EXHIBIT 10
(▇▇▇▇▇▇▇▇ CHANCE LOGO) LIMITED LIABILITY PARTNERSHIP
EXECUTION VERSION
DATED AS OF SEPTEMBER 28, 2006
BETWEEN
GATX FINANCIAL CORPORATION
as Seller
and
MACQUARIE AIRCRAFT LEASING LIMITED
as Buyer
RELATING TO THE SALE AND PURCHASE
of
THE GATX AIR BUSINESS
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SALE AND PURCHASE AGREEMENT
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TABLE OF CONTENTS
CLAUSE PAGE
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1. Definitions........................................................... 1
2. Purchase And Sale..................................................... 21
3. Representations And Warranties Of Seller.............................. 30
4. Representations And Warranties Of Buyer............................... 38
5. Covenants Of Seller................................................... 43
6. Covenants Of Buyer.................................................... 48
7. Covenants Of Buyer And Seller......................................... 52
8. Tax Matters........................................................... 59
9. Personnel Matters..................................................... 68
10. Conditions To Closing................................................ 74
11. Survival; Indemnification............................................ 76
12. Termination.......................................................... 81
13. Miscellaneous........................................................ 82
SCHEDULE 1 Aircraft...................................................... 87
Part 1 Owned Aircraft.................................................... 87
Part 2 Partnership Aircraft.............................................. 96
SCHEDULE 2 Ownership Interests........................................... 106
Part 1 Wholly Owned Asset Owning Entities................................ 106
Part 2 Partnership Asset Owning Entities................................. 111
Part 3 Owner Trusts...................................................... 125
Part 4 Partnership Owner Trusts.......................................... 126
Part 5 Orphan Spcs....................................................... 128
SCHEDULE 3 Consents And Actions.......................................... 131
SCHEDULE 4 Liens......................................................... 137
SCHEDULE 5 Material Contracts And Designated Contracts................... 139
Part 1 Material Contracts................................................ 139
Part 2 Designated Contracts.............................................. 142
Part 3 Aircraft Commitments.............................................. 142
SCHEDULE 6 Leases........................................................ 144
SCHEDULE 7 Employees..................................................... 156
Part A French Employees.................................................. 156
Part B UK Employees...................................................... 157
Part C U.S. Employees.................................................... 158
SCHEDULE 8 Material Actions.............................................. 161
SCHEDULE 9 Tax Matters................................................... 162
SCHEDULE 10 Purchase Price Calculation................................... 169
SCHEDULE 11 Working Capital Statement.................................... 170
Attachment A To The Working Capital Statement GATX Air Working Capital
Practices............................................................. 171
SCHEDULE 12 Partnership Asset Owning Entity Allocated Amounts, Platform
Value Adjustment Amounts And Partnership Asset Owning Entity Implied
Values................................................................ 176
SCHEDULE 13 Orphan SPC Representations................................... 177
SCHEDULE 14 Aircraft Sum................................................. 178
SALE AND PURCHASE AGREEMENT dated as of September 28, 2006 between GATX
Financial Corporation, a Delaware corporation ("SELLER"), and Macquarie Aircraft
Leasing Limited, a company incorporated under the laws of the Republic of
Ireland ("BUYER").
WITNESSETH:
WHEREAS, Seller, directly and indirectly, is the owner of the Business (as
hereinafter defined) and desires to sell, or procure the sale of, the Business
to Buyer, and Buyer desires to purchase the Business, upon the terms and subject
to the conditions set forth below.
Accordingly, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties to this Agreement agree as follows:
1. DEFINITIONS
1.1 Definitions
As used in this Agreement (including the recitals hereto), the following
terms have the following meanings:
"ADS" means, with respect to an Aircraft, airworthiness directives issued
by any Governmental Authority having over-sight authority over or with
respect to such Aircraft (but excluding manufacturer's service bulletins
and similar notices or demands) requiring mandatory work be performed on,
or other mandatory action be taken or mandatory expenditure incurred with
respect to, such Aircraft (except such airworthiness directives (a) which
the Manufacturer or Lessee of such Aircraft, or any Affiliate of such
Manufacturer or Lessee, has agreed in writing to perform entirely at that
Person's expense, (b) with respect to which the relevant Asset Owning
Entity or Owner Trust, as the case may be, or Lessee of such Aircraft or
Affiliate of such Lessee has obtained waivers or extensions or deferrals of
the time by which the work is required to be performed, the action is
required to be taken or the expenditure is required to be incurred, or (c)
with respect to which the timeframe allowed for the accomplishment thereof
has not elapsed) that, in the aggregate, give rise to any material
deviation from the cost of compliance with airworthiness directives from
the cost of compliance incurred in the past by the relevant Asset Owning
Entity or Owner Trust.
"ADDITIONAL ASSETS " has the meaning ascribed to such term in Clause 2.2.
"AFFILIATE" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with that
Person; provided that no Asset Owning Entity shall be considered an
Affiliate of Seller.
"AIRBUS" means Airbus S.A.S., a French societe par actions simplifiee duly
created and existing under French law.
"AIRBUS PURCHASE AGREEMENT" means collectively (a) the aircraft purchase
agreement between Airbus and Seller dated 17th October 2001 pursuant to
which Seller agreed to purchase nineteen (19) Airbus A319, A320 and A321
aircraft, and (b) the aircraft purchase agreement between Airbus and Seller
dated 31st May 2005 pursuant to which Seller agreed to purchase up to two
(2) Airbus A320-200 aircraft.
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"AIRCRAFT" means, either collectively or individually, as applicable, the
aircraft identified in Schedule 1, each with the manufacturer's serial
number as set forth in Schedule 1, including (a) the airframe, (b) the
Engines and (c) all appliances, parts, accessories, instruments,
navigational and communications equipment, furnishings, modules, components
and other items of equipment installed in or furnished with the Aircraft on
the Closing Date or the Deferred Date (as applicable to the relevant
Aircraft), except that, with respect to Lessee Furnished Equipment,
references in this Agreement to an "AIRCRAFT" shall be deemed to refer only
to that interest in Lessee Furnished Equipment as is held by the owner of
the Aircraft therein under the applicable Lease Document. References to the
"AIRCRAFT" shall, where the context requires, include the Manuals and
Technical Records.
"AIRCRAFT SUM" means the sum set forth in Schedule 14.
"ALASKA" means Alaska Airlines, Inc., an Alaska corporation.
"ALASKA AIRCRAFT" means the Boeing B737-400 Aircraft with manufacturer's
serial numbers 25095 and 25096 respectively.
"ALASKA AIRCRAFT FINANCING DOCUMENTS" means the two (2) notes each dated 22
December, 1995 issued by WFB as owner trustee and authenticated by State
Street Bank and Trust Company as indenture trustee, the two (2) Trust
Indentures and Security Agreements dated 15 December 1995 (in each case of
such agreement relating to Alaska Aircraft bearing manufacturer's serial
number 25095) and 20 December 1995 (in the case of each such agreement
relating to Alaska Aircraft bearing manufacturer's serial number 25096)
between WFB as owner trustee and State Street Bank and Trust Company as
indenture trustee, and all documents ancillary thereto and entered into in
connection therewith, in each case, in relation to the Alaska Aircraft.
"ALLOCATION ARBITER" has the meaning ascribed to such term in Clause 2.9.2.
"APPLICABLE LAW" means any federal, state or local law (statutory, common
or otherwise) or regulation.
"ASSET ACQUISITION STATEMENT" has the meaning ascribed to such term in
Clause 2.9.1.
"ASSET OWNING ENTITY" means, together, each of the Persons listed in column
(1) of Part 1 of Schedule 2 or column (1) of Part 2 of Schedule 2.
"ASSUMED LIABILITIES" has the meaning ascribed to such term in Clause 2.5.
"ATA" means ATA Airlines, Inc., an Indiana corporation.
"ATA AIRCRAFT" means the Boeing B757-200 Aircraft manufacturer's serial
number 27971.
"ATA AIRCRAFT FINANCIERS" means US Bank, N.A., Wilmington Trust Company,
Banc One Arizona Leasing Corporation, Principal Mutual Life Insurance
Company, Keyport Life Insurance Company and Standard Insurance Company.
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"ATA AIRCRAFT FINANCING DOCUMENTS" means any and all documents entered into
by G3AC and/or Seller, on the one hand, and one or more of the ATA Aircraft
Financiers, on the other hand, and all documents ancillary thereto and
entered into in connection therewith, in each case, in relation to the ATA
Aircraft (including the guarantee given by Seller in connection therewith).
"A321 GTL AIRCRAFT" means A321-200 Aircraft manufacturer's serial numbers
674, 675, 684 and 761.
"A321 GTL DOCUMENTS" means any and all documents entered into by one or
more of the A321 Partners, on the one hand, and the A321 GTL Lessor, on the
other hand, and all documents ancillary thereto or entered into in
connection therewith in relation to A321 GTL Aircraft (including the
guarantee given by Seller in connection therewith).
"A321 GTL LESSOR" means any or all (as the context may permit) of DGVR
Alpha Mobilien-Verwaltungsgesellschaft mbH & Co. Wega Vermietungs KG, DGVR
Alpha Mobilien-Verwaltungsgesellschaft mbH & Co. Watra Vermietungs KG, DGVR
FORTUNA Mobilien-Verwaltungsgesellschaft mbH & Co. Vermietungs KG and DGVR
FORTUNA Mobilien-Verwaltungsgesellschaft mbH & Co. Vermietungs KG, each a
German limited liability partnership.
"A321 LOAN AIRCRAFT" means A321-200 aircraft manufacturer's serial numbers
674, 675, 684, 761, 808 and 823.
"A321 LOAN DOCUMENTS" means any and all documents entered into by one or
more of the A321 Partners, on the one hand, and KfW, on the other hand, and
all documents ancillary thereto or entered into in connection therewith in
relation to A321 Loan Aircraft.
"A321 PARTNERS" means any or all (as the context may permit) of GATX A321
Partners, LDC, a Cayman limited duration company, A321 Partners BV, a
Netherlands company, A321 Finance Ltd., a Cayman company, and GATX A321
Limited, an Irish company.
"ATP" means either or both (as the context may permit) of Alster & Thames
Partners Ltd., a Cayman company, and Alster & Thames Partners (USA) LLC, a
Delaware limited liability company.
"BACKSTOP DATE" means March 29, 2007 or such later date, if any, as may be
agreed by Seller and Buyer.
"BASKET AMOUNT" has the meaning ascribed to such term in Clause 11.2.1.
"BENEFICIAL INTEREST" means, in relation to an Owner Trust, the beneficial
interest in the trust property held by the Owner Trustee of such Owner
Trust pursuant to the Trust Agreement constituting such Owner Trust.
"BENEFIT PLANS" has the meaning ascribed to such term in Clause 3.10.2.
"BLUE DRAGON" means Blue Dragon Aircraft Ltd., a Cayman company.
"BOEING" means The Boeing Company, a Delaware corporation.
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"BUCKINGHAM" means Buckingham Partners LDC, a Cayman limited duration
company.
"BUSINESS" means the Specified Ownership Interests, the Additional Assets
and the Assumed Liabilities, but excluding the Excluded Assets and the
Retained Liabilities.
"BUSINESS DAY" means a day, other than Saturday, Sunday or any other day on
which commercial banks in Chicago, Illinois and New York, New York are
authorized or required by Applicable Law to close.
"BUYER" has the meaning ascribed to such term in the recitals hereto.
"BUYER CLOSING DOCUMENTS" has the meaning ascribed to such term in Clause
4.2.
"BUYER FRENCH EMPLOYER" means Buyer or the Affiliate of Buyer nominated by
Buyer pursuant to Clause 9.1.2(a).
"BUYER GROUP" means, together, Buyer and each of its Affiliates.
"BUYER UK EMPLOYER" means Buyer or the Affiliate of Buyer nominated by
Buyer under Clause 9.1.1(a).
"CALCULATION NOTICE" has the meaning ascribed to such term in Clause
2.8.4(e).
"CALJET" means Caljet LLC, a Delaware limited liability company.
"CALJET AIRCRAFT" means B737-300 Aircraft manufacturer's serial numbers
23574, 23575, 23576, 23579, 23580, 23581, 23582 and 23583.
"CALJET AIRCRAFT FINANCING DOCUMENTS" means the twenty-four (24) equipment
notes each dated April 21, 1998 issued by WFB as owner trustee and
authenticated by Wilmington Trust Company as mortgagee, the eight (8) trust
indentures and mortgages each dated April 21, 1998 between WFB as owner
trustee and Wilmington Trust Company as mortgagee, and all documents
ancillary thereto and entered into in connection therewith, in each case,
in relation to the Caljet Aircraft.
"CFM GTA" has the meaning given to it in paragraph 33 of Schedule 3.
"CLAIM" has the meaning ascribed to such term in Clause 11.3.1.
"CLOSING" has the meaning ascribed to such term in Clause 2.10.1.
"CLOSING ASSETS" has the meaning ascribed to such term in Clause 2.10.1.
"CLOSING DATE" means November 30, 2006 (or, if all the conditions precedent
set forth in Clause 10 (other than those that by their terms are satisfied
at the Closing) are not satisfied or waived on or by November 30, 2006,
then on the third (3rd) Business Day after all such conditions precedent
are satisfied or waived) or such later date, if any, occurring on or prior
to the Backstop Date as may be agreed from time to time by Seller and
Buyer.
"CLOSING DATE ALLOCATED AMOUNT" means the sum of (a) one billion seventy
four million five hundred thousand Dollars ($1,074,500,000), as adjusted in
accordance with
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Clauses 2.8.2, 2.8.3 and 2.8.4(c), and (b) the sum of all Partnership Asset
Owning Entity Allocated Amounts in respect of the Specified Ownership
Interests in the Partnership Asset Owning Entities which are sold to Buyer
on the Closing Date.
"CLOSING DATE INTEREST RATE" has the meaning ascribed to such term in
Clause 2.8.4(h).
"CLOSING WORKING CAPITAL" has the meaning ascribed to such term in Clause
2.8.4(a).
"CODE" means the Internal Revenue Code of 1986.
"COMMITMENT LETTERS" has the meaning ascribed to such term in Clause 4.5.1.
"COMPETITION LAWS" means statutes, rules, regulations, orders, decrees,
administrative and judicial doctrines and other laws, including those of
the European Union and each of its member states, that are designed or
intended to prohibit, restrict or regulate actions having the effect of
monopolization, lessening of competition or restraint of trade or provide
for the regulation and/or authorization of acquisitions.
"CONFIDENTIALITY AGREEMENT" means collectively (a) the confidentiality
agreement between GATX Corporation and Macquarie Bank Limited dated April
27, 2006 and (b) the consent letter between such persons dated September 7,
2006 relating to such confidentiality agreement.
"CONTEMPLATED AIRCRAFT" means an Aircraft referred to in the definition
ascribed to the term "Contemplated Arrangements".
"CONTEMPLATED ARRANGEMENTS" means the proposal which has been disclosed by
Seller to Buyer for the marketing for possible sale (a) by 737 Partners of
those Boeing B737-800 Aircraft with manufacturer's serial numbers 28825,
28829, 30478 and 30567 respectively, (b) by GATX/CL Air of those Airbus
A320-200 Aircraft with manufacturer's serial numbers 189, 190, 653 and 657,
(c) by Buckingham of that one Boeing 757-200 Aircraft with manufacturer's
serial number 25240 and (d) by G3AC of that one Boeing 737-300 Aircraft
with manufacturer's serial number 28870.
"CONTROL" shall mean, as to any Person, the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise. The terms
"CONTROL," "CONTROLLED BY," "UNDER COMMON CONTROL WITH" and "CONTROLLING"
shall have correlative meanings.
"DAMAGES" has the meaning ascribed to such term in Clause 11.2.1.
"DEBT COMMITMENT LETTER" has the meaning ascribed to such term in Clause
4.5.1.
"DEBT FINANCING" has the meaning ascribed to such term in Clause 4.5.1.
"DECEMBER 31ST BALANCE SHEET" has the meaning ascribed to such term in
Clause 3.6.1.
"DEFERRED CLOSING" has the meaning ascribed to such term in Clause 2.10.1.
"DEFERRED DATE" means, in relation to any Specified Ownership Interest
which is not transferred to Buyer pursuant to this Agreement on the Closing
Date, the date, if any,
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following the Closing Date, but in no event later than the Backstop Date,
on which such Specified Ownership Interest is transferred to Buyer pursuant
to this Agreement.
"DEFERRED DATE ALLOCATED AMOUNT" means, in relation to each Deferred Date,
the sum of all Partnership Asset Owning Entity Allocated Amounts in respect
of the Specified Ownership Interests in the Partnership Asset Owning
Entities which are sold to Buyer on such Deferred Date.
"DEFERRED EMPLOYEES" means each of the Persons listed in Part 3 of Schedule
7 designated as such pursuant to 9.1.3(a).
"DEFERRED PARTNERSHIP ASSET OWNING ENTITY" means any Partnership Asset
Owning Entity in relation to which the purchase and sale of the relevant
Specified Ownership Interest does not take place on the Closing Date as a
consequence of the provisions of Clause 2.1.2 and which is not an Excluded
Partnership Asset Owning Entity.
"DEFERRED TRANSFER DATE" has the meaning ascribed to such term in Clause
9.1.3(a).
"DESIGNATED CONTRACTS" means, together, the contracts listed or referred to
in Part 2 of Schedule 5.
"EAST" means Embarcadero Aircraft Securitization Trust, a Delaware business
trust.
"EAST MANAGEMENT AGREEMENT" means the servicing agreement dated as of
August 25, 2000 between Seller, as servicer, and EAST in respect of certain
aircraft owned (directly or indirectly) by EAST.
"ECA FINANCED AIRCRAFT" means A320-200 Aircraft manufacturer's serial
numbers 1667, 1692, 1769, 1787, 1799, 1816, 1852, 1920, 1937, 1975, 2014,
2044, 2167, 2178 and 2204 and A321-200 Aircraft manufacturer's serial
number 1629.
"ECA FINANCIERS" means Halifax plc, Credit Lyonnais, Bayerische Landesbank,
Kreditanstalt fur Wiederaufbau, EFG Aircraft Holdings Ltd., EFG Aircraft
Ltd., EFGA Aircraft Ltd., EFGB Aircraft Ltd., EFGC Aircraft Ltd., Compagnie
Francaise d'Assurance pour le Commerce Exterieur, Her Britannic Majesty's
Secretary of State acting by the Export Credits Guarantee Department and
Euler Hermes Kreditversicherungs-AG.
"ECA FINANCING DOCUMENTS" means any and all documents entered into by one
or more of the ▇'▇▇▇▇▇▇▇ Group Companies, on the one hand, and one or more
of the ECA Financiers, on the other hand, and all documents ancillary
thereto and entered into in connection therewith, in each case, in relation
to ECA Financed Aircraft (including the guarantee given by Seller in
connection therewith).
"EG" has the meaning ascribed to such term in Clause 5.5.2(b).
"ENGINES" means, with respect to each Aircraft, the engines related to that
Aircraft as set forth in Schedule 1 and which is owned by the Owner of that
Aircraft or, with respect to all Aircraft, all of those engines, whether or
not attached to an Aircraft, and together in each case with all equipment
and accessories belonging to, installed in or appurtenant to those engines.
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"ENTITY" has the meaning ascribed to such term in Clause 6.4.1.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA AFFILIATE" of any entity means any other entity which, together with
that entity, would be treated as a single employer under Section 414 of the
Code or Section 4001 of ERISA.
"EQUITY COMMITMENT LETTERS" has the meaning ascribed to such term in Clause
4.5.1.
"EQUITY INVESTORS" has the meaning ascribed to such term in Clause 4.5.1.
"ESTIMATED WORKING CAPITAL" has the meaning ascribed to such term in Clause
2.8.4(c).
"EVENT OF DEFAULT" with respect to any Aircraft, bears the meaning ascribed
to such term, or the substantially equivalent term, in the Lease to which
such Aircraft is subject as of the date hereof as identified in Schedule 6.
"EVENT OF LOSS" with respect to any Aircraft, bears the meaning ascribed to
such term, or the substantially equivalent term, in the Lease (or, to the
extent any Aircraft is not subject to a Lease as of the date hereof,
substantially equivalent to the meaning ascribed to such term in the Leases
generally) to which such Aircraft is subject as of the date hereof as
identified in Schedule 6.
"EVENT OF LOSS PROCEEDS" means the proceeds of any hull insurance or
Stipulated Loss Value payment made by or on behalf of any insurers, or any
Lessee, following the date hereof and prior to the Closing Date or the
Deferred Date (as applicable to the relevant Aircraft), as the case may be,
in relation to the hull insurances maintained in relation to any Aircraft
or pursuant to a Lease relating to any Aircraft, as the case may be, in
respect of any Event of Loss in relation to such Aircraft.
"EXCLUDED ASSETS" has the meaning ascribed to such term in Clause 2.4.
"EXCLUDED PARTNERSHIP ASSET OWNING ENTITY" means any Partnership Asset
Owning Entity (a) in respect of which a JV Member (not being a GATX
Retained Entity) has exercised a right under the JV Member Documents in
relation to such Partnership Asset Owning Entity to acquire the Specified
Ownership Interest of the applicable GATX Retained Entity in such
Partnership Asset Owning Entity, (b) in respect of which the Specified
Ownership Interest therein has not been transferred to Buyer pursuant to
this Agreement on or prior to the Backstop Date or (c) in respect of which
the relevant JV Members resolve that the Aircraft owned by such Partnership
Asset Owning Entity should be offered for sale in the market.
"EXCLUDED SPECIFIED OWNERSHIP INTEREST" means, in relation to any Excluded
Partnership Asset Owning Entity, the relevant Selling Party's Specified
Ownership Interest therein.
"EX-IM" means the Export-Import Bank of the United States.
"EX-IM 2001 FINANCED AIRCRAFT" means B737-800 Aircraft manufacturer's
serial numbers 28828, 28829, 28830, 30006, 30007, 30476, 30567 and 30569.
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"EX-IM 2001 FINANCIERS" means Ex-Im, Citibank, N.A., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., Citibank International Plc, Govco Incorporated, Citicorp North
America, Inc. and WFB.
"EX-IM 2001 FINANCING DOCUMENTS" means any and all documents entered into
by one or more of the 737 Partners, on the one hand, and one or more of the
Ex-Im 2001 Financiers, on the other hand, and all documents ancillary
thereto or entered into in connection therewith in relation to the Ex-Im
2001 Financed Aircraft (including the guarantee given by Seller in
connection therewith).
"EX-IM 2002 FINANCED AIRCRAFT" means B737-800 Aircraft manufacturer's
serial numbers 32359, 32360, 32361, 32362, 32363, 32364, 32365, 32366,
32367 and 32368.
"EX-IM 2002 FINANCIERS" means USEB Aircraft Limited, Barclays Bank PLC, WFB
and Ex-Im.
"EX-IM 2002 FINANCING DOCUMENTS" means any and all documents entered into
by one or more of the ▇▇▇▇▇▇▇ Group Companies, on the one hand, and one or
more Ex-Im 2002 Financiers, on the other hand, and all documents ancillary
thereto or entered into in connection therewith in relation to Ex-Im 2002
Financed Aircraft (including the joint and several guarantee given by
Seller and GATX Corporation in connection therewith).
"EXTERNAL DEBT FINANCING INDEBTEDNESS" means Indebtedness of Asset Owning
Entities, GATX Retained Entities and GATX Corporation pursuant to the ATA
Aircraft Financing Documents, the ECA Financing Documents, the Ex-Im 2001
Financing Documents, the Ex-Im 2002 Financing Documents, the GMR Financing
Documents and the A321 Loan Documents, as the case may be.
"EXTERNAL FINANCING INDEBTEDNESS" means External Debt Financing
Indebtedness and Indebtedness of Asset Owning Entities, GATX Retained
Entities and GATX Corporation pursuant to the A321 GTL Documents, the UK
Lease Documents and the GATX/CL Air GTL Documents, as the case may be.
"FAA" means the Federal Aviation Administration of the United States of
America and any successor governmental authority.
"FH AGREEMENT" means the fleet hour agreement dated 28th April 2006 between
IAE and Seller regarding the off-wing maintenance of certain V2500-A5
aircraft engines.
"FHG" means Flightlease Holdings (Guernsey) Limited, a company incorporated
in Guernsey in voluntary liquidation.
"FILES AND RECORDS" means the files and other records (including electronic
and computer files and records), including Manuals and Technical Records,
customer lists (including contact details), customer records,
correspondence (including emails) reports, specifications, data, process
instructions, statistics, and other technical and financial information, of
the GATX Group that relate primarily to the ownership or operation of the
Specified Ownership Interests or the Additional Assets.
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"FINANCE LEASE AIRCRAFT" means each of the Airbus A300B4F Aircraft bearing
manufacturer's serial number 126 and the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MD-83 Aircraft
bearing manufacturer's serial number 49788.
"FINANCING BREACH" has the meaning ascribed to such term in Clause 7.8.
"FLIGHTLEASE LITIGATION" means all disputes, claims, litigation and
proceedings arising out of or otherwise related to the conclusion of the
GFAC joint venture between G3AC and Flightlease Holdings (Guernsey) Ltd.
"FOCUSED AIR AIRCRAFT" means each of the Airbus A319-100 Aircraft bearing
manufacturer's serial numbers 1612, Airbus A320-200 Aircraft bearing
manufacturer's serial numbers 131, 132, 144, 145, 235, 243, 250, 251, 288,
331, 334, 335, 343, 395, 407, 420, 440 and 436, Boeing B737-300 Aircraft
bearing manufacturer's serial numbers 23290, 23783, 23785, 24914 and Boeing
B757-200 Aircraft bearing manufacturer's serial numbers 22211, 22611, 30757
and 30758.
"FOCUSED AIR ARRANGEMENTS" means the arrangements entered or to be entered
into by Seller (on its own behalf or as manager of the Focused Air
Aircraft) and/or certain of the Asset Owning Entities, with AerCap B.V.
and/or Affiliates of AerCap B.V. with respect to the sale to AerCap B.V.
and/or Affiliates of AerCap B.V. of the Focused Air Aircraft.
"FORM WORKING CAPITAL STATEMENT" has the meaning ascribed to such term in
Clause 2.8.4(a).
"FRENCH EMPLOYEE" means each of the Persons listed in Part 1 of Schedule 7.
"FRENCH TRANSFER REGULATIONS" means Article L.122-12 of the French Labour
Code.
"FRENCH UNDISCLOSED EMPLOYEE" means any employee of any member of the GATX
Group who is not a French Employee.
"GAAP" means the generally accepted accounting principles for financial
reporting in the United States.
"GATX AIRPARTS" means GATX Airparts, LLC, a Delaware limited liability
company.
"GATX/CL AIR" means any or all (as the context may permit) of GATX/CL Air
Leasing Cooperative Association (a Netherlands Antilles cooperative
association), GATX/CL Air NV (a Netherlands corporation), GATX/CL Air
(Ireland) Ltd. (an Irish company) and GATX/CL Air Leasing Ltd. (a Cypriot
company).
"GATX/CL AIR GTL AIRCRAFT" means A320-200 Aircraft manufacturer's serial
numbers 653 and 657.
"GATX/CL AIR GTL DOCUMENTS" means any and all documents entered into by
GATX/CL Air and the GATX/CL Air GTL Lessor and all documents ancillary
thereto or entered into in connection therewith in relation to GATX/CL GTL
Aircraft (including the remarketing obligations undertaken by Seller in
connection therewith).
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"GATX/CL AIR GTL LESSOR" means either or both, as the context may permit,
of ANDROMEDA Verwaltungsgesellschaft mbH & Co. Vermietungs KG and GONDI
Verwaltungsgesellschaft mbH & Co. Vermietungs KG (each a German limited
liability partnership).
"GATX GROUP" means, together, Seller and each of its Subsidiaries.
"GATX RETAINED ENTITIES" means all members of the GATX Group excluding
Asset Owning Entities and Owner Trusts.
"GATX RETAINED ENTITY OBLIGATIONS" means any and all Liabilities of GATX
Retained Entities.
"GATX RETAINED ENTITY SPARE PARTS" means any and all aircraft spare parts
owned by any of the GATX Retained Entities as of the Closing Date.
"GFAC" means GATX Flightlease Aircraft Company Limited, a Cayman company.
"GFC BOEING PURCHASE AGREEMENT" means the purchase agreement no. 2287 dated
as of 26th May 2000 between Jet and Boeing providing for inter alia the
purchase by Jet from Boeing of certain Boeing 737-800 aircraft.
"GMR" means GMR Aviation Partners Ltd., a Cayman company.
"GMR AIRCRAFT" means A321-100 Aircraft manufacturer's serial number 771.
"GMR FINANCING DOCUMENTS" means any and all documents entered into by GMR
and KfW and all documents ancillary thereto or entered into in connection
therewith in relation to the GMR Aircraft (including the guarantee given by
Seller in connection therewith).
"G3AC" means GATX Third Aircraft Corporation, a Delaware corporation.
"G3AC AIRCRAFT" means each of Boeing 737-300 Aircraft with manufacturer's
serial number 28870, Embraer ERJ-145-ER with manufacturer's serial number
145096 and the ATA Aircraft.
"GOVERNMENTAL AUTHORITY" means any transnational, domestic or foreign
federal, state or local, governmental authority, department, court, agency
or official, including any political subdivision of any of the foregoing.
"HONEYWELL" means Honeywell Aerospace GmbH, a German company.
"IAE" means International Aero Engines AG, a joint stock company organized
and existing under the laws of Switzerland.
"IAE GTA" has the meaning given to it in paragraph 34 of Schedule 3.
"IDENTIFIED PARTIES" has the meaning ascribed to such term in Clause 4.9.2.
"INCOME STATEMENT" has the meaning ascribed to such term in Clause 3.6.1.
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"INCREMENTAL PLATFORM VALUE ADJUSTMENT AMOUNT" means, in relation to the
Partnership Asset Owning Entities which are Excluded Partnership Asset
Owning Entities as of the Incremental Platform Value Adjustment Date, the
sum of the respective Dollar amounts set forth in column (3) of Schedule 12
in relation to the relevant Excluded Partnership Asset Owning Entities.
"INCREMENTAL PLATFORM VALUE ADJUSTMENT DATE" means the earlier of (a) the
Deferred Date on which, as a result of the sale of the Specified Ownership
Interest in the Partnership Asset Owning Entity which is completed on such
Deferred Date, all of the Transferred Specified Ownership Interests will
have been sold to Buyer pursuant to this Agreement, and (b) the Backstop
Date.
"INDEBTEDNESS" means, as to any Person, (a) all obligations of such Person
for borrowed money (including reimbursement and all other obligations with
respect to surety bonds, letters of credit and bankers' acceptances,
whether or not matured), (b) all obligations of such Person evidenced by
notes, bonds, debentures or similar instruments, (c) all obligations of
such Person to pay the deferred purchase price of property or services,
except trade accounts payable and accrued commercial or trade liabilities
arising in the ordinary course of business, (d) all interest rate and
currency swaps, caps, collars and similar agreements or hedging devices
under which payments are obligated to be made by such Person, whether
periodically or upon the happening of a contingency, (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person, (f) all
obligations of such Person under leases which have been or should be, in
accordance with relevant accounting principles, recorded as capital leases,
(g) all indebtedness secured by any lien on any property or asset owned or
held by such Person regardless of whether the indebtedness secured thereby
shall have been assumed by such Person or is non-recourse to the credit of
such Person, and (h) all guarantees by such Person of the indebtedness of
any other Person.
"INDEMNIFIABLE LOSS" has the meaning ascribed to such term in Clause
11.2.1.
"INDEMNIFIED PARTIES" has the meaning ascribed to such term in Clause
11.3.1.
"INDEMNIFYING PARTIES" has the meaning ascribed to such term in Clause
11.3.1.
"INDEX" means the index being Virtual Data Room document 24.01.01.
"INITIAL CALCULATION" has the meaning ascribed to such term in Clause
2.8.4(d).
"IRS" means the Internal Revenue Service of the United States.
"▇▇▇▇▇▇▇ GROUP COMPANIES" means any or all (as the context may permit) of
▇▇▇▇▇ Capital (France) S.A.R.L., a French company, ▇▇▇▇▇ Leasing Limited,
▇▇▇▇▇▇▇ Leasing Limited and Kearny Leasing Limited, each a Cayman company,
▇▇▇▇▇▇▇ Leasing Corporation, a Delaware corporation, ▇▇▇▇▇▇▇ Leasing
(Cyprus) Limited, a Cypriot company, and ▇▇▇▇▇▇▇ Leasing (Ireland) Limited,
an Irish company.
"JET" means GATX Jet Partners Ltd., a Cayman company.
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"JUNE 30TH BALANCE SHEET" has the meaning ascribed to such term in Clause
3.6.1.
"JV INDEBTEDNESS" means, with respect to any Asset Owning Entity listed in
column (1) of Part 2 of Schedule 2, Indebtedness of such Asset Owning
Entity owed to its JV Members (or any of them).
"JV MANAGEMENT AGREEMENT" means, with respect to any Partnership Asset
Owning Entity, any and all management agreements entered into by such
Partnership Asset Owning Entity with Seller, as manager, whereunder Seller
has agreed to manage such Partnership Asset Owning Entity and aircraft
owned by such Partnership Asset Owning Entity.
"JV MEMBER DOCUMENTS" means, with respect to any Partnership Asset Owning
Entity, any and all (a) member, shareholder or joint venture agreements
entered into in connection with such Person, (b) instruments creating
Indebtedness of such Partnership Asset Owning Entity in favor of the
Shareholders of such Partnership Asset Owning Entity (or Affiliates of such
Partnership Asset Owning Entity), (c) agreements creating Liens over or in
respect of any Shares issued by, and/or Indebtedness of, such Person, and
(d) guarantees issued by Affiliates of the Shareholders of such Person in
respect of the obligations of such Shareholders under any or all of the
aforementioned agreements or instruments, in each case to the extent the
same have been made available to Buyer.
"JV MEMBERS" means, in relation to any Partnership Asset Owning Entity
which is not a Subsidiary of another Partnership Asset Owning Entity, the
Persons owning Shares in such first mentioned Partnership Asset Owning
Entity.
"KFW" means Kreditanstalt fur Wiederaufbau, a German financial institution.
"KNOWLEDGE", "KNOWLEDGE" or any other similar knowledge qualification in
this Agreement with respect to Seller means the actual knowledge of (i)
(other than with respect to Clauses 3.9.3, 3.9.9 (solely with respect to
Manuals and Technical Records), 3.13 and 8.2) ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (ii) (solely with
respect to Clause 3.9.3 and Clause 3.9.9 (but solely with respect to
Manuals and Technical Records)) ▇▇▇▇ ▇▇▇▇▇▇, (iii) (solely with respect to
Clause 3.13) ▇▇▇▇▇ ▇▇▇▇▇▇▇, and (iv) (solely with respect to Clause 8.2)
▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
"LATEST ACCOUNTING DATE" means, in relation to an Asset Owning Entity, the
date as of which the latest financial statements that have been made
available to Buyer were prepared.
"LEASE" means, with respect to each Aircraft, any bailment, lease,
conditional sale, hire purchase or charter with a Lessee relating to such
Aircraft.
"LEASE DOCUMENTS" means, with respect to each Aircraft, the Lease and all
other agreements in effect in relation to the Lease of such Aircraft.
"LENDER" has the meaning ascribed to such term in Clause 4.5.1.
"LESSEE" means, with respect to each Aircraft, the airline lessee of such
Aircraft.
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"LESSEE FURNISHED EQUIPMENT" means, with respect to each Aircraft, any
appliances, parts, accessories, instruments, navigational and
communications equipment, furnishings, modules, components and other items
of equipment installed in or furnished with that Aircraft on the Closing
Date or the Deferred Date (as applicable to the relevant Aircraft), which,
in accordance with the terms of the Lease Documents for that Aircraft can
be removed by the Lessee for that Aircraft, and not be replaced with the
same item of equal or greater value or utility.
"LIABILITIES" means, as to any Person, all debts, adverse claims,
liabilities, commitments, responsibilities, duties and obligations of any
kind or nature whatsoever, whether direct, indirect, absolute or
contingent, matured or unmatured of such Person, whether accrued, vested or
otherwise, whether known or unknown, foreseen or unforeseen, and whether or
not actually reflected, or required to be reflected, in such Person's
balance sheets or other books and records of such Person and regardless of
whether or not immediately due and payable.
"LIEN" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest or other encumbrance in respect of that
property or asset.
"MANUALS AND TECHNICAL RECORDS" means, with respect to each Aircraft or
each Engine, all records, logs, technical data and manuals relating to the
maintenance and operation of that Aircraft (including all documents defined
as Aircraft Documentation under the relevant Lease) or that Engine, which
the Lessee of that Aircraft is required by the terms of the relevant Lease
to return to the lessor under that Lease upon the expiration or termination
of the term of that Lease, together with any similar documents maintained
by any Asset Owning Entities with respect to any period when an Aircraft
was not subject to a Lease.
"MANUFACTURER" means, with respect to each Aircraft or each Engine, the
manufacturer of that Aircraft or Engine, as the case may be.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the business,
assets or financial condition of the Business, taken as a whole, except any
such effect resulting from or arising in connection with (a) the
announcement, existence or consummation of, or compliance with, this
Agreement or any of the transactions contemplated by this Agreement, (b)
changes or conditions affecting any of the aircraft leasing, airline or
travel industries generally, (c) changes in GAAP or other relevant
accounting principles, Applicable Law, or in economic, regulatory,
security, health or political conditions generally in the United States or
in any of the other jurisdictions where any Asset Owning Entity or Owner
Trust operates or has material revenues, (d) changes affecting any of the
United States, European or global financial, capital, securitization or
lending markets or (e) any act of war, outbreak of hostilities or act of
terrorism (or, in each case, any escalation thereof).
"MATERIAL CONTRACT" means together the agreements and contracts listed or
referred to in Part 1 of Schedule 5.
"MATERIAL DEFAULT" means (a) any Event of Default which is the failure of a
Lessee to pay rent or maintenance reserves under any Lease (but excluding
any rent or reserves
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that are less than fifteen (15) days past due) and (b) any other Event of
Default which, if not cured, will have a material adverse effect on the
applicable Aircraft or the rights of the relevant Asset Owning Entity in
such Aircraft or under the applicable Lease.
"MCPH AGREEMENT" means the maintenance cost per hour agreement dated 15th
December 2005 between GEES and Seller regarding the repair, service and
overhaul of certain CFM56-7B24, CFM56-7B26 and CFM56-7B27 aircraft engines.
"MCPH LETTER AGREEMENT" means the letter agreement dated 29th September
2004 between GEES, Frontier Airlines, Inc. ("Frontier"), WFB and G3AC
regarding a maintenance cost per hour agreement dated 1st January 2003
between GEES and Frontier in respect of, inter alios, those two CFM56-5B5-P
aircraft engines with engine serial numbers 575629 and 575630.
"MCPH SUB-AGREEMENTS" means the agreements listed in paragraph 11 of Part 1
of Schedule 5.
"MS AGREEMENT" means collectively the maintenance service agreements
between Honeywell and Seller each dated 17th February 2001, and each
amended on 28th May 2004, whereunder Honeywell has agreed to perform
maintenance services on certain Honeywell 131-9(A) and 131-9(B) auxiliary
power units.
"1933 ACT" means the Securities Act of 1933.
"NORDLB" means Norddeutsche Landesbank Girozentrale, a German bank.
"▇'▇▇▇▇▇▇▇ GROUP COMPANIES" means any or all (as the context may permit) of
▇'▇▇▇▇▇▇▇ Leasing Limited and ▇'▇▇▇▇▇▇▇ Leasing (Holdings) Ltd. (Cayman
companies), ▇'▇▇▇▇▇▇▇ Leasing Corporation (a Delaware corporation),
▇'▇▇▇▇▇▇▇ Leasing (Cyprus) Ltd. (a Cypriot company) and ▇'▇▇▇▇▇▇▇ Leasing
(Ireland) Ltd. (an Irish company).
"OFFICE EQUIPMENT" means all of the office equipment, supplies and other
related tangible personal property located as of the Closing Date at each
of the Overseas Offices and all lap-top computers, desk-top computers and
related computer peripheral equipment owned by any GATX Retained Entity and
used by any of the Transferred Employees as of the Closing Date.
"OFFICER" means, with respect to any Person, any and all directors,
secretaries, assistant secretaries and other officers of such Person.
"ORPHAN SPC" means any company listed in column (1) of Part 5 of Schedule
2.
"OTHER SELLING PARTIES" (and each, an "OTHER SELLING PARTY") means the
Selling Parties other than Seller.
"OTHER SELLING PARTIES' CLOSING DOCUMENTS" has the meaning ascribed to such
term in Clause 3.2.2.
"OVERSEAS OFFICES" means each of the offices of the GATX Group in London,
England, Tokyo, Japan and Toulouse, France.
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"OWNER" means, in relation to any Aircraft, the Person or Persons who is or
are, as the case may be, the holder of economic and beneficial ownership
thereof, being the Person or Persons listed in column (5) of Part 1 of
Schedule 1 or column (5) of Part 2 of Schedule 1, as the case may be,
opposite the relevant Aircraft listed in column (1) of Part 1 of Schedule 1
or column (1) of Part 2 of Schedule 1, as the case may be.
"OWNERSHIP INTEREST" means in relation to (a) any Asset Owning Entity, the
equity capital of such Asset Owning Entity, being (i) issued share or stock
capital (in the case of any Asset Owning Entity which is an incorporated
company (whether or not of limited duration) or corporation), or (ii)
membership interest (in the case of any Asset Owning Entity which is a
Delaware limited liability company or the Asset Owning Entity which is a
Netherlands Antilles cooperative association), (b) any Owner Trust, the
Beneficial Interest in such Owner Trust, (c) any Person, the Indebtedness
owed by such Person to its Shareholders or to Affiliates of its
Shareholders, and (d) any G3AC Aircraft, all of G3AC's rights, title,
interest and obligations in, to, under and in respect of (i) such Aircraft,
any Lease to which such Aircraft is subject, and all other documents
relating to Indebtedness incurred in connection with such Aircraft, or (ii)
any trust to which G3AC may transfer or may have transferred its rights,
title, interest and obligations in, to, under and in respect of such
Aircraft, Lease and documents.
"OWNER TRUST" means the trust created pursuant to each Trust Agreement
listed in Part 3 of Schedule 2.
"PARTNERSHIP ASSET OWNING ENTITY" means an Asset Owning Entity identified
in column (1) of Part 2 of Schedule 2.
"PARTNERSHIP ASSET OWNING ENTITY IMPLIED VALUE" means, in relation to any
Partnership Asset Owning Entity, the sum in Dollars set forth in column (4)
of Schedule 12 in relation to such Partnership Asset Owning Entity.
"PARTNERSHIP ASSET OWNING ENTITY ALLOCATED AMOUNT" means, in relation to
the Specified Ownership Interest in any Partnership Asset Owning Entity,
the amount allocable to such Specified Ownership Interest being, subject to
Clauses 2.8.2 and 2.8.3, the Dollar amount set forth in column (2) of
Schedule 12 in relation to the relevant Partnership Asset Owning Entity.
"PARTNERSHIP FINANCIAL STATEMENTS" has the meaning ascribed to such term in
Clause 3.6.1.
"PCL" means Pembroke Capital Limited, an Irish company.
"PCSL" means Pembroke Capital ▇▇▇▇▇▇▇ Limited, an Irish company.
"PEMBROKE ADMINISTRATION AGREEMENTS" means together the management and
administration agreements between (a) PCL, GATX/CL Air (Ireland) Ltd. and
Seller, (b) PCL, GMR Ireland Ltd. and Seller, and (c) PCL and Seller,
whereunder PCL has agreed to provide certain corporate services to GATX/CL
Air (Ireland) Ltd., GMR Ireland Ltd., Divisadero Leasing (Ireland) Ltd.,
Irving Leasing (Ireland) Ltd., ▇▇▇▇▇▇▇ Leasing (Ireland) Ltd. and Post
Street Leasing Limited.
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"PEMBROKE TECHNICAL SERVICES AGREEMENT" means the agreement dated 27th June
2002 between PCSL and Seller whereunder PCSL has agreed to provide certain
technical services to Seller in connection with certain aircraft registered
or to be registered in Ireland.
"PERMITTED LIENS" means, collectively, (a) Liens described in Schedule 4;
(b) Liens created by any Lease Document; (c) Liens disclosed in, or
securing Liabilities reflected on, the financial statements of any Asset
Owning Entity (or in the notes thereto) which have been made available to
Buyer; (d) Liens for Taxes, assessments and similar charges that are not
yet due or are being contested in good faith; (e) mechanic's,
materialman's, carrier's, repairer's and other similar Liens arising or
incurred in the ordinary course of business or for sums that are not yet
due and payable or are being contested in good faith; and (f) with respect
to any Aircraft or Engine, (i) any Permitted Liens (or any other phrase
with substantially similar meaning) under the terms of the relevant Lease
Documents, other than any Lessor Liens (or any other phrase with
substantially similar meaning) which is a Permitted Lien (or any other
phrase with substantially similar meaning) under the terms of the same
relevant Lease Documents, or (ii) Liens for which the applicable Lessee is
responsible or for which the applicable Lessee is to indemnify the lessor
under the terms of the applicable Lease.
"PERMITTED TRANSFEREE" with respect to any JV Member Document, other
Material Contract or a Designated Contract, bears the meaning ascribed to
such term, or the substantially equivalent term, in such JV Member
Document, Material Contract or Designated Contract.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
Governmental Authority.
"POTENTIAL CONTRIBUTOR" has the meaning ascribed to such term in Clause
11.5.
"PRIMARY MANAGEMENT AGREEMENT" has the meaning ascribed to such term in
Clause 6.4.2(a).
"PURCHASE PRICE" has the meaning ascribed to such term in Clause 2.8.1.
"RELEVANT ISSUES" has the meaning ascribed to such term in Clause 6.2.1.
"REMAINING OWNERSHIP INTERESTS" has the meaning ascribed to such term in
Clause 2.10.1.
"RETAINED LIABILITIES" has the meaning ascribed to such term in Clause 2.6.
"RETURN AIRCRAFT" means, as of any date, any Aircraft owned by a Deferred
Partnership Asset Owning Entity or Excluded Partnership Asset Owning Entity
that is due to be returned by the Lessee of such Aircraft to its lessor
within six (6) months of such date.
"SELLER" has the meaning ascribed to such term in the recitals hereto.
"SELLER CLOSING DOCUMENTS" has the meaning ascribed to such term in Clause
3.2.1.
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"SELLER SEVERANCE PLAN" means the GATX Corporation Amended and Restated
Enhanced Severance Plan.
"SELLING PARTIES" (and each, a "SELLING PARTY") means each member of the
GATX Group that directly owns Specified Ownership Interests or Additional
Assets that are being sold to Buyer pursuant to the terms hereof.
"737 PARTNERS" means any or all (as the context may permit) of 737 Partners
#1, 737 Partners #2 and 737 Partners #3.
"737 PARTNERS #1" means any or all (as the context may permit) of GATX
737-800 Partners, LDC and Alameda Leasing Limited, both Cayman companies,
and GATX 737-800 Partners, B.V., a Netherlands company.
"737 PARTNERS #2" means either or both (as the context may permit) of GATX
737NG Partners, Ltd. and ▇▇▇▇▇▇▇▇ Leasing Limited, both Cayman companies.
"737 PARTNERS #3" means any or all (as the context may permit) of GATX
737-800 Partners III, Ltd. and ▇▇▇▇▇▇▇ Leasing Limited, both Cayman
companies, and GATX 737-800 Partners III, B.V., a Netherlands company.
"737 PARTNERS BOEING PURCHASE AGREEMENTS" means collectively (a) the
purchase agreement no. 1927 dated as of July 29, 1996 between 737 Partners
#1 and Boeing providing for inter alia the purchase by 737 Partners #1 from
Boeing of certain Boeing 737-800 aircraft, (b) the purchase agreement no.
2127 dated as of March 31, 1998 between 737 Partners #2 and Boeing
providing for inter alia the purchase by 737 Partners #2 from Boeing of
certain Boeing 737-800 aircraft, and (c) the purchase agreement no. 2222
dated as of March 12, 1999 between 737 Partners #3 and Boeing providing for
inter alia the purchase by 737 Partners #3 from Boeing of certain Boeing
737-800 aircraft.
"757 PARTNERS" means either or both (as the context may permit) of GATX 757
Partners LDC and Jet Leasing LDC, both Cayman limited duration companies.
"SETTLEMENT ACCOUNTANTS" has the meaning ascribed to such term in Clause
2.8.4(f).
"SHAREHOLDER" means, in relation to any Person, such other Person who is
the holder of or entitled to Shares in such first mentioned Person.
"SHARES" means, with respect to any Person, the issued stock, share
capital, membership interest or similar rights in such Person.
"SPECIFIED OWNERSHIP INTEREST" means, in relation (a) to any Ownership
Interest, the percentage portion thereof which is owned by a Selling Party
as specified in column (5) of the relevant Part of Schedule 2, and (b) to
any G3AC Aircraft, any Lease to which such Aircraft is subject, and all
other documents relating to Indebtedness incurred in connection with such
Aircraft, 100%, excluding, with respect to the foregoing (a) and (b), all
Excluded Specified Ownership Interests.
"STIPULATED LOSS VALUE" means (a) in relation to any Lease in which such
term is used therein, has the meaning ascribed to such term in such Lease,
and (b) in relation to any
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Lease in which such term is not used therein, means the term used in such
Lease which is the equivalent of the term Stipulated Loss Value and has the
meaning ascribed to such other term.
"SUBSIDIARY" means, of any Person, any entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other Persons performing similar functions are at the
time, directly or indirectly, owned by such Person.
"TECHNICAL CONSENTS" means the consents referred to in paragraphs 23, 25
and 27 of Schedule 3.
"TES" means Total Engine Support Ltd., an English company.
"TES AGREEMENT" means the engine technical support agreement dated 12 May
2003 between TES and Seller whereunder TES has agreed to provide certain
consultancy services to Seller in connection with aircraft engines and
auxiliary power units.
"THIRD PARTY CLAIM" has the meaning ascribed to such term in Clause 11.3.2.
"TIGER" means Tiger Airways Pte. Limited, a Singapore company.
"TIGER 2006 DOCUMENTS" means any and all documents entered into, or to be
entered into, by any Asset Owning Entity relating to the purchase and/or
leasing of two (2) newly manufactured Airbus A320-200 aircraft scheduled
for delivery to Tiger in 2006 and 2007, respectively.
"TRANSFERRED EMPLOYEES" means (a) the Transferred U.S. Employees and (b)
the UK Employees and French Employees who become employees of a member of
Buyer Group in accordance with Clause 9.1.1 or 9.1.2.
"TRANSFERRED U.S. EMPLOYEES" has the meaning ascribed to such term in
Clause 9.1.3(a).
"TRANSFERRED SPECIFIED OWNERSHIP INTERESTS" means the Specified Ownership
Interests that are not Excluded Specified Ownership Interests.
"TRANSFER TAXES" has the meaning ascribed to such term in Clause 7.5.
"TRANSITION SERVICES AGREEMENT" means the transition services agreement
with respect to the transition of the Business from Seller to Buyer entered
into even date hereof between Seller and Buyer.
"UK EMPLOYEE" means each of the Persons listed in Part 2 of Schedule 7.
"UK LEASE AIRCRAFT" means B757-200 Aircraft manufacturer's serial number
28718.
"UK LEASE DOCUMENTS" means any and all documents entered into by one or
more of the 757 Partners, on the one hand, and the UK Lessor, on the other
hand, and all documents ancillary thereto or entered into in connection
therewith in relation to the UK Lease Aircraft (including the guarantees
given by Seller in connection therewith).
-18-
"UK LESSOR" means Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ Leasing December (12)
Limited, an English company.
"UK TRANSFER REGULATIONS" means the Transfer of Undertakings (Protection of
Employment) Regulations 2006.
"UK UNDISCLOSED EMPLOYEE" means any employee of any member of the GATX
Group who is not an UK Employee.
"U.S. CITIZEN" means a Person who is a citizen of the United States as
defined in Section 40102(a)(15) of Title 49 of the U.S. Code.
"U.S. EMPLOYEE" means each of the Persons listed in Part 3 of Schedule 7
which may include certain U.S. employees of Seller (or any Affiliate of
Seller) who are U.S. employees working outside of the United States and
U.S. employees who are on a short-term leave of absence or short-term
disability.
"VIRTUAL DATA ROOM" means the IntraLinks virtual data room maintained by
Seller in connection with the transactions contemplated hereby.
"WARRANTY BREACH" has the meaning ascribed to such term in Clause 11.2.1.
"WFB" means ▇▇▇▇▇ Fargo Bank Northwest, National Association.
"WHOLLY OWNED ASSET OWNING ENTITY" means an Asset Owning Entity identified
in column (1) of Part 1 of Schedule 2.
"WHOLLY OWNED AIRCRAFT OWNER TRUST" means an Owner Trust listed in Part 3
of Schedule 2 in which a GATX Retained Entity has a one hundred per cent.
(100%) beneficial interest.
"WORKING CAPITAL ADJUSTMENT AMOUNT" has the meaning ascribed to such term
in Clause 2.8.4(g).
"WORKING CAPITAL PRACTICES" has the meaning ascribed to such term in Clause
2.8.4(b).
"WORKING CAPITAL TARGET" has the meaning ascribed to such term in Clause
2.8.4(a).
1.2 Other Definitional and Interpretative Provisions
1.2.1 The words hereof, herein and hereunder and words of like import used
in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement.
1.2.2 The captions in this Agreement are included for convenience of
reference only and shall be ignored in the construction or
interpretation of this Agreement.
1.2.3 References to Clauses, Exhibits and Schedules are to Clauses,
Exhibits and Schedules of or to this Agreement unless otherwise
specified.
1.2.4 Any capitalized terms used in any Schedule, but not otherwise defined
in that Schedule, shall have the meaning set forth in this Agreement.
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1.2.5 Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular.
1.2.6 Writing, written and comparable terms refer to printing, typing and
other means of reproducing words (including electronic media) in a
visible form.
1.2.7 References to any document, agreement or contract are to that
document, agreement or contract as amended, modified or supplemented
from time to time in accordance with its terms.
1.2.8 Any reference in this Agreement to any statute or law shall be to
that statute or law, as amended from time to time, and to the rules
and regulations promulgated under that statute or law it being
confirmed, for the avoidance of doubt, that any reference to any
statute or law in any representation or warranty made herein shall be
a reference to such statute or law in effect as of the date on which
such representation or warranty is made or deemed to be made
hereunder.
1.2.9 References to $ and Dollars are to the currency of the United States.
1.2.10 References to any Person include the successors and permitted
assigns of that Person.
1.2.11 Reference to any document which is expressed to have been made
available to Buyer is a reference to such document or description of
such document as identified in the Index contained in Section 24.01.01
of the Virtual Data Room, as such Index may be updated from time to
time. Copies or descriptions of such documents (a) have been placed in
the Virtual Data Room and remain in the Virtual Data Room and Buyer
has access to such documents as of the date hereof, (b) were made
available to Buyer's counsel at the Chicago offices of Mayer, Brown,
▇▇▇▇ & Maw LLP, or (c) in the case of certain documents relating to
certain employees of members of Seller Group, delivered to Buyer or
its representatives.
1.2.12 A document in the "agreed form" is a reference to a document in a
form approved, and for the purposes of identification initialled by or
on behalf of, Seller's counsel, ▇▇▇▇▇▇▇▇ Chance LLP, and Buyer's
counsel, Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, on or prior to the date of
this Agreement.
1.2.13 The term "including" and terms of similar import when used in this
Agreement shall mean "including without limitation" unless the context
otherwise requires or otherwise expressly stated.
1.2.14 The parties agree that they have been represented by counsel during
the negotiation and execution of this Agreement and, therefore, waive
the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement
or document.
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2. PURCHASE AND SALE
2.1 Purchase and Sale of Specified Ownership Interests
2.1.1 On the terms and subject to the conditions set forth in this
Agreement, Seller shall, or shall cause an Other Selling Party to,
sell, assign, convey, transfer and deliver to Buyer, and Buyer shall
purchase, acquire, accept and assume from Seller (or such Other
Selling Party, as applicable), the Specified Ownership Interests, free
and clear of all Liens (other than Permitted Liens).
2.1.2 The completion of the sale and purchase of the Specified Ownership
Interests shall take place on the Closing Date except in the case of
the Specified Ownership Interest in any Partnership Asset Owning
Entity in respect of which (a) any required consent of the JV Members
thereof (not including any GATX Retained Entity) that is required to
transfer such Specified Ownership Interest has not been given by the
Closing Date, and/or (b) an action by or approval, order or
authorisation from, any Governmental Authority required to permit the
completion of the sale and purchase of such Specified Ownership
Interest (including with respect to any applicable Competition Law)
shall not have been taken, made or obtained by the Closing Date,
and/or (c) any consent specified in Schedule 3 of any financier under
any External Financing Indebtedness relating to such Partnership Asset
Owning Entity has not been given by the Closing Date, and/or (d) in
the case of the Specified Ownership Interest in ATP, the consent
specified in paragraph 24 of Schedule 3 has not been given by the
Closing Date, in which case the completion of the sale and purchase of
such Specified Ownership Interest shall, subject to Clauses 10.2, 10.4
and 10.6, take place on the third (3rd) Business Day (or such later
date as may be agreed between Seller and Buyer) following the date on
which Seller or Buyer, as the case may be, gives notice to the other
of the obtaining of the relevant consent or consents referred to in
(a), (c) or (d) above or the giving or obtaining of the relevant
action referred to in (b) above (it being understood that no such sale
and purchase shall occur after the Backstop Date).
2.2 Purchase and Sale of Additional Assets
Upon the terms and subject to the conditions set forth in this Agreement,
on the Closing Date (or, with respect to any Material Contract related to
any Deferred Partnership Asset Owning Entity, the relevant Deferred Date),
Seller shall, or shall cause an Other Selling Party to, sell, assign,
convey, transfer and deliver to Buyer, and Buyer shall purchase, acquire,
accept and assume, all of the right, title and interest of the applicable
Selling Party in and to the following (collectively, the "ADDITIONAL
ASSETS"), as such Additional Assets exist on the Closing Date (or the
relevant Deferred Date, as the case may be):
2.2.1 the Designated Contracts marked with an asterix in Schedule 5 which
are identified in writing by Buyer to Seller within thirty (30) days
of the date hereof together with the Designated Contracts not marked
with an asterix in Schedule 5, except any Designated Contract which
(a) is not transferable by its terms without consent of the
counterparty (and as to which no consent of the
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counterparty is received prior to the Closing Date), or (b) is not
transferable pursuant to Applicable Law;
2.2.2 the Material Contracts, except any Material Contract (a) which (i) is
not transferable by its terms without consent of the counterparty (and
as to which no consent of the counterparty is received prior to the
Closing Date (or the relevant Deferred Date, as the case may be)), or
(ii) is not transferable pursuant to Applicable Law or (b) in respect
of External Financing Indebtedness that has been prepaid following the
date hereof and prior to the Closing Date (or the relevant Deferred
Date, as the case may be) and evidence of such prepayment having been
delivered to Buyer prior to Closing Date (or the relevant Deferred
Date, as the case may be);
2.2.3 the Files and Records, except any Files and Records (including
personnel records) (a) not legally transferable to Buyer pursuant to
Applicable Law or (b) which must be retained by the GATX Group as
provided herein or otherwise to ensure its compliance with Applicable
Law (it being understood that, if permitted by Applicable Law, Seller
shall provide Buyer with copies of any such retained Files and
Records);
2.2.4 the GATX Retained Entity Spare Parts;
2.2.5 the Office Equipment; and
2.2.6 any other assets reflected in the calculation of the Closing Working
Capital which are not identified in the foregoing Clauses 2.2.1 to
2.2.5.
2.3 Declaration of Trust
Upon the terms and subject to the conditions set forth in this Agreement,
at the Closing, Seller shall procure that G3AC executes a declaration of
trust in the agreed form whereunder G3AC agrees to hold all of its right,
title and interest in and to the Finance Lease Aircraft and all Lease
Documents relating thereto on trust for Buyer.
2.4 Excluded Assets
Buyer is not purchasing pursuant to this Agreement, and shall acquire no
right or interest in, any property, assets, rights or other items owned or
held for use by the GATX Retained Entities or any Affiliate thereof that
are not expressly identified in Clause 2.1 or Clause 2.2 (collectively, the
"EXCLUDED ASSETS"), including (a) any personnel records and other Files and
Records that Seller is required by Applicable Law to retain in its
possession (it being understood that, if permitted by Applicable Law,
Seller shall provide Buyer with copies of any such retained Files and
Records) and (b) payments and assets set forth in Clause 6.5.
2.5 Assumption and Assignment of Assumed Liabilities
Upon the terms and subject to the conditions of this Agreement, Buyer
agrees, effective at the Closing to assume from the Selling Parties and to
satisfy and discharge when due
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the following specific Liabilities, other than the Retained Liabilities
(the "ASSUMED LIABILITIES"):
2.5.1 all Liabilities reflected in the calculation of the Closing Working
Capital;
2.5.2 all Liabilities of GATX Retained Entities under the Designated
Contracts (other than as a result of breach of such Designated
Contract by such GATX Retained Entity prior to the Closing Date and
other than any Designated Contracts marked with an asterix in Schedule
5 which are not identified by Buyer in accordance with Clause 2.2.1);
2.5.3 all Liabilities of GATX Retained Entities under the Material
Contracts (other than as a result of breach of such Material Contract
by such GATX Retained Entity prior to the Closing Date (or the
relevant Deferred Date, as the case may be)), except any Material
Contract in respect of External Financing Indebtedness that has been
prepaid following the date hereof and prior to the to the Closing Date
(or the relevant Deferred Date, as the case may be);
2.5.4 all Liabilities relating to Transferred Employees after the Closing
Date (or, if applicable, the Deferred Transfer Date) or the operation
of the Business after the Closing Date;
2.5.5 all Liabilities arising out of or relating to any claim, action,
investigation, arbitration, litigation or lawsuit to the extent
relating to the ownership or use of any of the Transferred Specified
Ownership Interests or any Additional Assets (other than any Excluded
Assets) prior to, on or after the Closing Date (or the relevant
Deferred Date, as the case may be);
2.5.6 all Liabilities for accounts payable or commercial or trade
liabilities reflected in the Closing Working Capital arising in
relation to any Additional Assets prior to, on or after the Closing
Date;
2.5.7 all Liabilities for Taxes for which Buyer is responsible under Clause
8.6; and
2.5.8 all other Liabilities relating to (a) the Transferred Specified
Ownership Assets, (b) the Additional Assets, or (c) the Business (in
each case whether prior to, on or after, the Closing Date (or the
relevant Deferred Date, as the case may be)), other than the Retained
Liabilities,
provided that, for the avoidance of doubt, the parties understand and agree
that, notwithstanding any other provision of this Agreement, all Liabilities of
any Asset Owning Entity or Owner Trust shall at all times be, and remain,
Liabilities of such Asset Owning Entity or Owner Trust, as the case may be, from
and after the Closing and shall not be assumed or retained by, or otherwise be
the responsibility of, any GATX Retained Entity.
2.6 Retained Liabilities
Notwithstanding any provision in this Agreement to the contrary, the
Retained Liabilities shall remain the sole responsibility of and shall be
retained, paid, performed and
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discharged solely by the applicable GATX Retained Entity. "RETAINED
LIABILITIES" shall mean the following specific Liabilities:
2.6.1 all Liabilities relating to the Excluded Assets;
2.6.2 all Liabilities to any employee of the GATX Group, including, under
any employee benefit, compensation, retirement or fringe benefit plan,
program, employment agreement or other contract or arrangement,
including, but not limited to any "employee benefit plan" (as such
term is defined in Section 3(3) of ERISA, or would be so defined if
the plan were subject to ERISA), severance pay plan, or change in
control agreement, unless otherwise provided for in this Agreement;
and
2.6.3 all Liabilities related to the Flightlease Litigation.
2.7 Assets That Are Not Transferable
2.7.1 Notwithstanding anything to the contrary in this Agreement, to the
extent that (a) any required consent or approval shall not have been
given prior to the Closing Date (or the relevant Deferred Date, as the
case may be) with respect to the transfer or assignment of any
Designated Contract or Material Contract which is not assignable or
transferable without the consent or approval of any Person or (b) the
transfer or assignment of any Designated Contract or Material Contract
is not permitted by Applicable Law, then such Designated Contract or
Material Contract shall not be assigned or transferred to Buyer at the
Closing Date (or the relevant Deferred Date, as the case may be);
provided, that Seller and Buyer shall have the continuing obligation
after the Closing Date (or the relevant Deferred Date, as the case may
be) to use commercially reasonable efforts to obtain all necessary
consents to the assignment or transfer thereof, it being understood
that Seller shall have no obligation to commence any litigation or
offer or grant any material financial or any other material
accommodation to any third party to obtain such consents. Upon
obtaining the requisite third-party consents or approvals thereto,
such Designated Contract or Material Contract shall promptly be
transferred and assigned to Buyer or its permitted designees hereunder
if it is legally permissible to do so.
2.7.2 With respect to any Designated Contract or Material Contract that is
not transferred or assigned to Buyer on the Closing Date (or the
relevant Deferred Date, as the case may be) by reason of Clause 2.7.1,
after the Closing Date (or the relevant Deferred Date, as the case may
be) and until any requisite consent or approval is obtained therefore
and the same is transferred and assigned to Buyer, Buyer and Seller
shall cooperate with each other, upon the reasonable written request
of Buyer, in endeavouring to obtain for Buyer, at no cost to Seller,
an arrangement with respect thereto to provide for Buyer substantially
comparable benefits therein, and to the extent Buyer receives benefits
therefrom, Buyer agrees to indemnify Seller with respect to all
Liabilities of Seller in respect of any such arrangement.
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Nothing stated in Clause 2.7 shall modify in any respect the conditions set
forth in Clause 10.
2.8 Purchase Price
2.8.1 The cash purchase price for the Business (the "PURCHASE PRICE") is
one billion three hundred and four million, five hundred thousand
Dollars ($1,304,500,000) (it being confirmed, for the purposes of
information only, that such amount was agreed by Seller and Buyer on
the basis of the calculations set forth in Schedule 10). The Purchase
Price shall be (a) reduced by the applicable amounts, if any, as
contemplated by Clause 2.8.2, (b) increased by the applicable amounts,
if any, contemplated by Clause 2.8.3 and (c) further adjusted as
contemplated by Clause 2.8.4. The Purchase Price is an aggregate
amount payable in respect of Buyer's acquisition of the Business.
Schedule 12 sets forth each Partnership Asset Owning Entity Allocated
Amount solely for purposes of providing a mechanism to allow for the
Deferred Closings with respect to the conveyance of Deferred
Partnership Asset Owning Entities on Deferred Dates pursuant to
Clauses 2.1.2 and 2.10.
2.8.2 The Purchase Price shall be reduced by the following amounts (if
applicable):
(a) In the event of any GATX Retained Entity receiving and retaining
its Specified Ownership Interest proportion of any Event of Loss
Proceeds with respect to any Aircraft after the date of this
Agreement and prior to the Closing Date or the Deferred Date, as
the case may be, on which the relevant Specified Ownership
Interest is transferred, the sum in Dollars equal to such GATX
Retained Entity's Specified Ownership Interest proportion of such
Event of Loss Proceeds;
(b) In the event of any GATX Retained Entity receiving and retaining
its Specified Ownership Interest proportion of the proceeds of
sale of any Aircraft sold pursuant to the Contemplated
Arrangements after the date of this Agreement and prior to the
Closing Date or the Deferred Date, as the case may be, on which
the relevant Specified Ownership Interest is transferred
hereunder, the sum in Dollars equal to such GATX Retained
Entity's Specified Ownership Interest proportion of such proceeds
of sale; and
(c) Aircraft Sum.
2.8.3 The Purchase Price shall be increased by the following amounts (if
applicable):
(a) In the event of any External Debt Financing Indebtedness being
prepaid following the date hereof and prior to the Closing or the
Deferred Closing (in relation to the relevant Specified Ownership
Interest in any Partnership Asset Owning Entity which is
transferred on a Deferred Date), as the case may be, the amount
in Dollars certified by Seller as being the sum (i) in the case
of External Debt Financing Indebtedness of a Wholly Owned Asset
Owning Entity, the amount in Dollars certified by Seller as being
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the sum of any termination costs or prepayment premiums or
penalties borne or paid in connection with such prepayments, and
(ii) in the case of External Debt Financing Indebtedness of a
Partnership Asset Owning Entity, the relevant Selling Party's
Specified Ownership Interest of (1) the principal amount of such
Indebtedness so prepaid, and (2) the amount in Dollars certified
by Seller as being the sum of any termination costs or prepayment
premiums or penalties borne or paid in connection with such
prepayments;
(b) The sum of all payments made by Seller to Airbus under the Airbus
Purchase Agreement after the date hereof and prior to the
Closing; and
(c) The sum of all amounts invested by any member of the GATX Group
prior to the Closing in West Portal Leasing Ltd. in connection
with the arrangements contemplated or to be contemplated by the
Tiger 2006 Documents.
2.8.4 Working Capital Adjustment
(a) The parties agree that the Working Capital of the Business as of
the Closing Date (the "CLOSING WORKING CAPITAL"), as calculated
in accordance with and set forth on the statement of Working
Capital set forth in Schedule 11 (the "FORM WORKING CAPITAL
STATEMENT") is targeted to be two million one hundred and ninety
thousand Dollars ($2,190,000) (the "WORKING CAPITAL TARGET").
"Working Capital" means the difference between (i) the sum of the
amounts shown in the line items listed on the Form Working
Capital Statement under "Selected Assets" of the Business and
(ii) the sum of the amounts shown in the line items listed on
Form Working Capital Statement under "Selected Liabilities" with
respect to the Business.
(b) For purposes of this Agreement, Working Capital shall be
calculated in accordance with GAAP using the same accounting
methods, components, policies, practices and procedures, with
consistent classifications, judgments and estimation methodology,
as were used in preparation of the Working Capital Target of the
Business (the "WORKING CAPITAL PRACTICES"), certain of which
Working Capital Practices are set forth on Attachment A to the
Form Working Capital Statement.
(c) Seller shall cause to be prepared and, within five (5) Business
Days prior to the Closing Date, but in no event less than two (2)
Business Days prior to the Closing Date, shall cause to be
delivered to Buyer, a good faith estimate of the Closing Working
Capital as of the Closing Date (the "ESTIMATED WORKING CAPITAL").
The Estimated Working Capital shall be determined in accordance
with GAAP using the same Working Capital Practices as were used
in preparation of the Form Working Capital Statement and shall be
in the same form as the Form Working Capital Statement. The
amount of the Purchase Price payable on the Closing shall be (i)
increased on a Dollar for Dollar basis by the amount, if any, by
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which the Estimated Working Capital is greater than the Working
Capital Target or (ii) reduced on a Dollar for Dollar basis by
the amount, if any, by which the Estimated Working Capital is
less than the Working Capital Target, as the case may be.
(d) Buyer shall cause to be prepared and, as soon as practical, but
in no event later than forty five (45) Business Days following
the Closing Date, shall cause to be delivered to Seller a
calculation of the Closing Working Capital (the "INITIAL
CALCULATION"). The Initial Calculation shall be determined in
accordance with GAAP using the same Working Capital Practices as
were used in preparation of the Form Working Capital Statement
and shall be in the same form as the Form Working Capital
Statement.
(e) Within twenty (20) Business Days after delivery of the Initial
Calculation by Buyer, Seller may deliver to Buyer a written
notice (the "CALCULATION NOTICE") either (i) advising Buyer that
Seller agrees with and accepts the Initial Calculation or (ii)
setting forth a reasonably detailed explanation of those items in
the Initial Calculation that Seller disputes and a statement,
with reasonable detail as to the disputed matters, of what Seller
believes is the correct calculation of Closing Working Capital.
Buyer shall provide Seller and its representatives (including its
accountants) with reasonable access, during normal business
hours, to its books and records for purposes of Seller's review
of the Initial Calculation. If Seller does not submit a
Calculation Notice within the twenty (20) Business Day period
provided herein or agrees with the calculation as set forth in
sub-clause (i) above, then the Initial Calculation shall become
final and binding and shall not be subject to further review,
challenge or adjustment.
(f) In the event that Seller and Buyer are unable to resolve any
disputes regarding the Closing Working Capital in good faith
within fifteen (15) Business Days after the date of Seller's
delivery of a Calculation Notice with objections under sub-clause
(e)(ii) above, then such disputes shall be referred to an
internationally recognized firm of independent certified public
accountants selected by mutual agreement of Seller and Buyer (the
"SETTLEMENT ACCOUNTANTS"), and the determination of the
Settlement Accountants shall be final and shall not be subject to
further review, challenge or adjustment. Failing agreement
between Seller and Buyer as to the appointment of the settlement
accountants, the Settlement Accountants shall be Deloitte &
Touche. Seller and Buyer shall use commercially reasonable
efforts to cause the Settlement Accountants to reach a
determination not more than thirty (30) Business Days after such
referral. Nothing herein shall be construed to authorize or
permit the Settlement Accountants to resolve any dispute by
making an adjustment to an Initial Calculation that is outside of
the range defined by such Initial Calculation and the applicable
Calculation Notice. Each party shall pay its own costs and
expenses incurred in connection with this sub-clause (f);
provided, however, that the Settlement Accountant shall allocate
the fees
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between Buyer and Seller based upon the relative correctness of
the initial positions taken by such parties in the Initial
Calculation and Calculation Notice. Such allocation of fees shall
be final and shall not be subject to further review, challenge or
adjustment.
(g) "WORKING CAPITAL ADJUSTMENT AMOUNT", which may be positive or
negative, shall mean (i) the Closing Working Capital, as finally
determined in accordance with this Clause 2.8.4, minus (ii) the
Estimated Working Capital.
(h) If a Working Capital Adjustment Amount is positive, then Buyer
shall promptly deliver, by wire transfer of immediately available
funds to an account designated in writing by Seller, an amount
equal to such Working Capital Adjustment Amount, together with
interest thereon from the Closing Date to the date of payment at
the rate of interest published as the "Prime Rate" in the "Money
Rates" column of the Eastern Edition of The Wall Street Journal
(or the average of such rates if more than one rate is indicated)
on the Closing Date (the "CLOSING DATE INTEREST RATE"). If a
Working Capital Adjustment Amount is a negative number, then
Seller shall promptly deliver, by wire transfer of immediately
available funds to an account designated in writing by Buyer, an
amount equal to such Working Capital Adjustment Amount, together
with interest thereon from the Closing Date to the date of
payment at the Closing Date Interest Rate.
(i) For purposes of this Clause 2.8.4 all computations of interest
shall be made on the basis of a year of three hundred and sixty
five (365) days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in
the period for which such interest is payable. Any payments made
by any Person pursuant to this Clause 2.8.4 shall be made by wire
transfer of immediately available funds within five (5) Business
Days after the date on which the applicable Closing Working
Capital is final and binding on the parties.
2.9 Purchase Price Allocation
For Tax reporting purposes, the Purchase Price (as adjusted for any
liabilities assumed by Buyer) shall be allocated by Seller and Buyer among
the assets owned by the Asset Owning Entities and the Owner Trusts
interests in which are transferred to Buyer hereunder and the Additional
Assets that are transferred to Buyer hereunder, solely in a manner
consistent Section 1060 of the Code and the regulations thereunder. Such
allocation shall be made in accordance with the following procedure:
2.9.1 Within sixty (60) days after the Closing Date and each Deferred Date,
Buyer will provide to Seller a schedule (each such schedule, an "ASSET
ACQUISITION STATEMENT") with Buyer's proposed allocation of the
Closing Date Allocated Amount or the Deferred Date Allocated Amount,
as applicable, as adjusted for any liabilities assumed by Buyer at the
Closing or Deferred Closing, as applicable, among the assets of the
Asset Owning Entities and Owner Trusts interests in which are
transferred, and the Additional Assets transferred, at the
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Closing or Deferred Closing, as applicable. Within thirty (30) days
after the receipt of any Asset Acquisition Statement, Seller will
propose to Buyer in writing any changes to such Asset Acquisition
Statement (and in the event no such changes are proposed in writing to
Buyer within such time period, Seller will be deemed to have agreed
to, and accepted, such Asset Acquisition Statement). Buyer and Seller
will endeavor in good faith to resolve any differences with respect to
such Asset Acquisition Statement within fifteen (15) days after
Buyer's receipt of written notice of changes from Seller.
2.9.2 If Seller withholds its consent to the allocation reflected in an
Asset Acquisition Statement, and Buyer and Seller have acted in good
faith to resolve any differences with respect to items on the Asset
Acquisition Statement and thereafter are unable resolve any
differences that, in the aggregate, are material in relation to the
Closing Date Allocated Amount or Deferred Date Allocated Amount, as
applicable, then any remaining disputed matters will be finally and
conclusively determined by an independent accounting firm of
recognized international standing (the "ALLOCATION ARBITER")
reasonably acceptable to both Buyer and Seller. Promptly, but not
later than thirty (30) days after its acceptance of appointment
hereunder, the Allocation Arbiter will determine (based solely on
presentations by Seller and Buyer and not by independent review) only
those matters in dispute and will render a written report as to the
disputed matters and the resulting allocation of the Closing Date
Allocated Amount or Deferred Date Allocated Amount, as applicable,
which report shall be conclusive and binding upon the parties. Any
expenses of the Allocation Arbiter will be borne equally by Buyer and
Seller.
2.9.3 Seller and Buyer agree (a) to report the allocation of the Closing
Date Allocated Amount and each Deferred Date Allocated Amount in a
manner entirely consistent with the Asset Acquisition Statement
relating to such Closing Date Allocated Amount or Deferred Date
Allocated Amount, as the case may be, or, if applicable, the
determination of the Allocation Arbiter relating to such Closing Date
Allocated Amount or Deferred Date Allocated Amount, as the case may
be, and (b) to act in accordance with such allocation in the filing of
all Tax Returns (including filing Form 8594 with their federal income
Tax Return for the taxable year that includes the date of the Closing
or Deferred Closing, as applicable) and in the course of any Tax
audit, Tax review or Tax litigation relating thereto, except as
otherwise required under Applicable Law or as required by a final
determination of a Tax liability that, under Applicable Law, is not
subject to further appeal, review or modification through proceedings
or otherwise. The parties will cooperate in connection with the
preparation and filing of IRS Form 8594.
2.9.4 In the event the Purchase Price is adjusted pursuant to this
Agreement, the allocation determined under Clauses 2.9.1 through 2.9.3
shall be revised in accordance with the nature of the applicable
adjustment.
2.10 Closing
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2.10.1 Unless this Agreement shall have been terminated pursuant to Clause
12 and subject to the terms and conditions of this Agreement (a) the
closing (the "CLOSING") of the purchase and sale of (i) the Specified
Ownership Interests (other than the Specified Ownership Interests in
relation to any Deferred Partnership Asset Owning Entities (the
"REMAINING OWNERSHIP INTERESTS")) and (ii) the Additional Assets
(other than any Material Contract relating to any Deferred Partnership
Asset Owning Entity) (the assets specified in (i) and (ii) being the
"CLOSING ASSETS") shall take place on the Closing Date, and (b) the
closing (the "DEFERRED CLOSING") of the purchase and sale of each of
Remaining Ownership Interests (together with any related Material
Contracts) shall take place on the relevant Deferred Date, if ever.
2.10.2 On the Closing Date or each Deferred Date, as the case may be, Buyer
shall pay to Seller the Closing Date Allocated Amount or the relevant
Deferred Date Allocated Amount, as applicable, in immediately
available funds by credit to the account designated by Seller by
notice to Buyer delivered not later than two (2) Business Days prior
to the Closing Date or the relevant Deferred Date, as the case may be.
2.10.3 On the Closing Date and each Deferred Date Seller shall (or, as
applicable, Seller shall cause the applicable Other Selling Party to)
deliver to Buyer, and Seller (or, as applicable, the Other Selling
Party) and Buyer shall execute, all documents, in respective forms
reasonably satisfactory to Seller and Buyer, that are necessary (a) to
transfer to Buyer the Closing Assets or the relevant Remaining
Ownership Interests (and related Material Contracts), as the case may
be, free of any Liens (other than any Permitted Liens) and (b) for
Buyer to assume the Assumed Liabilities.
2.10.4 Closing and each Deferred Closing shall take place at the New York
office of ▇▇▇▇▇▇▇▇ Chance US LLP located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ or such other location as may be agreed from time to time by
Seller and Buyer.
2.10.5 On the Incremental Platform Value Adjustment Date, if there is an
Incremental Platform Value Adjustment Amount, Seller shall pay Buyer
the Incremental Platform Value Adjustment Amount, in immediately
available funds by credit to such account as shall be designated by
Buyer by notice to Seller delivered not later than two (2) Business
Days prior to the Incremental Platform Value Adjustment Date.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date of this Agreement
and as of the Closing Date (and as of each Deferred Date, with respect only
to each Asset Owning Entity in respect of which the Specified Ownership
Interest is transferred to Seller on such Deferred Date), except (i) as set
forth in Virtual Data Room document 23.01.02, or (ii) as to any such
representations and warranties made solely with reference to a specific
date, which representations and warranties shall be made as of such date:
3.1 Corporate Existence and Power
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Each Selling Party and Asset Owning Entity is an entity duly formed,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation or formation, with full corporate, company or entity
power and authority to conduct its business as it is now being conducted.
Seller has made available to Buyer a true and complete copy of the
organizational documents of each Asset Owning Entity, including each trust
agreement pursuant to which each Owner Trust is created, in each case, as
currently in effect. Each Selling Party and each Asset Owning Entity is
duly qualified to do business and, in the case of those jurisdictions where
such concept is known, is in good standing in each jurisdiction where that
qualification is necessary, except for those jurisdictions where failure to
be so qualified would not reasonably be expected to have a Material Adverse
Effect.
3.2 Corporate Authorization
3.2.1 The execution, delivery and performance by Seller of this Agreement,
the closing deliverables and the other instruments required to
consummate the transactions contemplated by this Agreement to which
Seller is a party (the "SELLER CLOSING DOCUMENTS") and the
consummation of the transactions contemplated by this Agreement and
the Seller Closing Documents are within Seller's corporate powers and
have been (or, in the case of the Seller Closing Documents, will be)
duly authorized by all necessary corporate and stockholder action on
the part of Seller. This Agreement constitutes, and the Seller Closing
Documents will constitute, the legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with their respective
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b)
the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
3.2.2 The execution, delivery and performance by each Other Selling Party
of the closing deliverables and the other instruments required to
consummate the transactions contemplated by this Agreement to which
such Other Seller Party is a party (the "OTHER SELLING PARTIES'
CLOSING DOCUMENTS") and the consummation of the transactions
contemplated by this Agreement and the Other Selling Parties' Closing
Documents are within such Other Selling Party's corporate, company or
entity powers and will be duly authorized by all necessary corporate
and equityholder action on the part of such Other Selling Party. Each
Other Selling Parties' Closing Document will constitute the legal,
valid and binding obligation of such Other Selling Party, enforceable
against such Other Selling Party in accordance with their respective
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b)
the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
3.3 Governmental Authorization
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3.3.1 The execution, delivery and performance by Seller of this Agreement,
the Seller Closing Documents and the consummation of the transactions
contemplated by this Agreement and the Seller Closing Documents
require no action by or in respect of, or filing with, any
Governmental Authority, other than (a) compliance with any applicable
requirements of any applicable Competition Laws, (b) any such action
or filing in any jurisdiction in which any Aircraft is registered,
habitually based or operated related to, or in connection with, that
registration, habitual basing or operation, and (c) any such action or
filing as to which the failure to make or obtain would not have a
Material Adverse Effect and would not result in any material risk of
material civil liability or any risk of criminal liability, in either
case, for any natural person.
3.3.2 The execution, delivery and performance by each Other Selling Party
of the Other Selling Parties' Closing Documents and the consummation
of the transactions contemplated by this Agreement and the Other
Selling Parties' Closing Documents require no action by or in respect
of, or filing with, any Governmental Authority, other than (a)
compliance with applicable requirements of any applicable Competition
Laws, (b) any such action or filing in any jurisdiction in which any
Aircraft is registered, habitually based or operated related to, or in
connection with, that registration, habitual basing or operation and
(c) any such action or filing as to which the failure to make or
obtain would not have a Material Adverse Effect and would not result
in any material risk of material civil liability or any risk of
criminal liability, in either case, for any natural person.
3.4 Non-contravention
The (a) execution, delivery and performance by Seller of this Agreement and
the Seller Closing Documents, (b) execution, delivery and performance by
each Other Selling Party of the Other Selling Parties' Closing Documents
and (c) the consummation of the transactions contemplated by this Agreement
do not and will not, directly or indirectly (with or without notice or
lapse of time):
3.4.1 subject to obtaining the consents and/or the taking of the actions
specified in Schedule 3 and to the passing of appropriate corporate
resolutions, violate the organizational documents or resolutions of
any Selling Party;
3.4.2 subject to obtaining the consents and/or the taking of the actions
specified in Schedule 3 and compliance with any applicable Competition
Laws violate any Applicable Law, or the terms of any permit or
registration issued by a Governmental Authority used in the Business;
or
3.4.3 subject to obtaining the consents and/or taking the actions specified
in Schedule 3 and compliance with any applicable Competition Laws,
require any consent of, or other action by, any Person under,
constitute a default under, or give rise to any right of termination,
cancellation, modification or acceleration of any right or obligation
of any such Person or to a loss of any material benefit to which any
such Person is entitled under any provision of any agreement or other
instrument binding upon such Person or the assets of such Person,
including the
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JV Management Agreements, the JV Member Documents, the Leases or the
Trust Agreements;
except, in the case of each of Clauses 3.4.2 and 3.4.3, for such
violations, consents, actions, defaults or termination rights as would not
have a Material Adverse Effect.
3.5 Ownership of Specified Ownership Interests
3.5.1 The Selling Party identified in Part 1, 2, 3 or 4 of Schedule 2 is
the beneficial owner of each of its Specified Ownership Interests,
free and clear of any Liens (other than any Permitted Liens), and the
applicable Selling Party will transfer and deliver to Buyer at the
Closing or Deferred Closing (as applicable) valid title to each of the
Specified Ownership Interests being transferred on such date, free and
clear of any Liens (other than any Permitted Liens). Except as set
forth in Part 1 of Schedule 2 or Schedule 4, there are no outstanding
(a) shares of capital stock or voting securities of, or other equity
or ownership interests in, any of the Asset Owning Entities or
Beneficial Interests in any of the Owner Trusts, (b) securities of any
of the Asset Owning Entities convertible into or exchangeable for
shares of capital stock or voting securities of, or other equity or
ownership interests in, any of the Asset Owning Entities, or (c)
options or other rights to acquire from Seller, any other GATX
Retained Entity or any of the Asset Owning Entities, or other
obligation of any of the Asset Owning Entities to issue, any capital
stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of, or other
equity or ownership interests in, any of the Asset Owning Entities.
3.5.2 Set forth in Parts 1, 2, 3 and 4 of Schedule 2 is a complete and
accurate list showing each Asset Owning Entity and Owner Trust,
identifying as to each such Person (a) the jurisdiction of
organization of such Person, (b) the nature of each Selling Party's
Ownership Interest in such Person (including classes of ownership
interest, if applicable), (c) the outstanding ownership interests in
such Person and (d) the name of each owner of any ownership interest
in such Person together with the nature and class of such ownership
interest and the percentage of outstanding ownership interests such
owner holds.
3.6 Financial Statements
3.6.1 The following financial statements have been made available to Buyer:
(a) the unaudited balance sheet for the Business as of December 31,
2005 (the "DECEMBER 31ST BALANCE SHEET"), (b) the unaudited balance
sheet for the Business as of June 30, 2006 (the "JUNE 30TH BALANCE
SHEET"), (c) the income statement being Virtual Data Room document
3.01.01 (the "INCOME STATEMENT") and (d) the financial statements
related to the Partnership Asset Owning Entities contained in Virtual
Data Room folders 3.03, 3.04 and 3.19 (the "PARTNERSHIP FINANCIAL
STATEMENTS").
3.6.2 Each of the December 31st Balance Sheet and the June 30th Balance
Sheet (a) fairly present in all material respects the financial
condition of the Business as of the respective dates thereof, and (b)
have been prepared in accordance
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with GAAP, consistently applied. The Income Statement fairly presents
in all material respects the financial results of the "Air Segment",
as presented in the public filings of GATX Corporation, excluding
income derived from Rolls-Royce & Partners Finance Limited (and
related companies), Pembroke Group Limited, Focused Air Aircraft and
the Aircraft with manufacturer's serial numbers 126, 189, 190, 653,
657, 25240, 28870 and 49788. The Partnership Financial Statements (x)
fairly present in all material respects the financial condition of the
applicable Partnership Asset Owning Entity as of the respective dates
thereof, and (y) have been prepared in accordance with GAAP,
consistently applied.
3.6.3 The invoices which are in Virtual Data Room folder 3.12 reflect an
amount due that was accurately calculated in all material respects in
accordance with the applicable Lease.
3.6.4 To the Knowledge of Seller, there are no undisclosed contingent
liabilities of the Business which would reasonably be expected to have
a Material Adverse Effect.
3.7 Absence of Certain Changes
Since June 30, 2006, the Business has been conducted in the ordinary course
of business consistent with past practices, and there has not been any
event, occurrence or development which has had, or would be reasonably
expected to have, a Material Adverse Effect. Since June 30, 2006 and
through the date of this Agreement, except as set forth in any Schedule or
pursuant to any document made available to Buyer, there has not been:
3.7.1 any amendment of any material term of any outstanding Ownership
Interest in any Asset Owning Entity;
3.7.2 any incurrence, assumption or guarantee by any Asset Owning Entity of
any Indebtedness in excess of one million Dollars ($1,000,000)
(excluding such Indebtedness incurred pursuant to any JV Member
Documents or owed to GATX Retained Entities);
3.7.3 any making of (or the undertaking to make) any capital contributions
to, or equity investments in, an amount in excess of one million
Dollars ($1,000,000) (excluding any capital contributions or equity
investments, made pursuant to any JV Member Documents or owed to GATX
Retained Entities);
3.7.4 any transaction or commitment made, or any contract or agreement
entered into by, any Asset Owning Entity relating to its assets or
business (excluding the acquisition or disposition of any aircraft or
engine), in either case, for a consideration in excess of one hundred
thousand Dollars ($100,000), other than transactions and commitments
(a) in the ordinary course of business and (b) not in violation of
this Agreement; or
3.7.5 any transaction or commitment made, or any contract or agreement
entered into by, any Asset Owning Entity relating to the acquisition
or disposition of any
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aircraft or engine, other than transactions and commitments (a) in the
ordinary course of business and (b) not in violation of this
Agreement.
3.8 Material Contracts
As of the date of this Agreement, other than any Material Contract, any
Designated Contract, any other document made available to Buyer, or any
contract entered into in the ordinary course of business, and other than in
respect of Indebtedness owed by a Wholly Owned Asset Owning Entity to a
GATX Retained Entity to be settled or cancelled prior to the Closing or the
Deferred Closing (as applicable) pursuant to Clause 5.3, no Asset Owning
Entity or Owner Trust is a party to or bound by, in connection with its
operation of the Business:
(a) any lease (whether of real or personal property), not including
any Leases;
(b) any agreement for the purchase of materials, supplies, goods,
services, equipment or other assets;
(c) any sales, distribution or other similar agreement providing for
the sale of materials, supplies, goods, services, equipment or
other assets;
(d) any partnership, joint venture or other similar agreement or
arrangement;
(e) any agreement (excluding agreements entered into pursuant to the
Contemplated Arrangements) relating to the acquisition or
disposition of any business or assets (whether by merger, sale of
stock, sale of assets or otherwise);
(f) any agreement relating to Indebtedness (whether incurred,
assumed, guaranteed or secured by any asset);
(g) any agreement that limits the freedom of such Asset Owning Entity
to compete in any line of business or with any Person or in any
area in any material respect;
(h) any material agreement with any GATX Retained Entity or any
director or officer of any GATX Retained Entity;
(i) any agreement, contract or binding commitment relating to the
employment of any individual by such Asset Owning Entity or Owner
Trust;
(j) which any party thereto is obligated to make payments aggregating
more than one million Dollars ($1,000,000);
(k) where the consequences of a breach or default thereunder, or the
termination, expiration or cancellation thereof, would reasonably
be expected to result in a Material Adverse Effect;
(l) any material management, service or consulting contract; or
(m) any material agreement not made in the ordinary course of
business.
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3.9 Aircraft and Leases
3.9.1 All Aircraft owned or leased by any Asset Owning Entity or Owner
Trust are set forth in the relevant Part of Schedule 1. An Asset
Owning Entity or Owner Trust, or a Subsidiary of an Asset Owning
Entity or an Owner Trust, as the case may be, is (a) the sole owner of
(and holds good title to) each Aircraft (not including the Finance
Lease Aircraft) and (b) the sole owner of a lessor's interest in each
Aircraft under the Lease Documents applicable to such Aircraft. Each
Aircraft, and interest under the Lease Documents applicable to such
Aircraft, is free and clear of all Liens (other than Permitted Liens).
3.9.2 Schedule 6 contains a complete and correct list of the Leases
relating to each Aircraft. Except as set forth in Schedule 6, no
notice of the termination of the leasing, bailing, conditional selling
or chartering of any Aircraft pursuant to any Lease has been given and
has not been withdrawn as of the date of this Agreement by, or on
behalf of, the Asset Owning Entity or Owner Trust or Subsidiary of an
Asset Owning Entity, as the case may be, which is a party to such
Lease.
3.9.3 To the Knowledge of Seller, there is no outstanding AD with respect
to any Aircraft which has not been complied with in all material
respects within the timeframe allowed therefore by the relevant AD.
3.9.4 To the Knowledge of Seller, no Event of Loss with respect to any
Aircraft has occurred.
3.9.5 To the Knowledge of Seller, no Material Default with respect to any
Aircraft has occurred and is continuing.
3.9.6 Other than pursuant to any Material Contract or any other document
which has been made available to Buyer, there are no existing options
to purchase, sell or, as of this date of this Agreement, lease any
aircraft or Aircraft which have not been exercised by any Asset Owning
Entity or Owner Trust, or the relevant Lessee, lessor or any other
Person, or which have been exercised but which have not been
consummated as of the date of this Agreement.
3.9.7 Other than pursuant to any document referred to in Schedule 5, there
are no outstanding purchase orders or other commitments to or with
Manufacturers or any other Person and made by any Asset Owning Entity
or Owner Trust or Subsidiary of an Asset Owning Entity or Owner Trust
to purchase aircraft or engines. Part 3 of Schedule 5 sets forth, as
of the date of this Agreement, all outstanding purchase orders and
other commitments made by any Asset Owning Entity or Owner Trust to
purchase aircraft, engines or spare parts (other than purchase offers
or commitments to purchase spare parts in the ordinary course of
business).
3.9.8 (a) There are no agreements pursuant to which any Asset Owning Entity
or Owner Trust or Subsidiary of an Asset Owning Entity or Owner Trust
provides or has agreed to provide wet lease services to any other
Person, and (b) other
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than pursuant to documents made available to Buyer, no Asset Owning
Entity or Owner Trust provides any aircraft crew or any other material
service relating to aircraft, including training, maintenance,
inspection, parts procurement or insurance to any other Person.
3.9.9 To the Knowledge of Seller, Seller has made available to Buyer, or
made reference in Schedule 5 to, all material documents, instruments
and agreements related to each Aircraft (including each Lease related
thereto) to which any Asset Owning Entity is a party.
3.9.10 Virtual Data Room document 23.01.01 sets forth true and accurate
responses to the questions set forth therein.
3.10 Employee Benefits
3.10.1 No Asset Owning Entity has or has had any employees or has
maintained any employee benefit plan or arrangement (whether or not
subject to ERISA), and on or after the Closing, no Asset Owning Entity
or Subsidiary of an Asset Owning Entity shall be required to pay any
liability under Section 412 of the Code or Title IV of ERISA by virtue
of having been an ERISA Affiliate of (a) Seller, or (b) any of its
Affiliates as of the Closing (other than any Asset Owning Entity or
Subsidiary of an Asset Owning Entity).
3.10.2 All benefit plans in which any Transferred U.S. Employee
participates (the "BENEFIT PLANS") have been administered in
compliance in all material respects with all applicable requirements
of ERISA and the Code, and none of the members of the GATX Group that
employs any of Transferred U.S. Employees nor their ERISA Affiliates
has incurred, and as of the Closing Date will not have incurred, any
liability with respect to any Benefit Plan which under ERISA or the
Code is sufficient to create a Lien upon the assets of the Business.
It is expressly understood and agreed that Buyer is not assuming any
of the Benefit Plans and that Seller and its affiliates shall retain
all liabilities with respect to the Benefit Plans, except as may be
expressly set forth in Clause 9.
3.11 Litigation
Other than (i) the Retained Liabilities or (ii) as referred to in Schedule
8, there is no (a) action, suit, proceeding or, to the Knowledge of Seller,
investigation pending against any Selling Party or Asset Owning Entity or
any of their respective properties before any arbitrator or any
Governmental Authority which would reasonably be expected to have a
Material Adverse Effect, (b) judgment, order, writ, injunction or decree of
any court or arbitration tribunal to which an Asset Owning Entity is a
signatory (or, to the Knowledge of Seller, to which an Asset Owning Entity
is not a signatory) which would reasonably be expected to have a Material
Adverse Effect or (c) action, suit or proceeding or, to the Knowledge of
Seller, investigation which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated by this
Agreement.
3.12 Finders' Fees
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There is no investment banker, broker, finder or other intermediary (not
including any professional adviser) which has been retained by or is
authorized to act on behalf of Seller who might be entitled to any fee or
commission in connection with the sale and purchase of the Specified
Ownership Interests for which any Asset Owning Entity or Owner Trust is
liable.
3.13 Partnership Matters
To the knowledge of Seller, no JV Member (or representative thereof) has
provided a written statement to Seller or ▇▇▇▇▇ ▇▇▇▇▇▇▇ to the effect that
such JV Member is unwilling to consider selling its Ownership Interests in
the applicable Partnership Asset Owning Entity.
3.14 Descriptions of Documents
The Virtual Data Room documents 2.05.03, 2.05.04, 2.05.05 and 2.05.06 and
the document contained in Virtual Data Room folder 17.23 contain an
accurate description in all material respects of the terms of the
agreements (or, as applicable, the terms of the transactions) they purport
to describe.
3.15 Orphan SPCs
The representations set forth in Schedule 13 will be correct as of the
Closing Date.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as of the date of this Agreement
and as of the Closing Date (and as of each Deferred Date, with respect only
to the transactions occurring on such Deferred Date) that:
4.1 Corporate Existence and Power
Buyer is an entity duly formed, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, with full corporate
power and authority to conduct its business as it is now being conducted.
Buyer is duly qualified to do business and, in the case of those
jurisdictions where such concept is known, is in good standing in each
jurisdiction where that qualification is necessary, except for those
jurisdictions where failure to be so qualified would not reasonably be
expected to have a material adverse effect on Buyer or on Buyer's ability
to consummate the transactions contemplated hereby.
4.2 Corporate Authorization
The execution, delivery and performance by Buyer of this Agreement, the
closing deliverables and the other instruments required to consummate the
transactions contemplated by this Agreement to which Buyer is a party (the
"BUYER CLOSING DOCUMENTS") and the consummation of the transactions
contemplated by this Agreement and Buyer Closing Documents are within
Buyer's corporate powers and have been duly authorized by all necessary
corporate and stockholder action on the part of Buyer. This Agreement
constitutes, and Buyer Closing Documents will constitute, the legal, valid
and binding obligation of Buyer, enforceable against Buyer in accordance
with their
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respective terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or similar laws of
general applicability affecting the enforcement of creditors' rights and
(b) the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
4.3 Governmental Authorization
The execution, delivery and performance by Buyer of this Agreement, Buyer
Closing Documents and the consummation of the transactions contemplated by
this Agreement and Buyer Closing Documents require no action by or in
respect of, or filing with, any Governmental Authority, other than (a)
compliance with any applicable requirements of any applicable Competition
Laws, (b) any such action or filing in any jurisdiction in which any
Aircraft is registered, habitually based or operated related to, or in
connection with, that registration, habitual basing or operation, and (c)
any such action or filing as to which the failure to make or obtain would
not have a material adverse effect on Buyer or on Buyer's ability to
consummate the transactions contemplated hereby.
4.4 Non-contravention
The (a) execution, delivery and performance by Buyer of this Agreement and
Buyer Closing Documents and (b) the consummation of the transactions
contemplated by this Agreement and Buyer Closing Documents do not and will
not, directly or indirectly (with or without notice or lapse of time):
4.4.1 violate the organizational documents or resolutions of Buyer;
4.4.2 violate any Applicable Law;
4.4.3 require any consent of, or other action by, any Person under,
constitute a default under, or give rise to any right of termination,
cancellation, modification or acceleration of any right or obligation
of any such Person or to a loss of any material benefit to which any
such Person is entitled under any provision of any agreement or other
instrument binding upon such Person or the assets of such Person; or
except, in the case of each of the foregoing Clauses 4.4.2 and 4.4.3, for
such violations, consents, actions, defaults or termination rights as would
not have a material adverse effect on Buyer or on Buyer's ability to
consummate the transactions contemplated hereby.
4.5 Financing
4.5.1 Attached as Exhibit A is a true, accurate and complete copy of the
commitment letter (the "DEBT COMMITMENT LETTER") from Citigroup Global
Markets Inc. ("CGMI"), which remains in full force and effect as of
the date of this Agreement and pursuant to which CGMI has committed on
behalf of Citigroup (as defined in the Debt Commitment Letter) (the
"LENDER") to provide debt financing on the terms and conditions set
forth therein (the "DEBT FINANCING") to Buyer in connection with the
transactions contemplated by this Agreement.
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Attached as Exhibit B are true, accurate and complete copies of each
of the letters dated as of the date of this Agreement among Seller and
the respective equity investors named therein (together, the "EQUITY
INVESTORS") (the "EQUITY COMMITMENT LETTERS" and, together with the
Debt Commitment Letter, the "COMMITMENT LETTERS"), which are in full
force and effect as of the date of this Agreement and pursuant to
which the Equity Investors have committed to provide equity financing,
on the terms and conditions set forth therein, to Buyer in connection
with the transactions contemplated by this Agreement.
4.5.2 The proceeds of the Debt Financing, together with the funds to be
contributed to Buyer by, or on behalf of the Equity Investors named in
the Equity Commitment Letters, will be sufficient to pay the Purchase
Price to Seller and to pay the fees and expenses incurred by or on
behalf of Buyer and/or any of its Affiliates relating to the
transactions contemplated by this Agreement and by the Commitment
Letters. As of the date of this Agreement, (a) the Commitment Letters
have not been withdrawn, (b) Buyer does not know of any facts or
circumstances that would reasonably be expected to result in the
withdrawal of the Commitment Letters, and (c) neither Buyer nor any of
its Affiliates is a party to or beneficiary of any agreement,
commitment letter or other arrangement with the Lender or any other
financing source that relates to, or bears in any material respect on
any Commitment Letter or the rights and obligations set forth in any
such Commitment Letter.
4.6 Purchase for Investment
4.6.1 Buyer is acquiring the Specified Ownership Interests for its own
account solely for investment and not with a view to, or for offer or
resale in connection with, a distribution of any of the Specified
Ownership Interests or any "beneficial interest" (within the meaning
of the ▇▇▇▇ ▇▇▇) in the Specified Ownership Interests, and Buyer has
no present intent, agreement or understanding to sell or otherwise
dispose (other than by way of pledge in connection with the Debt
Financing) of any Specified Ownership Interests to any other Person;
provided, however, that the disposition of Buyer's property remains at
all times within Buyer's sole discretion.
4.6.2 Buyer is an "accredited investor" (within the meaning of Regulation D
under the ▇▇▇▇ ▇▇▇) and either alone or together with its advisors has
sufficient knowledge and experience in financial and business matters
so as to be capable of evaluating the merits and risks of its
investment in the Specified Ownership Interests and is capable of
bearing the economic risks of such investment.
4.6.3 Buyer understands that the Specified Ownership Interests have not
been registered under the 1933 Act or the securities or blue sky laws
of any State of the United States or any other jurisdiction. Buyer
also understands that the Specified Ownership Interests are being sold
pursuant to an exemption from registration contained in the 1933 Act
and any such State or other jurisdictions' securities or blue-sky laws
based in part upon Buyer's representations contained in this
Agreement.
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4.7 Litigation
There is no action, suit, investigation or proceeding pending against, or
to the knowledge of Buyer, threatened against or affecting Buyer before any
arbitrator or any Governmental Authority which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement.
4.8 Finders' Fees
Except for the Lender and any other financial institutions who participate
with the Lender in providing the Debt Financing and except for fees payable
to Macquarie Bank Limited or any of its Affiliates, whose fees and expenses
will be paid by Buyer or one of its Affiliates, there is no investment
banker, broker, finder or other intermediary that has been retained by or
is authorized to act on behalf of Buyer who might be entitled to any fee or
commission in connection with the transactions contemplated by this
Agreement.
4.9 Inspections; No Other Representations
4.9.1 Buyer is an informed and sophisticated purchaser, experienced
(directly or through the Equity Investors) in the evaluation and
purchase of aircraft and related assets and of ownership interests in
aircraft and related assets as contemplated under this Agreement.
Buyer has made such investigations and examinations, engaged such
experts and counsel and has been provided with and has evaluated all
such documents and information as it has deemed necessary to enable it
to evaluate the merits and risks associated with the execution,
delivery and performance of this Agreement and the purchase of the
Specified Ownership Interests and the Additional Assets and the
assumption of the Assumed Liabilities.
4.9.2 Buyer acknowledges that neither any Selling Party nor any of their
directors, officers, employees, Affiliates, agents or representatives
(the "IDENTIFIED PARTIES") makes any representation or warranty of any
kind or character whatsoever (whether express or implied, oral or
written) as to, or assumes any responsibility for, the accuracy,
adequacy or completeness of any information or documents heretofore or
hereafter furnished to Buyer by or on behalf of any Selling Party,
except as otherwise expressly provided in this Agreement. Without
limiting the generality of the foregoing, Buyer acknowledges that no
Identified Party makes any representation or warranty, express or
implied, with respect to (a) any projections, estimates or budgets
delivered to or made available to Buyer of future revenues, future
results of operations (or any of its components), future cash flows or
future financial condition (or any of its components) of any of the
Asset Owning Entities or the Owner Trusts, (b) the future business and
operations of any of the Asset Owning Entities or the Owner Trusts,
(c) the nature, quality or condition (financial, physical or
otherwise) of the Additional Assets or of the Asset Owning Entities or
the Owner Trusts or their assets or properties, or (d) any other
information or documents made available to Buyer or its counsel,
accountants or advisors with respect to any of the Specified Ownership
Interests, the Additional Assets, the Assumed Liabilities or the Asset
Owning Entities or the Owner Trusts or their
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respective assets and liabilities, businesses and operations or any
other matters, except in each case as expressly set forth in this
Agreement.
4.9.3 Buyer shall not assert any claim against any Identified Party or hold
any Identified Party liable for any inaccuracies, misstatements or
omissions with respect to any documents or information, whether
written or oral (other than, as to Seller only, the representations
and warranties of Seller contained in this Agreement) furnished by any
Identified Party concerning the Specified Ownership Interests, the
Additional Assets, the Assumed Liabilities or the Asset Owning
Entities or the Owner Trusts or their respective assets and
liabilities, businesses and operations or any other matters. Buyer
acknowledges that, except for the representations and warranties
expressly set forth in this Agreement, neither it nor any of its
Affiliates or its and their directors, officers, members, employees,
agents, advisors (including financial advisors, counsel and
accountants), shareholders, owners and controlling persons has relied
upon (a) the accuracy or completeness of any information provided to
Buyer in connection with the transactions contemplated hereby or (b)
any representations or warranties of any nature made by or on behalf
of or imputed to any Identified Party, and Buyer further acknowledges
that, in entering into this Agreement, it has relied solely on its own
investigation of the Business and the representations and warranties
expressly set forth in this Agreement, subject to the limitations and
restrictions specified herein.
4.9.4 SELLER HEREBY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER REGARDING THE MERCHANTABILITY, MARKETABILITY,
PROFITABILITY, FUTURE PERFORMANCE, USAGE, FITNESS FOR A PARTICULAR
PURPOSE OR WORKMANSHIP WITH RESPECT TO ANY OF THE ADDITIONAL ASSETS OR
THE ASSETS OR PROPERTIES OF THE ASSET OWNING ENTITIES OR THE OWNER
TRUSTS (OR ANY OF THEIR RESPECTIVE SUBSIDIARIES) OR ANY PART THEREOF.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, AND EXCEPT AS (AND SOLELY TO THE EXTENT)
SET FORTH IN THIS AGREEMENT, THE ADDITIONAL ASSETS AND THE ASSETS AND
PROPERTIES OF THE ASSET OWNING ENTITIES OR THE OWNER TRUSTS (OR ANY OF
THEIR RESPECTIVE SUBSIDIARIES) WHICH BUYER IS ACQUIRING INDIRECTLY AS
A RESULT OF ITS PURCHASE OF THE SPECIFIED OWNERSHIP INTERESTS ARE
BEING ACQUIRED "AS IS, WHERE IS" ON THE CLOSING DATE OR THE RELEVANT
DEFERRED DATE (AS APPLICABLE) IN THEIR THEN PRESENT CONDITION. Buyer
agrees to accept the Additional Assets and the assets and properties
of the Asset Owning Entities and the Owner Trusts in the condition
they are in on the Closing Date or the relevant Deferred Date, as the
case may be, based upon its own analysis and determination with
respect to all matters, including the Aircraft, the Engines, the Lease
Documents, the Manuals and
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Technical Records and insurance policies, and without reliance upon
any express or implied representations or warranties of any nature
made by or on behalf of or imputed to Seller, any Seller Party or any
Indemnified Party, except as expressly set forth in this Agreement.
5. COVENANTS OF SELLER
Seller agrees that:
5.1 Conduct of the Business
Subject to the proviso set forth below in this Clause 5.1, from the date of
this Agreement until the Closing Date or, in relation to any Deferred
Partnership Asset Owning Entity, the Deferred Date applicable to such
Deferred Partnership Asset Owning Entity, except as otherwise provided in
this Agreement or with the consent of Buyer (which consent shall not be
unreasonably withheld or delayed), Seller shall cause the Business to be
operated in the ordinary course of business and, without limiting the
generality of the foregoing, from the date of this Agreement until the
Closing Date, except as otherwise provided in this Agreement or with the
consent of Buyer (which consent shall not be unreasonably withheld or
delayed), Seller will not permit any Asset Owning Entity or Owner Trust to:
5.1.1 adopt or propose any change in the organizational documents of such
Asset Owning Entity or Owner Trust, as the case may be, other than as
required by Applicable Law;
5.1.2 issue, deliver or sell, or authorize the issuance, delivery or sale
of, any Specified Ownership Interests;
5.1.3 merge or consolidate with any other Person or acquire a material
amount of assets from any other Person;
5.1.4 buy, sell, convey, lease, transfer or otherwise dispose of any
Aircraft or Engine or any other aircraft or engine, except (a)
pursuant to the Focused Air Arrangements or the Contemplated
Arrangements, (b) pursuant to any contract, agreement or arrangement
(not including the Focused Air Arrangements) in effect on the date of
this Agreement, a copy of which has been made available to Buyer, or
pursuant to the Airbus Purchase Agreement or the Tiger 2006 Documents,
(c) the lease of Aircraft and Engines in the ordinary course of
business consistent with past practice or (d) the purchase or sale of
any Engine in exchange for an engine of the same type in connection
with, or as a consequence of, any repossession of any Aircraft
following termination of the leasing of the relevant Aircraft;
5.1.5 buy, sell, lease, license or otherwise dispose of any assets or
property (other than Aircraft or Engines or any other aircraft and
engines which is addressed by Clause 5.1.4 or, in connection with, or
as a consequence of, any repossession of any Aircraft following
termination of the leasing of the relevant Aircraft, any landing gear
or auxiliary power unit) for proceeds in excess of one hundred
thousand Dollars ($100,000) other than in the ordinary course of
business;
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5.1.6 other than pursuant to any JV Member Documents or from GATX Retained
Entities, incur any Indebtedness or guarantee any such Indebtedness of
another Person;
5.1.7 make any loan, advance or capital contributions to or investment in
any Person in an amount in excess of one hundred thousand Dollars
($100,000) other than as may be required pursuant to the terms of any
of the JV Member Documents;
5.1.8 make any material change in any method of financial accounting by
such Asset Owning Entity or Owner Trust, as the case may be, except
for any change required by reason of a concurrent change in any
applicable relevant accounting principles or other applicable
generally accepted accounting principles; or
5.1.9 agree or commit to do any of the foregoing,
provided that the aforesaid obligations of Seller, so far as the same
relate to any Partnership Asset Owning Entity or any Owner Trust, shall be
limited to Seller exercising whatever contractual rights it, or any
Subsidiary of Seller, has in relation to the relevant matter.
Seller hereby notifies Buyer that (a) Seller and 737 Partners (i) has
repossessed B737-300 Aircraft with manufacturer's serial number 28870 and
B737-800 Aircraft with manufacturer's serial numbers 30477 and 30571 and
(ii) will incur expenses in connection with such repossession and work
required to put such Aircraft into a physical condition where they can be
leased to other Lessees, and (b) Blue Dragon will incur expenses in the
upgrade of the engines installed on the A320-200 Aircraft manufacturer's
serial numbers 590, 594, 601 and 605. Buyer acknowledges that such actions
by Seller, 737 Partners and Blue Dragon are in the ordinary course of
business and are not prohibited by this Clause 5.1.
5.2 Access to Information
5.2.1 From the date of this Agreement until the Closing Date or, in
relation to any Deferred Partnership Asset Owning Entity, the Deferred
Date applicable to such Deferred Partnership Asset Owning Entity,
subject to the Confidentiality Agreement and subject to Seller
procuring any needed consents or approvals for disclosure from any
other Person, Seller will give, and, if it has the ability to do so by
contract or otherwise, will cause each Selling Party, Asset Owning
Entity, Owner Trust, other relevant member of the GATX Group and their
respective Affiliates to give, Buyer, its counsel, financial advisors,
financiers, auditors and other authorized representatives reasonable
access during regular business hours to the books and records
regarding the Business, furnish, if it has the ability to do so by
contract or otherwise, and will cause each Selling Party, Asset Owning
Entity, Owner Trust, other relevant member of the GATX Group and their
respective Affiliates to furnish, to Buyer, its counsel, financial
advisors, financiers, auditors and other authorized representatives
that financial and operating data and other information relating to
the Business, as the case may be, as those Persons may reasonably
request, and instruct the counsel and financial advisors of Seller to
provide reasonable cooperation with Buyer in its
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investigation of the Business and Buyer's financing of the
transactions contemplated by this Agreement, it being understood and
agreed that for the purposes of this Clause 5.2.1, it will be a
reasonable request of Buyer to have up to three (3) representatives of
Buyer on site at the San Francisco office of Seller for observation
purposes. All information obtained by Buyer, its counsel, financial
advisors, financiers, auditors and other authorized representatives
shall be used solely for purposes reasonably related to the
transactions contemplated by this Agreement and the financing thereof
and in accordance with the terms of the Confidentiality Agreement. Any
investigation pursuant to this Clause 5.2.1 shall be conducted in a
manner so as not to interfere unreasonably with the conduct of the
business of Seller or any Asset Owning Entity or Owner Trust (or any
Subsidiary thereof). Notwithstanding the foregoing, Buyer shall not
have access to any information which in Seller's good faith opinion is
sensitive or the disclosure of which could subject any Asset Owning
Entity, Owner Trust or Seller or any of its Affiliates to risk of
liability or the loss of attorney-client, work product or any other
legal privilege and shall not have access to any offers received in
relation to any of the Aircraft which are the subject of the
Contemplated Arrangements. No investigation by Buyer or other
information or notice received by Buyer shall operate as a waiver or
otherwise affect any representation, warranty or agreement given or
made by Seller under this Agreement.
5.2.2 On and after the Closing Date or, as applicable, the applicable
Deferred Date, Seller will, if it has the ability to do so by contract
or otherwise, afford promptly to Buyer and its agents reasonable
access to its books of account, financial and other records,
information, agreements (including any agreements related to the
Business which are not assigned to Buyer herein), employees and
auditors to the extent necessary or useful for Buyer in connection
with any audit, investigation, dispute or litigation or any other
reasonable business purpose relating to the Business; provided that
any such access by Buyer shall not (a) unreasonably interfere with the
conduct of the business of Seller or its Affiliates or (b) extend to
information which in Seller's good faith opinion is sensitive or the
disclosure of which could subject Seller or any of its Affiliates to
risk of liability or the loss of attorney-client, work product or any
other legal privilege. Buyer shall bear all of the out-of-pocket costs
and expenses (including attorneys' fees, but excluding reimbursement
for general overhead, salaries and employee benefits) reasonably
incurred in connection with the foregoing. The foregoing shall not
limit the definition of "Files and Records."
5.3 Settlement of Inter-company Accounts and Cancellation of Inter-company
Agreements
5.3.1 All inter-company accounts between any GATX Retained Entity, on the
one hand, and any Asset Owning Entity or Owner Trust (or any of their
respective Subsidiaries), on the other hand, as of Closing Date or the
Deferred Date, if any, applicable to the relevant Specified Ownership
Interest, shall be settled (irrespective of the terms of payment of
those inter-company accounts) on the Closing Date, or such Deferred
Date, as the case may be, in the manner provided in this Clause 5.3.
All of the relevant inter-company account balances
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shall be paid in full in cash on or prior to the Closing Date, or the
relevant Deferred Date, as the case may be, (and, to the extent not so
paid, they shall be cancelled effective at the Closing Date, or the
relevant Deferred Date, as the case may be).
5.3.2 Save as may be expressly provided herein or may be otherwise agreed
to the contrary between Seller and Buyer, any and all agreements
between any GATX Retained Entity, on one hand, and any Asset Owning
Entity, on the other hand (including all options to acquire or sell
property granted by or to Asset Owning Entities, Owner Trusts or any
of their respective Subsidiaries to or by GATX Retained Entities),
shall, without any further action on the part of any party, be deemed
terminated as of the Closing Date or the Deferred Date, if any,
applicable to the relevant Specified Ownership Interest is transferred
to Buyer pursuant to this Agreement, as the case may be, and, upon
such termination the applicable Asset Owning Entities and GATX
Retained Entities shall, without any action on the part of any party,
shall be deemed released by the other party from any and all
Liabilities thereunder or in connection therewith (whether contractual
or otherwise), except as otherwise provided by this Agreement.
5.4 Resignations
Seller will deliver to Buyer at the Closing or the Deferred Date, if any,
applicable to the relevant Specified Ownership Interest transferred to
Buyer pursuant to this Agreement, as the case may be, the resignations of
such directors of each relevant Asset Owning Entity who are nominees of
Seller or any other member of the GATX Group as may be requested in writing
by Buyer not less than five (5) Business Days prior to the Closing Date or
the Deferred Date, if any, applicable to the relevant Specified Ownership
Interest transferred to Buyer pursuant to this Agreement, as the case may
be.
5.5 Agreement Not to Compete
5.5.1 For a period of thirty (30) months from the Closing Date, Seller
shall not, and shall cause its Affiliates not to, directly or
indirectly, engage in competition with Buyer in the aircraft leasing
business as conducted by the Selling Parties prior to the date hereof.
5.5.2 Notwithstanding the terms of Clause 5.5.1, nothing in Clause 5.5.1
shall prohibit or otherwise restrict Seller or its Affiliates from:
(a) continuing to own, operate and remarket the Deferred Partnership
Asset Owning Entities and the Excluded Partnership Asset Owning
Entities as contemplated by this Agreement;
(b) conducting the following activities, whether conducted directly
or through Affiliates: (i) the leasing, releasing, financing or
selling of non-commercial aircraft owned, directly or indirectly,
by GATX Corporation or any of its Affiliates; (ii) the leasing,
releasing, financing or selling of helicopters owned, directly or
indirectly, by GATX Corporation or any of its Affiliates; (iii)
the purchasing for its own account or in combination
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with other investors, of non-commercial aircraft and helicopters;
(iv) any activities of GATX Corporation required or advisable in
its capacity as a member of EG Capital Partners LLC ("EG") and as
remarketing agent for EG in respect of the leasing, releasing,
financing, restructuring and selling of commercial aircraft owned
by EG; and (v) all activities required to perform the obligations
of Seller or any of its Affiliates under aircraft management and
remarketing agreements with third parties in respect of
commercial aircraft owned exclusively by such third parties (it
being understood that, for a period of thirty (30) months from
the Closing Date, Seller shall provide Buyer with a reasonable
opportunity to subcontract the management of any aircraft that
are included in any portfolio of assets for which Seller enters
into a contract to manage after the Closing Date);
(c) operating or investing in any aircraft engine leasing business,
including pursuant to its existing partnership with Rolls-Royce
PLC;
(d) acquiring the whole or any part of a Person which is engaged in
the aircraft leasing business or the whole or any part of a
business which is engaged in the aircraft leasing business,
except that where more than one-third of the revenues of the
Person or of the business acquired as set out in the latest
available audited financial statements of that Person or business
is generated from the aircraft leasing business, Seller or the
applicable Affiliate of Seller shall use its reasonable best
efforts to dispose of such aircraft leasing businesses so
acquired (it being understood that (i) prior to disposing of such
aircraft leasing business so acquired, Seller shall provide Buyer
with a reasonable opportunity to review such aircraft leasing
business and make Seller an offer with respect thereto and (ii)
where some, but less than one-third, of the revenues of the
Person or of the business acquired as set out in the latest
available audited financial statements of that Person or
business, is generated from the aircraft leasing business, Seller
shall provide Buyer with a reasonable opportunity to subcontract
the management of any aircraft that are included in such
business);
(e) acquiring or holding any interest in any joint venture (whether
incorporated or unincorporated); provided that the primary
purpose of the business of that joint venture is not the conduct
of aircraft leasing business; or
(f) owning (i) less than an aggregate of ten per cent. (10%) of any
class of stock of a Person engaged, directly or indirectly, in
the aircraft leasing business; or (ii) less than ten per cent.
(10%) in value of the indebtedness of a Person engaged, directly
or indirectly, in the aircraft leasing business.
5.5.3 Notwithstanding anything to the contrary contained herein, Clause
5.5.1 shall not apply to any third party which (a) acquires a majority
equity interest in GATX Corporation or in any of the Affiliates of
GATX Corporation or (b) acquires all or a portion of the business or
assets of GATX Corporation or any
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of the Affiliates of GATX Corporation, regardless of the form of such
transaction, and Clause 5.5.1 shall not apply to any of the Affiliates
of such third party (other than the entity GATX Corporation and the
entities which were Affiliates of GATX Corporation prior to such
acquisition).
5.6 Letters of Credit
Seller will make arrangements to deliver to Buyer original copies of all
letters of credit being held by, or on behalf of, any Asset Owning Entity,
as promptly as practicable after the Closing Date or the Deferred Date, if
any, applicable to the relevant Specified Ownership Interest transferred to
Buyer pursuant to this Agreement. To the extent that any action by Seller
or any GATX Retained Entity is necessary in order to either (a) make a
drawing under any such letter of credit or (b) transfer the right to draw
under any such letter of credit to Buyer or a Buyer designee, Seller shall,
or shall cause the relevant GATX Retained Entity to, take such actions as
Buyer may reasonably request to effect such drawing or transfer. Buyer
shall indemnify and hold harmless Seller or the relevant GATX Retained
Entity with respect to any such action taken by Seller or such GATX
Retained Entity. The terms of Clause 11.3 shall apply to Buyer's indemnity
obligations under this Clause 5.6.
6. COVENANTS OF BUYER
Buyer agrees that:
6.1 Access; Seller Confidentiality
Buyer will, and will cause each Asset Owning Entity and each Owner Trust
to, afford to Seller and its agents, promptly on and after the Closing Date
or, in relation to any Deferred Partnership Asset Owning Entity, the
Deferred Date applicable to such Deferred Partnership Asset Owning Entity,
as the case may be, reasonable access to its properties, books, records,
employees and auditors to the extent necessary to permit Seller to
determine any matter relating to its rights and obligations under this
Agreement or to any period ending on or before the Closing Date or, in
relation to any Deferred Partnership Asset Owning Entity, the Deferred Date
applicable to such Deferred Partnership Asset Owning Entity, as the case
may be, (other than in connection with litigation between Buyer and Seller
regarding the transactions hereunder); provided that such access shall not
(a) unreasonably interfere with the conduct of the business of Buyer or (b)
extend to information the disclosure of which could subject Buyer or any of
its Affiliates to risk of liability or the loss of attorney-client, work
product or any other legal privilege. Seller shall bear all of the
out-of-pocket costs and expenses (including attorneys' fees, but excluding
reimbursement for general overhead, salaries and employee benefits)
reasonably incurred in connection with the foregoing. Seller will hold, and
will use its reasonable best efforts to cause its officers, directors,
employees, accountants, counsel, consultants, advisors and agents to hold,
in confidence, unless compelled to disclose by judicial or administrative
process or by other requirements of Applicable Law, all confidential
documents and information concerning any Asset Owning Entity or Owner Trust
provided to it pursuant to this Clause 6.
6.2 Flightlease
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6.2.1 Seller shall retain the originals, or copies to the extent originals
cannot be located or no longer exist, of all documents related to,
arising out of, or concerning Seller's (or any of its Affiliate's)
relationship, communications, or transactions with FHG, GFAC, and/or
Airbus or any Affiliate of Airbus related to the Flightlease
Litigation (collectively, the "RELEVANT ISSUES"). For purposes of this
paragraph, the term "documents" is used in the broadest sense
allowable and includes, all writings, drawings, graphs, charts,
photographs, phone records, emails, and other printed or electronic
records from which data can be obtained.
6.2.2 Buyer shall make reasonably available to Seller, at Seller's request,
and at Seller's cost, any Transferred Employees for any fact-finding,
interviews, deposition or other testimony, consultation, or
discussions concerning the Relevant Issues (or any of them).
6.2.3 Buyer shall reasonably cooperate with Seller, at Seller's request,
and at Seller's cost, in the defense of any claims, whether now
pending or hereafter brought, against Seller, its Affiliates, or any
Transferred Employees by, or on behalf of, FHG, GFAC, and/or Airbus
including (a) notifying Seller in writing within three (3) days if
Seller or any Transferred Employee are served with or otherwise
receive discovery requests relating to any Relevant Issues; (b)
entering into a joint defense or other similar agreement mutually
acceptable to Buyer and Seller; and (c) executing any documents
reasonably required by Seller that are necessary or appropriate to
enable Seller to pursue or defend any claims, whether now pending or
hereafter brought by, or on behalf of, FHG, GFAC, and/or Airbus.
6.3 GATX Name
Buyer acknowledges and agrees that neither Buyer nor any Affiliate of Buyer
shall as part of the transactions contemplated by this Agreement or as a
consequence hereof acquire any rights to use the term "GATX" and agrees to
cause the Transferred Employees, other than the Deferred Employees, to
cease using the GATX name or any derivative thereof. Promptly after the
Closing Date or the Deferred Date, if any, applicable to the relevant
Specified Ownership Interest, but in no event more than thirty (30) days
thereafter, Buyer shall change the name of any Asset Owning Entity or Owner
Trust (or Subsidiary thereof) which includes the term "GATX" to another
name excluding such term.
6.4 Management Services
6.4.1 If the Closing has occurred and either (a) a Partnership Asset Owning
Entity is or becomes a Deferred Partnership Asset Owning Entity or an
Excluded Partnership Asset Owing Entity, or (b) the Specified
Ownership Interests related to a Partnership Asset Owning Entity have
transferred to Buyer in accordance with the terms of this Agreement
but the JV Management Agreement related to such Partnership Asset
Owning Entity has not transferred to Buyer on account of the failure
to obtain the consents necessary for such transfer, Buyer shall
provide management services with respect to such Partnership Asset
Owning
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Entity (each an "ENTITY"), upon and subject to the terms and
conditions provided for in Clause 6.4.2.
6.4.2 The terms and conditions applicable to Buyer's appointment as a
manager with respect to an Entity are as follows:
(a) Seller shall remain liable to such Entity under the JV Management
Agreement related to such Entity (each a "PRIMARY MANAGEMENT
AGREEMENT") and Buyer's role will be that of subcontractor.
(b) Buyer shall perform for Seller's benefit (for no cost other than
the pass-through of fees and reimbursable costs payments
contemplated by Clause 6.4.2(d)) all of the obligations expressed
to be performed by the "Manager" in such Entity's Primary
Management Agreement (other than any remarketing obligations
except such remarketing obligations under any Entity's Primary
Management Agreement which Seller designates from time to time as
those to be performed by Buyer) which as if Buyer were named
therein as the "Manager" and Seller were named therein as the
"Company".
(c) Seller will assume obligations in favour of Buyer on the same
terms mutatis mutandis as the obligations assumed by such Entity
in favour of Seller under its Primary Management Agreement, save
that Seller's obligations to pay fees or reimbursable costs to
Buyer shall be governed solely by Clause 6.4.2(d).
(d) Seller will pay to Buyer all fees and reimbursable costs payments
received and retained by it from such Entity which are
attributable to the services performed by Buyer as aforesaid,
provided that Seller shall be entitled to retain for its own
account any and all fees and reimbursable cost payments payable
to it under the applicable Primary Management Agreement which are
not attributable to the services performed by Buyer as aforesaid.
(e) In the event of any failure by Buyer to perform any of the
obligations in relation to any Primary Management Agreement
assumed by it pursuant to this Clause 6.4, and so long as such
failure is continuing and has not been remedied to the reasonable
satisfaction of Seller within the shorter of (i) the relevant
remedy period, if any, under the relevant Primary Management
Agreement and (b) thirty (30) days from the date of Seller giving
Buyer notice of such failure and requesting the same be remedied,
Seller may, by giving notice of termination in writing to Buyer,
terminate Buyer's appointment under this Clause 6.4 in relation
to such Primary Management Agreement, whereupon such appointment
shall terminate.
6.4.3 So long as the relevant remarketing obligations in relation to any
Return Aircraft have not been designated as aforesaid to be performed
by Buyer, Seller shall, prior to commencing remarketing activities
relating to the possible sale of such Return Aircraft, discuss
remarketing strategies and opportunities for such
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Return Aircraft with Buyer, and Buyer and Seller shall, where
appropriate, agree on Buyer's role (if any) in connection therewith.
6.5 Moneys Received by Buyer Group with respect to Focused Air Aircraft after
Closing
If closing of the Focused Air Arrangements is delayed beyond the Closing
Date (in whole or in part), Buyer will hold all:
6.5.1 sale and/or rental proceeds received and retained by members of Buyer
Group with respect to Focused Air Aircraft on trust for Seller and
will pay such proceeds to Seller promptly after receipt; and
6.5.2 fees received and retained by members of Buyer Group with respect to
Focused Air Aircraft under the GATX/CL Air JV Management Agreement or
otherwise on trust for Seller and will pay such fees to Seller
promptly after receipt.
For the avoidance of doubt, it is hereby agreed that all assets and amounts
set forth in Clauses 6.5.1 and 6.5.2 are not being purchased by Buyer are
and shall remain the property of Seller (including for United States
federal income tax purposes).
6.6 No Actions by Asset Owning Entities
Buyer will ensure, to the fullest extent that it is able to do so pursuant
to contract or otherwise, that no Asset Owing Entity will take any action
or commence any proceedings against any GATX Retained Entity or any past,
present or future Officer of any GATX Retained Entity or any Asset Owning
Entity, in each such case in respect of matters arising or existing on or
prior to the date hereof.
6.7 Offers to Acquire Partnership Asset Owning Entities
Buyer shall use its reasonable best efforts to acquire all of the Ownership
Interests in each Partnership Asset Owning Entity (other than the Excluded
Specified Ownership Interests) and in such connection shall make offers to
each JV Member (other than any GATX Retained Entity) of each Partnership
Asset Owning Entity to purchase such JV Member's Ownership Interest in such
Partnership Asset Owning Entity. In no event shall Buyer make an offer to
such JV Member at a purchase price which is less than the proportion of the
Partnership Asset Owning Entity Implied Value which the Ownership Interest
in such Partnership Asset Owning Entity held by such JV Member bears to the
total of the Ownership Interests in such Partnership Asset Owning Entity.
For the avoidance of doubt, if Buyer agrees to purchase all of the JV
Members' Ownership Interests in a particular Partnership Asset Owning
Entity, the purchase and sale of the Selling Party's Specified Ownership
Interest in such Partnership Asset Owning Entity shall nonetheless be
governed by, and consummated in accordance with, this Agreement.
6.8 Management Fees Received by Buyer Group with respect to Contemplated
Arrangements
If:
6.8.1 a Partnership Asset Owning Entity that owns a Contemplated Aircraft
becomes a Deferred Partnership Asset Owning Entity and a Seller
Party's Specified
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Ownership Interest in such Partnership Asset Owning Entity is
subsequently sold to Buyer in accordance with this Agreement;
6.8.2 prior to the Deferred Date with respect to such Partnership Asset
Owning Entity, Seller has substantially negotiated a sale of such
Contemplated Aircraft to a purchaser; and
6.8.3 the sale of such Contemplated Aircraft to such purchaser completes
after such Deferred Date,
Buyer will hold all fees received and retained by members of Buyer Group
with respect to such sale under the JV Management Agreement relating to
such Partnership Asset Owning Entity on trust for Seller and will pay such
fees to Seller promptly after receipt. For the avoidance of doubt, it is
hereby agreed that all such fees described in this Clause 6.8 are not being
purchased by Buyer and are and shall remain the property of Seller
(including for United States federal income tax purposes).
6.9 Management Services - ATA Aircraft
6.9.1 If the ATA Aircraft is not sold to Buyer hereunder on or prior to the
Backstop Date, Buyer shall, if Seller shall request, provide
management services with respect to the ATA Aircraft upon and subject
to the terms and conditions provided for in Clause 6.9.2.
6.9.2 The terms and conditions applicable to Buyer's appointment as a
manager of the ATA Aircraft are as follows:
(a) Buyer shall manage the ATA Aircraft upon and subject to the same
terms and conditions mutatis mutandis as the ▇▇▇▇▇▇▇▇▇▇ ▇▇
Management Agreement as if all references therein to the
"Company", the "Manager" and the "Aircraft" were references to
respectively "Seller", "Buyer" and "B757-200 Aircraft with
manufacturer's serial number 27971", provided always that Buyer
shall not (i) unless Seller shall otherwise request from time to
time, provide any remarketing services with respect to the ATA
Aircraft, and (ii) in any event provide any of the cash
management or corporate services referred to in such JV
Management Agreement.
(b) So long as Buyer is not obligated to provide remarketing services
to Seller in relation to the ATA Aircraft, Seller shall, prior to
commencing remarketing activities relating to the possible sale
of the ATA Aircraft, discuss with Buyer the remarketing
strategies and opportunities for the ATA Aircraft, and Buyer and
Seller shall, where appropriate, agree on Buyer's role (if any)
in connection therewith.
(c) Seller shall be entitled to terminate Buyer's management of the
ATA Aircraft at any time upon notice to Buyer and without cause.
7. COVENANTS OF BUYER AND SELLER
Buyer and Seller agree that:
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7.1 Reasonable Best Efforts; Further Assurances
7.1.1 Each of the parties agrees to use its reasonable best efforts to
take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all
things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the
transactions contemplated hereby, including using reasonable best
efforts to accomplish the following: (a) the taking of all acts
necessary to cause the conditions set forth in Clause 10 to be
satisfied; (b) the obtaining of all necessary actions or non actions,
waivers, consents, approvals, orders and authorizations from
Governmental Authority and the making of all necessary registrations,
declarations and filings with Governmental Authorities, if any, and
the taking of all steps as may be necessary to avoid any suit, claim,
action, investigation or proceeding by any Governmental Authority; (c)
the obtaining of all necessary consents, approvals or waivers from
third parties to the extent the failure to obtain any such consent,
approval or waiver would prevent or materially hinder or delay any
party's ability to consummate the transactions contemplated hereby;
(d) the defending of any suits, claims, actions, investigations or
proceedings, whether judicial or administrative, challenging this
Agreement or the consummation of the transactions contemplated hereby,
including seeking to have any stay or temporary restraining order
entered by any court or other Governmental Authority vacated or
reversed; and (e) the execution or delivery of any additional
instruments necessary to consummate the transactions contemplated by,
and to fully carry out the purposes of, this Agreement.
7.1.2 Anything in this Agreement to the contrary notwithstanding, Seller
shall not be obligated to pay any material consideration or incur any
material additional costs to obtain any consents from third parties
that may be necessary to consummate the transactions contemplated by
this Agreement, commence or be a plaintiff in any litigation or offer
or grant any material accommodation (financial or otherwise) to any
Person.
7.1.3 Anything herein to the contrary notwithstanding, Seller may consent
to the termination of the Blue Dragon JV Agreements and JV Management
Agreement on the basis that two of the Aircraft owned by Blue Dragon
(and all agreements (and all material rights and obligations of Blue
Dragon thereunder) associated with such Aircraft) will be distributed
to G3AC and the other Aircraft owned by Blue Dragon (and all
agreements (and all material rights and obligations of Blue Dragon
thereunder) associated with such Aircraft) will be distributed to the
other JV Member of Blue Dragon, in which case Seller's obligation to
sell to Buyer its Specified Ownership Interest in Blue Dragon shall
terminate and instead Seller shall sell (or procure the sale of) and
Buyer shall buy G3AC's entire interest in the Blue Dragon Aircraft
(and associated agreements) so distributed to G3AC. Seller shall make
all reasonable efforts to keep Buyer informed of any discussions with
the other JV Member of Blue Dragon in connection with the foregoing.
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7.1.4 Anything herein to the contrary notwithstanding, Seller may consent
to the termination of the Caljet JV Agreements and JV Management
Agreement on the basis that two of the Aircraft owned by Caljet (and
all agreements (and all material rights and obligations of Caljet
thereunder) associated with such Aircraft) will be distributed to
GATX/Caljet Corp and the other Aircraft owned by Caljet (and all
agreements (and all material rights and obligations of Caljet
thereunder) associated with such Aircraft) will be distributed to the
other JV Member of Caljet. Seller shall take all steps with respect to
Caljet as may be reasonably requested by Buyer.
7.2 Certain Filings
Seller and Buyer shall cooperate with one another (a) in determining
whether any action by or in respect of, or filing with, any Governmental
Authority is required, including any filing required under any Competition
Law and as mentioned in sub-clause 3.3.1 of Clause 3.3, or any actions,
consents, approvals or waivers are required to be obtained from parties to
any Material Contract, in connection with the consummation of the
transactions contemplated by this Agreement and (b) in taking all actions
or making all filings, furnishing all required information and seeking
timely to obtain all of those actions, consents, approvals or waivers,
provided that any fees needed to be paid to any Governmental Authority in
connection with any aforesaid action or filing shall be paid by Buyer.
Without limiting the generality of the foregoing, (i) the parties shall
make all filings required to be made by them under applicable Competition
Laws in connection with the transactions contemplated hereby promptly after
(but in no event more than five (5) Business Days after) the execution of
this Agreement and (ii) if a condition precedent set forth in Clause 10
related to the receipt of all necessary approvals under applicable
Competition Laws is not satisfied at the time the parties are otherwise in
a position to effect the Closing in accordance with the terms hereof, the
parties shall use their respective reasonable best efforts to determine a
mechanism (including, if applicable, an agreeable allocation of Purchase
Price for the assets in question) to defer the transfer of such assets as
may be necessary to obviate the need for obtaining the relevant approval(s)
until all such approvals under applicable Competition Laws are obtained so
as to allow for (A) the Closing to occur (other than with respect to such
deferred assets) in accordance with the terms hereof and (B) the transfer
of such deferred assets to occur when such approvals have been obtained.
7.3 Public Announcements
Except as required by Applicable Law or any applicable securities exchange,
no party shall issue any press release or make any public statement
relating to this Agreement or the transactions contemplated by this
Agreement without the prior consent of the other party and, subject to the
timing requirements that may be imposed by Applicable Law or any applicable
securities exchange, no party shall issue any such press release or make
any such public statement required to be issued or made by Applicable Law
or any such securities exchange without providing the other party with a
reasonable opportunity to review and comment thereon (it being understood
that, after the Closing, this Clause 7.3 shall not apply to public
statements that are being made pursuant to marketing materials
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that are limited to the disclosure of the fact of the consummation of the
transactions contemplated hereby and the identity of the parties hereto
(and such parties' advisors)).
7.4 Notices of Certain Events
Each party shall promptly notify the other of:
7.4.1 any notice or other communication from any Person alleging that the
consent of that Person is or may be required in connection with the
transactions contemplated by this Agreement;
7.4.2 any notice or other communication from any Governmental Authority in
connection with the transactions contemplated by this Agreement; and
7.4.3 any actions, suits, claims, investigations or proceedings commenced
relating to Seller, any Asset Owning Entity or any Owner Trust or
Buyer that, if pending on the date of this Agreement, would have been
required to have been disclosed pursuant to Clause 3.11 (in the case
of Seller) or Clause 4.7 (in the case of Buyer).
7.5 Transfer Taxes
All transfer, registration, stamp, documentary, sales, use and similar
Taxes and any penalties, interest and additions to Tax, and fees incurred
in connection with the transactions contemplated by this Agreement
("TRANSFER TAXES") shall be the responsibility of and be timely paid by
Buyer. Seller and Buyer each shall use reasonable efforts to minimize the
amount of Transfer Taxes, including seeking to have Aircraft in appropriate
locations on the Closing Date or the Deferred Date (as applicable to the
relevant Aircraft), and efforts by Buyer and its Affiliates to obtain
resale certificates or similar documentation establishing an exemption from
a Transfer Tax and to timely provide this documentation to Seller.
7.6 Permitted Transferee
Buyer will procure that each member of Buyer Group that is to become a
Shareholder of a Partnership Asset Owning Entity or a party to a JV Member
Document, other Material Contract or a Designated Contract in furtherance
of the transactions contemplated by this Agreement will be a Permitted
Transferee for the purposes of the JV Member Documents relating to such
Partnership Asset Owning Entity, such JV Member Document, such other
Material Contract or such Designated Contract (as the case may be).
7.7 No Action Against Officers
Buyer and is Affiliates shall not be permitted to bring any action or claim
against any current or former Officer of any Asset Owning Entity or Owner
Trust for any action taken or failed to be taken by such trustee, officer
or member or former trustee, officer or member (or by the entire Board of
Directors of any Asset Owning Entity or any Owner Trust) on or prior to the
Closing Date or the Deferred Date (as applicable).
7.8 Financing
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Notwithstanding anything contained in this Agreement to the contrary, Buyer
expressly acknowledges and agrees that Buyer's obligations hereunder are
not conditioned in any manner upon Buyer obtaining any financing. The
failure for any reason (other than as a result of any of the conditions to
the obligation of Buyer set forth in Clause 10.1 or Clause 10.3 not being
satisfied) of Buyer to have sufficient cash available on the Closing Date
or any Deferred Date (as applicable) to pay the Purchase Price, or any part
thereof, in accordance with this Agreement and/or the failure to so pay the
Purchase Price on the Closing Date or any Deferred Date (as applicable)
shall constitute a breach of this Agreement (a "FINANCING BREACH").
7.9 Alternative Structures
After the date hereof and prior to the Closing, the parties agree to use
their respective reasonable efforts:
7.9.1 to discuss alternative structures for treating the Deferred
Partnership Asset Owning Entities and the Excluded Partnership Asset
Owning Entities in a manner that would result in Buyer and Seller
achieving substantially the same commercial objectives they would have
achieved had Seller been able to sell and Buyer been able to buy such
Deferred Partnership Asset Owning Entities and Excluded Partnership
Asset Owning Entities in accordance with this Agreement, and
7.9.2 if a Technical Consent has not been given, to agree on an arrangement
or arrangements that will result in Seller and Buyer achieving
substantially the same commercial objectives they would have achieved
had such Technical Consent been given.
7.10 Arrangements in relation to the ATA Aircraft
If the ATA Aircraft Financier consent referred to in #1 of Schedule 3 is
not obtained by the Closing Date, at Seller's option, the sale of the ATA
Aircraft may be deferred beyond the Closing Date, in which case (a) the
Closing Date Allocated Amount will not change and (b) Seller and Buyer
shall use reasonable efforts to obtain such consent. If such consent is
received after the Closing Date but before the Backstop Date (i) Seller
will transfer its Specified Ownership Interest in relation to the ATA
Aircraft to an owner trust, (ii) Seller will sell and Buyer will buy
Seller's Specified Ownership Interest in such owner trust at no additional
consideration, and (iii) Seller and Buyer will take the actions referred to
in paragraph 1 of Schedule 3. If such consent is not received by the
Backstop Date, Seller's Specified Ownership Interest in the ATA Aircraft
will not be sold pursuant to this Agreement.
7.11 Arrangements in relation to the A321 GTL Documents
Subject to Clause 10, if pursuant to this Agreement Buyer buys Seller's
Specified Ownership Interest in A321 Partners and Seller (in its sole
discretion) remains a guarantor under the guarantees given by Seller or any
of its Affiliates in connection with the A321 GTL Documents, Buyer shall
promptly, but in any event within three (3) Business Days of receipt of
notice from Seller that Buyer is obligated to reimburse
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Seller pursuant to this Clause 7.11, reimburse to Seller any and all
amounts Seller (or its Affiliate) is required to pay under such guarantees
(or any of them), together with any expenses (including reasonable expenses
of investigation and reasonable attorney's fees and expenses) incurred by
Seller (or any of its Affiliates) in connection therewith (it being
understood and agreed that any disputes with respect to any such
reimbursement shall be governed in accordance with the provisions of Clause
11.3).
7.12 Arrangements in relation to the UK Lease Documents
Subject to Clause 10, if pursuant to this Agreement Buyer buys Seller's
Specified Ownership interest in 757 Partners and Seller (in its sole
discretion) remains a guarantor under the guarantees given by Seller in
connection with the UK Lease Documents, Buyer shall promptly, but in any
event within three (3) Business Days of receipt of notice from Seller that
Buyer is obligated to reimburse Seller pursuant to this Clause 7.12,
reimburse to Seller any and all amounts Seller (or its Affiliate) is
required to pay under such guarantees (or any of them), together with any
expenses (including reasonable expenses of investigation and reasonable
attorney's fees and expenses) incurred by Seller (or any of its Affiliates)
in connection therewith (it being understood and agreed that any disputes
with respect to any such reimbursement shall be governed in accordance with
the provisions of Clause 11.3).
7.13 Arrangements in relation to the Airbus Purchase Agreements
If the consent referred to in paragraph 22 of Schedule 3 is not obtained by
the Backstop Date, the following will apply:
7.13.1 The Airbus Purchase Agreements will not be novated and Seller will
remain obigated thereunder.
7.13.2 Seller agrees to sell, and Buyer agrees to purchase, each relevant
Aircraft upon delivery thereof by Airbus. Buyer will pay the purchase
price in relation thereto by instalments such that not less than one
(1) Business Day prior to each day on which a predelivery purchase
price payments or a delivery purchase price payment is due under
either Airbus Purchase Agreement, Buyer will pay such amount (as the
relevant instalment of such purchase price) to Seller and promptly
following receipt, Buyer will forward such amount to Airbus.
7.13.3 Upon delivery of an Aircraft under an Airbus Purchase Agreement,
provided Buyer has funded all predelivery purchase price payment or a
delivery purchase price payment due and payable under such Airbus
Purchase Agreement after the date of this Agreement, Seller will
instruct Airbus to transfer title to Buyer or Buyer's designee. Seller
shall grant to Buyer a security assignment in the Airbus Purchase
Agreements to secure its obligations to pass the proceeds of each
installment of the purchase price mentioned in Clause 7.13.2 to Airbus
and to cause Airbus to convey title to the relevant Aircraft upon
delivery thereof.
7.13.4 If Buyer breaches any obligation to fund a predelivery purchase
price payment or a delivery purchase price payment relating to an
Aircraft for a period in excess of ten (10) Business Days (or any such
shorter period as is necessitated
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by Airbus terminating the Airbus Purchase Agreement (or its
obligations thereunder in relation to the relevant Aircraft)),
Seller's obligations under this Clause 7.13 will terminate, and Seller
will be entitled to (a) retain all payments made to it by Buyer under
this Clause 7.13 (without any obligation to account to Buyer for or in
respect of such sums), (b) pay all remaining predelivery purchase
price payments and the delivery purchase price payment to Airbus under
the relevant Airbus Purchase Agreement, and (c) retain and dispose of
the relevant Aircraft as it sees fit (without any obligation
whatsoever to Buyer in respect of such Aircraft).
7.14 Arrangements in relation to the Boeing Purchase Agreement
Subject to Clause 10, if pursuant to this Agreement Buyer buys the Closing
Assets and Seller (in its sole discretion) remains a guarantor under the
guarantee referred to in paragraph 20 of Schedule 3, Buyer shall promptly,
but in any event within three (3) Business Days of receipt of notice from
Seller that Buyer is obligated to reimburse Seller pursuant to this Clause
7.14, reimburse to Seller any and all amounts Seller (or its Affiliate) is
required to pay under such guarantees (or any of them), together with any
expenses (including reasonable expenses of investigation and reasonable
attorney's fees and expenses) incurred by Seller (or any of its Affiliates)
in connection therewith (it being understood and agreed that any disputes
with respect to any such reimbursement shall be governed in accordance with
the provisions of Clause 11.3).
7.15 Arrangements in relation to the 737 Partners Boeing Purchase Agreements
Subject to Clause 10, if pursuant to this Agreement Buyer buys Seller's
Specified Ownership interest in 737 Partners #1, 737 Partners #2 or 737
Partners #3 and Seller (in its sole discretion) remains a guarantor under
the guarantee referred to in paragraph 21 of Schedule 3 referable to 737
Partners #1, 737 Partners #2 or 737 Partners #3, as the case may be, Buyer
shall promptly, but in any event within three (3) Business Days of receipt
of notice from Seller that Buyer is obligated to reimburse Seller pursuant
to this Clause 7.15, reimburse to Seller any and all amounts Seller (or its
Affiliate) is required to pay under such guarantees (or any of them),
together with any expenses (including reasonable expenses of investigation
and reasonable attorney's fees and expenses) incurred by Seller (or any of
its Affiliates) in connection therewith (it being understood and agreed
that any disputes with respect to any such reimbursement shall be governed
in accordance with the provisions of Clause 11.3).
7.16 Arrangements in relation to New Trusts and Wholly Owned Aircraft Owner
Trusts
On or prior to the Closing Date, Seller will ensure that G3AC (a) exercises
whatever rights may be available to it to ensure that all of G3AC's rights,
title, interest and obligations in, to, under and in respect of each G3AC
Aircraft, any Lease to which such Aircraft is subject, and all other
documents relating to Indebtedness incurred in connection with such
Aircraft, are transferred to a professional trustee of national repute as
trustee to be held on trust for and on behalf of G3AC (each such
arrangement being referred to herein as a "NEW TRUST"), and (b) transfers
its beneficial interests in each New Trust and each Wholly Owned Aircraft
Owner Trust to one of the Wholly Owned
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Asset Owning Entities that is organized and existing under the laws of the
State of Delaware.
8. TAX MATTERS
8.1 Definitions
As used in this Agreement, the following terms have the following meanings:
"POST-CLOSING TAX PERIOD" means any Tax period beginning after the Closing
Date.
"PRE-CLOSING TAX PERIOD" means any Tax period ending on or before the
Closing Date.
"STRADDLE PERIOD" means any Tax period beginning, but not ending, on or
before the Closing Date.
"TAX" means any tax, governmental fee or other like assessment or charge of
any kind whatsoever (including withholding on amounts paid to or by any
Person), together with any interest, penalty, addition to tax or additional
amount imposed by any Governmental Authority (a "TAX AUTHORITY")
responsible for the imposition of any such tax.
"TAX ASSET" means any net operating loss, net capital loss, investment tax
credit, foreign tax credit, charitable deduction or any other credit or tax
attribute that could be carried forward or back to reduce Taxes (including
deductions and credits related to alternative minimum Taxes).
"TAX RETURN" means any return, declaration, report, claim for refund or
information return or statement relating to Taxes, including any schedule
or attachment thereto, and including any amendment thereof.
"TAX SHARING AGREEMENTS" means all existing agreements (whether or not
written) that provide for the allocation, apportionment, sharing or
assignment of any Tax liability or benefit, or the transfer or assignment
of income, revenues, receipts, or gains for the purpose of determining any
Person's Tax liability.
8.2 Tax Representations
Seller represents and warrants to Buyer that, except as set forth in
Schedule 9 or as would not, individually or in the aggregate, have a
Material Adverse Effect, the statements contained in Clause 8.2 are correct
and complete as of the date hereof and will be correct and complete as of
the Closing Date:
8.2.1 All Tax Returns required to be filed with any Tax Authority by or on
behalf of the Business, each Asset Owning Entity, and Owner Trust have
been timely filed in accordance with Applicable Law, and all such Tax
Returns were correct and complete in all material respects, except for
the United States income tax treatment of maintenance reserves (in
respect of which adjustments under Section 481 of the Code are being
taken into account). All material Taxes shown as due and payable on
such Tax Returns have been timely paid to the appropriate Tax
Authority.
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8.2.2 No Asset Owning Entity or Owner Trust is delinquent in the payment of
any material Tax. No audit or other administrative proceeding is
pending or (to Seller's Knowledge) threatened, and no judicial
proceeding is pending or (to Seller's Knowledge) threatened, that
involves any Tax or Tax Return filed or paid by or on behalf of any
Asset Owning Entity or Owner Trust.
8.2.3 No Asset Owning Entity or Owner Trust is or has been a member of an
affiliated, consolidated, combined or unitary group other than one of
which GATX Corporation was the common parent. No Asset Owning Entity
or Owner Trust is party to any Tax Sharing Agreement.
8.2.4 Each Asset Owning Entity and Owner Trust identified as a "DISREGARDED
ENTITY" on Schedule 9-8.2.4 ("DISREGARDED ENTITY OWNER") is
"disregarded as an entity separate from its owner," within the meaning
of Treasury Regulation Section 301.7701-2(c)(2)(i), and has filed all
United States Tax Returns consistent with such status.
8.2.5 Each Asset Owning Entity and Owner Trust identified as a
"CORPORATION" on Schedule 9-8.2.5 ("CORPORATE ENTITY OWNER") is
properly classified as an association taxable as a corporation for
United States federal income tax purposes, and has filed all United
States Tax Returns consistent with such status.
8.2.6 Each Asset Owning Entity and Owner Trust identified as a
"PARTNERSHIP" on Schedule 9-8.2.6 ("PARTNERSHIP ENTITY OWNER") is
properly classified as a "partnership" for United States federal
income tax purposes, and has filed all United States Tax Returns
consistent with such status.
8.2.7 Except in the case of the Finance Lease Aircraft, each Corporate
Entity Owner and Partnership Entity Owner is the "owner", as
determined for United States federal income tax purposes, of the
Aircraft set forth in the corresponding Part of Schedule 1 with
respect to such owner, notwithstanding that such asset may be leased
to another party, and has filed all United States Tax Returns (to the
extent any such returns were required to be filed under Applicable
Law) consistent with such status.
8.2.8 No Asset Owning Entity or Owner Trust will be required to include any
item of income in, or exclude any item of deduction from, taxable
income for any taxable period (or portion thereof) ending after the
Closing Date as a result of (i) any change in method of accounting for
a taxable period ending on or prior to the Closing Date (other than
with respect to maintenance reserves), or (ii) to Seller's Knowledge,
any "CLOSING AGREEMENT" as described in Code Section 7121 (or any
corresponding or similar provision of state, local or foreign income
Tax law) executed on or prior to the Closing Date.
8.2.9 Except in the case of the Finance Lease Aircraft, the person who is
the owner (or beneficial interest holder, as the case may be) of each
Disregarded Entity Owner is the "owner", as determined for United
States federal income tax purposes, of the Aircraft set forth in the
corresponding Part of Schedule 1 with
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respect to such owner, notwithstanding that such assets may be leased
to another party, and the Disregarded Entity Owner and the owner or
beneficial interest holder thereof, as the case may be, has filed all
United States Tax Returns consistent with such status.
8.2.10 Each lease to which a Finance Lease Aircraft is subject is, for
United States federal income tax purposes, treated as a secured
financing arrangement and not a true lease, and Seller has filed all
United States Tax Returns consistent with such status.
8.2.11 To Seller's Knowledge, no Asset Owning Entity or Owner Trust has
given any currently effective waivers extending the statutory period
of limitation applicable to any Tax Return for any period or agreed to
an extension of time with respect to a Tax assessment or deficiency,
or has in effect any power of attorney or authorization to any other
Person with respect to Taxes (other than a power of attorney granted
to a member of the GATX Group in its capacity as tax matters partner
of such Asset Owning Entity or Owner Trust or in a similar capacity).
8.2.12 To Seller's Knowledge, no Asset Owning Entity or Owner Trust has any
Liability for Taxes of any Person as a transferee or successor,
whether by law, contract, or otherwise.
8.2.13 To Seller's Knowledge, all monies required to be withheld from
employees, independent contractors, stockholders, equity holders or
creditors of each Asset Owning Entity or Owner Trust for Taxes, or
collected from customers or others as Taxes, have been withheld as
appropriate and collected and paid, when due, to the appropriate Tax
Authority, or if such payment is not yet due, an adequate reserve has
been established for such Taxes.
8.2.14 To Seller's Knowledge, no Asset Owning Entity or Owner Trust has
been a United States real property holding corporation within the
meaning of Code Section 897(c)(2) during the applicable period
specified in Code Section 897(c)(1)(A)(ii).
8.2.15 No Disregarded Entity Owner or Partnership Entity Owner is engaged
in a trade or business within the United States within the meaning of
the Code (determined solely for these purposes as if each Disregarded
Entity Owner were an entity separate from its owner for United States
federal income tax purposes).
8.2.16 To Seller's Knowledge, there have been no significant inter-group
restructurings or other transactions of Irish entities in respect of
which Tax relief was required to be claimed from a Tax authority in
order to avoid a Tax cost.
8.2.17 To Seller's Knowledge, there are no significant continuing Tax
indemnities, warranties and representations for the account of GATX
Group with respect to its wholly owned aircraft portfolio (other than
as set forth in this Agreement).
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8.3 Tax Covenants
8.3.1 Seller shall prepare or cause to be prepared in accordance with
Applicable Law and timely file all Tax Returns for Pre-Closing Tax
Periods of the Wholly Owned Asset Owning Entities and the Wholly Owned
Aircraft Owner Trusts. Buyer shall prepare or cause to be prepared in
accordance with Applicable Law and timely file all Tax Returns of the
Wholly Owned Asset Owning Entities and the Wholly Owned Aircraft Owner
Trusts for Straddle Periods, provided that at least 30 days before any
such Tax Return is due (taking into account any extensions obtained)
Buyer shall provide a copy of the completed return to Seller, and
Buyer shall make all changes proposed within 15 days by Seller which
Buyer approves (such approval not to be unreasonably withheld or
delayed). Buyer shall prepare or cause to be prepared in accordance
with Applicable Law and timely file all Tax Returns of the Wholly
Owned Asset Owning Entities and the Wholly Owned Aircraft Owner Trusts
for Post-Closing Tax Periods. The parties shall cooperate to file the
Tax Returns of the Wholly Owned Asset Owning Entities and Wholly Owned
Aircraft Owner Trusts on the basis of a closing of the books as of the
end of the Closing Date, to the extent permitted by Applicable Law.
The party responsible for filing a Tax Return under the preceding
sentences of this Clause 8.3.1 shall pay the Tax due with respect to
that return, provided that the other party shall pay such party, at
least three business days before the applicable Tax is due, an amount
equal to the Tax for which the other party is responsible under Clause
8.6 (which, for avoidance of doubt, shall in all cases be computed in
accordance with Clause 8.6.3, regardless of whether Applicable Law
requires or permits a closing of the books as described in such
clause). The Person that has control thereof under Applicable Law or
contract shall be responsible for preparing and filing all Tax Returns
of each Partnership Asset Owning Entity and Partnership Owner Trust
and for causing those entities and trusts to pay any Taxes owed by
them with respect to such returns; provided, that if pursuant to
Applicable Law or contract, Buyer or Seller has control of the
preparation of an IRS Form 1065 (or, in a case where the filing of
such form is not required, a document designed to provide the owners
of the entity or trust with information corresponding to that normally
included on such form or schedules thereto) or any similar Tax Return
required under non-United States law for a Partnership Asset Owning
Entity or Partnership Owner Trust for a Tax period during all or part
of which the other party or its Affiliates owned an interest in such
entity or trust, then Buyer or Seller shall prepare such form, return
or document solely in a manner approved by the other party acting
reasonably. Buyer shall not file and shall cause its Affiliates not to
file any amended Tax Return for an Asset Owning Entity or Owner Trust
for a Pre-Closing Tax Period or Straddle Period without the prior
written consent of Seller (such consent not to be unreasonably
withheld or delayed). For purposes of this Agreement, "Partnership
Owner Trust" means any Owner Trust that is not a Wholly Owned Aircraft
Owner Trust.
8.3.2 Buyer agrees to pay to Seller 50% of the Tax benefit actually
received by any Wholly Owned Asset Owning Entity or Wholly Owned
Aircraft Owner Trust,
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Buyer or any Affiliate of Buyer from the use in any Post-Closing Tax
Period (or the post-Closing portion of any Straddle Period based on
the methodology set forth in Clause 8.6.3) of a carryforward of any
Tax Asset (but only to the extent such Tax Asset is set forth on
Schedule 9-8.3.2), by a Wholly Owned Asset Owning Entity or Wholly
Owned Aircraft Owner Trust from a Pre-Closing Tax Period (or the
pre-Closing portion of any Straddle Period based on the methodology
set forth in Clause 8.6.3). Seller agrees to pay to Buyer 50% of the
Tax benefit actually received by Seller or any Affiliate of Seller
from the use in any Pre-Closing Tax Period (or the pre-Closing portion
of any Straddle Period based on the methodology set forth in Clause
8.6.3) of a carryback of any Tax Asset of a Wholly Owned Asset Owning
Entity or Wholly Owned Aircraft Owner Trust arising in a Post-Closing
Tax Period (or the post-Closing portion of any Straddle Period based
on the methodology set forth in Clause 8.6.3). In each case, such
benefit actually received shall be considered equal to the excess of
(i) the amount of Taxes that would have been payable by a Wholly Owned
Asset Owning Entity or Wholly Owned Aircraft Owner Trust, Seller,
Buyer or any Affiliate of Buyer or Seller, as applicable, in the
absence of the carryforward or carryback of the applicable Tax Asset
over (ii) the amount of Taxes actually payable by such Wholly Owned
Asset Owning Entity, Wholly Owned Aircraft Owner Trust, Seller, Buyer
or Affiliate of Buyer or Seller, as applicable. Payment of an amount
under the preceding sentences of this Clause 8.3.2 in respect of a Tax
benefit shall be made within 30 days of the filing of the applicable
Tax Return or any adjustment for the Tax year in which the Tax Asset
is utilized. If, subsequent to the payment of any amount under this
Clause 8.3.2, there shall be (a) a final determination of a Tax
liability that, under Applicable Law, is not subject to further
appeal, review or modification through proceedings or otherwise, which
results in a disallowance or a reduction of the Tax Asset so carried
forward or back, as applicable, or (b) otherwise a reduction in the
amount of the Tax benefit realized by the Wholly Owned Asset Owning
Entity or Wholly Owned Aircraft Owner Trust, Seller, Buyer or
Affiliate of Buyer or Seller, as applicable, from such Tax Asset, then
any amount which would not have been payable pursuant to this Clause
8.3.2 had the amount of the benefit been determined in light of such
events shall be repaid within 30 days of such event described in (a)
or (b). In addition, to the extent that an event described in (a)
results in any obligation by the party entitled to repayment (or an
Affiliate of such party) to pay any penalty or interest, the other
party shall hold such party harmless for 50% of such penalty and
interest. Any amount required to be paid pursuant to the preceding
sentence shall be paid within 10 days of the payment by such party of
any such interest or penalty. Notwithstanding the foregoing, in the
case of any Tax Asset of a Wholly Owned Asset Owning Entity or Wholly
Owned Aircraft Owner Trust that can be carried back to a Pre-Closing
Tax Period (or pre-Closing portion of a Straddle Period based on the
methodology set forth in Clause 8.6.3), Buyer shall not and shall not
cause its Affiliates or any Wholly Owned Asset Owning Entity or Wholly
Owned Aircraft Owner Trust to carry back such Tax Asset to a
Pre-Closing Tax Period or such pre-Closing portion of a Straddle
Period without the
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prior written consent of Seller, except to the extent required under
Applicable Law.
8.3.3 Buyer and Seller shall cooperate, and shall cause their Affiliates to
cooperate, to use reasonable efforts to avoid recapture by Seller or
any of its Affiliates under Treasury Regulation Section 1.1503-2 of
any dual consolidated losses attributable to the Asset Owning Entities
and Owner Trusts. Without limiting the foregoing, in the event that an
Affiliate of Buyer treated as a domestic corporation for United States
Tax purposes (or a disregarded entity wholly owned by such a domestic
corporation) acquires a Specified Ownership Interest in an Asset
Owning Entity or Owner Trust from a Selling Party, Buyer and Seller
each shall use reasonable efforts to cause their Affiliates to enter
into a closing agreement pursuant to Treasury Regulation Section
1.1503-2 to avoid recapture of the dual consolidated losses (if any)
attributable to that Asset Owning Entity or Owner Trust; provided,
that neither Buyer nor its Affiliates shall be required to take any
actions under this Clause 8.3.3 that would have a Material Adverse
Effect on Buyer or its Affiliates.
8.3.4 Prior to the Closing, Seller shall cause Post Street Leasing Ltd. to
elect under Treasury Regulation Section 301.7701-3(c) to be treated
for United States federal income tax purposes as an entity disregarded
as separate from its owner. In addition, prior to the Closing, Seller
may cause any one or more of the entities listed in Part 5 of Schedule
2 to elect under Treasury Regulation Section 301.7701-3(c) to be
treated for United States federal income tax purposes as an entity
disregarded as separate from its owner.
8.4 Tax Sharing Agreements
On the Closing Date, all Tax Sharing Agreements between (i) the Asset
Owning Entities and Owner Trusts, on the one hand; and (ii) Seller or any
of its Affiliates (other than the Asset Owning Entities and Owner Trusts),
on the other hand, shall be terminated effective as of the close of the
Closing Date and have no further effect for any taxable year or period
(whether a past, present or future year or period), and no additional
payments shall be made thereunder. Seller and Buyer shall take all such
steps necessary to ensure that such termination is effective.
8.5 Cooperation
Buyer and Seller shall cooperate fully, as and to the extent reasonably
requested by the other party, in connection with the preparation and filing
of any Tax Return, any audit or other proceeding with respect to Taxes and
any other matter relating to Taxes. Such cooperation shall include the
retention and (upon the other party's request) the provision of records and
information which are reasonably relevant to any such audit or other
proceeding or other Tax matter (including, without limitation, information
reasonably sufficient to enable Buyer or Seller to determine whether it is
entitled to any payment under Clause 8.3.2 in respect of a Tax Asset and
the amount of any such payment) and making employees available on a
mutually convenient basis to provide additional information and explanation
of any material provided hereunder. Buyer and Seller agree (i) to retain
all books and records with respect to Tax matters pertinent to the Asset
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Owning Entities and the Owner Trusts relating to any Pre-Closing Tax Period
or Straddle Period for at least six (6) years after the end of the taxable
year which includes the Closing Date, and to abide by all record retention
agreements entered into with any Tax Authority, and (ii) to give the other
party reasonable written notice prior to destroying or discarding any such
books and records and, if the other party so requests, Buyer or Seller, as
the case may be, shall allow the other party to take possession of such
books and records. Without limiting the foregoing, Buyer's obligations
under this Clause 8.5 shall include causing the Asset Owning Entities and
Owner Trusts to execute Tax Returns prepared by Seller pursuant to Clause
8.3 and granting such powers of attorney as are reasonably requested by
Seller to evidence its authority to control audits and other proceedings
pursuant to Clause 8.6. Buyer and Seller will, upon Buyer's request,
cooperate in the preparation and filing of elections under Section 338(g)
or Section 338(h)(10) of the Code, as applicable, with respect to the sale
of "stock" (for U.S. tax purposes) from Seller to Buyer in any Wholly Owned
Asset Owning Entity hereunder to the extent the requirements for such
elections are met, and Seller will, upon Buyer's request, cooperate in
using all reasonable efforts to procure the preparation and filing of an
election under Section 754 of the Code with respect to the sale of a
"partnership interest" (for U.S. tax purposes) in any Partnership Entity
Owner. In addition, Buyer will, upon Seller's request, use reasonable
efforts to cooperate in reducing the amount, if any, of taxable income that
is recognized or Tax that is incurred by Seller, any of its Affiliates, the
Asset Owning Entities or Owner Trusts as a result of taking the actions
described in Clause 5.3 to the extent that such cooperation would not have
an adverse effect on Buyer.
8.6 Indemnification
8.6.1 Seller hereby indemnifies Buyer and its Affiliates against and agrees
to hold them harmless from any (i) Tax of the Wholly Owned Asset
Owning Entities and Wholly Owned Aircraft Owner Trusts with respect to
a Pre-Closing Tax Period or the pre-Closing portion of a Straddle
Period (as determined under Clause 8.6.3), and any Tax resulting from
the arrangements described in Clause 6.5, or imposed on or with
respect to fees held in trust for Seller under Clause 6.8, (ii) Tax
for which any Wholly Owned Asset Owning Entity or Wholly Owned
Aircraft Owner Trust is liable as a result of being a member of an
affiliated, consolidated, combined or unitary group of any Person
during a Pre-Closing Tax Period, (iii) Taxes ("COVERED TAXES") that
result from or arise out of the failure of any representation or
warranty contained in Clause 8.2 to be true and correct as of the
Closing Date (including Taxes relating to the Section 481 adjustment
relating to maintenance reserves in respect of Wholly-Owned Asset
Owning Entities or Wholly Owned Aircraft Owner Trusts) (it being
understood that in the case of any Tax of a Partnership Asset Owning
Entity or Partnership Owner Trust that results from or arises out of
the failure of any representation or warranty contained in Clause 8.2
to be true and correct as of the Closing Date, the portion of such Tax
which is a Covered Tax shall equal the product of (x) the full amount
of Tax incurred by such entity or trust that results from or arises
out of such failure multiplied by (y) the GATX Group's combined
percentage ownership of the equity interests in such entity or trust
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immediately prior to the Closing Date), provided that (A) the
aggregate amount of indemnification which Seller is required to pay in
respect of all Covered Taxes is limited to $25 million and, for the
avoidance of doubt, subject to the two (2) year survival period
contained in Clause 8.10, (B) Seller shall be required to pay
indemnification in respect of a Covered Tax only if, and to the extent
that, such Covered Tax exceeds $1 million, and (C) the survival period
for the representations and warranties contained in Clause 8.2 shall
be as set forth in Clause 8.10, and (iv) liabilities, costs,
penalties, interest, and expenses (including, without limitation,
reasonable expenses of investigation and attorneys' fees and
expenses), arising out of or incident to the imposition, assessment or
assertion of any Tax described in (i), (ii) or (iii) (the sum of (i)
through (iv) being referred to as a "BUYER TAX LOSS"); provided, that
Seller shall not be required to indemnify Buyer and its Affiliates for
(x) any Transfer Tax, (y) any Buyer Tax Loss that is reflected as a
liability (other than a deferred Tax liability) in the GATX Air
Quarterly Operating Report for June 2006 (Document 3.02.10 in the
Virtual Data Room, which document contains information used to compute
the June 30th Balance Sheet), or that is incurred with respect to
income, receipts, gains or profits realized in the ordinary course of
business after June 30, 2006 (but excluding from this clause (y) for
avoidance of doubt any Buyer Tax Loss incurred in respect of income,
receipts, gains or profits realized with respect to the sale and
transactions expressly required by this Agreement as the same may be
amended from time to time) or (z) any Buyer Tax Loss that results from
a breach of Clause 8.3.3 or from actions taken with respect to the
Wholly Owned Asset Owning Entities or Wholly Owned Aircraft Owner
Trusts, their assets or businesses outside the ordinary course of
business after the Closing.
8.6.2 Buyer agrees to hold harmless Seller and its Affiliates against and
agrees to hold them harmless from (i) any Tax of the Wholly Owned
Asset Owning Entities or Wholly Owned Aircraft Owner Trusts with
respect to a Post-Closing Tax Period or the post-Closing portion of
any Straddle Period, (ii) any Tax resulting from a breach of Clause
8.3.3 or from actions taken with respect to the Wholly Owned Asset
Owning Entities or Wholly Owned Aircraft Owner Trusts, their assets or
business outside the ordinary course of business after the Closing,
(iii) all Transfer Taxes and (iv) any liabilities, costs, expenses
(including, without limitation, reasonable expenses of investigation
and attorney's fees and expenses), losses, damages, assessments,
settlements or judgments arising out of or incident to the imposition,
assessment or assertion of any Tax described in clause (i), (ii) or
(iii) above (the sum of (i) through (iv) being referred to as a
"Seller Tax Loss").
8.6.3 For purposes of this Clause 8, income, deductions, and other items in
respect of a Straddle Period shall be allocated between the
pre-Closing portion of such Straddle Period and the post-Closing
portion of such Straddle Period based on an actual closing of the
books of the relevant entity as of the end of the Closing Date;
provided, however, that in closing the books, Taxes (such as property
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Taxes) that are not imposed on income, receipts or otherwise on a
transactional basis shall be allocated on a daily basis.
8.6.4 Any payment pursuant to this Clause 8.6 shall be made not later than
20 days after receipt by the indemnifying party of written notice from
the indemnified party stating that any Buyer Tax Loss or Seller Tax
Loss, as the case may be, has been paid and the amount thereof and of
the indemnity payment requested. Indemnity payments under this Clause
8.6 shall be adjusted on account of Tax Benefits as provided in Clause
8.7.
8.6.5 If a Person entitled to indemnification under this Clause 8.6 (the
"Tax Indemnified Party") is notified of the commencement of any audit
or other administrative or judicial proceeding in respect Taxes for
which indemnity may be sought pursuant to this Clause 8.6, then that
Person shall inform the indemnifying party (the "Tax Indemnifying
Party") in writing of such proceeding within twenty (20) days after
the Tax Indemnified Party has been so notified, and the Tax
Indemnified Party shall give the Tax Indemnifying Party such
information with respect thereto as the indemnifying party may
reasonably request. The Tax Indemnifying Party may discharge, at any
time, its indemnification obligation under this Clause 8.6 by paying
to the Tax Indemnified Party the amount payable pursuant to this
Clause 8.6 calculated on the date of such payment. Except in cases
where the Tax Indemnifying Party has discharged its obligation
pursuant to the preceding sentence, the Tax Indemnifying Party may, at
its own expense, participate in and, upon notice to the Tax
Indemnified Party, take control of the conduct of any such audit or
other administrative or judicial proceeding; provided, however, that
if the Tax Indemnifying Party enters into any settlement of such audit
or other administrative or judicial proceeding without the consent of
the Tax Indemnified Party and such settlement results in a material
increase in Taxes for which the Tax Indemnified Party is responsible
under Clause 8.6.1 or Clause 8.6.2, then the Tax Indemnifying Party
shall indemnify and hold harmless the Tax Indemnified Party against
such material increase. If the Tax Indemnifying Party takes control of
the conduct of such audit or other administrative or judicial
proceeding, the Tax Indemnifying Party shall have the sole discretion
as to the conduct of such audit or other proceeding. Whether or not
the Tax Indemnifying Party chooses to defend or prosecute any claim,
all of the parties hereto shall cooperate in the defense or
prosecution thereof. The Tax Indemnifying Party shall not be liable
under this Clause 8.6 for any settlements effected without the consent
of the Tax Indemnifying Party, or resulting from any audit or other
administrative or judicial proceeding with respect to which the Tax
Indemnifying Party was not notified in accordance with this Clause
8.6.5.
8.6.6 Notwithstanding anything else in this Agreement to the contrary, this
Clause 8.6 shall be the sole indemnification available to Seller,
Buyer, their Affiliates, the Asset Owning Entities and the Owner
Trusts in respect of any matters relating to Taxes and, for avoidance
of doubt, Clauses 11.2.1, 11.2.2 and 11.3 shall not apply in respect
of such matters.
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8.7 Tax Benefits
If any indemnification obligation under Clause 8.6 or Clause 11.2 arises in
respect of a loss, a liability or a judgment or other disposition of an
administrative or judicial proceeding (including an audit) which, or the
payment of which, results in there being allowable to the indemnified party
or any of its Affiliates any deduction, amortization, exclusion from income
or other allowance, after taking into account any income, gain, recapture
or other inclusion in income or reduction in allowance resulting from the
indemnification payment due (a "TAX BENEFIT") then any payment under Clause
8.6 or under Clause 11.2 shall be an amount equal to (x) the amount
otherwise due but for this Clause 8.7 minus (y) the present value of the
Tax Benefit multiplied by the maximum U.S. federal, state, local or
non-U.S., as the case may be, corporate Tax rate in effect at the time the
relevant adjustment is made or, in the case of a credit, by 100 per cent
(100%). The present value referred to in the preceding sentence shall be
determined using a discount rate equal to the mid-term applicable federal
rate in effect at the time the relevant adjustment is made and assuming
that the Tax Benefit will be used at the earliest date or dates allowable
by Applicable Law.
8.8 Refunds
Buyer shall pay or cause to be paid to Seller any refunds of Taxes of a
Wholly Owned Asset Owning Entity or Wholly Owned Aircraft Owner Trust for
any Pre-Closing Tax Period (or the pre-Closing portion of any Straddle
Period) that are received by Buyer, any of its Affiliates any Wholly Owned
Asset Owning Entity or Wholly Owned Aircraft Owner Trust within 10 days
after the receipt of such refund. Seller shall pay or cause to be paid to
Buyer any refunds of Taxes of a Wholly Owned Asset Owning Entity or Wholly
Owned Aircraft Owner Trust for any Post-Closing Tax Period (or the
post-Closing portion of any Straddle Period) that are received by Seller or
any of its Affiliates within 10 days after the receipt of such refund.
8.9 Treatment as Purchase Price Adjustment
Any amount paid by Seller or Buyer under Clause 8.6 or Clause 11.2 will be
treated as an adjustment to the Purchase Price.
8.10 Survival
Notwithstanding anything in this Agreement to the contrary, the covenants
and agreements contained in Clause 8 shall survive for the full period of
all statutes of limitations (giving effect to any waiver, mitigation or
extension thereof); provided, however, that the representations and
warranties contained in Clause 8.2 shall survive until the second
anniversary of the Closing Date.
9. PERSONNEL MATTERS
9.1 Employees
9.1.1 United Kingdom
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(a) The parties confirm that the transactions contemplated by this
Agreement will lead to the transfer of the contracts of
employment of the UK Employees to Buyer (or such Affiliate of
Buyer as Buyer may nominate) under and in accordance with the UK
Transfer Regulations and accordingly such contracts have such
effect from Closing as if originally made between the UK
Employees and Buyer UK Employer.
(b) Buyer confirms that it has provided to Seller in writing all such
information as may be necessary to enable Seller to comply with
its obligation to inform and/or consult with the UK Employees'
representatives pursuant to the UK Transfer Regulations and shall
indemnify Seller in respect of each Liability and cost arising
from a failure to do so in accordance with Clause 11.3. Seller
shall procure that the current employer of the UK Employees shall
comply fully with the UK Transfer Regulations and Buyer shall be
indemnified by Seller, in accordance with Clause 11.3, in respect
to any Liability which it or any Affiliate of Buyer sustains as a
result of Seller or its Affiliates failure to comply with such
regulations in relation to this transaction.
(c) In the event that any UK Undisclosed Employee asserts or
establishes that his employment has transferred to Buyer or an
Affiliate of Buyer pursuant to the UK Transfer Regulations upon
Closing Buyer shall within seven (7) days of being so informed
either by the UK Undisclosed Employee or by Seller (whichever is
the earlier) inform Seller whether or not it (or any Affiliate)
wishes to continue employing the UK Undisclosed Employee. If
Buyer does not want the UK Undisclosed Employee to be so employed
Seller shall within seven (7) days of being so advised be
entitled to offer employment to the UK Undisclosed Employee at
its sole discretion. In the event that (i) such an offer is not
made or (ii) such an offer is made and not accepted by the UK
Undisclosed Employee then Buyer shall be entitled to terminate
the UK Undisclosed Employee's employment and in such event Buyer
shall be indemnified by Seller, in accordance with Clause 11.3,
in respect of any Liability which it or any Affiliate of Buyer
may sustain arising under or in connection with the UK
Undisclosed Employee's contract of employment and the termination
thereof.
(d) Except to the extent necessary to allow Buyer to terminate
employment pursuant to paragraphs (c) and (e) of this section,
Buyer and Buyer UK Employer shall comply fully with all UK
Transfer Regulations and Seller shall be indemnified by Buyer, in
accordance with Clause 11.3, in respect to any Liability which it
or any Affiliate of Seller may sustain as a result of Buyer or
its Affiliates failure to comply with such regulations.
(e) The parties recognize that Buyer UK Employer does not currently
know whether it will continue the employment of some or all of
the UK Employees after the Closing and Buyer shall notify Seller
as soon as is reasonably practical of its intentions regarding UK
Employees. If Buyer UK Employer terminates the employment of a UK
Employee within forty
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five (45) days after the Closing ("termination"), it shall
provide Seller with advance written notice of such termination
ten (10) business days prior to issuance of the notice of
termination to the UK Employee. The parties shall cooperate with
one another in determining the terms of the termination to be
provided to the UK Employee and Buyer shall, if Seller so
requests, require that as a condition of receiving the payments
that have been agreed (in addition to such payments as are
legally required), the UK Employee enters into a statutory
compromise agreement, agreeing to waive all claims for unfair
dismissal. Buyer or Buyer UK Employer may not offer any payments
to a UK Employee in connection with the termination without
Seller's prior consent and approval, such consent and approval
not to be unreasonably withheld. Further, Buyer shall procure
that Buyer UK Employer follows the statutory dismissal procedure
as Seller may reasonably request; provided, however, that the
parties shall cooperate with one another in effecting the
termination within forty five (45) days of the Closing. Seller
shall, subject to written evidence of payment being made,
reimburse Buyer UK Employer the costs of (i) any payment of
salary or benefits in lieu of notice, (ii) statutory redundancy
pay, and (subject in the case of items (iii) and (iv) below to
Buyer having complied with its obligations under this Clause
9.1.1(e)), (iii) any additional amounts paid to the UK Employee
under the terms agreed above and (iv) the damages, compensation
and costs payable to the UK Employee as ordered by a court or
tribunal that arise out of the termination being found to be an
unfair dismissal. In the event that Buyer or Buyer UK Employer is
sued in connection with the termination, the provisions of Clause
11.3 shall apply to the claim. Buyer or Buyer UK Employer is
responsible for any damages, compensation and costs that arise in
connection with any employment claim (other than an unfair
dismissal claim) made by the UK Employee as a result of said
termination and shall reimburse Seller or its Affiliate for any
damages or costs it incurs as a result of such claims. Other than
as expressly set forth herein, Seller shall have no liability to
Buyer or Buyer UK Employer for actions taken with respect to UK
Employees subsequent to the Closing.
9.1.2 France
(a) The parties confirm that the transactions contemplated by this
Agreement will lead to the transfer of the contracts of
employment of the French Employees to Buyer (or such Affiliate of
Buyer as Buyer may nominate) under and in accordance with the
French Transfer Regulations and accordingly such contracts have
such effect from Closing as if originally made between the French
Employees and Buyer French Employer.
(b) Buyer confirms that it has provided to Seller in writing all such
information as may be necessary to enable Seller to comply with
its obligation to inform the French Employees pursuant to the
French Transfer Regulations and shall indemnify Seller in respect
of each Liability arising from a failure to do so in accordance
with Clause 11.3.
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Seller shall procure that the current employer of the French
Employees shall comply fully with the French Transfer Regulations
and Buyer shall be indemnified by Seller, in accordance with
Clause 11.3, in respect to any Liability which it or any
Affiliate of Buyer sustains as a result of Seller or its
Affiliates failure to comply with such regulations in relation to
this transaction.
(c) In the event that any French Undisclosed Employee asserts or
establishes that his employment has transferred to Buyer or an
Affiliate of Buyer pursuant to the French Transfer Regulations
upon Closing Buyer shall within seven (7) days of being so
informed either by the French Undisclosed Employee or by Seller
(whichever is the earlier) inform Seller whether or not it (or
any Affiliate) wishes to continue employing the French
Undisclosed Employee. If Buyer does not want the French
Undisclosed Employee to be so employed Seller shall within seven
(7) days of being so advised be entitled to offer employment to
the French Undisclosed Employee at its sole discretion. In the
event that (a) such an offer is not made or (b) such an offer is
made and not accepted by the French Undisclosed Employee then
Buyer shall be entitled to terminate the French Undisclosed
Employee's employment and in such event Buyer shall be
indemnified by Seller, in accordance with Clause 11.3, in respect
of any Liability which it or any Affiliate of Buyer may sustain
arising under or in connection with the French Undisclosed
Employee's contract of employment and the termination thereof.
(d) Except to the extent necessary to allow Buyer to terminate
employment pursuant to paragraphs (c) and (e) of this section,
Buyer and Buyer French Employer shall comply with all French
Transfer Regulations and Seller shall be indemnified by Buyer, in
accordance with Clause 11.3, in respect of any Liability which it
or any Affiliate of Seller may sustain as a result of Buyer or
its Affiliates failure to comply with such regulations.
(e) The parties recognize that Buyer French Employer does not
currently know whether it will continue the employment of some or
all of the French Employees after the Closing and Buyer shall
notify Seller as soon as is reasonably practical of its
intentions regarding French Employees. If Buyer French Employer
initiates the termination procedure for redundancy of a French
Employee within forty five (45) days after the Closing
("termination"), it shall provide Seller with advance written
notice of the commencement of the redundancy procedure ten (10)
business days prior to such commencement for the French Employee.
The parties shall cooperate with one another in preparing the
terms of the termination for the French Employee and Buyer shall
if Seller so requests, require that as a condition of receiving
the payments that have been agreed (in addition to such payments
as are legally required), the French Employee enters into a
legally binding settlement agreement, agreeing to waive all
claims for unfair dismissal. Buyer or Buyer French Employer may
not offer any payments to a French Employee beyond what he is
legally entitled to in
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connection with the termination without Seller's prior consent
and approval, such consent not to be unreasonably withheld.
Further, Buyer shall procure that Buyer French Employer follows
such dismissal procedure as Seller may require. Seller shall,
subject to written evidence of payment being made, reimburse
Buyer French Employer the costs of (i) any payment of salary or
benefits in lieu of notice, (ii) payments in respect of severance
due by law or pursuant to the applicable collective bargaining
agreement, and (subject in the case of items (iii) and (iv) below
to Buyer having complied with its obligations under this Clause
9.1.2(e)), (iii) any additional amounts paid to the French
Employee under the terms agreed above, and (iv) the damages,
compensation and costs payable to the French Employee as ordered
by a court or tribunal that result from the termination being
found to be an unfair dismissal. In the event that Buyer or Buyer
French Employer is sued in connection with the termination, the
provisions of Clause 11.3 shall apply to the claim. Buyer or
Buyer French Employer is responsible for any damages,
compensation and costs that arise in connection with any
employment claim (other than the termination is held unfair) made
by the French Employee regarding the performance of his contract
of employment or as a result of any other termination and shall
reimburse Seller or its Affiliate for any damages or costs it
incurs as a result of such claims. Other than as expressly set
forth herein, Seller shall have no liability to Buyer or Buyer
French Employer for actions taken with respect to French
Employees subsequent to the Closing.
9.1.3 United States
(a) Seller shall make available to Buyer all U.S. Employees for the
purposes of interviewing and, if desired by Buyer, hiring. Any
offers of employment shall (i) be at a compensation level that is
substantially comparable in the aggregate to the total
compensation the U.S. Employee is receiving as of the Closing
Date, (ii) provide for employment at a location that is less than
fifty (50) miles from the U.S. Employee's U.S. work location as
of the Closing Date (or, if applicable, the Deferred Transfer
Date, as defined below) (including, for the avoidance of doubt,
that for any U.S. Employee who is working outside the United
States (as of the Closing Date or, if applicable, the Deferred
Transfer Date), such offer of employment will be at a location
within fifty (50) miles of the San Francisco, California,
metropolitan area) and (iii) provide for continued and
uninterrupted employment for the U.S. Employee prior to, on and
after the Closing Date (or, if applicable, the Deferred Transfer
Date). Buyer shall provide any offer of employment to any
affected employee in writing (with a copy to Seller) at least
fifteen (15) days prior to the Closing Date. Any such offers
shall contain such terms and conditions of employment with Buyer
or any applicable Affiliate of Buyer, and Seller shall cooperate
in providing Buyer with an opportunity to communicate such offers
to such affected employees. The employees who accept and
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commence employment with Buyer are collectively referred to as
the "TRANSFERRED U.S. EMPLOYEES." If any Transferred U.S.
Employee is Involuntarily Terminated by Buyer or Constructively
Discharged (in each case within the meaning of Seller Severance
Plan) within one (1) year of the Closing Date (or, if applicable,
the Deferred Transfer Date), Buyer shall reimburse Seller for any
amounts paid by Seller or its Affiliates under Seller Severance
Plan as a result thereof; provided, however, Seller shall provide
Buyer with notice of any claim under Seller Severance Plan and
will cooperate with Buyer in connection with the settlement of
such claim. Seller shall otherwise generally have no Liability
for any actions taken by Buyer (or any of its Affiliates) on or
after the Closing Date (or, if applicable, the Deferred Transfer
Date) with respect to any Transferred U.S. Employee. Buyer shall
have no Liability for any actions taken by Seller (or any of its
Affiliates) prior to the Closing Date (or, if applicable, the
Deferred Transfer Date) with respect to any employee of the
Business, unless Seller's actions are requested by, or required
by, Buyer or otherwise contemplated by this Agreement. Buyer
shall promptly reimburse Seller for any amounts paid by Seller or
any of its Affiliates to any U.S. Employees under the Worker
Adjustment and Retraining Notification Act of 1988, as amended.
Notwithstanding the foregoing, if, upon the Closing, there are
Deferred Partnership Asset Owning Entities and/or Excluded
Partnership Asset Owning Entities, then, at Seller's option, it
shall be permitted to designate up to eight (8) of the U.S.
Employees identified with the sign # in Part 3 of Schedule 7, or
as otherwise agreed to between Seller and Buyer, as "DEFERRED
EMPLOYEES". If a Deferred Employee is a Transferred U.S.
Employee, then such employee shall not become an employee of
Buyer on the Closing Date, but rather shall remain an employee of
Seller until March 31, 2007 or such other date as may agreed by
Seller and Buyer (the "DEFERRED TRANSFER DATE"), at which time
such employee shall become an employee of Buyer upon the terms
and conditions set forth in this Clause 9.1.3(a).
(b) Buyer shall, and shall cause its Affiliates to, use its
commercially reasonable efforts to provide each Transferred U.S.
Employee with full eligibility and vesting credit for all
purposes under Buyer employee benefit plans, programs, policies
and arrangements (including any Buyer vacation and severance
policies), for pre-Closing (i) service with Seller and its
Affiliates, and (ii) service credited under the comparable Seller
employee benefit plans for employment other than with Seller and
its Affiliates; provided, however, that in no event shall Buyer
or any Affiliate be required to provide any service credit to any
Transferred U.S. Employee to the extent the provision of such
credit would result in any duplication of benefits. To the extent
possible, Buyer shall (i) cause any pre-existing condition,
restrictions or waiting period under Buyer's plans to be waived
(to the extent satisfied or waived under Seller's applicable
plans) and (ii) honor any deductible and out-of-pocket expenses
incurred
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by Transferred U.S. Employees and their dependants under Seller's
benefit plan during the portion of the calendar year preceding
the Closing Date.
10. CONDITIONS TO CLOSING
10.1 Conditions to Obligations of Buyer and Seller - Closing
The obligations of Buyer and Seller to consummate the Closing are subject
to the satisfaction of the following conditions:
10.1.1 Subject to Clauses 2.1.2 and 7.2, any applicable waiting period
under any applicable Competition Laws relating to the transactions
contemplated by this Agreement shall have expired or been terminated
(to the extent so required under those Competition Laws).
10.1.2 Subject to Clauses 2.1.2 and 7.2, all actions by or in respect of,
or filings with or consents of, any Governmental Authority required to
permit the consummation of the Closing shall have been taken, made or
obtained.
10.1.3 Subject to Clauses 2.1.2 and 7.2, no injunction or other legal
restraint or prohibition enacted, entered, promulgated, enforced or
issued by any Governmental Authority preventing the transactions to be
undertaken at the Closing shall have come into effect after the date
of this Agreement and continue to be in effect.
10.1.4 Subject to Clauses 2.1.2 and 7.2, there shall not be pending any
proceeding brought by any Governmental Authority with at least a
reasonable possibility of success challenging or seeking to restrain
or prohibit the transactions to be undertaken at the Closing.
10.1.5 All consents and actions specified and marked ** in Schedule 3
relevant to the Closing shall have been obtained or taken, as the case
may be, to the reasonable satisfaction of Seller and of Buyer.
10.2 Conditions to Obligations of Buyer and Seller - each Deferred Closing
The obligations of Buyer and Seller to consummate each Deferred Closing are
subject to the satisfaction of the following conditions:
10.2.1 All actions by or in respect of, or filings with or consents of, any
Governmental Authority required to permit the consummation of such
Deferred Closing shall have been taken, made or obtained.
10.2.2 No injunction or other legal restraint or prohibition enacted,
entered, promulgated, enforced or issued by any Governmental Authority
preventing the transactions to be undertaken at such Deferred Closing
shall have come into effect after the date of this Agreement and
continue to be in effect.
10.2.3 There shall not be pending any proceeding brought by any
Governmental Authority with at least a reasonable possibility of
success challenging or
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seeking to restrain or prohibit the transactions to be undertaken at
such Deferred Closing.
10.2.4 All consents and actions specified and marked ** in Schedule 3
relevant to such Deferred Closing have been obtained or taken, as the
case may be, to the reasonable satisfaction of Seller and of Buyer.
10.3 Conditions to Obligation of Buyer - Closing
The obligation of Buyer to consummate the Closing is subject to the
satisfaction of the following further conditions:
10.3.1 Seller shall have performed in all material respects all of its
obligations under this Agreement with respect to the Closing Assets
(or the transfer thereof) required to be performed by it on or prior
to the Closing Date, the representations and warranties of Seller with
respect to the Closing Assets (or the transfer thereof) contained in
this Agreement shall be true at and as of the Closing Date, as if made
at and as of that date (unless any such representation or warranty is
made as of a specific date, in which case such representation or
warranty shall be made as of such date) with only those exceptions as
will not have a Material Adverse Effect, and Buyer shall have received
a certificate signed by a duly authorized officer of Seller to the
foregoing effect.
10.3.2 Immediately prior to the Closing, each Aircraft that is registered
with the FAA will be so registered on the basis of the use of a voting
trust with a voting trustee that is a U.S. Citizen reasonably
acceptable to Buyer.
10.3.3 Prior to the Closing, the applicable Selling Parties shall have
provided (or caused the applicable Asset Owning Entities and Owner
Trusts to provide) certifications in the form prescribed in the
regulations under Section 1445 of the Code to the effect that
withholding from the Closing Date Allocated Amount under that Code
section is not required.
10.4 Conditions to Obligation of Buyer - each Deferred Closing
The obligation of Buyer to consummate each Deferred Closing is subject to
satisfaction of the following further conditions:
10.4.1 The applicable Selling Parties having provided (or caused the
applicable Asset Owning Entities and Owner Trusts to provide)
certifications in the form prescribed in the regulations under Section
1445 of the Code to the effect that withholding from the Deferred Date
Allocated Amount under that Code section is not required.
10.4.2 The representations and warranties of Seller set forth in Clauses
3.5.1 in relation to the Specified Ownership Interests to be
transferred on the relevant Deferred Date shall be true at and as of
such Deferred Date, as if made at and as of such Deferred Date.
10.5 Conditions to Obligation of Seller - Closing
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The obligation of Seller to consummate the Closing is subject to the
satisfaction of the following further conditions:
10.5.1 Buyer shall have performed in all material respects all of its
obligations under this Agreement with respect to the Closing Assets
required to be performed by it at or prior to the Closing Date, the
representations and warranties of Buyer with respect to the Closing
Assets (or the transfer thereof) contained in this Agreement shall be
true in all material respects at and as of the Closing Date, as if
made at and as of that date (unless any such representation or
warranty is made as of a specific date, in which case such
representation or warranty shall be made as of such date) and Seller
shall have received a certificate signed by a duly authorized officer
of Buyer to the foregoing effect.
10.5.2 Seller shall have received all documents it may reasonably request
relating to the existence of Buyer and the authority of Buyer for this
Agreement, all in form and substance reasonably satisfactory to
Seller.
10.5.3 All consents and actions specified and marked * in Schedule 3
relevant to the Closing have been obtained or taken, as the case may
be, to the reasonable satisfaction of Seller, except in respect of any
Deferred Partnership Asset Owning Entity or Excluded Partnership Asset
Owning Entity.
10.6 Conditions to Obligation of Seller - each Deferred Closing
The obligation of Seller to consummate any Deferred Closing is subject to
all consents and actions specified and marked * in Schedule 3 relevant to
such Deferred Closing have been obtained or taken, as the case may be, to
the reasonable satisfaction of Seller, except in respect of any Excluded
Partnership Asset Owning Entity.
11. SURVIVAL; INDEMNIFICATION
11.1 Survival
The rights of the parties to this Agreement in respect of the
representations and warranties of the parties set forth in this Agreement
(other than the representations and warranties contained in Clause 8.2
which shall be governed by Clause 8) shall survive the Closing or the
Deferred Closing, as the case may be, for a period of eighteen (18) months;
provided that (a) such rights in respect of representations and warranties
with respect to Excluded Specified Ownership Interests (or the Excluded
Partnership Asset Owning Entity related thereto or any matters related to
such Excluded Partnership Asset Owning Entity) or the transfer thereof
hereunder shall not survive the Closing and (b) such rights in respect of
the representations and warranties contained in Clauses 3.2, 3.4.1, 4.2,
4.4.1 and 4.9 shall survive the Closing or the Deferred Closing, as the
case may be, until the latest date permitted by Applicable Law. The
covenants and agreements of the parties to this Agreement that are
contained in this Agreement shall survive until the latest date permitted
by Applicable Law or for such shorter period as may be expressly provided
herein.
11.2 Indemnification
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11.2.1 Effective at and after the Closing or the Deferred Closing, as the
case may be, Seller hereby indemnifies Buyer and its Affiliates
against and agrees to hold each of them harmless from any and all
damage, loss or expense (including reasonable expenses of
investigation and reasonable attorney's fees and expenses) ("DAMAGES")
incurred or suffered by Buyer or any of its Affiliates arising out of
(a) any breach of the representations or warranties of Seller (each
such breach, a "WARRANTY BREACH"), (b) any breach of covenant or
agreement made or to be performed by Seller pursuant to this
Agreement, or (c) any Retained Liability; provided that Seller shall
not be liable for any claim for indemnification pursuant to this
Clause 11.2.1 (other than pursuant to the foregoing clause (c)) unless
(A) such claim involves Damages in excess of three hundred thousand
Dollars ($300,000) (an "INDEMNIFIABLE LOSS") and (B) the aggregate
amount of all Indemnifiable Losses of Buyer upon which valid claims
are based pursuant to such clause exceeds six million Dollars
($6,000,000) (the "BASKET AMOUNT"), and then Seller shall only be
responsible for indemnification of Indemnifiable Losses in excess of
fifty per cent. (50%) of the Basket Amount; provided further, that,
the amounts paid by Seller for indemnification of Indemnifiable Losses
under this Agreement pursuant to this Clause 11.2.1 (other than any
amounts paid by Buyer to third-party claimants in connection with any
Retained Liabilities) shall be limited to, in the aggregate, an amount
equal to one hundred and twenty five million Dollars ($125,000,000).
The limitations on indemnification contained in this Clause 11.2.1
shall not apply to Damages that arise out of a breach of
representations and warranties contained in Clauses 3.1, 3.2, 3.4.1,
3.5 or 3.9.1; provided, however, that in no event shall the aggregate
amount of Damages arising out of breaches of such representations and
warranties for which Seller is liable for indemnification under this
Clause 11.2.1, together with the aggregate amount of all other Damages
for which Seller is liable for indemnification under this Clause
11.2.1, exceed the net amount of the Purchase Price received and
retained by Seller.
11.2.2 Buyer hereby indemnifies Seller and its Affiliates against and
agrees to hold each of them harmless from any and all Damages actually
suffered by Seller or any of its Affiliates and their respective
officers, directors, employees, successors and permitted assigns in
connection with, arising out of or resulting from (i) any breach of
the representations and warranties of Buyer, (ii) any breach of or
failure to comply with any covenant or agreement made or to be
performed by Buyer pursuant to this Agreement, (iii) any Assumed
Liability or (iv) the ownership by Seller or its Affiliates of the
Transferred Specified Ownership Interests.
11.2.3 Notwithstanding the foregoing provisions of this Clause 11.2, Clause
8.6 shall be the sole indemnification available to Seller, Buyer,
their Affiliates, the Asset Owning Entities and the Owner Trusts in
respect of all matters relating to Taxes, and the limitations set
forth in this Clause 11.2 shall not apply.
11.3 Procedures
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11.3.1 The party seeking indemnification under Clause 11.2 (the
"INDEMNIFIED PARTY") agrees to give prompt notice to the party against
whom indemnity is sought (the "INDEMNIFYING PARTY") of the assertion
of any claim, or the commencement of any suit, action or proceeding
(each, a "CLAIM") in respect of which indemnity may be sought under
that Clause and will provide the Indemnifying Party with all
information that the Indemnifying Party may reasonably request. The
failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations under this Agreement, except to
the extent that such failure shall have materially adversely
prejudiced the Indemnifying Party.
11.3.2 Subject to the terms of this Clause 11.3.2, the Indemnifying Party
shall be entitled to participate in the defense of any Claim asserted
by any third party (each, a "THIRD PARTY CLAIM") and, subject only to
the express limitations set forth in this Clause 11.3, shall be
entitled to control and appoint lead counsel for that defense, in each
case at its expense. If the Indemnifying Party shall acknowledge, in
writing, to the Indemnified Party that the Indemnifying Party shall be
obligated under the terms of its indemnity hereunder in connection
with such Third Party Claim, then the Indemnifying Party shall be
entitled (a) to take control of the defense and investigation of such
lawsuit or action (including the right to settle any such law suit or
action) and, (b) to employ and engage attorneys of its own choice
reasonably satisfactory to the Indemnified Party to handle and defend
the same unless the named parties to such action or proceeding include
both the Indemnifying Party and the Indemnified Party and the
Indemnified Party has been advised in writing by counsel that joint
counsel for the Indemnified Party and the relevant Indemnifying Party
shall result in a conflict under the applicable rules of professional
conduct, in which event the Indemnified Party shall be entitled, at
the Indemnifying Party's expense to separate counsel of its own choice
reasonably satisfactory to the Indemnifying Party; provided that the
Indemnifying Party shall not agree to any compromise or settlement
with respect to the Third Party Claim that (i) does not include a
complete release of the Indemnified Party from all liability with
respect thereto (other than liability or damages that would be paid by
the Indemnifying Party pursuant to the terms hereof) and/or (ii)
imposes any liability on or damages the property of the Indemnified
Party without the consent of the Indemnified Party, which consent
shall not be unreasonably withheld or delayed. The Indemnified Party
may, at its own cost, participate in (but not control) the
investigation, trial and defense of such Third Party Claim and any
appeal arising therefrom. If the Indemnifying Party fails to assume
the defense of such Third Party Claim within thirty (30) calendar days
after receipt of the notice of claim by the Indemnified Party, the
Indemnified Party against which such Third Party Claim has been
asserted will (upon delivering notice to such effect to the
Indemnifying Party) have the right to undertake, at the Indemnifying
Party's cost, risk and expense, the defense of such Third Party Claim
on behalf of and for the account and risk of the Indemnifying Party.
In no event shall the Indemnified Party have authority to settle any
Third Party Claim without the consent of the
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Indemnifying Party, which consent shall not be unreasonably withheld
or delayed.
11.3.3 If the Indemnifying Party makes any payment on any Third Party
Claim, the Indemnifying Party shall be subrogated, to the extent of
such payment, to all rights and remedies of the Indemnified Party to
any insurance benefits or other claims of the Indemnified Party with
respect to such Third Party Claim.
11.3.4 Each party shall cooperate in good faith, and cause their respective
Affiliates to cooperate, in the defense or prosecution of any Third
Party Claim and shall furnish or cause to be furnished such personnel,
records, information and testimony, and attend those conferences,
discovery proceedings, hearings, trials or appeals, as may be
reasonably requested in connection with any of the foregoing.
11.3.5 Each Indemnified Party shall use its commercially reasonable efforts
to mitigate any loss for which that Indemnified Party seeks
indemnification under this Agreement. If that Indemnified Party
mitigates its loss after the Indemnifying Party has paid the
Indemnified Party under any indemnification provision of this
Agreement in respect of that loss, the Indemnified Party must notify
the Indemnifying Party and pay to the Indemnifying Party the extent of
the value of the benefit to the Indemnified Party of that mitigation
(less the Indemnified Party's reasonable costs of mitigation) within
five (5) Business Days after the benefit is received.
11.3.6 Each Indemnified Party shall use its commercially reasonable efforts
to collect any amounts available under insurance coverage, or from any
other Person alleged to be responsible, for any Damages payable under
Clause 11.2.
11.4 Calculation of Damages
11.4.1 The amount of any Damages payable under Clause 11.2 by the
Indemnifying Party shall be net of any (a) amounts actually received
by the Indemnified Party under applicable insurance policies or from
any other Person alleged to be responsible therefore, and (b) Tax
Benefit allowable to the Indemnified Party or its Affiliates
calculated in accordance with the principles set forth in Clause 8.7.
If the Indemnified Party receives any amounts under applicable
insurance policies, or from any other Person alleged to be responsible
for any Damages, subsequent to an indemnification payment by the
Indemnifying Party, then such Indemnified Party shall promptly
reimburse the Indemnifying Party for any payment made or expense
incurred by that Indemnifying Party in connection with providing that
indemnification payment up to the amount received by the Indemnified
Party, net of any expenses incurred by that Indemnified Party in
collecting that amount.
11.4.2 Notwithstanding anything to the contrary contained in this
Agreement, in no event shall any Indemnifying Party be liable to any
Indemnified Party for any incidental, consequential, indirect,
special, punitive, exemplary or other similar Damages (including loss
of future revenue, income or profits, diminution of
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value or loss of business reputation or opportunity) in connection
with this Agreement or the transactions contemplated hereby, unless
such Damages are part of the Damages suffered by the Indemnified Party
in connection with a Third Party Claim and awarded by a court of
competent jurisdiction.
11.5 Assignment of Claims
If the Indemnified Party receives any payment from an Indemnifying Party in
respect of any Damages pursuant to Clause 11.2 and the Indemnified Party
could have recovered all or a part of those Damages from a third party
(each, a "POTENTIAL CONTRIBUTOR") based on the underlying Claim asserted
against the Indemnifying Party, the Indemnified Party shall assign those of
its rights to proceed against the Potential Contributor as are necessary to
permit the Indemnifying Party to recover from the Potential Contributor the
amount of that payment.
11.6 Exclusivity
Except as specifically set forth in this Agreement, effective as of the
Closing, Buyer waives any rights and claims Buyer or any of its Affiliates
may have against Seller or any of its Affiliates, whether in law, in equity
or otherwise, relating to any Asset Owning Entity, Owner Trusts, the
Specified Ownership Interests, the Additional Assets or the transactions
contemplated by this Agreement. The rights and claims waived by Buyer
include claims for contribution or other rights of recovery arising out of
or relating to claims for breach of contract, breach of representation or
warranty, negligent misrepresentation other claims for breach of duty and
all other claims under any other theory of law or equity. After the
Closing, Clauses 11.2, 8.6.1 and 13.10 will provide the sole and exclusive
remedy for Buyer in connection with the transactions contemplated hereby.
11.7 Professional Liability Insurance
If, at any time during which Buyer continues to provide management services
to Seller in accordance with Clause 6.4, the net worth of Buyer is less
than one hundred million Dollars ($100,000,000), Buyer shall promptly
provide to Seller reasonably satisfactory evidence that Buyer has in effect
professional liability insurance of such type and with such limits as is
customary for Persons providing services such as those contemplated by
Clause 6.4.
11.8 Third Party Liability Insurances
For a period of two (2) years from the Closing Date or the relevant
Deferred Date, as the case may be, Buyer shall ensure that Seller and each
of its Affiliates and each director, officer, agent and servant of Seller
and each of its Affiliate is a named contract party under contingent third
party aviation liability insurances effected by or on behalf of Buyer with
insurers reasonably satisfactory to Seller and of such types and with such
limits as is customary for Persons engaged in the aircraft leasing business
provided that the minimum amount of such insurances shall not be less than
five hundred million Dollars ($500,000,000).
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12. TERMINATION
12.1 Grounds for Termination
This Agreement may be terminated at any time prior to the Closing:
12.1.1 by mutual written agreement of Seller and Buyer; or
12.1.2 by either Seller or Buyer, if the Closing shall not have been
consummated on or before the Backstop Date; or
12.1.3 by either Seller or Buyer, if consummation of the transactions
contemplated by this Agreement would violate any nonappealable, final
order, decree or judgment of any Governmental Authority having
competent jurisdiction and such violation would have a material
adverse effect on Seller (or any of its Affiliates) or Buyer (or any
of its Affiliates)(as applicable);
12.1.4 by Seller, if the Closing does not take place on November 30, 2006
(or such later date contemplated by this Agreement) solely on account
of (a) a Financing ▇▇▇▇▇ or (b) a wilful failure by Buyer to fulfil a
condition to the performance of the obligations of Seller set forth in
this Agreement; or
12.1.5 by Buyer, if the Closing does not take place on November 30, 2006
(or such later date contemplated by this Agreement) solely on account
of a wilful failure by Seller to fulfil a condition to the performance
of the obligations of Buyer set forth in this Agreement.
The party desiring to terminate this Agreement pursuant to Clauses 12.1.2,
12.1.3 or 12.1.4 shall give notice of that termination to the other party;
provided that, if the failure to satisfy any condition to closing set forth
in Clause 10 should result from (a) the wilful failure of any party to
fulfil a condition to the performance of the obligations of that party to
consummate the Closing, or (b) a wilful failure to perform a covenant of
this Agreement or breach by any party hereto of any representation,
warranty, covenant or agreement contained herein, such party shall not be
permitted to terminate this Agreement pursuant to Clause 12.1.2.
12.2 Effect of Termination
If this Agreement is terminated as permitted by Clause 12.1 or Clause 13.9,
that termination shall be without liability of either party (or any
stockholder, director, officer, employee, agent, consultant or
representative of that party) to the other party to this Agreement;
provided that if that termination shall result from the wilful (a) failure
of either party to fulfil a condition to the performance of the obligations
of the other party, (b) failure to perform a covenant of this Agreement or
(c) breach by either party to this Agreement of any representation or
warranty or agreement contained in this Agreement, that party shall be
fully liable for any and all Damages incurred or suffered by the other
party as a result of that failure or breach. Without limiting the
foregoing, in the event of (i) a Financing Breach by Buyer or (ii) a
willful breach by Buyer that results in a termination of this Agreement as
contemplated by the proviso in the previous sentence, as liquidated
damages, and not as a penalty, Seller shall, without any further action of
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any party, be entitled to $50,000,000 of the equity commitment contemplated
by the Equity Commitment Letters, which amount is (or within three (3)
Business Days after the date hereof, will be), either deposited in cash or
available for drawing under the letters of credit provided to Buyer as
contemplated by the Equity Commitment Letters (it being understood that in
the case of a Financing Breach that is not the result of or related to a
wilful breach of this Agreement by Buyer, the foregoing amount of
liquidated damages shall be Seller's sole and exclusive remedy in relation
to such Financing Breach). The provisions of (a) the second sentence of
Clause 5.2.1, (b) Clause 7.3, (c) this Clause 12.2, and (d) Clause 13 shall
survive any termination of this Agreement.
13. MISCELLANEOUS
13.1 Notices
All notices, requests and other communications to any party under this
Agreement shall be in writing and shall be given or sent by facsimile
transmission (electronically confirmed), delivered in person, mailed by
first class registered or certified mail, postage prepaid, or sent by
Federal Express or other overnight courier of national reputation,
if to Seller, to:
GATX Financial Corporation
c/o GATX Corporation
Law Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Facsimile No.: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
if to Buyer, to:
Macquarie Aircraft Leasing Limited
c/o Macquarie Bank Limited,
▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
or any other address or facsimile number as that party may specify after
the date of this Agreement for this purpose by notice to the other parties
to this Agreement. All of those notices, requests and other communications
shall be deemed received on the date of receipt by its recipient if
received prior to 5 p.m. in the place of receipt and that day is a Business
Day in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding Business Day in the place of receipt.
13.2 Amendments and Waivers
13.2.1 Any provision of this Agreement may be amended or waived if, but
only if, that amendment or waiver is in writing and is signed, in the
case of an amendment,
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by each party to this Agreement, or in the case of a waiver, by the
party against whom the waiver is to be effective.
13.2.2 No failure or delay by any party in exercising any right, power or
privilege under this Agreement shall operate as a waiver nor shall any
single or partial exercise preclude any other or further exercise or
the exercise of any other right, power or privilege.
13.2.3 Buyer shall not agree to any amendment to, or any waiver of the
rights of Buyer or any obligations of any counterparty to Buyer under,
any Commitment Letter without Seller's prior written consent, if such
amendment or waiver would materially and adversely impact Buyer's
ability to pay the Purchase Price or otherwise consummate the
transactions contemplated hereby.
13.3 Successors and Assigns
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors
and permitted assigns; PROVIDED THAT no party may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement
without the prior written consent of each other party to this Agreement,
except that Buyer may assign its rights hereunder, in whole or in part, to
an Affiliate prior to the Closing or for the purpose of securing any
financing of the transactions contemplated hereby, but no such assignment
shall affect any obligations of Buyer under this Agreement.
13.4 Governing Law
This Agreement shall be governed exclusively by and construed exclusively
in accordance with the laws of the State of New York.
13.5 Jurisdiction
13.5.1 Each party hereto irrevocably and unconditionally consents to
personal jurisdiction in the State of New York and voluntarily submits
to the jurisdiction of the courts of the State of New York located in
the City of New York in any action or proceeding with respect to this
Agreement, including the federal district courts located in the City
of New York, for any actions, suits or proceedings arising out of or
relating to this Agreement and the transactions contemplated hereby
(and each party agrees not to commence any actions, suit or proceeding
relating thereto except in such courts). Each party acknowledges that
(a) state and federal courts of New York are courts of competent
jurisdiction and (b) any judgments rendered by such courts are fully
enforceable in Ireland in accordance with their terms. Each party
hereby waives any and all defenses based upon Irish conflict of law
principles, public policy or natural or substantial justice.
13.5.2 Process in any suit, action or proceeding described in the preceding
paragraph may be served on any party anywhere in the world, whether
within or without the jurisdiction of any court identified in the
preceding paragraph. Without limiting the foregoing, each party agrees
that service of process on such party as
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provided in Clause 13.5.1 shall be deemed effective service of process
on such party. In addition, Buyer hereby irrevocably appoints
Macquarie Securities (USA) Inc. with offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent for service of process in
any suit, action or proceeding described in the preceding paragraph
and agrees that service of process in any such suit, action or
proceeding may be made upon it at the office of such agent. Buyer
waives, to the fullest extent permitted by law, any other requirements
of or objections to personal jurisdiction with respect thereto. Buyer
represents and warrants that such agent has agreed to act as Buyer's
agent for service of process, and Buyer agrees to take any and all
action, including the filing of any and all documents and instruments,
that may be necessary to continue such appointment in full force and
effect.
13.6 Counterparts; Effectiveness; No Third-Party Beneficiaries
This Agreement may be signed in any number of counterparts (including via
fax or .pdf), each of which shall be an original, with the same effect as
if the signatures to those pages were upon the same instrument. This
Agreement shall become effective when each party to this Agreement shall
have received a counterpart of this Agreement signed by the other party to
this Agreement. Until and unless each party has received a counterpart of
this Agreement signed by the other party to this Agreement, this Agreement
shall have no effect and no party shall have any right or obligation under
this Agreement (whether by virtue of any other oral or written agreement or
other communication). No provision of this Agreement is intended to confer
any rights, benefits, remedies, obligations, or liabilities under this
Agreement upon any Person other than the parties to this Agreement and
their respective successors and assigns.
13.7 Entire Agreement
This Agreement, the Schedules, Seller's Closing Documents, Other Selling
Parties' Closing Documents, Buyer's Closing Documents, Exhibits, the
Confidentiality Agreement and the Transition Services Agreement constitute
the entire agreement between the parties with respect to their subject
matter, and those agreements supersede all prior agreements and
understandings, both oral and written, between the parties with respect to
their subject matter.
13.8 Severability
If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction or other Governmental Authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as
the economic or legal substance of the transactions contemplated by this
Agreement is not affected in any manner materially adverse to any party.
Upon such a determination, the parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to
the fullest extent possible.
-84-
13.9 Revised Schedules
Seller may revise any of the Schedules to reflect any event that is not
expressly prohibited by this Agreement and that occurs after the date of
this Agreement by delivering a revised relevant Schedule to Buyer at any
time and from time to time prior to the Closing Date (or, if applicable,
the Deferred Date). Buyer shall have the right to review each revised
Schedule for a period of three (3) Business Days after its receipt. At any
time within such three (3) Business Day time period, Buyer shall have the
right to terminate this Agreement by delivery of a notice to Seller if the
revised information does not relate to the Focused Air Arrangements, the
Contemplated Arrangements or any Deferred Partnership Asset Owning Entity
or Excluded Partnership Asset Owning Entity and would reasonably be
expected to result in a Material Adverse Effect. This notice, if given,
shall specify the information forming the basis for the decision to
terminate. Seller shall have three (3) Business Days after receipt of such
notice to review with Buyer the information forming the basis of the
decision to terminate and to attempt to agree on corrective measures, if
any. If the parties cannot agree on corrective measures with such three (3)
Business Day period, then this Agreement shall terminate. After the Closing
Date, Seller may continue to revise the Schedules as contemplated by this
Clause 13.9 with respect to the Deferred Partnership Asset Owning Entities,
but Buyer's rights with respect to such revised Schedules (which shall be
exercised in accordance with the procedures set forth in this Clause 13.9)
shall be limited only to excluding any Deferred Partnership Asset Owning
Entity from the transactions contemplated hereby if any such revised
Schedules reveal a breach of the first sentence of Clause 3.5.1 with
respect to such Deferred Partnership Asset Owning Entity. If this Agreement
is not terminated as permitted by this Clause 13.9, Buyer shall be deemed
to have accepted such revisions, and the relevant Schedule attached to this
Agreement as of the date of this Agreement shall be deemed to be superseded
by the relevant revised Schedule.
13.10 Specific Performance
The parties agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms
and provisions of this Agreement.
13.11 Bulk Sales
Buyer hereby waives compliance by Seller with the provisions of the
Applicable Laws of any jurisdiction relating to a bulk sale or transfer of
assets that may be applicable to the transfer of the Transferred Specified
Ownership Interests or the Additional Assets.
-85-
IN WITNESS WHEREOF, the parties to this Agreement have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
Seller
GATX FINANCIAL CORPORATION
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
Buyer
MACQUARIE AIRCRAFT LEASING LIMITED
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Attorney in Fact
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Attorney in Fact
-86-
SCHEDULE 1
AIRCRAFT
PART 1
OWNED AIRCRAFT
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-300 MSN 28870 Make: CFM International, PP-VPX G3AC G3AC Off-lease
Inc.
Model: CFM56-3C1
Engine MSNs: 858576 and
858577
737-400 MSN 25095 Make: CFM International, N754AS WFB Seller Alaska
Inc.
Model: CFM-56-3C1
Engine MSNs: 857115 and
857116
737-400 MSN 25096 Make: CFM International, N755AS WFB Seller Alaska
Inc.
Model: CFM-56-3C1
Engine MSNs: 857150 and
857151
-87-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-800 MSN 32359 Make: CFM International, PR-GOJ USEB Aircraft Ltd. ▇▇▇▇▇▇▇ Leasing GOL Transportes Aereos
Inc. Limited Ltda.
Model: CFM56-7B24
Engine MSNs: 889751 and
888760
737-800 MSN 32360 Make: CFM International, PR-GOK USEB Aircraft Ltd. ▇▇▇▇▇▇▇ Leasing GOL Transportes Aereos
Inc. Limited Ltda.
Model: CFM56-7B24
Engine MSNs: 888849 and
888850
737-800 MSN 32361 Make: CFM International, PK-GEE USEB Aircraft Ltd. ▇▇▇▇▇ Leasing PT (Persero) Perusahaan
Inc. Limited Penerbangan Garuda
Model: ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (known as
Engine MSNs: 888878 and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
▇▇▇▇▇▇
737-800 MSN 32362 Make: CFM International, OK-TVB USEB Aircraft Ltd. ▇▇▇▇▇▇▇ Leasing Travel Service a.s.
Inc. Limited
Model: CFM56-7B26
Engine MSNs: 888930 and
888932
-88-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-800 MSN 32363 Make: CFM International, PK-GEF USEB Aircraft Ltd. ▇▇▇▇▇▇▇ Leasing PT (Persero) Perusahaan
Inc. Model: CFM56-7B26 Corporation Penerbangan Garuda
Engine MSNs: 889941 and Indonesia (known as
888959 Garuda Indonesia)
737-800 MSN 32364 Make: CFM International, EI-CXV USEB Aircraft Ltd. ▇▇▇▇▇▇▇ Leasing MIAT
Inc. Model: CFM56-7B26 Limited (Mongolian Airlines)
Engine MSNs: 890116 and
890117
737-800 MSN 32365 Make: CFM International, TC-SUG USEB Aircraft Ltd. ▇▇▇▇▇▇▇ Leasing Gunes Ekspres Havacilik
Inc. Model: CFM56-7B26 Limited A.S. (doing business as
Engine MSNs: 890197 and Sun Express Airlines)
890210
737-800 MSN 32366 Make: CFM International, TC-SUH USEB Aircraft Ltd. Kearny Leasing Gunes Ekspres Havacilik
Inc. Model: CFM56-7B26 Limited A.S. (doing business as
Engine MSNs: 891261 and Sun Express Airlines)
891255
-89-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-800 MSN 32367 Make: CFM International, TC-SUI USEB Aircraft Ltd. ▇▇▇▇▇▇▇ Leasing Gunes Ekspres Havacilik
Inc. Model: CFM56-7B26 Limited A.S. (doing business as
Engine MSNs: 891285 and Sun Express Airlines)
891298
737-800 MSN 32368 Make: CFM International, TC-SUJ USEB Aircraft Ltd. ▇▇▇▇▇▇▇ Leasing Gunes Ekspres Havacilik
Inc. Model: CFM56-7B26 Limited A.S. (doing business as
Engine MSNs: 891374 and Sun Express Airlines)
891376
757-200 MSN 27971 Make: Rolls Royce N514AT US Bank, N.A. G3AC ATA
Model: RB211-535E4
Engine MSNs: 31391 and
31392
A300B4F MSN 126 Make/Model: GE CF6-50C2 TC-MNN G3AC G3AC MNG Havayollari Ve
Engine MSNs: 528196 and Tasimacilik Anonim
528204 Sirketi
A320-200 MSN 1504 Make: CFM International, D-ALTE Irving Leasing G3AC LTU Lufttransport-
Inc. Model: CFM 56-5B4/P (Ireland) Ltd. Unternehmen GmbH
Engine MSNs: 575204 and
575205
A320-200 MSN 1553 Make: CFM International, D-ALTF Irving Leasing G3AC LTU Lufttransport-
Inc. Model: (Ireland)
-90-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
CFM 56-5B4/P Ltd. Unternehmen GmbH
Engine MSNs: 575231 and
575240
A320-200 MSN 1667 Make: CFM International, CS-TMW EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing Transportes Aereos
Inc. Model: CFM 56-5B4/P Limited Limited Portugueses S.A. (doing
Engine MSNs: 575316 and business as TAP
575317 Portugal)
A320-200 MSN 1692 Make: CFM International, F-GRSN EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing Societe de Transport
Inc. Model: CFM 56-5B4/P Holdings Ltd. Limited Aerien Regional (doing
Engine MSNs: 575328 and business as Star
575329 Europe)
This Aircraft is
currently subject to a
"subject and
subordinate" dry
sub-lease with Star
Europe's affiliates,
Agaircom GmbH
A letter of intent has
been signed for the
re-lease this Aircraft
to TAM-Linhas Aereas
S.A.
A320-200 MSN 1769 Make: CFM International, EC-JDK EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing Vueling Airlines, S.A.
Inc. Model: CFM 56-5B4/P Holdings Ltd. Limited
-91-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
Engine MSNs: 575394
and 575395
A320-200 MSN 1787 Make: CFM OO-TCJ EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing ▇▇▇▇▇▇ ▇▇▇▇ Airlines
International, Inc. Holdings Ltd. Limited Belgium N.V.
Model: CFM 56-5B4/P
Engine MSNs: 575410
and 575411
A320-200 MSN 1799 Make: CFM CS-TNM EFGA Aircraft Ltd. ▇'▇▇▇▇▇▇▇ Leasing Transportes Aereos
International, Inc. Limited Portugueses S.A.
Model: CFM 56-5B4/P (doing business as
Engine MSNs: 575423 TAP Portugal)
and 575425
A320-200 MSN 1816 Make: CFM CS-TNN EFGB Aircraft Ltd. ▇'▇▇▇▇▇▇▇ Leasing Transportes Aereos
International, Inc. Limited Portugueses S.A.
Model: CFM 56-5B4/P (doing business as
Engine MSNs: 575437 TAP Portugal)
and 575439
A320-200 MSN 1852 Make: CFM I-EEZC EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing Eurofly S.p.A.
International, Inc. (Ireland) Ltd. Limited
Model: CFM 56-5B4/P
Engine MSNs: 575465
and 575468
A320-200 MSN 1920 Make: CFM I-EEZD EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing Eurofly S.p.A.
International, Inc. (Ireland) Ltd. Limited
Model: CFM
56-5B4/Pengine
-92-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
MSNs: 575530 and 575531
A320-200 MSN 1937 Make: CFM I-EEZE EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing Eurofly S.p.A.
International, Inc. (Ireland) Ltd. Limited
Model: CFM 56-5B4/P
Engine MSNs: 575542
and 575543
A320-200 MSN 1975 Make: CFM OO-TCI EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing ▇▇▇▇▇▇ ▇▇▇▇ Airlines
International, Inc. Holdings Ltd. Limited Belgium N.V.
Model: CFM 56-5B4/P
Engine MSNs: 575574
and 575575
A320-200 MSN 2014 Make: IAE HC-CDY EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing TAME - Linea Aerea
Model: V2527E-A5 Holdings Ltd. Limited del Ecuador
Engine MSNs: V11468
and V11470
A320-200 MSN 2044 Make: IAE HC-CDZ EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing TAME - Linea Aerea
Model: V2527E-A5 Holdings Ltd. Limited del Ecuador
Engine MSNs: V11494
and V11491
A320-200 MSN 2167 Make: IAE PH-MPF EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing Martinair Holland
Model: IAE V2527-A5 Holdings Ltd. Limited N.V.
Engine MSNs: V11631
and V11628
-93-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
A320-200 MSN 2178 Make: CFM CS-TNP EFGC Aircraft Ltd. ▇'▇▇▇▇▇▇▇ Leasing Transportes Aereos
International, Inc. Limited Portugueses S.A.
Model: CFM56-5B4/P (doing business as
Engine MSNs: 575773 TAP Portugal)
and 575774
A320-200 MSN 2204 Make: IAE 9V-TAA EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing Tiger
Model: IAE V2527-A5 Holdings Ltd. Limited
Engine MSNs: V11672
and V11674
A320-200 MSN 2804 Make: IAE LZ-MDM ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Air Via o.o.d.
Model: IAE V2527-A5 Aviation Ltd. Aviation Ltd.
Engine MSNs: V12301
and V12303
A321-100 MSN 1511 Make: IAE HL-7703 Divisadero Leasing Divisadero Leasing Asiana Airlines, Inc.
Model: IAE V2530-A5 Ltd. Ltd.
Engine MSNs: V11013
and V10978
A321-200 MSN 855 Make: IAE TC-FBT Post Street Post Street Hurkus Havayolu
Model: IAE V2533-A5 Aviation Ltd. Aviation Ltd. Tasimacilik Ve
Engine MSNs: V10386 Ticaret SA (doing
and V10384 business as Free
Bird Airlines)
A321-200 MSN 1629 Make: CFM D-ALSA EFG Aircraft ▇'▇▇▇▇▇▇▇ Leasing LTU
International, Inc. (Ireland) Ltd. Corporation Lufttransport-
Model: CFM56-5B3/P Unternehmen GmbH
-94-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
Engine MSNs: 575294
and 575297
▇▇▇-▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇ Make: ▇▇▇▇▇▇▇ (Rolls N805HK G3AC G3AC Trans States
Royce Corporation) Airlines, Inc.
Model: AE3007A
Engine MSNs: CAE
310146 and CAE 310148
▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ Make: ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ PT Lion Mentari
Model: JT8D-219
Engine MSNs: 725441
and 725447
-95-
PART 2
PARTNERSHIP AIRCRAFT
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-300 MSN 23574 Make: CFM International, N14336 WFB Caljet Continental Airlines,
Inc. Inc.
Model: CFM 56-3B-1
Engine MSNs: 720280 and
721399
737-300 MSN 23575 Make: CFM International, N14337 WFB Caljet Continental Airlines,
Inc. Inc.
Model: CFM 56-3B-1
Engine MSNs: 720354 and
721720
737-300 MSN 23576 Make: CFM International, N59338 WFB Caljet Continental Airlines,
Inc. Inc.
Model: CFM 56-3B-1
Engine MSNs: 720910 and
721660
737-300 MSN 23579 Make: CFM International, N14341 WFB Caljet Continental Airlines,
Inc. Inc.
Model: CFM 56-3B-1
Engine MSNs: 721568 and
721729
-96-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-300 MSN 23580 Make: CFM International, N14342 WFB Caljet Continental Airlines,
Inc. Inc.
Model: CFM 56-3B-1
Engine MSNs: 721717 and
720334
737-300 MSN 23581 Make: CFM International, N39343 WFB Caljet Continental Airlines,
Inc. Inc.
Model: CFM 56-3B-1
Engine MSNs: 720911 and
720248
737-300 MSN 23582 Make: CFM International, N17344 WFB Caljet Continental Airlines,
Inc. Inc.
Model: CFM 56-3B-1
Engine MSNs: 720409 and
721758
737-300 MSN 23583 Make: CFM International, N17345 WFB Caljet Continental Airlines,
Inc. Inc.
Model: CFM 56-3B-1
Engine MSNs: 720604 and
721767
737-700 MSN 32423 Make: CFM International, G-EZKB Valley Leasing Valley Leasing easyJet Airline
Inc. Limited Limited Company Limited
Model: CFM56-7B20
Engine MSNs: 891682 and
890685
-97-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-800 MSN 28821 Make: CFM International, D-ABBL GATX 737-800 GATX 737-800 Air Berlin GmbH & Co.
Inc. Partners, B.V. Partners, LDC Luftverkehrs KG
Model: CFM56-5B3P
Engine MSNs: 874448 and
874182
737-800 MSN 28822 Make: CFM International, TC-SUL GATX 737-800 GATX 737-800 Gunes Ekspres
Inc. Partners, LDC Partners, LDC Havacilik A.S. (doing
Model: CFM56-72B7 business as Sun
Engine MSNs: 875624 and Express Airlines)
874477
737-800 MSN 28823 Make: CFM International, D-ABBM GATX 737-800 GATX 737-800 Air Berlin GmbH & Co.
Inc. Partners, B.V. Partners, LDC Luftverkehrs KG
Model: CFM56-7B26
Engine MSNs: 875509 and
874490
737-800 MSN 28824 Make: CFM International, F-GRNB GATX 737-800 GATX 737-800 SpiceJet Limited
Inc. Partners, B.V. Partners, LDC (formerly known as
Model: ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Limited)
Engine MSNs: 875520 and
874498
737-800 MSN 28825 Make: CFM International, D-ABBR GATX 737-800 GATX 737-800 Air Berlin GmbH & Co.
Inc. Partners, B.V. Partners, LDC Luftverkehrs KG
Model: CFM56-7B27
Engine MSNs: 875530 and
875533
-98-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-800 MSN 28826 Make: CFM International, TC-SUM GATX 737-800 GATX 737-800 Gunes Ekspres
Inc. Partners, LDC Partners, LDC Havacilik A.S. (doing
Model: CFM56-7B27 business as Sun
Engine MSNs: 874635 and Express Airlines)
875492
737-800 MSN 28827 Make: CFM International, F-GRND GATX 737-800 GATX 737-800 SpiceJet Limited
Inc. Partners, B.V. Partners, LDC (formerly known as
Model: ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Limited)
Engine MSNs: 876212 and
876201
737-800 MSN 28828 Make: CFM International ZS-SJC Alameda Leasing Alameda Leasing South African Airways
S.A. Limited Limited (Proprietary) Limited
Model: CFM56-7B27
Engine MSNs: 876390 and
876391
737-800 MSN 28829 Make: CFM International ZS-SJD Alameda Leasing Alameda Leasing South African Airways
S.A. Limited Limited (Proprietary) Limited
Model: CFM56-7B27
Engine MSNs: 876423 and
876424
737-800 MSN 28830 Make: CFM International ZS-SJE Alameda Leasing Alameda Leasing South African Airways
S.A. Limited Limited (Proprietary) Limited
Model: CFM56-7B27
Engine MSNs: 876599 and
876596
-99-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-800 MSN 29248 Make: CFM International, ZS-SJA Tehama Leasing Tehama Leasing South African Airways
Inc. Limited Limited (Proprietary) Limited
Model: CFM56-7B27
Engine MSNs: 877375 and
876396
737-800 MSN 29249 Make: CFM International, ZS-SJB Union Leasing Union Leasing South African Airways
Inc. Limited Limited (Proprietary) Limited
Model: CFM56-7B27
Engine MSNs: 877567 and
877568
737-800 MSN 30006 Make: CFM International ZS-SJF ▇▇▇▇▇▇▇▇ Leasing ▇▇▇▇▇▇▇▇ Leasing South African Airways
S.A. Limited Limited (Proprietary) Limited
Model: CFM56-7B27
Engine MSNs: 877632 and
876638
737-800 MSN 30007 Make: CFM International ZS-SJI ▇▇▇▇▇▇▇▇ Leasing ▇▇▇▇▇▇▇▇ Leasing South African Airways
S.A. Limited Limited (Proprietary) Limited
Model: CFM56-7B27
Engine MSNs: 889146 and
889147
737-800 MSN 30476 Make: CFM International ZS-SJM ▇▇▇▇▇▇▇▇ Leasing ▇▇▇▇▇▇▇▇ Leasing South African Airways
S.A. Limited Limited (Proprietary) Limited
Model: CFM56-7B27
Engine MSNs: 889240 and
889241
-100-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-800 MSN 30477 Make: CFM International, PP-VSB GATX 737NG GATX 737NG Off-lease. A letter of
Inc. Partners, Limited Partners, Limited intent has been signed
Model: CFM56-7B24 for the re-lease this
Engine MSNs: 888625 and Aircraft to GOL
888618 Transportes Aereos
Ltda.
737-800 MSN 30478 Make: CFM International, TC-SKC GATX 737NG GATX 737NG Sik-Ay Hava
Inc. Partners, Limited Partners, Limited Tasimacilik A.S.
Model: CFM56-7B26 (doing business as Sky
Engine MSNs: 888661 and Airlines)
888663
737-800 MSN 30567 Make: CFM International ZS-SJJ ▇▇▇▇▇▇▇ Leasing ▇▇▇▇▇▇▇ Leasing South African Airways
S.A. Limited Limited (Proprietary) Limited
Model: CFM56-7B27
Engine MSNs: 889177 and
889178
737-800 MSN 30568 Make: CFM International, EC-JRL GATX 737-800 GATX 737-800 Futura International
Inc. Partners III, B.V. Partners III, Ltd. Airways, S.A.
Model: CFM56-7B26
Engine MSNs: 889245 and
888250
737-800 MSN 30569 Make: CFM International, ZS-SJN ▇▇▇▇▇▇▇ Leasing GATX 737-800 South African Airways
S.A. Limited Partners III, Ltd. (Proprietary) Limited
Model: CFM56-7B27
Engine MSNs: 888362 and
888368
-101-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
737-800 MSN 30570 Make: CFM International, D-ABBA GATX 737-800 GATX 737-800 Air Berlin GmbH & Co.
Inc. Partners III, B.V. Partners III, B.V. Luftverkehrs KG
Model: CFM56-7B27
Engine MSNs: 888423 and
888424
737-800 MSN 30571 Make: CFM International, PP-VSA GATX 737-800 GATX 737-800 Off-lease. A letter of
Inc. Partners III, B.V. Partners III, Ltd. intent has been signed
Model: CFM56-7B24 for the re-lease this
Engine MSNs: 889535 and Aircraft to GOL
889563 Transportes Aereos
Ltda.
757-200 MSN 25240 Make: Rolls-Royce TF-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Buckingham Excel Airways Ltd.
Model: RB211-535E4 Partners LDC Partners LDC
Engine MSNs: 30805 and
30810
757-200 MSN 28718 Make: Rolls-Royce G-FCLD Dresdner Kleinwort Jet Leasing LDC ▇▇▇▇▇▇ ▇▇▇▇ Airlines
Model: RB211-535E4-37 ▇▇▇▇▇▇▇▇▇▇▇ UK Limited
Engine MSNs: 31471 and December (12) Ltd.
31466
A319-100 MSN 2010 Make: CFM International, N-912FR WFB Alster & Thames Frontier Airlines, Inc.
Inc. Partners (USA) LLC
Model: CFM56-5B5-P
Engine MSNs: 575629 and
575630
-102-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
A320-200 MSN 189 Make: CFM International, F-OHFR GATX/CL Air GATX/CL Air Volare S.p.A.
Inc. (Ireland) Ltd. Leasing
Model: CFM56-5A3 Cooperative
Engine MSNs: 731348 and Association
731780
A320-200 MSN 190 Make: CFM International, F-OHFU GATX/CL Air GATX/CL Air Volare S.p.A.
Inc. (Ireland) Ltd. Leasing
Model: CFM56-5A3 Cooperative
Engine MSNs: 731798 and Association
731797
A320-200 MSN 590 Make: CFM International, S7-ASA Blue Dragon Blue Dragon Vietnam Airlines
Inc. Aircraft Limited Aircraft Limited Corporation
Model: CFM56-5B4
Engine MSNs: 779184 and
779185
A320-200 MSN 594 Make: CFM International, S7-ASB Blue Dragon Blue Dragon Vietnam Airlines
Inc. Aircraft Limited Aircraft Limited Corporation
Model: CFM56-5B4
Engine MSNs: 779195 and
779196
A320-200 MSN 601 Make: CFM International, S7-ASC Blue Dragon Blue Dragon Vietnam Airlines
Inc. Aircraft Limited Aircraft Limited Corporation
Model: CFM56-5B4
Engine MSNs: 779204 and
779206
-103-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
A320-200 MSN 605 Make: CFM International, S7-ASD Blue Dragon Blue Dragon Vietnam Airlines
Inc. Aircraft Limited Aircraft Limited Corporation
Model: CFM56-5B4
Engine MSNs: 779207 and
779211
A320-200 MSN 653 Make: CFM International, F-GRSD GATX/CL Air N.V. GATX/CL Air Societe de Transport
Inc. Leasing Aerien Regional (doing
Model: CFM56-5B4/P Cooperative business as Star
Engine MSNs: 779242 and Association Europe)
779246
A321-200 MSN 771 Make: IAE TC-FBG GMR Aviation GMR Aviation Hurkus Havayolu
Model: IAE V2533A5 Partners Ltd. Partners Ltd. Tasimacilik Ve Ticaret
Engine MSNs: V10296 and SA (doing business as
V10298 Free Bird Airlines)
A320-200 MSN 657 Make: CFM International, F-GRSE GATX/CL Air N.V. GATX/CL Air Societe de Transport
Inc. Leasing Aerien Regional (doing
Model: CFM56-5B4/P Cooperative business as Star
Engine MSNs: 779253 and Association Europe)
779254
A321-200 MSN 674 Make: CFM International, OK-CEC DGVR Alpha GATX A321 Ceske Aeroline, as
Inc. Mobilien- Partners, LDC (Czech Airlines j.s.c.)
Model: CFM56-5B3/P Verwaltungsgesellschaft
Engine MSNs: 779275 and mbH & ▇▇. ▇▇▇▇
▇▇▇▇▇▇ Vermietungs KG
-104-
(1) (2) (3) (4) (5) (6)
AIRCRAFT MODEL/ ENGINE MAKE, MODEL & AIRCRAFT
MANUFACTURER SERIAL MANUFACTURER SERIAL REGISTRATION
NUMBER NUMBERS ▇▇▇▇ TITLE HOLDER OWNER LESSEE
--------------------- ------------------------ ------------ ----------------------- ------------------- -----------------------
A321-200 MSN 675 Make: CFM International, F-OHGU DGVR Alpha GATX A321 Alia - the Royal
Inc. Mobilien- Partners, LDC Jordanian Airline Plc
Model: CFM56-5B3/P Verwaltungsgesellschaft
Engine MSNs: 779278 and mbH & Co. Watra
779661 Vermietungs KG
A321-200 MSN 684 Make: CFM International, OK-CED DGVR FACTA GATX A321 Ceske Aeroline, as
Inc. Mobilien- Partners, LDC (Czech Airlines j.s.c.)
Model: CFM56-5B3/P Verwaltungsgesellschaft
Engine MSNs: 779274 and mbH & Co.
779326 Vermietungs KG
A321-200 MSN 761 Make: CFM International, F-GTAF DGVR FACTA GATX A321 Alia - the Royal
Inc. Mobilien- Partners, LDC Jordanian Airline Plc
Model: CFM56-5B3/P Verwaltungsgesellschaft
Engine MSNs: 779277 and mbH & Co.
779269 Vermietungs KG
A321-200 MSN 808 Make: CFM International, F-GUAA GATX A321 Partners GATX A321 Partners Aigle Azur Transports
Inc. LDC LDC Aeriens, SAS
Model: CFM56-5B3/P
Engine MSNs: 779365 and
779366
A321-200 MSN 823 Make: CFM International, F-HBAB GATX A321 Partners GATX A321 Partners Aigle Azur Transports
Inc. LDC LDC Aeriens, SAS
Model: CFM56-5B3/P
Engine MSNs: 779374 and
779373
-105-
SCHEDULE 2
OWNERSHIP INTERESTS
PART 1
WHOLLY OWNED ASSET OWNING ENTITIES
(1) (2) (3) (4) (5)
OWNERSHIP INTEREST
JURISDICTION OF (EXCLUDING INDEBTEDNESS OWED OWNERS AND OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT TO GATX RETAINED ENTITIES) PERCENTAGES
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
Divisadero Leasing (Ireland) A company incorporated Ireland 2 ordinary shares each G3AC (100%)
Limited under the Irish having a face value of $1.00
Companies Acts 1963 to
1999 with limited
liability
Divisadero Leasing Ltd. An exempted company Cayman Islands 12 ordinary shares each G3AC (100%)
incorporated in the having a face value of $1.00
Cayman Islands with
limited liability
GATX Air (France) S.A.R.L. A French "societe a France 100 ordinary shares each G3AC (100%)
responsabilite limitee having a face value of $1.00
associe unique"
GATX Air Leasing, Inc. A corporation organized Delaware 1,000 ordinary shares each GFC (100%)
and existing under the having a face value of $1.00
General Corporation Law
of the State of Delaware
GATX Airparts LLC A limited liability Delaware No paid in capital G3AC (100%)
company formed under the
Delaware Indebtedness owed to GATX
-106-
(1) (2) (3) (4) (5)
OWNERSHIP INTEREST
JURISDICTION OF (EXCLUDING INDEBTEDNESS OWED OWNERS AND OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT TO GATX RETAINED ENTITIES) PERCENTAGES
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
Limited Liability Act Retained Entities.
GATX/Caljet Corp. A corporation organized Delaware 1,000 ordinary shares each G3AC (100%)
and existing under the having a face value of $1.00
General Corporation Law
of the State of Delaware
▇▇▇▇▇ Capital (France) S.A.R.L. A French "societe a France 100 ordinary shares each G3AC (100%)
responsabilite limitee having a face value of $1.00
associe unique"
▇▇▇▇▇ Leasing Limited An exempted company Cayman Islands 12 ordinary shares each G3AC (100%)
incorporated in the having a face value of $1.00
Cayman Islands with
limited liability
▇▇▇▇▇▇▇▇ Leasing Corporation A corporation organized Delaware 1,000 ordinary shares each G3AC (100%)
and existing under the having a face value of $1.00
General Corporation Law
of the State of Delaware
Huntsmen Corporation A corporation organized Delaware 1,000 ordinary shares each Seller (100%)
and existing under the having a face value of $1.00
General Corporation Law
of the State of Delaware
Irving Leasing (Ireland) Limited A company incorporated Ireland 2 ordinary shares each Seller (100%)
under the Irish having a
Companies Acts 1963
-107-
(1) (2) (3) (4) (5)
OWNERSHIP INTEREST
JURISDICTION OF (EXCLUDING INDEBTEDNESS OWED OWNERS AND OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT TO GATX RETAINED ENTITIES) PERCENTAGES
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
to 1969 with limited face value of $1.00
liability
▇▇▇▇▇▇▇ Leasing Corporation A corporation organized Delaware 1,000 ordinary shares each G3AC (100%)
and existing under the having a face value of $0.01
General Corporation Law
of the State of Delaware
▇▇▇▇▇▇▇ Leasing (Cyprus) Limited A company incorporated Cyprus 1,000 ordinary shares each G3AC (100%)
under the Companies Law having a face value of
Cap. 113 of Cyprus with Cyprus Pounds 1.00
limited liability
▇▇▇▇▇▇▇ Leasing (Ireland) Limited A company incorporated Ireland 1 ordinary share each having G3AC (100%)
under the Irish a face value of $1.00
Companies Acts 1963 to
1969 with limited
liability
▇▇▇▇▇▇▇ Leasing Limited An exempted company Cayman Islands 2 ordinary shares each G3AC (100%)
incorporated in the having a face value of $1.00
Cayman Islands with
limited liability
Kearny Leasing Limited An exempted company Cayman Islands 2 ordinary shares each G3AC (100%)
incorporated in the having a face value of $1.00
Cayman Islands with
limited liability
-108-
(1) (2) (3) (4) (5)
OWNERSHIP INTEREST
JURISDICTION OF (EXCLUDING INDEBTEDNESS OWED OWNERS AND OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT TO GATX RETAINED ENTITIES) PERCENTAGES
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
▇'▇▇▇▇▇▇▇ Leasing Corporation A corporation organized Delaware 1,000 ordinary shares each G3AC (100%)
and existing under the having a face value of $0.01
General Corporation Law
of the State of Delaware
▇'▇▇▇▇▇▇▇ Leasing (Cyprus) A company incorporated Cyprus 1,000 ordinary shares each G3AC (100%)
Limited under the Companies Law having a face value of
Cap. 113 of Cyprus with Cyprus Pounds 1.00
limited liability
▇'▇▇▇▇▇▇▇ Leasing (Holdings) Ltd. An exempted company Cayman Islands 1 ordinary share each having G3AC (100%)
incorporated in the a face value of $1.00
Cayman Islands with
limited liability
▇'▇▇▇▇▇▇▇ Leasing (Ireland) A company incorporated Ireland 1 ordinary share each having G3AC (100%)
Limited under the Irish a face value of $1.00
Companies Acts 1963 to
1969 with limited
liability
▇'▇▇▇▇▇▇▇ Leasing Limited An exempted company Cayman Islands 1 ordinary share each having ▇'▇▇▇▇▇▇▇ Leasing
incorporated in the a face value of $1.00 (Holdings) Limited
Cayman Islands with (100%)
limited liability
Post Street Aviation Ltd. An exempted company Cayman Islands 12 ordinary shares each Seller (100%)
incorporated in the having a face value of $1.00
Cayman Islands with
limited liability
Post Street Leasing Ltd. A company incorporated Ireland 2 ordinary shares each Post Street Aviation
under the Irish having a Ltd. (100%)
companies Acts 1963
-109-
(1) (2) (3) (4) (5)
OWNERSHIP INTEREST
JURISDICTION OF (EXCLUDING INDEBTEDNESS OWED OWNERS AND OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT TO GATX RETAINED ENTITIES) PERCENTAGES
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
to 1969 with limited face value of Irish pounds
liability 1.00
Stanyan Leasing Corporation A corporation organized Delaware 1,000 ordinary shares each G3AC (100%)
and existing under the having a face value of $0.01
General Corporation Law
of the State of Delaware
West Portal Leasing Limited An exempted company Cayman Islands 4 ordinary shares each G3AC (100%) - 4
incorporated in the having a face value of $1.00 ordinary shares
Cayman Islands with
limited liability
-110-
PART 2
PARTNERSHIP ASSET OWNING ENTITIES
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST OWNERSHIP INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
737 PARTNERS #1
GATX 737-800 Partners, LDC An exempted limited Cayman Islands 49,408,591 ordinary shares G3AC (25.1%) -
duration company each having a face value of 12,401,549 ordinary
incorporated in The $1.00 shares and 25.1% of
Cayman Islands with outstanding JV
limited liability JV Indebtedness Indebtedness of GATX
737-800 Partners,
LDC
Rokko Corporate
Company Limited
(Guernsey Trust
which holds shares:
Mertom Trust) (25%)
- 12,352,151
ordinary shares and
25% of outstanding
JV Indebtedness of
GATX 737-800
Partners, LDC
Lombard North
Central PLC (20%) -
9,881,722 ordinary
shares and 20% of
outstanding JV
Indebtedness of GATX
737-800 Partners,
LDC
-111-
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST OWNERSHIP INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
▇▇▇▇▇▇ Financial,
Inc. (19.9%) -
9,832,311 ordinary
shares and 19.9% of
outstanding JV
Indebtedness of GATX
737-800 Partners,
LDC
Bank of America
Leasing & Capital
LLC (10%) -
4,940,858 ordinary
shares and 10% of
outstanding JV
Indebtedness of GATX
737-800 Partners,
LDC
GATX 737-800 Partners B.V. A private company with Netherlands 400,000 ordinary shares each G3AC (25.1%) -
limited liability having a face value of Dutch 100,400 ordinary
Guilders 0.10 shares
Rokko Corporate
Company Limited
(Guernsey Trust
which holds shares:
Mertom Trust) (25%)
- 100,000 ordinary
shares
Lombard North
Central PLC (20%) -
80,000 ordinary
shares
▇▇▇▇▇▇ Financial,
Inc. (19.9%) -
79,600 ordinary
shares
Bank of America
Leasing &
-112-
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST OWNERSHIP INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
Capital LLC (10%) -
40,000 ordinary
shares
Alameda Leasing Limited An exempted company Cayman Islands 2 ordinary shares each GATX 737-800
incorporated in the having a face value of $1.00 Partners LDC (100%)
Cayman Islands with
limited liability
737 PARTNERS #2
GATX 737NG Partners, Limited An exempted company Cayman Islands 100 ordinary shares each G3AC (30%) - 30
incorporated in the having a face value of $1.00 ordinary shares and
Cayman Islands with 30% of outstanding
limited liability JV Indebtedness JV Indebtedness
Rokko Corporate
Company Limited
(Guernsey Trust
which holds shares:
Mertom Trust) (25%)
- 25 ordinary shares
and 25% of
outstanding JV
Indebtedness
▇▇▇▇▇▇ Financial,
Inc.
(25%) - 25 ordinary
shares
and 25% of
outstanding JV
Indebtedness
Lombard North
Central PLC (20%)
▇▇▇▇▇▇▇▇ Leasing Limited An exempted company Cayman Islands 2 ordinary shares each GATX 737NG Partners,
incorporated in the having a face value of $1.00 Limited (100%)
Cayman
-113-
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
Islands with limited
liability
737 PARTNERS #3
GATX 737-800 Partners III, An exempted company Cayman Islands 1,432,135 ordinary shares G3AC (26%) - 372,355
Limited incorporated in the each having a face value of ordinary shares and
Cayman Islands with $1.00 26% of outstanding
limited liability JV Indebtedness
JV Indebtedness
▇▇▇▇▇▇ International
Group, Inc. (25%) -
358,034 ordinary
shares and 25% of
outstanding JV
Indebtedness
Royal Bank Leasing
Limited
(24.5%) - 350,873
ordinary shares and
24.5% of outstanding
JV Indebtedness
Halifax PLC (24.5%)
- 350,873 ordinary
shares and 24.5% of
outstanding JV
Indebtedness
GATX 737-800 Partners III, B.V. A private company with Netherlands 400,000 ordinary shares each G3AC (26%) - 104,000
limited liability having a face value of E0.05 ordinary shares
▇▇▇▇▇▇ Financial, Inc.
(25%) - 100,000
ordinary shares
-114-
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
Royal Bank Leasing
Limited (24.5%) -
98,000 ordinary
shares
Halifax plc (24.5%)
- 98,000 ordinary
shares
▇▇▇▇▇▇▇ Leasing Limited An exempted company Cayman Islands 2 ordinary shares each GATX 737-800
incorporated in the having a face value of $1.00 Partners III,
Cayman Islands with Limited (100%)
limited liability
757 PARTNERS
Jet Leasing LDC An exempted limited Cayman Islands 18 ordinary shares each G3AC (50%) - 9
duration company having a face value of $1.00 ordinary shares
incorporated in The
Cayman Islands with JV Indebtedness ▇▇▇▇▇▇ Financial,
limited liability Inc. (50%) - 9
ordinary shares
GATX 757 Partners LDC An exempted limited Cayman Islands 18 ordinary shares each Jet Leasing LDC
duration company having a face value of $1.00 (94.4%) - 17
incorporated in The ordinary shares
Cayman Islands with
limited liability Seller (5.6%) (held
as trustee for Jet
Leasing LDC) - 1
ordinary share
-115-
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
A321 PARTNERS
GATX A321 Partners, LDC An exempted limited Cayman Islands 4,000 Class A ordinary G3AC (27.25%) -
duration company shares and 6,000 Class B 1,090 Class A
incorporated in The ordinary shares ordinary shares,
Cayman Islands with 1,635 Class B
limited liability JV Indebtedness ordinary shares, and
27.25% of
outstanding JV
Indebtedness of GATX
A321 Partners, LDC
Calyon Corporate and
Investment Bank
(formerly Credit
Lyonnais) (27.25%) -
1,090 Class A
ordinary shares,
1,635 Class B
ordinary shares, and
27.25% of
outstanding JV
Indebtedness of GATX
A321 Partners, LDC
CBP A321 Limited
(27.25%) ▇▇▇▇▇▇
Financial, Inc.
(18.25%) - 730 Class
A ordinary shares,
1,095 Class B
ordinary shares and
18.25% of
outstanding JV
Indebtedness of GATX
A321 Partners, LDC
-116-
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
A321 Partners B.V. A private company with Netherlands 400 ordinary shares each Seller (27.25%) -
limited liability having a face value of Dutch 109 ordinary shares
Guilders 100.00
Calyon Corporate and
Investment Bank
(formerly Credit
Lyonnais) (27.25%) -
109 ordinary shares
Sojitz Corporation
(formerly Nichimen
Corporation)
(27.25%) - 109
ordinary shares
▇▇▇▇▇▇ Financial,
Inc. (18.25%) - 73
ordinary shares
A321 Finance Ltd. An exempted company Cayman Islands 2 ordinary shares each GATX A321 Partners,
incorporated in the having a face value of $1.00 LDC (100%)
Cayman Islands with
limited liability
GATX A321 Limited A company incorporated Ireland 1 ordinary share having a GATX A321 Partners,
under the Irish face value of $1.00 LDC (100%)
Companies Acts 1963 to
1969 with limited
liability
-117-
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
ALSTER & THAMES PARTNER
Alster & Thames Partners, Ltd. An exempted company Cayman Islands *60 class A ordinary shares G3AC (25%)
incorporated in the each having a face value of Commonwealth Bank of
Cayman Islands with $0.01 per share Australia ("CBA")
limited liability (25%) HSH Nordbank
*60 class B ordinary shares AG ("HSH") (50%)
each having a face value of
$0.01 per share Note, the above
represent G3AC's
*180 class A preference CBA's and HSH's
shares each having a face effective ownership
value of $0.01 per share percentages in
Alster & Thames
*180 class B preference Partners Ltd. This
shares each having a face is represented by
value of $0.01 per share the following:
*180 class C preference G3AC is the holder
shares each having a face of: 30 Class A
value of $0.01 per share ordinary shares
(50%), 60 Series A
*Series A note having an preference shares
original principal amount of (37.5%), 60 Series B
$7,424,414.04 preference shares
(37.5%), and 60
*Series B note having an Series C preference
original principal amount of shares (37.5%)
$7,417,156.09
CBA is the holder
*Series C note having an of: 30 Class A
original principal amount of ordinary shares
$7,811,625.92 (50%), the Series A
note (100%), the
Series B note
(100%), and the
Series C note (100%)
-118-
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
HSH is the holder
of: 60 Class B
ordinary shares
(100%) 100 Series A
preference shares
(62.5%), 100 Series
B preference shares
(62.5%), and 100
Series C preference
shares (62.5%)
Alster & Thames Partners (USA) A limited liability Delaware *Paid in capital of $1.20 G3AC (25%)
LLC company formed under the Commonwealth Bank of
Delaware Limited *G3AC member note Australia 25% HSH
Liability Act Nordbank AG (50%)
*CBA member note [Note, the above
represent G3AC's,
*HSH member note CBA's and HSH's
effective ownership
percentages in
Alster & Thames
Partners (USA) LLC.
This is represented
by the following:
G3AC is the holder
of:
$0.30 paid in
capital (25%) G3AC
member note (25% of
all member notes)
CBA is the holder
of: $0.30 paid in
capital (25%) CBA
member note (25% of
all
-119-
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
member notes)
HSH is the holder
of:
$0.60 paid in
capital (25%) HSH
member note (50% of
all member notes)
Tehama Leasing Limited An exempted company Cayman Islands 1 ordinary share having a Alster & Thames
incorporated in the face value of $1.00 Partners, Ltd.
Cayman Islands with (100%)
limited liability
Union Leasing Limited An exempted company Cayman Islands 1 ordinary share having a Alster & Thames
incorporated in the face value of $1.00 Partners, Ltd.
Cayman Islands with (100%)
limited liability
Valley Leasing Limited An exempted company Cayman Islands 1 ordinary share having a Alster & Thames
incorporated in the face value of $1.00 Partners, Ltd.
Cayman Islands with (100%)
limited liability
BLUE DRAGON
Blue Dragon Aircraft Ltd. An exempted company Cayman Islands 310,062 common shares each G3AC (50%) - 155,031
incorporated in the with (a) a par value of common shares
Cayman Islands with $1.00 and (b) a share
limited liability premium account equal to ▇▇▇▇▇▇ International
$99.00 Group, Inc. (50%) -
155,031 common
shares
BUCKINGHAM PARTNERS
Buckingham Partners LDC An exempted limited Cayman Islands 3 ordinary shares each Huntsmen Corporation
duration company having a face value of $1.00 (33 1/3%) - 1
incorporated in The ordinary share and
Cayman Islands with 33 1/3% of
limited outstanding JV
-120-
(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
liability JV Indebtedness Indebtedness
CBP Air Ltd. (66
2/3%) - 2 ordinary
shares and 66 2/3%
of outstanding JV
Indebtedness
CALJET
Caljet* A limited liability Delaware Initial paid in capital of GATX/Caljet Corp.
company formed under the $49,140,000 25% membership
Delaware Limited interest
Liability Act
Calfinco, Inc. - 75%
membership interest
GATX/CL AIR
GATX/CL Air Leasing Cooperative Cooperative association Netherlands 1,000 membership shares GATX Air Leasing,
Association Antilles Inc. (30%) - 300
JV Indebtedness member shares
Calyon Corporate and
Investment Bank
(formerly Credit
Lyonnais) (30%) -
300 member shares
The Bank of
Tokyo-Mitsubishi
UFJ, Ltd. (20%) -
200 member shares
Sojitz Corporation
(formerly Nichimen
Europe plc) (10%) -
100 member shares
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(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
Hull 752 Corporation
(10%) - 100 member
shares
GATX/CL Air (Ireland) Limited A company incorporated Ireland 2,000 ordinary shares each GATX Air Leasing,
under the Irish having a face value of $1.00 Inc. (45%) - 900
Companies ▇▇▇ ▇▇▇▇ to ordinary shares
1999 with limited
liability Calyon Corporate and
Investment Bank
(formerly Credit
Lyonnais) (45%) -
900 ordinary shares
Hull 752 Corporation
(10%) - 200 ordinary
shares
GATX/CL Air Leasing Limited A company incorporated Cyprus 1,000 ordinary shares each GATX Air Leasing,
under the Companies Law having a face value of Inc. (45%) - 450
Cap. 113 of Cyprus with Cyprus Pounds 1.00 ordinary shares
limited liability
Calyon Corporate and
Investment Bank
(formerly Credit
Lyonnais) (45%) -
450 ordinary shares
Hull 752 Corporation
(10%) - 100 ordinary
shares
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(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
GATX/CL Air N.V. A public company with Netherlands 1,000 ordinary shares each GATX Air Leasing,
limited liability having a face value of Dutch Inc. (30%) - 300
Guilders 100.00 ordinary shares
Calyon Corporate and
Investment Bank
(formerly Credit
Lyonnais) (30%) -
300 ordinary shares
The Bank of
Tokyo-Mitsubishi
UFJ, Ltd. (20%) -
200 ordinary shares
Sojitz Corporation
(formerly Nichimen
Europe plc) (10%) -
100 ordinary shares
Hull 752 Corporation
(10%) - 100 ordinary
shares
GMR
GMR Aviation Partners Ltd. An exempted company Cayman Islands 12 ordinary shares each G3AC (50%) - 6
incorporated in the having a face value of $1.00 ordinary shares and
Cayman Islands with 50% of outstanding
limited liability JV Indebtedness
JV Indebtedness Rolls-Royce Aircraft
Management Limited
(16.66%) - 2
ordinary shares and
16.66% of
outstanding JV
Indebtedness
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(1) (2) (3) (4) (5)
OWNERS AND OWNERSHIP
PERCENTAGES AND
JURISDICTION OF RESPECTIVE OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT OWNERSHIP INTEREST INTERESTS
--------------------------------- ------------------------ --------------- ---------------------------- --------------------
Marubeni Aviation
Services, Ltd.
(33.33%) - 4
ordinary shares and
33.33% of
outstanding JV
Indebtedness
GMR Ireland Limited A company incorporated Ireland 2 ordinary shares each GMR Aviation
under the Irish having a face value of Irish Partners, Ltd.
Companies Acts 1963 to Pounds 1.00 (100%)
1990 with limited
liability
OTHERS
Congress Holdings LLC A limited liability Delaware Membership interest GATX Air Leasing,
company formed under the Inc. (30%) Hull 752
Delaware Limited Corporation (10%)
Liability Act Century Ventures
2000 N.V. (60%)
Explorator LLC A limited liability Delaware Membership interest Congress Holdings
company formed under the LLC (100%)
Delaware Limited
Liability Act
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PART 3
OWNER TRUSTS
(1) (2) (3) (4)
AIRCRAFT MODEL
TRUST AGREEMENT MANUFACTURER'S SERIAL
OWNER TRUSTEE BENEFICIARY DATE AND PARTIES NUMBER
------------- ------------------ ------------------------------------- ---------------------
▇▇▇ ▇▇▇▇ Trust Agreement (N754AS) among WFB 737-400 MSN 25095
(formerly known as First Security
Bank of Utah, N.A.) and G3AC (as
successor in interest to AT&T Credit
Corporation)
▇▇▇ ▇▇▇▇ Trust Agreement (N755AS) among WFB 737-400 MSN 25096
(formerly known as First Security
Bank of Utah, N.A.) and G3AC (as
successor in interest to AT&T Credit
Corporation)
-125-
PART 4
PARTNERSHIP OWNER TRUSTS
(1) (2) (3) (4)
AIRCRAFT MODEL
TRUST AGREEMENT MANUFACTURER'S SERIAL
OWNER TRUSTEE BENEFICIARY DATE AND PARTIES NUMBER
------------- ------------------ ------------------------------------- ---------------------
WFB Caljet Trust Agreement dated 21st April 1998 737-300 MSN 23574
(336) among WFB (formerly known as
First Security Bank of Utah, N.A.)
and Caljet
WFB Caljet Trust Agreement dated 21st April 1998 737-300 MSN 23575
(337) among WFB (formerly known as
First Security Bank of Utah, N.A.)
and Caljet
WFB Caljet Trust Agreement dated 21st April 1998 737-300 MSN 23576
(338) among WFB (formerly known as
First Security Bank of Utah, N.A.)
and Caljet
WFB Caljet Trust Agreement dated 21st April 1998 737-300 MSN 23579
(341) among WFB (formerly known as
First Security Bank of Utah, N.A.)
and Caljet
WFB Caljet Trust Agreement dated 21st April 1998 737-300 MSN 23580
(342) among WFB (formerly known as
First Security Bank of Utah, N.A.)
and Caljet
WFB Caljet Trust Agreement dated 21st April 1998 737-300 MSN 23581
(343) among WFB (formerly known as
First Security Bank of Utah, N.A.)
and Caljet
WFB Caljet Trust Agreement dated 21st April 1998 737-300 MSN 23582
(344)
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(1) (2) (3) (4)
AIRCRAFT MODEL
TRUST AGREEMENT MANUFACTURER'S SERIAL
OWNER TRUSTEE BENEFICIARY DATE AND PARTIES NUMBER
------------- ------------------ ------------------------------------- ---------------------
among WFB (formerly known as First
Security Bank of Utah, N.A.)
and Caljet
WFB Caljet Trust Agreement dated 21st April 1998 737-300 MSN 23583
(345) among WFB (formerly known as
First Security Bank of Utah, N.A.)
and Caljet
WFB Alster & Thames Trust Agreement dated 22nd September A319-100 MSN 2010
Partners (USA) LLC 2003 among WFB and Alster & Thames
Partners (USA) LLC (as successor in
interest to, successively, S.A.L.E.
(USA) Corporation and G3AC)
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PART 5
ORPHAN SPCS
(1) (2) (3) (4) (5)
OWNERSHIP INTEREST TO BE
JURISDICTION OF ACQUIRED BY SELLER PRIOR OWNERS AND OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT TO CLOSING PERCENTAGES(1)
--------------------------- ----------------- --------------- -------------------------- --------------------
EFG Aircraft (Ireland) Ltd. A company Ireland 1 ordinary share having a Seller (100%)
incorporated face value of $1.00
under the Irish
Companies Acts
1963 to 1999
with limited
liability
EFG Aircraft Holdings Ltd. An exempted Cayman Islands 1,000 ordinary shares each Seller (100%)
company having a face value of
incorporated in $1.00
the Cayman
Islands with
limited liability
(1) Note, as of the date hereof Seller is not the Owner of the specified
Ownership Interest in the Orphan SPCs but will acquire ownership thereof at
or prior to Closing
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(1) (2) (3) (4) (5)
OWNERSHIP INTEREST TO BE
JURISDICTION OF ACQUIRED BY SELLER PRIOR OWNERS AND OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT TO CLOSING PERCENTAGES(1)
--------------------------- ----------------- --------------- -------------------------- --------------------
EFG Aircraft Ltd. An exempted Cayman Islands 1,000 ordinary shares each Seller (100%)
company having a face value of
incorporated in $1.00
the Cayman
Islands with
limited liability
EFGA Aircraft Ltd. An exempted Cayman Islands 1,000 ordinary shares each Seller (100%)
company having a face value of
incorporated in $1.00
the Cayman
Islands with
limited liability
EFGB Aircraft Ltd. An exempted Cayman Islands 1,000 ordinary shares each Seller (100%)
company having a face value of
incorporated in $1.00
the Cayman
Islands with
limited liability
EFGC Aircraft Ltd. An exempted Cayman Islands 1,000 ordinary shares each Seller (100%)
company having a face value of
incorporated in $1.00
the Cayman
Islands with
limited liability
-129-
(1) (2) (3) (4) (5)
OWNERSHIP INTEREST TO BE
JURISDICTION OF ACQUIRED BY SELLER PRIOR OWNERS AND OWNERSHIP
NAME TYPE OF ENTITY ESTABLISHMENT TO CLOSING PERCENTAGES(1)
--------------------------- ----------------- --------------- -------------------------- --------------------
USEB Aircraft Ltd. An exempted Cayman Islands 1,000 ordinary shares each Seller (100%)
company having a face value of
incorporated in $1.00
the Cayman
Islands with
limited liability
-130-
SCHEDULE 3
CONSENTS AND ACTIONS
Financier Consents and other Actions - Wholly Owned Aircraft
1. ATA Aircraft Financier's consent to and the accomplishment of (a) the
release of GATX Retained Entity Obligations under the ATA Aircraft
Financing Documents and the assumption of such obligations by Buyer, and
(b) the amendment of the ATA Aircraft Financing Documents to replace all
references to GATX Retained Entities with references to Buyer (provided
always that this paragraph shall be deemed deleted from this Schedule if
the Indebtedness pursuant to the ATA Aircraft Financing Documents is repaid
in full at or prior to Closing).
FINANCIER CONSENTS AND OTHER ACTIONS - JV AIRCRAFT
2.
(a) Ex-Im 2001 Financiers' consent to and the accomplishment of (a) the
release of all GATX Retained Entity Obligations under the Ex-Im 2001
Financing Documents relating to 737 Partners #1 and the assumption of
such obligations by Buyer, (b) the amendment of the Ex-Im 2001
Financing Documents relating to 737 Partners #1 to replace all
references to GATX Retained Entities with references to Buyer, and (c)
the novation by Seller to Buyer of Seller's rights and obligations
under the 737 Partners #1 JV Management Agreements (provided always
that this paragraph shall be deemed deleted from this Schedule if
Seller is at any time no longer obligated to sell and Buyer is no
longer obligated to buy Seller's Ownership Interest in 737 Partners #1
pursuant to this Agreement).
(b) Ex-Im 2001 Financiers' consent to and the accomplishment of (a) the
release of all GATX Retained Entity Obligations under the Ex-Im 2001
Financing Documents relating to 737 Partners #2 and the assumption of
such obligations by Buyer, (b) the amendment of the Ex-Im 2001
Financing Documents relating to 737 Partners #2 to replace all
references to GATX Retained Entities with references to Buyer, and (c)
the novation by Seller to Buyer of Seller's rights and obligations
under the 737 Partners #2 JV Management Agreements (provided always
that this paragraph shall be deemed deleted from this Schedule if
Seller is at any time no longer obligated to sell and Buyer is no
longer obligated to buy Seller's Ownership Interest in 737 Partners #2
pursuant to this Agreement).
(c) Ex-Im 2001 Financiers' consent to and the accomplishment of (a) the
release of all GATX Retained Entity Obligations under the Ex-Im 2001
Financing Documents relating to 737 Partners #3 and the assumption of
such obligations by Buyer, (b) the amendment of the Ex-Im 2001
Financing Documents relating to 737 Partners #3 to replace all
references to GATX Retained Entities with references to Buyer, and (c)
the novation by Seller to Buyer of Seller's rights and obligations
under the 737 Partners #3 JV Management Agreements
-131-
(provided always that this paragraph shall be deemed deleted from this
Schedule if Seller is at any time no longer obligated to sell and
Buyer is no longer obligated to buy Seller's Ownership Interest in 737
Partners #3 pursuant to this Agreement).
3. KfW's consent to and the accomplishment of (a) the amendment of the A321
Loan Documents to replace all references to GATX Retained Entities with
references to Buyer, and (b) the novation by Seller to Buyer of Seller's
rights and obligations under the A321 Partners JV Management Agreement
(provided always that this paragraph shall be deemed deleted from this
Schedule if Seller is at any time no longer obligated to sell and Buyer is
no longer obligated to buy Seller's Ownership Interest in A321 Partners
pursuant to this Agreement).
4. KfW's consent to and the accomplishment of (a) the release of all GATX
Retained Entity Obligations under the GMR Financing Documents and the
assumption of such obligations by Buyer, (b) the amendment of the GMR
Financing Documents to replace all references to GATX Retained Entities
with references to Buyer, and (c) the novation by Seller to Buyer of
Seller's rights and obligations under the GMR JV Management Agreement
(provided always that this paragraph shall be deemed deleted from this
Schedule if Seller is at any time no longer obligated to sell and Buyer is
not obligated to buy Seller's Ownership Interest in GMR pursuant to this
Agreement). (*)
5. A321 GTL Lessors' consent to and the accomplishment of (a) the release of
all of Seller's obligations under the A321 GTL Documents and the assumption
of such obligations by Buyer, and (b) the amendment of the A321 GTL
Documents to replace all references to GATX Retained Entities with
references to Buyer (provided always that this paragraph shall be deemed
deleted from this Schedule if Seller is at any time no longer obligated to
sell and Buyer is not obligated to buy Seller's Ownership Interest in A321
Partners pursuant to this Agreement). (*)
6. The assignment by Seller in favor of Buyer of all of Seller's rights under
those of the GATX/CL Air GTL Documents relating to A320-200 msn 657 to
which Seller is a party.
7. UK Lessor's consent to and the accomplishment of (a) the release of all of
Seller's obligations under the UK Lease Documents and the assumption of
such obligations by Buyer, and (b) the amendment of the UK Lease Documents
to replace all references to Seller with references to Buyer (provided
always that this paragraph shall be deemed deleted from this Schedule if
Seller is at any time no longer obligated to sell and Buyer is not
obligated to buy Seller's Ownership Interest in 757 Partners pursuant to
this Agreement). (*)
SERVICING AGREEMENT CONSENTS AND OTHER ACTIONS
8. EAST's consent to and the accomplishment of the novation by Seller to Buyer
of the EAST Management Agreement. (*)
JV MEMBER CONSENTS AND OTHER ACTIONS
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9. JV Members of 737 Partners #1's consent to and the accomplishment of (a)
the transfer by G3AC to Buyer of G3AC's Ownership Interest in 737 Partners
#1, (b) the novation by G3AC to Buyer of G3AC's rights and obligations
under the 737 Partners #1 JV Member Documents, and (c) the novation by
Seller to Buyer of Seller's rights and obligations under the 737 Partners
#1 JV Management Agreement (provided always that this paragraph shall be
deemed deleted from this Schedule if at any ▇▇▇▇ ▇▇▇▇▇▇ is no longer
obligated to sell and Buyer is no longer obligated to buy Seller's
Ownership Interest in 737 Partners #1 pursuant to this Agreement).
10. JV Members of 737 Partners #2's consent to and the accomplishment of (a)
the transfer by G3AC to Buyer of G3AC's Ownership Interest in 737 Partners
#2, (b) the novation by G3AC to Buyer of G3AC's rights and obligations
under the 737 Partners #2 JV Member Documents, and (c) the novation by
Seller to Buyer of Seller's rights and obligations under the 737 Partners
#2 JV Management Agreement (provided always that this paragraph shall be
deemed deleted from this Schedule if at any ▇▇▇▇ ▇▇▇▇▇▇ is no longer
obligated to sell and Buyer is no longer obligated to buy Seller's
Ownership Interest in 737 Partners #2).
11. JV Members of 737 Partners #3's consent to and the accomplishment of (a)
the transfer by G3AC to Buyer of G3AC's Ownership Interest in 737 Partners
#3, (b) the novation by G3AC to Buyer of G3AC's rights and obligations
under the 737 Partners #3 JV Member Documents, and (c) the novation by
Seller to Buyer of Seller's rights and obligations under the 737 Partners
#3 JV Management Agreement (provided always that this paragraph shall be
deemed deleted from this Schedule if at any ▇▇▇▇ ▇▇▇▇▇▇ is no longer
obligated to sell and Buyer is no longer obligated to buy Seller's
Ownership Interest in 737 Partners #2 pursuant to this Agreement).
12. JV Members of A321 Partners' consent to and the accomplishment of (a) the
transfer by G3AC to Buyer of G3AC's Ownership Interest in A321 Partners,
(b) the novation by G3AC to Buyer of G3AC's rights and obligations under
the A321 Partners JV Member Documents, and (c) the novation by Seller to
Buyer of Seller's rights and obligations under the A321 Partners JV
Management Agreement (provided always that this paragraph shall be deemed
deleted from this Schedule if at any ▇▇▇▇ ▇▇▇▇▇▇ is no longer obligated to
sell and Buyer is no longer obligated to buy Seller's Ownership Interest in
A321 Partners pursuant to this Agreement).
13. JV Members of ATP's consent to and the accomplishment of (a) the transfer
by G3AC to Buyer of G3AC's Ownership Interest in ATP, (b) the novation by
G3AC to Buyer of G3AC's rights and obligations under the ATP JV Member
Documents, and (c) the novation by Seller to Buyer of Seller's rights and
obligations under the ATP JV Management Agreement (provided always that
this paragraph shall be deemed deleted from this Schedule if at any ▇▇▇▇
▇▇▇▇▇▇ is no longer obligated to sell and Buyer is no longer obligated to
buy Seller's Ownership Interest in ATP pursuant to this Agreement).
14. JV Members of Blue Dragon's consent to and the accomplishment of (a) the
transfer by G3AC to Buyer of G3AC's Ownership Interest in Blue Dragon, (b)
the novation by G3AC to Buyer of G3AC's rights and obligations under the
Blue Dragon JV Member
-133-
Documents, and (c) the novation by Seller to Buyer of Seller's rights and
obligations under the Blue Dragon JV Management Agreement (provided always
that this paragraph shall be deemed deleted from this Schedule if at any
▇▇▇▇ ▇▇▇▇▇▇ is no longer obligated to sell and Buyer is no longer obligated
to buy Seller's Ownership Interest in Blue Dragon pursuant to this
Agreement (including by application of Clause 7.1.3)).
15. JV Members of Buckingham's consent to and the accomplishment of (a) the
novation by G3AC to Buyer of G3AC's rights and obligations under the
▇▇▇▇▇▇▇▇▇▇ ▇▇ Member Documents, and (b) the novation by Seller to Buyer of
Seller's rights and obligations under the ▇▇▇▇▇▇▇▇▇▇ ▇▇ Management
Agreement (provided always that this paragraph shall be deemed deleted from
this Schedule if at any ▇▇▇▇ ▇▇▇▇▇▇ is no longer obligated to sell and
Buyer is no longer obligated to buy Seller's Ownership Interest in
Buckingham pursuant to this Agreement).
16. JV Members of GMR's consent to and the accomplishment of (a) the transfer
by G3AC to Buyer of G3AC's Ownership Interest in GMR, (b) the novation by
G3AC to Buyer of G3AC's rights and obligations under the GMR JV Member
Documents, and (c) the novation by Seller to Buyer of Seller's rights and
obligations under the GMR JV Management Agreement (provided always that
this paragraph shall be deemed deleted from this Schedule if at any ▇▇▇▇
▇▇▇▇▇▇ is no longer obligated to sell and Buyer is no longer obligated to
buy Seller's Ownership Interest in GMR pursuant to this Agreement).
17. JV Members of 757 Partners' consent to and the accomplishment of (a) the
transfer by G3AC to Buyer of G3AC's Ownership Interest in 757 Partners, (b)
the novation by G3AC to Buyer of G3AC's rights and obligations under the
757 JV Member Documents, and (c) the novation by Seller to Buyer of
Seller's rights and obligations under the 757 Partners JV Management
Agreement (provided always that this paragraph shall be deemed deleted from
this Schedule if at any ▇▇▇▇ ▇▇▇▇▇▇ is no longer obligated to sell and
Buyer is no longer obligated to buy Seller's Ownership Interest in 757
Partners pursuant to this Agreement).
18. JV Members of GATX/CL Air's consent to and the accomplishment of (a) the
novation by G3AC to Buyer of G3AC's rights and obligations under the
GATX/CL Air JV Member Documents, and (b) the novation by Seller to Buyer of
Seller's rights and obligations under the GATX/CL Air JV Management
Agreement (provided always that this paragraph shall be deemed deleted from
this Schedule if at any ▇▇▇▇ ▇▇▇▇▇▇ is no longer obligated to sell and
Buyer is no longer obligated to buy Seller's Ownership Interest in GATX/CL
Air pursuant to this Agreement).
19. The waiver by Continental Airlines, Inc.'s right to require that the Caljet
JV Management Agreement be terminated upon transfer by G3AC to Buyer of
G3AC's Ownership Interest in GATX/Caljet Corp.
AIRCRAFT PURCHASE AGREEMENT CONSENTS AND OTHER ACTIONS
20. Boeing's consent to and the accomplishment of (a) the assignment by Seller
and Jet in favor of Buyer of Seller's and Jet's rights under the GFC Boeing
Purchase Agreement, (b) the release by Boeing of the guarantee given by GFC
in favor of Boeing in
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connection with the GFC Boeing Purchase Agreement, and (c) the issue by
Buyer of a new guarantee in favor of Boeing in substantially the same form.
(*)
21. Boeing's consent to and the accomplishment of (i) the release by Boeing of
the guarantees given by GFC in favor of Boeing in connection with the 737
Partners Boeing Purchase Agreements, and (ii) the issue by Buyer of new
guarantees in favor of Boeing in substantially the same forms. (*)
22. Airbus's consent to and the accomplishment of the assignment by Seller in
favor of Buyer of Seller's rights under the Airbus Purchase Agreement.
TECHNICAL AGREEMENTS CONSENTS AND OTHER ACTIONS
23. GEES's consent to and the accomplishment of the novation by Seller in
favour of Buyer of Seller's rights and obligations under the MCPH
Agreement. (**)
24. GEES' consent to and the accomplishment of the novation by G3AC in favour
of ATP of G3AC's rights and obligations under the MCPH Letter Agreement.
25. The consent of GEES and the concerned Lessees to and the accomplishment of
the novation by Seller in favour of Buyer of Seller's rights and
obligations under the MCPH Sub-Agreements. (**)
26. IAE's consent to and the accomplishment of the novation by Seller in favour
of Buyer of Seller's rights and obligations under the FH Agreement.
27. Honeywell's consent to and the accomplishment of the novation by Seller in
favour of Buyer of Seller's rights and obligations under the MS Agreements.
(**)
LEASE AGREEMENT CONSENTS AND ACTIONS
28. Transfer by Seller to a Permitted Transferee (for the purposes of
respectively the Lease of the Alaska Aircraft and the ATA Aircraft) of
Seller's Ownership Interest in and to the Alaska Aircraft and the ATA
Aircraft and the Leases of such Aircraft.
29. The consent of Tiger to and the accomplishment of (a) the release by Tiger
of the letter of comfort given by Seller in favour of Tiger in connection
with ▇'▇▇▇▇▇▇▇ Leasing Corporation's lease to Tiger of A320-200
manufacturer's serial numbers 2204, and (b) the issue by Buyer of a new
letter of comfort in favour of Tiger in substantially the same form. (*)
30. The consent of Eurofly S.p.A. ("Eurofly") to and the accomplishment of (a)
the release by Eurofly of the guarantees given by GATX Third Aircraft in
favour of Eurofly in connection with ▇'▇▇▇▇▇▇▇ Leasing (Ireland) Ltd.'s
lease to Eurofly of A320-200s manufacturer's serial numbers 1852, 1920 and
1937, and (b) the issue by Buyer of new guarantees in favour of Eurofly in
substantially the same forms. (*)
31. The consent of ▇▇▇▇▇▇ ▇▇▇▇ Belgium N.V. ("TCB") to and the accomplishment
of (a) the release by TCB of the guarantees and indemnities given by Seller
in favour of TCB in connection with ▇'▇▇▇▇▇▇▇ Leasing (Ireland) Ltd.'s
lease to TCB of A320-200s
-135-
manufacturer's serial numbers 1787 and 1975, and (b) the issue by Buyer of
new guarantees in favour of TCB in substantially the same forms. (*)
32. The consent of Societe de Transport Aerien Regional ("STAR") to and the
accomplishment of (a) the release by STAR of the letter of comfort given by
Seller in favour of STAR in connection with ▇'▇▇▇▇▇▇▇ Leasing Corporation's
lease to STAR of A320-200 manufacturer's serial numbers 1692, and (b) the
issue by Buyer of a new letter of comfort in favour of STAR in
substantially the same form. (*)
OTHER CONSENTS AND ACTIONS
33. The consent of CFM International, Inc. to and the accomplishment of the
novation by Seller to Buyer of Seller's rights and obligations under CFMI
General Terms Agreement No. 6-13409 dated 8 November 1996 between CFM
International, Inc. and Seller (the "CFM GTA").
34. The consent of International Aero Engines AG to and the accomplishment of
the novation by Seller to Buyer of Seller's rights and obligations under
the Support Contract dated 29 May 2003 between International Aero Engines
AG and Seller (the "IAE GTA").
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SCHEDULE 4
LIENS
LIENS WITH RESPECT TO WHOLLY OWNED AIRCRAFT
1. Liens over the ATA Aircraft and the ATA Aircraft Lease Documents Aircraft,
in each case in favour of the ATA Financier under ATA Aircraft Financing
Documents.
2. Liens over the Alaska Aircraft and Lease Documents relating to such
Aircraft, in each case in favor of the Alaska Financiers' under the Alaska
Financing Documents.
LIENS WITH RESPECT TO JV AIRCRAFT
3. Liens over Ex-Im 2001 Financed Aircraft and Lease Documents relating to
such Aircraft, in each case in favour of Ex-Im 2001 Financiers under Ex-Im
2001 Financing Documents.
4. Liens over A321 Loan Aircraft and Lease Documents relating to such
Aircraft, in each case in favour of KfW (or NordLB as trustee for KfW)
under A321 Loan Documents.
5. Liens over the GMR Aircraft and Lease Documents relating to such Aircraft,
in each case in favour of KfW under GMR Financing Documents.
6. Liens over A321 GTL Aircraft and Lease Documents relating to such Aircraft,
in each case in favour of A321 GTL Lessors under A321 GTL Documents.
7. Liens over GATX/CL Air GTL Aircraft and Lease Documents relating to such
Aircraft, in each case in favour of GATX/CL Air GTL Lessors under GATX/CL
Air GTL Documents.
8. Liens over the UK Lease Aircraft and Lease Documents relating to such
Aircraft, in each case in favour of UK Lessor under the UK Lease Documents.
9. Liens over the Caljet Aircraft and Lease Documents relating to such
Aircraft, in each case in favor of Caljet Financiers under the Caljet
Financing Documents.
10. Claims asserted by Eurocontrol against B737-800 manufacturer's serial
numbers 30568 for unpaid navigation charges incurred by Air Horizons SAS, a
previous Lessee of such Aircraft, in respect of the operation of such
Aircraft.
LIENS WITH RESPECT TO JVS
11. Liens over the Ownership Interest of Buyer or Buyer's Affiliates in 737
Partners pursuant to 737 Partners JV Member Documents.
12. Liens over the Ownership Interest of Buyer or Buyer's Affiliates in A321
Partners pursuant to A321 Partners JV Member Documents.
13. Liens over the Ownership Interest of Buyer or Buyer's Affiliates in ATP
pursuant to ATP JV Member Documents.
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14. Liens over the Ownership Interest of Buyer or Buyer's Affiliates in Blue
Dragon pursuant to Blue Dragon JV Member Documents.
15. Liens over the Ownership Interest of Buyer or Buyer's Affiliates in
Buckingham pursuant to ▇▇▇▇▇▇▇▇▇▇ ▇▇ Member Documents.
16. Liens over the Ownership Interest of Buyer or Buyer's Affiliates in GMR
pursuant to GMR JV Member Documents.
17. Liens over the Ownership Interest of Buyer or Buyer's Affiliates in 757
Partners pursuant to 757 Partners JV Member Documents.
18. Liens over the Ownership Interest of Buyer or Buyer's Affiliates in GATX/CL
Air pursuant to GATX/CL Air JV Member Documents.
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SCHEDULE 5
MATERIAL CONTRACTS AND DESIGNATED CONTRACTS
PART 1
MATERIAL CONTRACTS
1. The Ex-Im 2001 Financing Documents relating to 737 Partners #1 (provided
that such documents shall not be Material Contracts if (a) the Indebtedness
pursuant to such documents has been repaid in full prior to or at Closing
or, if applicable, the Deferred Date on which Seller's Ownership Interest
in 737 Partners #1 is sold to Buyer hereunder, or (b) Seller is not
obligated to sell and Buyer is not obligated to buy Seller's Ownership
Interest in 737 Partners #1 pursuant to this Agreement).
2. The Ex-Im 2001 Financing Documents relating to 737 Partners #2 (provided
that such documents shall not be Material Contracts if (a) the Indebtedness
pursuant to such documents has been repaid in full prior to or at Closing
or, if applicable, the Deferred Date on which Seller's Ownership Interest
in 737 Partners #2 is sold to Buyer hereunder, or (b) Seller is not
obligated to sell and Buyer is not obligated to buy Seller's Ownership
Interest in 737 Partners #2 pursuant to this Agreement).
3. The Ex-Im 2001 Financing Documents relating to 737 Partners #3 (provided
that such documents shall not be Material Contracts if (a) the Indebtedness
pursuant to such documents has been repaid in full prior to or at Closing
or, if applicable, the Deferred Date on which Seller's Ownership Interest
in 737 Partners #3 is sold to Buyer hereunder, or (b) Seller is not
obligated to sell and Buyer is not obligated to buy Seller's Ownership
Interest in 737 Partners #3 pursuant to this Agreement).
4. The A321 Loan Documents (provided that such documents shall not be Material
Contracts if (a) the Indebtedness pursuant to such documents has been
repaid in full prior to or at Closing or, if applicable, the Deferred Date
on which Seller's Ownership Interest in A321 Partners is sold to Buyer
hereunder, or (b) Seller is not obligated to sell and Buyer is not
obligated to buy Seller's Ownership Interest in A321 Partners pursuant to
this Agreement).
5. The GMR Financing Documents (provided that such documents shall not be
Material Contracts if (a) the Indebtedness pursuant to such documents has
been repaid in full prior to or at Closing or, if applicable, the Deferred
Date on which Seller's Ownership Interest in GMR is sold to Buyer
hereunder, or (b) Seller is not obligated to sell and Buyer is not
obligated to buy Seller's Ownership Interest in GMR pursuant to this
Agreement).
6. The A321 GTL Documents (provided that such documents shall not be Material
Contracts if (a) the Indebtedness pursuant to such documents has been
repaid in full prior to or at Closing or, if applicable, the Deferred Date
on which Seller's Ownership Interest in A321 Partners is sold to Buyer
hereunder, or (b) Seller is not obligated to sell and Buyer is not
obligated to buy Seller's Ownership Interest in A321 Partners pursuant to
this Agreement).
-139-
7. The UK Lease Documents (provided that such documents shall not be Material
Contracts if (a) the Indebtedness pursuant to such documents has been
repaid in full prior to or at Closing or, if applicable, the Deferred Date
on which Seller's Ownership Interest in 757 Partners is sold to Buyer
hereunder, or (b) Seller is not obligated to sell and Buyer is not
obligated to buy Seller's Ownership Interest in 757 Partners pursuant to
this Agreement).
8. The Airbus Purchase Agreements.
9. The MCPH Agreement.
10. The MCPH Letter Agreement.
11. The following agreements:
- the Maintenance Cost Per Hour Engine Management Agreement dated 27
October 2005 between PT (Persero) Perusahaan Penerbangan Garuda
Indonesia (known as Garuda Indonesia) and Seller relating to CFM
International, Inc. Model: CFM56-7B26 Engines with serial numbers
888878, 888880, 889941 and 888959.
- the Maintenance Cost Per Hour Engine Management Agreement dated 30
June 2002 between MIAT (Mongolian Airlines) and Seller relating to CFM
International, Inc. Model: CFM56-7B26 Engines with serial numbers
890116 and 890117.
- the Maintenance Cost Per Hour Engine Management Agreement dated 3 June
2004 (as amended) between Air Berlin GmbH & Co. Luftverkehrs KG and
Seller relating to CFM International, Inc. Model: CFM56-7B26 Engines
with serial numbers 874448, 874182, 875509, 874490, 875530 and 875533.
- the Maintenance Cost Per Hour Engine Management Agreement dated 21
April 2005 between SpiceJet Limited (formerly known as Royal Airways
Limited) and Seller relating to CFM International, Inc. Model:
CFM56-7B26 Engines with serial numbers 875520, 874498, 876212 and
876201.
- the Maintenance Cost Per Hour Engine Management Agreement dated 4
April 2006 between Futura International Airways, S.A. and Seller
relating to CFM International, Inc. Model: CFM56-7B26 Engines with
serial numbers 889245 and 888250.
- the Maintenance Cost Per Hour Engine Management Agreement dated 4
October 2002 between Gunes Ekspres Havacilik A.S. (doing business as
Sun Express Airlines) and Seller relating to CFM International, Inc.
Model: CFM56-7B26 Engines with serial numbers 890197, 890210, 891261,
891255, 891285, 891298, 891374 and 891376.
12. The MS Agreements.
13. The 737 Partners #1 JV Member Documents and JV Management Agreement
(provided that such documents shall not be Material Contracts if Seller is
not obligated to sell and
-140-
Buyer is not obligated to buy Seller's Ownership Interest in 737 Partners
#1 pursuant to this Agreement).
14. The 737 Partners #2 JV Member Documents and JV Management Agreement
(provided that such documents shall not be Material Contracts if Seller is
not obligated to sell and Buyer is not obligated to buy Seller's Ownership
Interest in 737 Partners #2 pursuant to this Agreement).
15. The 737 Partners #3 JV Member Documents and JV Management Agreement
(provided that such documents shall not be Material Contracts if Seller is
not obligated to sell and Buyer is not obligated to buy Seller's Ownership
Interest in 737 Partners #2 pursuant to this Agreement).
16. The A321 Partners JV Member Documents and JV Management Agreement (provided
that such documents shall not be Material Contracts if Seller is not
obligated to sell and Buyer is not obligated to buy Seller's Ownership
Interest in A321 Partners pursuant to this Agreement).
17. The ATP JV Member Documents and JV Management Agreement (provided that such
documents shall not be Material Contracts if Seller is not obligated to
sell and Buyer is not obligated to buy Seller's Ownership Interest in ATP
pursuant to this Agreement).
18. The Blue Dragon JV Member Documents and JV Management Agreement (provided
that such documents shall not be Material Contracts if Seller is not
obligated to sell and Buyer is not obligated to buy Seller's Ownership
Interest in 737 Partners #1 pursuant to this Agreement (including by
application of Clause 7.1.3)).
19. The ▇▇▇▇▇▇▇▇▇▇ ▇▇ Member Documents and JV Management Agreement (provided
that such documents shall not be Material Contracts if Seller is not
obligated to sell and Buyer is not obligated to buy Seller's Ownership
Interest in Buckingham pursuant to this Agreement).
20. The GMR JV Member Documents and JV Management Agreement (provided that such
documents shall not be Material Contracts if Seller is not obligated to
sell and Buyer is not obligated to buy Seller's Ownership Interest in GMR
pursuant to this Agreement).
21. The 757 JV Member Documents and JV Management Agreement (provided that such
documents shall not be Material Contracts if Seller is not obligated to
sell and Buyer is not obligated to buy Seller's Ownership Interest in 757
Partners pursuant to this Agreement).
22. The GATX/CL Air JV Member Documents and JV Management Agreement (provided
that such documents shall not be Material Contracts if Seller is not
obligated to sell and Buyer is not obligated to buy Seller's Ownership
Interest in GATX/CL Air pursuant to this Agreement).
23. The Caljet JV Member Documents.
24. The CFM GTA and the IAE GTA.
-141-
PART 2
DESIGNATED CONTRACTS
25. The GFC Boeing Purchase Agreement and the guarantee of Seller given in
respect thereof.
26. The 737 Partners Boeing Purchase Agreements and the partial guarantees of
Seller given in respect thereof.
27. The FH Agreement. (*)
28. The Caljet JV Management Agreement.
29. The GATX/CL Air GTL Documents (provided that such documents shall not be
Designated Contracts if Seller is not obligated to sell and Buyer is not
obligated to buy Seller's Ownership Interest in GATX/CL Air pursuant to
this Agreement).
30. Lease agreement dated 5th May 2004 between la societe SCRITRADA as lessor
and GATX International Ltd. as lessee relating to the lease of certain
office space located at Centreda 1, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇. (*)
31. Business Centre Services Agreement (reference # MALIV03/06) between GATX
International Ltd. and Regus whereunder inter alia GATX International Ltd.
has agreed to occupy and Regus has agreed to make available certain office
space at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ (signed by GATX
International Ltd. on 31 March 2006 and by Regus on 1 April 2006).
32. Undated deed of lease between Seller and Servicecorp Tokyo K.K whereunder
inter alia Seller has agreed to occupy and Servicecorp Tokyo K.K has agreed
to make available certain office space at ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇.
33. The Pembroke Administration Agreements and the Pembroke Technical Services
Agreement.
34. Agreement between A321 Partners BV and Near East Engineering Company dated
as of 1 April 2004 relating to the leases of A321-200 Aircraft with
manufacturer's serial numbers 675 and 761 with Alia - the Royal Jordanian
Airline Plc (provided that such document shall not be a Material Contract
if Seller is not obligated to sell and Buyer is not obligated to buy
Seller's Ownership Interest in A321 Partners pursuant to this Agreement).
35. The EAST Management Agreement.
36. Virtual Data Room Documents 17.02.01, 17.02.02, 17.02.03 and 13.09.02
PART 3
AIRCRAFT COMMITMENTS
-142-
(1) (2) (3) (3)
AIRCRAFT
MODEL/ SCHEDULED PURCHASING
MANUFACTURER DELIVERY INTENDED ASSET OWNING
SERIAL NUMBER MONTH LESSEE ENTITY
------------------ ------------- -------------- ------------
A320-200 MSN 2906 October 2006 Tiger West Portal
Leasing
Limited
A320-200 MSN 3125 May 2007 Air Via o.o.d. Seller
A320-200 MSN 3156 June 2007 TAM-Linhas Seller
Aereas S.A.
A320-200 MSN [TBD] November or Tiger West Portal
December 2007 Leasing
Limited
-143-
SCHEDULE 6
LEASES
PART 1
WHOLLY OWNED AIRCRAFT
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM DOCUMENT (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE NUMBER) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
737-300 MSN 28870 Off-lease None 8.34.26 (given to the former
Lessee, "Varig", S.A.
(Viacao Aerea Rio-Grandense))
8.34.27 (Lease Termination
and Return of Aircraft
Agreement with "Varig", S.A.
(Viacao Aerea Rio-Grandense))
737-400 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 8.21.01
8.21.02
8.21.03
8.21.04
8.21.05
737-400 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 8.22.01
8.22.02
8.22.03
8.22.04
8.22.05
737-800 MSN 32359 GOL Transportes Aereos Ltda. 8.24.01
8.24.02
737-800 MSN 32360 GOL Transportes Aereos Ltda. 8.25.01
8.25.02
8.25.22
737-800 MSN 32361 PT (Persero) Perusahaan 8.26.35
Penerbangan Garuda Indonesia 8.26.37
(known as Garuda Indonesia) 8.26.38
8.26.182
-144-
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM DOCUMENT (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE NUMBER) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
737-800 MSN 32362 Travel Service a.s. 8.27.01
8.27.03
8.27.23
8.27.27
737-800 MSN 32363 PT (Persero) Perusahaan 8.28.50
Penerbangan Garuda Indonesia 8.28.51
(known as Garuda Indonesia) 8.28.52
8.28.53
737-800 MSN 32364 MIAT 8.29.01
(Mongolian Airlines) 8.29.03
8.29.04
8.29.05
737-800 MSN 32365 Gunes Ekspres Havacilik A.S. 8.30.01
(doing business as Sun 8.30.03
Express Airlines) 8.30.04
8.30.06
8.30.29
8.30.30
8.30.31
737-800 MSN 32366 Gunes Ekspres Havacilik A.S. 8.31.03
(doing business as Sun 8.31.04
Express Airlines) 8.31.05
8.31.07
8.31.35
8.31.36
8.31.37
8.31.39
737-800 MSN 32367 Gunes Ekspres Havacilik A.S. 8.32.01
(doing business as Sun 8.32.03
Express Airlines) 8.32.04
8.32.06
8.32.28
8.32.29
8.32.30
8.32.32
-145-
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM DOCUMENT (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE NUMBER) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
737-800 MSN 32368 Gunes Ekspres Havacilik A.S. 8.33.01
(doing business as Sun 8.33.03
Express Airlines) 8.33.04
8.33.06
8.33.30
8.33.32
757-200 ▇▇▇ ▇▇▇▇▇ ▇▇▇ 8.23.05
8.23.06
8.23.29
8.23.30
8.23.31
8.23.32
A300B4F MSN 126 MNG Havayollari ve 8.38.02
Tasimacilik 8.38.03
8.38.37
A320-200 MSN 1504 LTU 8.02.01
Lufttransport-Unternehmen 8.02.02
GmbH 8.02.03
Note, a letter of intent has
been signed for the
extension of the Lease (see
Virtual Data Room document
22.06.01)
A320-200 MSN 1553 LTU 8.04.01
Lufttransport-Unternehmen 8.04.02
GmbH 8.04.04
8.04.16
Note, a letter of intent has
been signed for the
extension of the Lease (see
Virtual Data Room document
22.07.01)
A320-200 MSN 1667 Transportes Aereos 8.06.02
Portugueses S.A. (doing 8.06.03
business as TAP Portugal) 8.06.04
-146-
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM DOCUMENT (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE NUMBER) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
A320-200 MSN 1692 Societe de Transport Aerien 8.07.13
Regional (doing business as 8.07.14
Star Europe) 8.07.41
8.07.99
Note, this aircraft is
currently on lease to
Agaircom GmbH pursuant to
"subject and subordinate"
dry sub-lease. The subject
and subordinate letter is
Virtual Data Room document
8.07.108 Note also, a
letter of intent has been
signed for the re-lease of
this Aircraft to TAM-Linhas
Aereas S.A. (see Virtual
Data Room document
22.05.01)
A320-200 MSN 1769 Vueling Airlines, S.A. 8.08.01
8.08.03
8.08.04
8.08.06
A320-200 MSN 1787 ▇▇▇▇▇▇ ▇▇▇▇ Airlines 8.09.01
Belgium N.V. 8.09.02
8.09.03
8.09.22
Note, a letter of intent
has been signed for the
extension of the Lease (see
Virtual Data Room document
22.03.01)
A320-200 MSN 1799 Transportes Aereos 8.10.01
Portugueses S.A. (doing 8.10.03
business as TAP Portugal) 8.10.04
-147-
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM DOCUMENT (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE NUMBER) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
A320-200 MSN 1816 Transportes Aereos 8.11.01
Portugueses S.A. (doing 8.11.03
business as TAP Portugal)
A320-200 MSN 1852 Eurofly S.p.A. 8.12.01
8.12.03
8.12.54
A320-200 MSN 1920 Eurofly S.p.A. 8.13.01
8.13.03
8.13.04
8.13.51
8.13.53
A320-200 MSN 1937 Eurofly S.p.A. 8.14.01
8.14.03
8.14.06
8.14.84
8.14.85
A320-200 MSN 1975 ▇▇▇▇▇▇ ▇▇▇▇ 8.15.02
Airlines Belgium 8.15.03
N.V. 8.15.23
Note, a letter of intent
has been signed for the
extension of the Lease (see
Virtual Data Room document
22.04.01)
A320-200 MSN 2014 TAME - Linea ▇▇▇▇▇ ▇.▇▇.▇▇
▇▇▇ ▇▇▇▇▇▇▇ 8.16.02
8.16.33
8.16.42
A320-200 MSN 2044 TAME - Linea ▇▇▇▇▇ ▇.▇▇.▇▇
▇▇▇ ▇▇▇▇▇▇▇ 8.17.02
8.17.25
8.17.29
A320-200 MSN 2167 Martinair Holland N.V. 8.18.01
8.18.02
8.18.03
8.18.05
8.18.21
A320-200 MSN 2178 Transportes Aereos 8.19.02
Portugueses S.A. (doing 8.19.68
business as TAP
-148-
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM DOCUMENT (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE NUMBER) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
Portugal)
A320-200 MSN 2204 Tiger Airways Pte. Ltd. 8.20.01
8.20.03
8.20.04
8.20.05
8.20.06
A320-200 MSN 2804 Air Via o.o.d. 8.36.01
8.36.06
A320-200 MSN 2906 Tiger 9.51.01
▇▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇. However a letter of
intent has been executed
with Air Via o.o.d. with
respect to this Aircraft
(see Virtual Data Room
document 22.09.01)
▇▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇. However a letter of
intent has been executed
with TAM-Linhas Aereas S.A.
with respect to this
Aircraft (see Virtual Data
Room document 22.10.01)
A320-200 MSN [to Tiger 9.52.01
be assigned by
Airbus]
A321-100 MSN 1511 Asiana Airlines, Inc. 8.03.25
8.03.26
A321-100 MSN 855 Hurkus Havayolu 8.01.18
Tasimacilik Ve Ticaret 8.01.19
SA (doing business as 8.01.20
Free Bird Airlines) 8.01.22
-149-
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM DOCUMENT (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE NUMBER) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
A321-200 MSN 1629 LTU 8.05.01
Lufttransport-Unternehmen 8.05.02
GmbH 8.05.28
Note, a letter of intent
has been signed for the
extension of the Lease (see
Virtual Data Room document
22.08.01)
ERJ-145-ER MSN Trans States Airlines, Inc. 8.35.01
145096 8.35.02
8.35.07
8.35.49
▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ 8.39.02
8.39.03
8.39.04
8.39.05
8.39.26
8.39.42
8.39.45
PART 2
PARTNERSHIP AIRCRAFT
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE REFERENCE NUMBERS) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
737-300 MSN 23574 Continental Airlines, Inc. 9.17.01
9.17.02
9.17.03
9.17.17
737-300 MSN 23575 Continental Airlines, Inc. 9.18.01
9.18.02
9.18.03
9.18.17
737-300 MSN 23576 Continental Airlines, Inc. 9.19.01
9.19.02
9.19.03
9.19.17
737-300 MSN 23579 Continental Airlines, Inc. 9.20.01
9.20.02
9.20.12
-150-
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE REFERENCE NUMBERS) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
737-300 MSN 23580 Continental Airlines, Inc. 9.21.01
9.21.02
9.21.12
737-300 MSN 23581 Continental Airlines, Inc. 9.22.01
9.22.02
9.22.03
9.22.04
9.22.22
737-300 MSN 23582 Continental Airlines, Inc. 9.23.01
9.23.02
9.23.12
737-300 MSN 23583 Continental Airlines, Inc. 9.24.01
9.24.02
9.24.12
737-700 MSN 32423 EasyJet Airline Company 9.48.01
Limited 9.48.02
9.48.03
9.48.04
9.48.25
9.48.26
9.48.37
737-800 MSN 28821 Air Berlin GmbH & Co. 9.26.01
Luftverkehrs KG 9.26.02
737-800 MSN 28822 Gunes Ekspres Havacilik A.S. 9.27.01
(doing business as Sun 9.27.02
Express Airlines) 9.27.06
9.27.07
9.27.10
9.27.37
737-800 MSN 28823 Air Berlin GmbH & Co. 9.28.01
Luftverkehrs KG 9.28.02
737-800 MSN 28824 SpiceJet Limited 9.29.01
(formerly known as Royal 9.29.02
Airways Limited)
737-800 MSN 28825 Air Berlin GmbH & Co. 9.30.01
Luftverkehrs KG 9.30.02
9.30.20
737-800 MSN 28826 Gunes Ekspres Havacilik A.S. 9.31.01
(doing business as Sun 9.31.02
Express 9.31.03
9.31.20
-151-
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE REFERENCE NUMBERS) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
Airlines)
737-800 MSN 28827 SpiceJet Limited 9.32.01
(formerly known as Royal 9.32.02
Airways Limited)
737-800 MSN 28828 South African Airways 9.33.01
(Proprietary) Limited 9.33.02
9.33.18
9.33.61
737-800 MSN 28829 South African Airways 9.34.01
(Proprietary) Limited 9.34.02
9.34.29
9.34.74
737-800 MSN 28830 South African Airways 9.35.01
(Proprietary) Limited 9.35.02
9.35.26
9.35.70
737-800 MSN 29248 South African Airways 9.36.17
(Proprietary) Limited 9.36.31
737-800 MSN 29249 South African Airways 9.37.26
(Proprietary) Limited 9.37.62
737-800 MSN 30006 South African Airways 9.38.01
(Proprietary) Limited 9.38.02
9.38.17
9.38.29
737-800 MSN 30007 South African Airways 9.39.01
(Proprietary) Limited 9.39.02
9.39.15
9.39.28
737-800 MSN 30476 South African Airways 9.40.01
(Proprietary) Limited 9.40.02
9.40.24
9.40.36
737-800 MSN 30477 Off lease None. However a letter of 9.41.48 (given to former
intent has been executed Lessee, "Varig", S.A. (Viacao
with GOL Transportes Aereos Aerea Rio-Grandense))
Ltda. With respect to this
Aircraft (see 9.41.49 (Lease Termination
and Return
-152-
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE REFERENCE NUMBERS) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
document 22.01.01 in the of Aircraft Agreement with
Virtual Data Room) "Varig", S.A. (Viacao Aerea
Rio-Grandense))
737-800 MSN 30478 Sik-Ay Hava Tasimacilik 9.42.01
A.S. (doing business as 9.42.02
Sky Airlines) 9.42.25
9.42.26
737-800 MSN 30567 South African Airways 9.43.01
(Proprietary) Limited 9.43.02
9.43.15
9.43.29
737-800 MSN 30568 Futura International 9.44.82
Airways, S.A. 9.44.83
737-800 MSN 30569 South African Airways 9.45.01
(Proprietary) Limited 9.45.02
9.45.24
9.45.37
737-800 MSN 30570 Air Berlin GmbH & Co. 9.46.01
Luftverkehrs KG 9.46.02
737-800 MSN 30571 Off lease None. However a letter of 9.47.42 (given to former
intent has been executed Lessee, "Varig", S.A. (Viacao
with GOL Transportes Aereos Aerea Rio-Grandense))
Ltda. With respect to this
Aircraft (see document 9.47.43 (Lease Termination
22.02.01 in the Virtual and Return of Aircraft
Data Room) Agreement with "Varig", S.A.
(Viacao Aerea Rio-Grandense))
757-200 MSN 25240 Excel Airways Ltd. 9.50.01
9.50.02
9.50.03
9.50.04
9.50.32
9.50.40
9.50.41
757-200 MSN 28718 ▇▇▇▇▇▇ ▇▇▇▇ Airlines UK 9.25.02
Limited 9.25.20
9.25.28
-153-
(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE REFERENCE NUMBERS) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
9.25.40
9.25.79
9.25.80
A319-100 MSN 2010 Frontier Airlines, Inc. 9.16.01
9.16.02
9.16.03
A320-200 MSN 189 Volare S.p.A. 9.01.90
9.01.91
9.01.92
9.01.94
9.01.102
9.01.104
9.01.105
9.01.106
9.01.107
A320-200 MSN 190 Volare S.p.A. 9.02.12
9.02.13
9.02.14
9.02.99
9.02.100
9.02.101
9.02.113
9.02.115
9.02.116
9.02.117
9.02.118
A320-200 MSN 590 Vietnam Airlines Corporation 9.03.01
9.03.45
9.03.47
A320-200 MSN 594 Vietnam Airlines Corporation 9.04.01
9.04.47
9.04.49
A320-200 MSN 601 Vietnam Airlines Corporation 9.05.01
9.05.46
9.05.48
A320-200 MSN 605 Vietnam Airlines Corporation 9.06.01
9.06.47
9.06.49
A320-200 MSN 653 Societe de Transport 9.07.06
Aerien Regional (doing 9.07.40
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(1) (2) (3) (4)
LEASE TERMINATION NOTICE
(VIRTUAL DATA ROOM (VIRTUAL DATA ROOM DOCUMENT
AIRCRAFT LESSEE REFERENCE NUMBERS) NUMBER)
----------------- ---------------------------- --------------------------- -----------------------------
business as Star Europe) 9.07.41
9.07.92
9.07.93
9.07.94
9.07.95
9.07.99
9.07.102
A320-200 MSN 657 Societe de Transport 9.08.07
Aerien Regional (doing 9.08.27
business as Star Europe) 9.08.28
9.08.29
9.08.30
9.08.31
9.08.40
A321-100 MSN 771 Hurkus Havayolu 9.13.73
Tasimacilik Ve Ticaret 9.13.76
SA (doing business as 9.13.77
Free Bird Airlines)
A321-200 MSN 674 Ceske Aeroline, as 9.09.03
(Czech Airlines j.s.c.) 9.09.04
9.09.43
9.09.67
9.09.144
A321-200 MSN 675 Alia - the Royal 9.10.01
Jordanian Airline Plc 9.10.02
A321-200 MSN 684 Ceske Aeroline, as 9.11.01
(Czech Airlines j.s.c.) 9.11.03
9.11.04
9.11.132
A321-200 MSN 761 Alia - the Royal 9.12.01
Jordanian Airline Plc 9.12.02
9.12.03
9.12.34
A321-200 MSN ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Transports 9.14.01
Aeriens, SAS 9.14.02
9.14.03
9.14.04
A321-200 MSN ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Transports 9.15.02
Aeriens, SAS 9.15.03
9.15.04
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SCHEDULE 7
EMPLOYEES
PART A
FRENCH EMPLOYEES
NAME TITLE
---- -----
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Secretary and Accountant
▇▇▇▇, ▇▇▇▇▇ MD Air Marketing
▇▇▇▇▇▇, ▇▇▇▇ Director Air Technical Services
▇▇▇▇▇▇- ▇▇▇▇▇, ▇▇▇▇▇ ▇.▇ Office Admin
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ VP Air Marketing
LeBeguec, ▇▇▇▇▇▇▇▇ Commercial Support Specialist
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ MD Air Marketing
▇▇▇▇▇▇, ▇▇▇▇▇ Director Air Technical Planning
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PART B
UK EMPLOYEES
NAME TITLE
---- -----
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Director Air Technical Services
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Director Investment Risk Management
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Director Air Technical Services
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PART C
U.S. EMPLOYEES
NAME TITLE
---- -----
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ P Director Air Fleet Support
▇▇▇, ▇▇▇▇▇▇ W# Director Air Technical Services
▇▇▇▇▇▇▇▇, ▇▇▇ Manager Air Lease Administration
▇▇▇▇▇, ▇▇▇▇▇▇▇ H# Director Air Fleet Support
▇▇▇▇▇▇▇, ▇▇▇ C# MD Air Finance
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ Asset Tracking Specialist - Air
▇▇▇▇▇▇▇, ▇▇▇▇ J VP Air Technical Planning
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Senior Portfolio Management Analyst
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ P Manager Aircraft Transition
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ C VP Air Technical Services
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Senior Contract Specialist
Chin, ▇▇▇▇▇▇▇▇▇ ▇▇▇ Senior Portfolio Management Analyst
▇▇▇, ▇▇▇▇▇▇▇ Senior Administration Assistant
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ M Purchasing Rep - Air Group
▇▇▇▇▇, ▇▇▇▇▇▇ W MD Air Marketing
▇▇▇▇▇▇, ▇▇▇▇ O# VP Air Fleet
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ M Director Air Technical Support
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Senior Contract Specialist
Dimanlig, Alenikki G Accounting & Billing Specialist
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ VP Air Fleet Management - East
▇▇▇▇▇▇▇, ▇▇▇▇ ▇ Director Air Technical Services
▇▇▇▇, ▇▇▇▇▇▇▇▇** Chief Credit Officer
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ VP Air Marketing
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Senior Administration Assistant
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▇▇▇▇ ▇▇▇▇▇ W VP Air Engines
Lacson, ▇▇▇▇▇ ▇▇▇▇ Senior Contract Specialist
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ L** Director Risk Management
▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ Senior Portfolio Management Analyst
▇▇▇▇▇, ▇▇▇▇▇ M MD Air Business Development
▇▇, ▇▇▇▇ Chuan Senior Portfolio Management Analyst
▇▇▇-▇▇▇, ▇▇▇▇ L Senior Administration Assistant
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ VP Air Fleet Management - Boeing
▇▇▇▇▇▇▇▇, ▇▇▇** # IT Specialist
Mapa, ▇▇▇▇▇▇▇ June Invoicing & Cash Application Specialist
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ P Legal Assistant
▇▇▇▇▇▇, ▇▇▇▇▇ ▇ SVP Air Commercial
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Assistant General Counsel
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ P MD Air Technical
▇▇▇▇▇▇, ▇▇▇** # Vice President - Air Business Development
▇▇▇▇▇, ▇▇▇▇▇ A SVP Air Operations
Paisley, ▇▇▇▇▇ ▇▇▇▇▇▇ Senior Air Asset Management Analyst
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Investment Risk Officer
▇▇▇▇▇▇, ▇▇▇▇ M # Counsel
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇** # Paralegal
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ VP Air Fleet Management - Airbus
▇▇▇▇▇▇, ▇▇▇▇▇ Senior Contract Specialist
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Manager Air Purchasing
▇▇▇▇▇▇▇, ▇▇▇▇** Paralegal
▇▇▇▇▇▇, ▇▇▇▇▇▇ J VP Air Engines
▇▇▇▇▇▇, ▇▇▇▇▇▇ F Senior Contract Specialist
▇▇▇▇▇▇, ▇▇▇▇** VP Portfolio Management
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇ A Senior Contract Specialist
▇▇▇▇▇, ▇▇▇▇▇▇ ▇ Investment Risk Officer
▇▇▇▇▇▇, ▇▇▇▇▇ M Counsel
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Director Air Fleet
▇▇▇▇, ▇▇▇▇▇▇▇** Vice President, Financial Planning & Analysis
▇▇▇▇▇▇, ▇▇▇▇▇ A Portfolio Management Analyst
----------
# Potential Deferred Employee.
** Corporate Employee only partially dedicated to Air.
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SCHEDULE 8
MATERIAL ACTIONS
The action referred to in Virtual Data Room Document 6.01.05.
-161-
SCHEDULE 9
TAX MATTERS
SCHEDULE 9 - 8.2.4
DISREGARDED ENTITY OWNERS
The entities listed below are Disregarded Entity Owners as defined in Clause
8.2.4 of the Sale and Purchase Agreement. Each Disregarded Entity Owner is
"disregarded as an entity separate from its owner" within the meaning of
Treasury Regulation Section 301.7701-2(c)(2)(i). All required United States Tax
Returns have been filed by or on behalf of each Disregarded Entity Owner
consistent with this status.
NAME
1. Divisadero Leasing (Ireland) Limited
2. Divisadero Leasing Ltd.
3. GATX Air (France) S.A.R.L.
4. GATX Airparts LLC
5. ▇▇▇▇▇ Capital (France) S.A.R.L.
6. ▇▇▇▇▇ Leasing Limited
7. Irving Leasing (Ireland) Limited
8. ▇▇▇▇▇▇▇ Leasing (Cyprus) Limited
9. ▇▇▇▇▇▇▇ Leasing (Ireland) Limited
10. ▇▇▇▇▇▇▇ Leasing Limited
11. Kearny Leasing Limited
12. ▇'▇▇▇▇▇▇▇ Leasing (Cyprus) Limited
13. ▇'▇▇▇▇▇▇▇ Leasing (Holdings) Ltd.
14. ▇'▇▇▇▇▇▇▇ Leasing (Ireland) Limited
15. ▇'▇▇▇▇▇▇▇ Leasing Limited
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16. Post Street Aviation Limited
17. Owner Trust (Trust Agreement N754AS)(1)
18. Owner Trust (Trust Agreement N755AS)(1)
19. Alameda Leasing Limited
20. ▇▇▇▇▇▇▇▇ Leasing Limited
21. ▇▇▇▇▇▇▇ Leasing Limited
22. GATX 757 Partners LDC
23. A321 Finance Ltd.
24. GATX A321 Limited
25. Tehema Leasing Limited
26. Union Leasing Limited
27. Valley Leasing Limited
28. West Portal Leasing Limited
29. Explorator LLC
(1) A business trust per Reg. Section 301.7701-4(b), and thus a "business
entity" under Reg. Section 301.7701-2(c) that is disregarded as an entity
separate from its single owner.
-163-
SCHEDULE 9 -8.2.5
CORPORATE ENTITY OWNERS
The entities listed below are Corporate Entity Owners as defined in Clause 8.2.5
of the Sale and Purchase Agreement. Each Corporate Entity Owner is properly
classified as an association taxable as a corporation for United States federal
income tax purposes, and has filed all required United States Tax Returns
consistent with such classification.
NAME
1. GATX Air Leasing, Inc.
2. GATX/Caljet Corporation
3. ▇▇▇▇▇▇▇▇ Leasing Corporation
4. Huntsmen Corporation
5. ▇▇▇▇▇▇▇ Leasing Corporation
6. ▇'▇▇▇▇▇▇▇ Leasing Corporation
7. Post Street Leasing Ltd.
8. Stanyan Leasing Corporation
9. GATX/CL Air (Ireland) Limited
10. GATX/CL Air Leasing Limited
11. GATX/CL Air N.V.
12. GMR Ireland Limited
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SCHEDULE 9 - 8.2.6
PARTNERSHIP ENTITY OWNERS
The entities listed below are Partnership Entity Owners as defined in Clause
8.2.6 of the Sale and Purchase Agreement. Each Partnership Entity Owner is
properly classified as a partnership for United States federal income tax
purposes, and has filed all required United States Tax Returns consistent with
such classification.
NAME
1. GATX 737-800 Partners LDC
2. GATX 737-800 Partners B.V.
3. GATX 737NG Partners Limited
4. GATX 737-800 Partners III Limited
5. GATX 737-800 Partners III B.V.
6. Jet Leasing LDC
7. GATX A321 Partners LDC
8. A321 Partners B.V.
9. Alster & Thames Partners Ltd.
10. Alster & Thames Partners (USA) LLC
11. Blue Dragon Aircraft Ltd.
12. Buckingham Partners LDC
13. Caljet LLC
14. GATX/CL Air Leasing Cooperative Association
15. GMR Aviation Partners Ltd.
16. Congress Holdings LLC
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SCHEDULE 9 - 8.3.2
TAX ASSETS
CUMULATIVE
2003 2004 2005 2006 TOTAL
Name NOL C/O NOL NOL NOL NOL C/O
---- ---------- ---------- ---------- ---------- -----------
Post Street Leasing Ltd. 17,263 17,801 17,801* 17,801* 70,666*
Divisadero Leasing (Ireland) Ltd. 17,851 35,329 2,000 2,000* 57,180*
Irving Leasing (Ireland) Ltd. 37,342,546 15,257,284 14,044,926 14,044,926* 80,689,682*
▇▇▇▇▇▇▇ Leasing (Ireland) Ltd. 74,712 41,530 41,530* 41,530* 199,302*
▇'▇▇▇▇▇▇▇ Leasing (Ireland) Ltd. 26,471,371 9,071,082 9,071,082* 9,071,082* 53,684,616*
134,701,447*
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The above amounts are in US dollars and represent operating loss carryforwards
(as computed for Irish tax purposes) of the above-named entities.
* NOTE: The amounts of operating loss carryforwards for 2005 and 2006 that
are marked by asterisks (*) are only estimates. For avoidance of doubt, the
reference in the Agreement to Tax Assets set forth on this Schedule 9-8.3.2
shall include all operating loss carryforwards of the above-referenced
entities for 2005 and 2006, regardless of whether such operating loss
carryforwards are greater or smaller than the estimates set forth above.
The cumulative total amount of operating losses for each entity set forth
in the right-most column above shall be construed accordingly.
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SCHEDULE 9 - 8.2.15
DISREGARDED ENTITY OWNERS AND PARTNERSHIP ENTITY OWNERS
ENGAGED IN A TRADE OR BUSINESS WITHIN THE UNITED STATES
NAME
DISREGARDED ENTITY OWNER
1. Explorator LLC (owned by Congress Holdings LLC)
PARTNERSHIP ENTITY OWNERS
1. Congress Holdings LLC
2. Alster & Thames Partners (USA) LLC
3. Caljet LLC
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SCHEDULE 10
PURCHASE PRICE CALCULATION
Enterprise Value $1,425,000,000.00
Less: Accounts Payable and Accrued Expenses 2,000,000.00
Leveraged Lease Debt 19,700,000.00
Other Liabilities 98,800,000.00
-----------------
Purchase Price $1,304,500,000.00
=================
The adjustments to Enterprise Value are based on the 30 June 2006 Balance Sheet.
Accounts Payable and Accrued Expenses exclude employee benefit and incentive
compensation liabilities retained by Seller.
Other Liabilities consist of maintenance reserves and cash security deposits
paid by Lessees under Leases.
-169-
SCHEDULE 11
WORKING CAPITAL STATEMENT
($)
---------
SELECTED ASSETS
Operating Lease Accounts Receivable 2,382,000
Management Fees Receivable 453,000
Other Maintenance Reserves Receivable (a) 1,130,000
Customer Rebills 175,000
---------
4,140,000
LESS SELECTED LIABILITIES
Accrued Interest 1,568,000
Other Payables (b) 382,000
---------
1,950,000
Target Working Capital 2,190,000
=========
NOTES:
(a) Calculation of Other Maintenance Reserves Receivable
($)
---------
Varig Receivables 895,000
Inter Credit (730,000)
Focused Air 336,000
Other 1,130,000
---------
Maintenance Reserves per 30 June 2006 balance sheet: 1,631,000
=========
(b) Summary of Other Payables
($)
-------
Accrued legal fees 126,000
Accrued cap costs 183,000
Accrued insurance 28,000
Air Parts accruals 18,000
TAM overpayment returned in July 21,000
Other 6,000
-------
Other Payables: 382,000
=======
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ATTACHMENT A TO THE WORKING CAPITAL STATEMENT
GATX AIR WORKING CAPITAL PRACTICES
SIGNIFICANT ACCOUNTING POLICIES
1. Basis of Consolidation. The consolidated balance sheet includes the
specific assets being offered for sale and the related liabilities.
Investments in affiliated companies (discussed herein) are not
consolidated. Intercompany balances are eliminated.
2. Use of Estimates. The preparation of the balance sheet in conformity with
accounting principles generally accepted in the United States ("GAAP")
necessarily requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities at the date of the
balance sheet. Seller regularly evaluates estimates and judgments based on
historical experience and other relevant facts and circumstances. Actual
amounts when ultimately realized could differ from those estimates.
3. Cash and Cash Equivalents. All highly liquid investments with a maturity of
three months or less when purchased are considered to be cash equivalents.
Restricted cash is comprised of cash and cash equivalents which are
restricted as to withdrawal and usage.
4. Finance Leases. Finance leases are comprised of direct finance leases and
leveraged leases. Investment in direct finance leases consists of lease
receivables, plus the estimated residual value of the equipment at the
lease termination dates, less unearned income. Lease receivables represent
the total rent to be received over the term of the lease reduced by rent
already collected. Initial unearned income is the amount by which the
original sum of the lease receivable and the estimated residual value
exceeds the original cost of the leased equipment. Unearned income is
amortized to lease income over the lease term in a manner that produces a
constant rate of return on the net investment in the lease.
Finance leases that are financed principally with nonrecourse borrowings at
lease inception and that meet certain criteria are accounted for as
leveraged leases. Leveraged lease receivables are stated net of the related
nonrecourse debt. Initial unearned income represents the excess of
anticipated cash flows (including estimated residual values, net of the
related debt service) over the original investment in the lease.
5. Operating Leases. Aircraft subject to an operating lease are stated at cost
less accumulated depreciation plus the unamortized balance of initial
direct costs. Aircraft are depreciated straight-line over their estimated
useful life, generally 25 years, to an estimated salvage value, generally
15% of original equipment cost. The appropriateness of depreciable lives
and residual values are periodically reviewed based on physical and
economic factors, as well as existing market conditions. Operating lease
income is recognized on a straight-line basis over the term of the
underlying leases.
6. Progress Payments. Amounts deposited toward the construction of wholly
owned aircraft and other equipment, including capitalized interest, are
classified as progress payments. Once Seller takes possession of the
completed asset, amounts recorded as progress payments are reclassified to
operating lease assets. Progress payments made for
-171-
aircraft owned by joint ventures in which Seller participates are
classified as investments in affiliated companies. In certain instances
when progress payments are immaterial they may be classified with operating
lease assets.
7. Investments in Joint Ventures. Seller has investments in 20 to 50 per cent.
-owned companies and joint ventures and other investments (collectively
"affiliates") in which Seller does not have effective or voting control.
These affiliates are accounted for using the equity method. Investments in
affiliated companies are initially recorded at cost, including goodwill at
the acquisition date. In certain instances, Seller's cost basis may be
different than its share of the affiliates' net assets. These differences
are primarily attributable to deferred gains on sales of assets to
affiliates, loans to affiliates, and impairment losses recognized at the
investor level. Seller defers the portion of any gains that relate to its
proportional interest in an affiliate and recognizes them ratably, using
the straight line method, over the useful life of the underlying asset.
Seller makes loans to some of its affiliates, which Seller treats as equity
contributions. Income on these loans offsets the proportional share of the
affiliates' interest expense. Seller accounts for differences created by
impairment losses recognized at the investor level as a basis difference so
that Seller's share of future operating results from the affiliates will be
reflective of the impairment charge taken. Pre-tax operating results from
affiliates and impairment losses recognized at the investor level are
reflected as share of affiliates' earnings (losses) in the statement of
operations. The carrying amount of Seller's investments in affiliated
companies is affected by Seller's share of the affiliates' undistributed
earnings and losses, distributions of dividends, principal and loan
payments from the affiliate, and impairment losses recognized at the
investor level.
8. Impairment of Long-Lived Assets. A review for impairment of long-lived
assets is performed whenever events or changes in circumstances indicate
that the carrying amount of long-lived assets may not be recoverable.
Recoverability of assets to be held and used is measured by a comparison of
the carrying amount of an asset to future net cash flows expected to be
generated by the asset. If an asset is determined to be impaired, the
impairment loss to be recognized is the amount by which the carrying amount
of the asset exceeds its fair value. Assets to be disposed of are reported
at the lower of their carrying amount or fair value less costs to sell.
9. Impairment of investments in affiliated companies. In accordance with
Accounting Principles Board Opinion ("APB") No. 18, The Equity Method of
Accounting for Investments in Common Stock, Seller reviews the carrying
amount of its investments in affiliates annually, or whenever events or
changes in circumstances indicate that a decline in value may have
occurred.
If management determines that indicators of impairment are present, an
analysis is performed to estimate the fair value of the investment.
Management defines fair value, for purposes of this policy, as the price
that would be received for an investment in a current transaction between a
willing buyer and seller. While quoted prices in active markets provide the
best evidence of fair value, an active market does not exist for the
majority of our joint venture investments. Thus an estimate of their fair
value must be made. Some examples of acceptable valuation techniques that
Seller may use to estimate
-172-
fair value are discounted cash flows at the investee level, capitalized
earnings or the present value of expected distributable cash from the
investee. Additionally, price/earnings ratios based on comparable
businesses may also be acceptable in certain circumstances. Other valuation
techniques that are appropriate for the particular circumstances of a joint
venture and for which sufficient data are available may also be used.
Once an estimate of fair value is obtained it is compared to the
investment's carrying value. If the investment's estimated fair value is
less than its carrying value, then the investment is impaired. If an
investment is impaired, then a determination is made as to whether the
impairment is other-than-temporary. Factors that management considers in
making this determination include: expected operating results for the near
future, the length of the economic life cycle of the underlying assets of
the business and the ability of the company to hold the investment through
the end of the underlying assets' useful life. Anticipated management
actions that are probable of being taken that may improve the business
prospects of the investee are also considered.
If management reasonably determines an investment to be temporarily
impaired, no impairment loss would be recorded. Alternatively, if
management determines that an investment is impaired on an
other-than-temporary basis, a loss equal to the difference between the fair
value of the investment and its carrying value is recorded in the period of
identification.
10. Aircraft Maintenance Reserves. Aircraft are typically subject to net leases
under which the lessee is responsible for maintenance, insurance and taxes.
Under the provisions of many of these leases, deposits are collected from
lessees for future maintenance of the aircraft for which reserves are
established. The reserves are attributable to specific aircraft and are
classified as other liabilities. Upon occurrence of qualified maintenance
events, which may range from routine maintenance to major airframe and
engine overhauls, funds are disbursed and the reserve is relieved.
Additionally, reserve amounts are reversed upon the sale of a related
aircraft and included as a component of the disposition gain or loss.
11. Lease Origination Costs. Initial direct costs of leases are deferred and
amortized over the lease term, either as an adjustment to the yield for
direct finance and leveraged leases (collectively, finance leases), or on a
straight-line basis for operating leases.
SPECIFIC WORKING CAPITAL POLICIES
The balance of the Selected Assets and Selected Liabilities as indicated on the
Form Working Capital Statement are determined in accordance with GAAP by
application of the Significant Accounting Policies outlined above. Balances and
activity reflect the Aircraft included in the Business. Specifically, the
balances consist of or are impacted by the following practices:
SELECTED ASSETS:
Operating Lease Accounts Receivables
- Consist of:
-173-
- Accrued/billed (earned but not received) rent.
- Late charges on rent that has been billed but not received.
- Prepaid (received but not earned) rent, resulting from
recognizing income on a straight-line basis over the lease term,
decreases the receivable balance.
- Reversal of income for accounts that management determines should be
placed in nonaccrual status based on individual circumstances,
including when an account becomes 90-days or more past due, accounts
where payment has not been received for two (2) consecutive months or
more or accounts where the lessee has filed for bankruptcy or
insolvency. Specific decisions are made at the monthly watch list
meeting. Subsequent collections are recognized as income when
received.
- Amounts deemed uncollectible, as determined by management at the
monthly watch list meeting, or where an account balance becomes ninety
(90) days or more past due, accounts where payment has not been
received for two (2) consecutive months or more or accounts where the
lessee has filed for bankruptcy or insolvency, will be written off
accordingly.
Management Fees Receivable
- Consist of:
- Accrued/billed (earned but not received) management fees.
- Prepaid (received but not earned) management fees decrease the
receivables balance.
- Credit balance for deferred late charge income that is recognized
on a cash basis when collected. Balance includes all receivables
late charge ▇▇▇▇▇▇▇▇ (rent and maintenance reserve) consistent
with past practice.
- Amounts deemed uncollectible, as determined by management at the
monthly watch list meeting, or where an account balance becomes ninety
(90) days or more past due, accounts where payment has not been
received for two (2) consecutive months or more or accounts where the
lessee has filed for bankruptcy or insolvency, will be written off
accordingly.
Other Maintenance Reserves Receivable
- Consist of:
- Accrued/billed (earned but not received) maintenance reserves.
- Late charges on maintenance reserves that have been billed but
not received.
- Amounts deemed uncollectible, as determined by management at the
monthly watch list meeting, or where an account balance becomes ninety
(90) days or more past due, accounts where payment has not been
received for two (2) consecutive months or more or accounts where the
lessee has filed for bankruptcy or insolvency, will be written off
accordingly.
Customer Rebills
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- Consist of amounts paid by Seller that are to be reimbursed by the
Lessee.
- Amounts deemed uncollectible, as determined by management at the
monthly watch list meeting, or where an account balance becomes ninety
(90) days or more past due, accounts where payment has not been
received for two (2) consecutive months or more or accounts where the
lessee has filed for bankruptcy or insolvency, will be written off
accordingly.
SELECTED LIABILITIES:
Accrued Interest
- Consists of interest accrued but not paid on third-party debt.
- Payment is based on the terms of each specific debt agreement.
Other Payables
- Consist of miscellaneous accrued expenses that have not been paid.
Known expenses may be accrued prior to receiving an invoice (in a
manner consistent with past practice).
- Payment is made upon receipt and approval of the invoice.
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SCHEDULE 12
PARTNERSHIP ASSET OWNING ENTITY ALLOCATED AMOUNTS, PLATFORM VALUE ADJUSTMENT
AMOUNTS AND PARTNERSHIP ASSET OWNING ENTITY IMPLIED VALUES
(1) (2) (3) (4)
PARTNERSHIP
PARTNERSHIP ASSET PLATFORM VALUE ASSET OWNING
PARTNERSHIP ASSET OWNING OWNING ENTITY ADJUSTMENT AMOUNT ENTITY IMPLIED
ENTITY ALLOCATED AMOUNT ($) ($) VALUES ($)
------------------------ -------------------- ----------------- --------------
A321 Partners 8,000,000.00 1,000,000.00 29,357,798.17
▇▇▇ ▇▇▇▇▇▇▇▇ #▇ 58,000,000.00 8,000,000.00 231,075,697.21
▇▇▇ ▇▇▇▇▇▇▇▇ #▇ 30,000,000.00 4,000,000.00 100,000,000.00
737 Partners #3 31,000,000.00 4,000,000.00 119,230,769.23
GMR 1,000,000.00 0.00 2,000,000.00
ATP 29,000,000.00 4,000,000.00 116,000,000.00
757 Partners 8,000,000.00 1,000,000.00 16,000,000.00
GATX/CL Air 19,000,000.00 3,000,000.00 63,333,333.33
Buckingham 2,000,000.00 0.00 6,000,000.00
Blue Dragon 34,000,000.00 4,000,000.00 68,000,000.00
Caljet 10,000,000.00 1,000,000.00 40,000,000.00
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SCHEDULE 13
ORPHAN SPC REPRESENTATIONS
1. Each Orphan SPC is an entity duly formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
formation, with full corporate, company or entity power and authority to
conduct its business as it is now being conducted. Seller has made
available to Buyer a true and complete copy of the organizational documents
of each Orphan SPC. Each Orphan SPC is duly qualified to do business and,
in the case of those jurisdictions where such concept is known, is in good
standing in each jurisdiction where that qualification is necessary, except
for those jurisdictions where failure to be so qualified would not
reasonably be expected to have a Material Adverse Effect.
2. There are no outstanding (a) shares of capital stock or voting securities
of, or other equity or ownership interests in, any of the Orphan SPCs
(other than Shares issued by the Orphan SPCs in favour of Seller), (b)
securities of any of the Orphan SPCs convertible into or exchangeable for
shares of capital stock or voting securities of, or other equity or
ownership interests in, any of the Orphan SPCs, or (c) options or other
rights to acquire from Seller, or other obligation of any of the Orphan
SPCs, to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of,
or other equity or ownership interests in, any of the Orphan SPCs.
3. Set forth in Part 5 of Schedule 2 is a complete and accurate list showing
each Orphan SPC together with details of the currently authorised and
issued share capital of each Orphan SPC.
4. Other than contracts with Asset Owning Entities, the Orphan SPCs are not
party to any agreements.
5. No Orphan SPC has or has had any employees.
6. To the Knowledge of Seller, there is no (a) action, suit, proceeding or
investigation pending against any Orphan SPC or any of its properties
before any arbitrator or any Governmental Authority which would reasonably
be expected to have a material impact on the operation of the Business, (b)
judgment, order, writ, injunction or decree of any court or arbitration
tribunal which would reasonably be expected to have a material impact on
the operation of the Business, (c) action, suit or proceeding or
investigation which in any manner challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated by this Agreement,
or (d) Lien existing over any the issued share capital of any Orphan SPC
and no Orphan SPC is in default under any of its material obligations under
any agreement to which it is a party.
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SCHEDULE 14
AIRCRAFT SUM
The aggregate of (1) two million Dollars ($2,000,000) (being in relation to MSN
28870) and (2) two million Dollars ($2,000,000)
(being in relation to other issues)
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IN WITNESS WHEREOF, the parties to this Agreement have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
Seller
GATX FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
Buyer
MACQUARIE AIRCRAFT LEASING LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Attorney in Fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Attorney in Fact
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