 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 undismissed for 75 days or an order or decree approving or
ordering any of the foregoing shall be entered or the Cash Manager 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 75 days; or
(iii) the Cash Manager shall (A) voluntarily commence any
proceeding or file any petition seeking relief 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, (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, or (D) make a general
assignment for the benefit of its creditors.
(b) Following the delivery of a Default Notice or during the continuance
of an Acceleration Default, the Security Trustee, on behalf of the Secured
Parties, shall be entitled to terminate on 5 days' written notice the authority
granted to the Cash Manager to perform the Cash Management Services set forth
in Section 2.01 and in the Indenture.
(c) At any time during the term of this Agreement, the Cash Manager shall
be entitled to terminate this Agreement on 60 days written notice if:
(i) any AerCo Group Member shall fail to pay in full when due (A0
any installment of the Cash Management Fee within 30 days after the
effectiveness of written notice from the Cash Manager of such failure or
(B0 any other amount payable to the Cash Manager hereunder within 60
days after written notice from the Cash Manager of such failure;
(ii) any AerCo Group Member 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 for 30 days after AerCo Group shall have received notice
of such failure (other than with respect to payment obligations referred
to in clause (c)(i) of this Section 8.02);
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(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 AerCo or any other AerCo Group Member, or of a
substantial part of the property or assets of AerCo or any other AerCo
Group Member, 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 undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered or AerCo or any other AerCo Group Member 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 60 days; or
(iv) AerCo or any other AerCo Group Member 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 (b)(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.
(d) No termination of this Agreement by the Security Trustee or AerCo
pursuant to Section 8.02(a) and no termination or resignation by the Cash
Manager pursuant to Section 8.02(c) shall become effective prior to the date of
appointment by AerCo 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 or resignation, 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 8.02(d), 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 7 hereof, and for so long as the Cash
Manager is continuing to perform any of the Cash Management Services for any
AerCo 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 AerCo Group or not to be due to the Cash Manager, until a successor
cash manager shall have been appointed
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and shall have accepted such appointment in accordance with the provisions of
Section 8.03(c).
(e) Subject to Section 9.01, the parties hereto agree not to amend this
Agreement to reduce the scope of the Cash Management Services to be provided by
the Cash Manager hereunder unless a third party reasonably acceptable to the
parties hereto and to the Servicer becomes a party to this Agreement and agrees
to provide such Cash Management Services in the place of the Cash Manager.
SECTION 8.3. Consequences of Termination. (a) Notices. (i) Following the
termination of this Agreement by the Security Trustee or resignation of the Cash
Manager pursuant to Section 8.02 and the replacement of the Cash Manager by a
successor cash manager pursuant to Section 8.02 and 9.01, the former Cash
Manager will promptly forward to the successor cash manager, the Security
Trustee, AerCo, the Trustee and, where applicable, any AerCo Group Member, any
notices and accounting reports (or copies thereof) received by it during the
year immediately after such termination or resignation.
(ii) AerCo Group will promptly notify any relevant third party,
including the Rating Agencies and the Trustee of the removal of or
resignation by the Cash Manager under this Agreement 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 AerCo Group.
(b) Accrued Rights. A termination of this Agreement by the Security
Trustee or the resignation by the Cash Manager hereunder shall not affect the
respective rights and liabilities of any party hereto accrued prior to such
removal or resignation in respect of any prior breaches hereof or otherwise.
Upon action by any party hereto pursuant to the provisions of Section 8.02, the
Cash Manager shall be entitled to the payment of any compensation owed to it by
AerCo Group hereunder.
(c) Replacement. If this Agreement is terminated by the Security Trustee
or the Cash Manager resigns under Section 8.02 and the Cash Manager is replaced
by a successor cash manager under Section 9.01, 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 8.4. Survival. Notwithstanding any termination or the expiration
of this Agreement, the respective obligations of AerCo Group and the Cash
Manager under Sections 3.02, 7.01 (to the extent any fees due and owing
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through such date of termination remain unpaid) and 8.03 hereof shall survive
such termination or expiration, as the case may be.
ARTICLE 9
APPOINTMENT OF SUCCESSOR CASH MANAGER
SECTION 9.1. Appointment of Successor Cash Manager. In the event of the
removal or resignation of the Cash Manager pursuant to Section 8.02 hereof, the
Security Trustee, on behalf of the Secured Parties, may appoint a successor
cash manager or any other Person as successor cash manager. Any successor cash
manager so appointed following the removal or resignation of the Cash Manager
pursuant to the provisions of Section 8.02 hereof shall execute and deliver to
the former Cash Manager, the Security Trustee, AerCo Group and the Trustee an
instrument accepting such appointment. Thereupon, such successor cash manager
shall, without any further act, deed or conveyance, become vested with all the
authority, rights, powers, immunities, duties and obligations of the Cash
Manager, and with like effect as if originally named as Cash Manager under this
Agreement, and the former Cash Manager shall thereupon be obligated to transfer
and deliver such relevant records or copies thereof maintained by the Cash
Manager in connection with the performance of its obligations under this
Agreement and each of the other Relevant Documents.
ARTICLE 10
ASSIGNMENT AND DELEGATION
SECTION 10.1. Assignment and Delegation. (a) The Cash Manager may
delegate the performance of any of the Cash Management Services (provided that
any such delegation shall not release the Cash Manager from its obligations
hereunder), such delegation to be procured by delivery to the Trustee of a
Certificate in the form of Exhibit B hereto.
(b) Except as set forth in this Section 10.01, none of the parties to this
Agreement shall assign or delegate 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 thereto.
(c) Without limiting the foregoing, any Person who shall become a
successor by assignment or otherwise of the Cash Manager (or any respective
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successors thereof) in accordance with this Section 10.01 shall be required, as
a condition to the effectiveness of any such assignment or other arrangements,
to become a party to this Agreement.
ARTICLE 11
GUARANTEE
SECTION 11.1. Guarantee. The Guarantor hereby fully and unconditionally
guarantees to the Security Trustee, the Trustee and AerCo Group (i) the due and
punctual performance by the Cash Manager of all agreements, covenants and other
obligations required to be performed by the Cash Manager hereunder or under any
other Relevant Document (including, without limitation, the punctual payment
when due of all amounts now or hereafter payable by the Cash Manager hereunder
or under any other Relevant Document) (all such agreements, covenants and other
obligations being the "GUARANTEED OBLIGATIONS"), all in accordance with the
terms of this Agreement and the other Relevant Documents, and agrees to pay any
and all expenses (including counsel fees and expenses) incurred by any of the
parties hereto or any of their respective officers, directors or agents in
enforcing any right under this Section 11.01. The liability of the Guarantor
under this Section 11.01 is limited to the maximum amount that will result in
the obligations of the Guarantor not constituting a fraudulent conveyance or
fraudulent transfer under applicable law.
The Guarantor hereby waives diligence, presentment, filing of claims with
a court in the event of merger or bankruptcy of the Cash Manager, any right to
require a proceeding first against the Cash Manager, and the benefit of
discussion, protest or notice with respect to any and all demands for
performance or payment hereunder whatsoever (except as specified above), and
covenants that this Article 11 shall not be discharged except by performance or
payment in full of all of the Guaranteed Obligations.
The Guarantor hereby irrevocably waives any claim or other rights which it
may now or hereafter acquire against the Cash Manager that arise from the
existence, payment, performance or enforcement of the Guarantor's obligations
under this Agreement or any other Relevant Document, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of any party
against the Cash Manager, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including, without
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limitation, the right to take or receive from the Cash manager, directly or
indirectly, in cash or other property or in any other manner, payment or
security on account of such claim or other rights, until all of the Guarantor's
obligations under this Agreement have been satisfied. If any amount shall be
paid to the Guarantor in violation of the preceding sentence and this Agreement
shall not have been terminated, such amount shall be deemed to have been paid
to the Guarantor for the benefit of, and held in trust for the benefit of, the
Security Trustee, the Trustee and AerCo Group, and shall forthwith be paid to
the Security Trustee for its benefit and the benefit of the Trustee and AerCo
Group. The Guarantor acknowledges that it will receive direct and indirect
benefits from the execution, delivery and performance by the Cash Manager of
this Agreement and that the waiver set forth in this paragraph is knowingly
made in contemplation of such benefits.
SECTION 11.2. Reinstatement. The Guarantor hereby agrees that the
guarantee provided for in Section 11.01 shall continue to be effective or be
reinstated, as the case may be, if at any time, payment, or any part thereof,
of any Guaranteed Obligations or interest thereon is rescinded or must
otherwise be restored to the Cash Manager upon the bankruptcy or insolvency of
the Cash Manager or the Guarantor or otherwise.
SECTION 11.3. Unconditional Nature of Guarantee. The Guarantor hereby
agrees that its obligations under the guarantee set forth in Section 11.01
shall be irrevocable and unconditional, irrespective of the invalidity,
irregularity or unenforceability of this Agreement or any other Relevant
Document against the Cash Manager, the absence of any action to enforce the
Cash Manager's obligations hereunder or under any other Relevant Document, any
waiver or consent by any party hereto with respect to any provisions thereof,
any amendment to the terms hereof or of any other Relevant Document, the
bankruptcy of the Cash Manager or any circumstance which might otherwise
constitute a legal or equitable discharge of defense of a guarantor; provided,
however, that the Guarantor shall be entitled to exercise any right that the
Cash Manager could have exercised under this Agreement to cure any default in
respect of its obligations hereunder or under any other Relevant Document, if
any, but only to the extent such right, if any, is provided to the Cash Manager
hereunder or under any other Relevant Document.
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ARTICLE 12
MISCELLANEOUS
SECTION 12.1. Notices. (a) 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, 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 AerCo and the other AerCo Group Members, to:
AerCo Limited
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Channel Islands
Attention: Mourant & Co. Secretaries Limited
- Company Secretary
Fax: ▇▇-▇▇▇▇-▇▇▇-▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇
Fax: + ▇▇-▇▇▇-▇▇▇ 1400
and
GPA Administrative Services Limited
as Administrative Agent
GPA House
Shannon, County Clare
Ireland
Attention: General Counsel
Fax: + ▇▇▇-▇▇-▇▇▇-▇▇▇
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If to the Trustee or the Security Trustee, to:
Bankers Trust Company
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Group,
Structured Finance Team
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Cash Manager, to it at:
GPA Cash Manager II Limited
GPA House
Shannon, County Clare
Ireland
Attention: Corporate Secretary
Fax: + ▇▇▇-▇▇-▇▇▇-▇▇▇
If to the Guarantor, to:
GPA Group plc
GPA House
Shannon, County Clare
Ireland
Attention: Corporate Secretary
Fax: + ▇▇▇-▇▇-▇▇▇-▇▇▇
If to the Servicer, to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ Limited
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is conclusively presumed to have been duly given
whether or not the addressee receives it.
From time to time any party to this Agreement may designate a new address
or number for purposes of notices thereunder by notice to each of the other
parties thereto.
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SECTION 12.2. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 12.3. 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 12.01 shall
be deemed effective service of process on such party.
SECTION 12.4. Agent for Service of Process. Each of AerCo and its
Subsidiaries hereby appoint Corporation Service Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇.▇., ▇.▇.▇. ▇▇▇▇▇ as its nonexclusive agent for service of process in
the United States in connection with the Cash Management Agreement. The
parties may use any legally available means of service of process. Each of
AerCo and its Subsidiaries will promptly notify the other persons listed in
Section 12.01 of any change in the address of the respective agents; provided,
however, that each of AerCo and its Subsidiaries will at all times maintain an
agent located within New York State for service of process in connection with
the Cash Management Agreement, the identity of any successor agent to be
reasonably satisfactory to the Cash Manager.
SECTION 12.5. 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 12.6. 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
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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.
SECTION 12.7. 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 12.8. 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 12.9. 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
AerCo Group regarding AerCo Group or its business or the Aircraft, except as
authorized in writing by AerCo Group or otherwise permitted by this Agreement,
and except:
(a) to Representatives of the Cash Manager and any of its affiliates in
furtherance of the purposes of this Agreement, provided that any such
Representatives shall have agreed to be bound by the restrictions on disclosure
set forth in this Section 12.09;
(b) to the extent (x) required by Applicable Law or by judicial or
administrative process, including 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 thereof is
a party, or (xi) reasonably necessary in order to enable the Cash Manager to
perform the Cash Management Services, but in the case of clause (i) above, in
the event of proposed disclosure, the Cash Manager shall seek the assistance of
AerCo Group to protect information in which AerCo Group has an interest to the
maximum extent achievable;
(c) to the extent such information is required to be included in any
preliminary or final offering circular, registration statement or contract or
other document pertaining to the transactions contemplated by the Indenture and
the Related Documents approved in advance by ▇▇▇▇▇.
▇▇
▇▇
(▇) to the extent that the information:
(i) was generally available in the public domain;
(ii) was lawfully obtained from a source under no obligation of
confidentiality, directly or indirectly, to AerCo Group;
(iii) was disclosed to the general public with the approval of
AerCo Group;
(iv) was in the files, records or knowledge of the Cash Manager or
any affiliates of the Cash Manager prior to initial disclosure thereof
to the Cash Manager or any Affiliates of the Cash Manager by AerCo
Group;
(v) was developed independently by the Cash Manager or any
affiliates of the Cash Manager; and
(vi) to the extent the Cash Manager reasonably deems necessary to
protect and enforce its rights and remedies under this Agreement;
provided, however, that in such an event the Cash Manager shall act in a
manner reasonably designed to prevent disclosure of such confidential
information; and provided further, that prior to disclosure of such
information the Cash Manager shall inform AerCo Group of such
disclosure.
SECTION 12.10. 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 AerCo 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 AerCo Group Member by the
Cash Manager shall be taken as agent for such AerCo Group Member, either naming
the relevant AerCo Group Member, or naming the Cash Manager as agent for an
undisclosed principal. No AerCo Group Member shall hold itself out as a
partner of the Cash Manager, and the Cash Manager will not hold itself out as a
partner of any AerCo Group Member.
(b) The Cash Manager shall not have any fiduciary duty or other implied
obligations or duties to any AerCo Group Member, any Lessee or any other Person
arising out of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed on the date
first written above.
AERCO LIMITED
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
_____________________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Director
GPA CASH MANAGER II LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
GPA GROUP PLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as Security Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as trustee under
the Indenture
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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AERCO IRELAND LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
AERCO IRELAND II LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
AERFI BELGIUM N.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
AERCOUSA INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
AIRCRAFT LEASE PORTFOLIO
SECURITIZATION 94-1 LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
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ALPS ▇▇-▇ (▇▇▇▇▇▇▇) N.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
PERGOLA LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
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APPENDIX A
AerCo Ireland Limited
AerCo Ireland II Limited
AerCoUSA Inc.
AerFi Belgium N.V.
Aircraft Lease Portfolio Securitization 94-1 Limited
ALPS ▇▇-▇ (▇▇▇▇▇▇▇) N.V.
Pergola Limited
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SCHEDULE 1
ACCOUNTS
BANKERS TRUST ACCOUNTS
Trustee Account Number
1. RENTAL ACCOUNTS
(a) Bankers Trust Company, as Trustee for AerCo ▇▇-▇▇▇-▇▇▇
(b) Bankers Trust Company, as Trustee for AerCo ▇▇-▇▇▇-▇▇▇
2. EXPENSE ACCOUNT
Bankers Trust Company, as Trustee for AerCo ▇▇-▇▇▇-▇▇▇
3. OTHER ACCOUNTS PURSUANT TO THE CASH MANAGEMENT AND INDENTURES
AerCo Expense Account 26071
AerCo Purchase Account 26076
AerCo Note Account 26070
AerCo Lessee Funded Account 26072
AerCo Collection Account 26073
AerCo Defeasance/Redemption Account 26075
AerCo Refinancing Account 26074
4. ADDITIONAL BANK ACCOUNTS
Account Name: ALPS 1994 -- 1 Belgium NV
Bank: Generale de Bank, Brussels
Account No.: ▇▇▇-▇▇▇▇▇▇▇-▇▇
Currency: Belgian Franc
Account Name: GPA Belgium NV
Bank: Citibank Brussels
Account No.: ▇▇▇-▇▇▇▇▇▇▇-▇▇
Currency: Belgian Franc
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Account Name: GPA Belgium NV
Bank: Citibank Brussels
Account No.: ▇▇▇-▇▇▇▇▇▇▇-▇▇
Currency: US Dollar
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EXHIBIT A
FORM OF CERTIFICATE REQUESTING DIRECT FUNDS TRANSFER
[Date]
Bankers Trust Company, as
Trustee under
the Indenture
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Cash Management Agreement:
Request for Direct Funds Transfer
Sirs:
The undersigned hereby requests that all amounts distributable to the
Expense payee named below pursuant to Section 2.06(f) of the Cash Management
Agreement dated as of July 15, 1998 (the "Cash Management Agreement"; terms
used herein but not otherwise defined herein being used herein as therein
defined), among the Cash Manager, GPA Group plc, as the Guarantor, AerCo
Limited, the Trustee, the Security Trustee and the other entities named
therein, be transferred on each Payment Date to the following account:
[Name of Expense Payee]
[Name of Bank]
Account No.
[Location]
Attention: ]
Please acknowledge your approval of the foregoing payment instructions by
executing a copy of this letter and returning it to at .
GPA CASH MANAGER II LIMITED
By: _________________________________
Name:
Title:
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Acknowledged and Approved:
BANKERS TRUST COMPANY, not in its individual
capacity, but solely as trustee under the Indenture
By: _________________________________
Name:
Title:
42
EXHIBIT B
FORM OF CERTIFICATE AUTHORIZING DELEGATION OF SERVICES
[Date]
Bankers Trust Company, as
Trustee under the
Indenture
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Cash Management Agreement:
Delegation of Certain Cash Management Services
Sirs:
Pursuant to Section 10.01 of the Cash Management Agreement dated as of
July 15, 1998 (the "Cash Management Agreement"; terms used herein but not
otherwise defined herein being used herein as therein defined), among the Cash
Manager, GPA Group plc, as the Guarantor, AerCo Limited, the Trustee, the
Security Trustee and the other entities named therein, the Cash Manager hereby
requests your approval to the delegation by it to [name] of cash disbursement
and related services.
The Cash Manager acknowledges and agrees that the foregoing delegation of
services does not in any way release the Cash Manager from its obligations
under the Cash Management Agreement.
GPA CASH MANAGER II LIMITED
By: ___________________________________
Name:
Title:
43
Acknowledged and Approved:
BANKERS TRUST COMPANY, not in its individual
capacity, but solely as trustee under the Indenture
By: ____________________________________
Name:
Title:
Acknowledged and Agreed:
[NAME]
By: ____________________________________
Name:
Title: