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EXHIBIT 9.2
DATED AS OF 15TH JULY 1998
MOURANT & CO. TRUSTEES LIMITED
AND
JURIS LIMITED
AND
LIVELY LIMITED
AND
GPA GROUP PLC
AND
AERCO LIMITED
AND
BANKERS TRUST COMPANY
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SHAREHOLDERS UNDERTAKING
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[MOURANT DU FEU & JEUNE LOGO]
ADVOCATES, SOLICITORS AND NOTARIES PUBLIC
▇.▇. ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Channel Islands
Tel: ▇▇▇▇▇ ▇▇▇▇▇▇ Fax: ▇▇▇▇▇ ▇▇▇▇▇▇
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THIS AGREEMENT is made as of the 15th day of July, 1998
BETWEEN:
(1) MOURANT & CO. TRUSTEES LIMITED a company incorporated under the laws of
Jersey and having its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in its capacity as trustee of Aerco Holding
Trust (the "TRUSTEE");
(2) JURIS LIMITED a company incorporated under the laws of Jersey and having
its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ aforesaid ("JURIS");
(3) LIVELY LIMITED a company incorporated under the laws of Jersey and having
its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ aforesaid ("LIVELY");
(4) GPA GROUP PLC a company incorporated under the laws of Ireland and having
its registered office at GPA House, Shannon, County Clare, Ireland ("GPA
GROUP");
(5) AERCO LIMITED a company incorporated under the laws of Jersey and having
its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ aforesaid (the "COMPANY");
(6) BANKERS TRUST COMPANY in its capacity as indenture trustee under the
Indenture (as defined below) (the "NOTE INDENTURE TRUSTEE").
WHEREAS:
(A) By a trust instrument dated 4th June, 1998 (the "INSTRUMENT") the "Aerco
Holding Trust" (the "Charitable Trust") was established and certain
property, as specified therein, was transferred to the Trustee to be held
by it upon the trusts and in the manner therein declared. The property held
by the Trustee upon such trusts now comprises nineteen shares numbered 1-19
inclusive forming part of the issued share capital of the Company
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registered in the names of Juris (as to 10 shares) and Lively (as to 9
shares) as bare nominees for the Trustee.
(B) GPA Group is the registered holder and beneficial owner of one share
numbered 20 of the issued share capital of the Company and is also to
subscribe for certain notes to be issued by the Company pursuant to the
Indenture (as defined below).
(C) The twenty issued shares numbered 1-20 inclusive referred to in
recitals (A) and (B) above (together, the "SHARES" and each, a "SHARE")
constitute the entire issued share capital of the Company.
(D) The Trustee, Juris, Lively and GPA Group have been requested by the
Company and the Note Indenture Trustee to enter into this Agreement in
connection with the issue by the Company of the Notes (as hereinafter
defined) pursuant to the trust indenture to be entered into between the
Company and the Note Indenture Trustee and dated as of the date hereof
(the "INDENTURE") and to support certain of the covenants to be given by
the Company in the Indenture.
(E) On the certification of the directors of the Company pursuant to
Clause 8 of the Instrument the Trustee has agreed to enter into this
Agreement on the terms and conditions hereinafter appearing.
IN WITNESS WHEREOF it is hereby agreed as follows:
1. DEFINITIONS
(A) In this Agreement, unless the context otherwise requires, capitalised
terms not otherwise defined shall bear the respective meanings assigned
to them in the Indenture.
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(B) In this Agreement, "Notes" means the U.S. dollar denominated Class A,
B, C, D and E Notes to be issued by the Company pursuant to the
Indenture.
2. COVENANTS OF THE TRUSTEES
The Trustee hereby covenants to and agrees with the Note Indenture Trustee
that for so long as any amount is outstanding or payable under any of the
Notes it will not, and will procure that its nominees will not, without the
prior written approval of the Note Indenture Trustee (which approval may be
withheld for whatever reason or for no reason) and of all of the Directors
of the Company:-
(i) take any action in its capacity as a shareholder of the Company (a)
regarding the institution of any proceeding by the Company seeking
liquidation, winding-up, reorganisation, arrangement, adjustment,
protection, relief or composition of its debts under any law relating
to bankruptcy, insolvency or reorganisation or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or for any
substantial part of its property, or (b) in the case of any such
proceeding instituted against the Company (but not instituted by the
Company), any action authorising or consenting to such proceedings
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for it, or any substantial part of its property, or
that of any subsidiary); or (c) any action seeking termination of the
Company's corporate existence; or
(ii) take any action in its capacity as a shareholder of the Company
regarding the increase or reduction or reclassification of the share
capital of the Company or the issuance of any additional shares of the
Company; or
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(iii) take any action in its capacity as a shareholder of the Company
under any circumstances regarding the waiver, repeal, amendment,
variation, supplement or other modification of any of the provisions
of the Memorandum or Articles of Association of the Company; or
(iv) take any action in its capacity as a shareholder of the Company to
wind up or terminate the corporate existence of the Company; or
(v) transfer the Shares owned by it or any part thereof or any interest
therein unless the transferee of the Shares owned by it or any part
thereof or the acquirer of the interest therein (a) shall be a
trustee of a trust established for charitable purposes substantially
identical to those for which the Charitable Trust is established;
and (b) shall enter into an agreement substantially identical to
this agreement in favour of the Note Indenture Trustee PROVIDED
HOWEVER THAT the above restriction shall not apply in the case of
any transfer by Juris or Lively of the Shares held by them to a
third party to act as nominee holder of such Shares for the Trustee
on terms substantially identical to those on which Juris or Lively,
as the case may be, currently act as nominee.
3. COVENANTS OF JURIS AND LIVELY
Juris and Lively hereby covenant to and agree with the Note Indenture
Trustee that for so long as any amount is outstanding or payable under any
of the Notes they will not, without the prior written approval of the Note
Indenture Trustee (which approval may be withheld for whatever reason or
for no reason) and of all of the Directors of the Company, transfer the
Shares or any part thereof or the acquirer of the interest therein shall
enter into a agreement substantially identical to this Agreement in favour
of the Note Indenture Trustee PROVIDED HOWEVER THAT the above restriction
shall not apply in the case of any transfer by Juris or Lively of the
Shares held by them to a third party
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to act as nominee holder of such Shares for the Trustee on terms
substantially identical to those on which Juris or Lively, as the case may
be, currently act as nominee.
4. COVENANTS OF GPA GROUP
GPA Group hereby covenants to and agrees with the Note Indenture Trustee
that for so long as any amount is outstanding or payable under any of the
Notes it will not, without the prior written approval of the Note Indenture
Trustee (which approval may be withheld for whatever reason or for no
reason) and of all of the Directors of the Company:-
(i) take any action in its capacity as a shareholder of the Company (a)
regarding the institution of any proceeding by the Company seeking
liquidation, winding-up, reorganisation, arrangement, adjustment,
protection, relief or composition of its debts under any law relating
to bankruptcy, insolvency or reorganisation or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or for any
substantial part of its property, or (b) in the case of any such
proceeding instituted against the Company (but not instituted by the
Company), any action authorising or consenting to such proceedings
(including, without limitation, the entry of an order for relief
against, or the appointment or a receiver, trustee, custodian or other
similar official for it, or any substantial part of its property, or
that of any subsidiary); or (c) any action seeking termination of the
Company's corporate existence; or
(ii) take any action in its capacity as a shareholder of the Company
regarding the increase or reduction or reclassification of the share
capital of the Company or the issuance of any additional shares of the
Company; or
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(iii) take any action in its capacity as a shareholder of the Company under
any circumstances regarding the waiver, repeal, amendment, variation,
supplement or other modification of any of the provisions of the
Memorandum or Articles of Association of the Company; or
(iv) take any action in its capacity as a shareholder of the Company to
wind up or terminate the corporate existence of the Company; or
(v) transfer the Share owned by it or any part thereof or any interest
therein unless the transferee of the Share or any part thereof or the
acquirer of the interest therein shall enter into an agreement
substantially identical to this agreement in favour of the Note
Indenture Trustee.
5. UNDERTAKING FEE
In consideration of the undertaking given by the Trustee, Juris and Lively
in the Agreement the Company agrees to pay the Trustee an undertaking fee
(the "UNDERTAKING FEE") equal to US$1500 per annum for each year or part
thereof during which any amount is outstanding or payable under any of the
Notes. The Undertaking Fee shall be payable by the Company to the Trustee
in January of each year commencing 1999.
6. SUCCESSORS AND ASSIGNS
(A) This Agreement shall be binding on and enure to the benefit of the
Note Indenture Trustee and its successors and assigns.
(B) This Agreement shall be binding on each of the Trustee, Juris,
Lively, GPA Group and their respective successors and assigns and
persons otherwise entitled to the Shares or any of them or any
interest therein by operation of law.
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7. GOVERNING LAW AND JURISDICTION
(A) This Agreement shall be governed by and construed in accordance with
Jersey Law.
(B) Each of the parties hereto irrevocably agrees that the Courts of
Jersey shall have jurisdiction to hear and determine any suit, action
or proceeding and to settle any disputes which may arise out of or in
connection with this Agreement and for such purposes irrevocably
submits to the jurisdiction of such Courts.
(C) Each of the parties hereto irrevocably waives any objection which it
might now or hereafter have to the Courts referred to in sub-class (B)
above being nominated as the forum to hear and determine any suit,
action or proceeding and to settle any disputes which may arise out of
or in connection with these presents and agrees not to claim that any
such Court is not a convenient or appropriate forum.
(D) The submission to the jurisdiction of the Courts referred to in
sub-clause (B) above shall not (and shall not be construed so as to)
limit the right of the Note Indenture Trustee to take proceedings
against the Trustee, Juris, Lively, GPA Group or any of them in any
other court of competent jurisdiction nor shall the taking of
proceedings in one or more jurisdictions preclude the Note Indenture
Trustee from taking proceedings against the Trustee, Juris, Lively,
GPA Group or any of them in any other jurisdiction, whether
concurrently or not.
8. MISCELLANEOUS
(A) The Trustee, Juris, Lively and GPA Group agree that, in the event of a
breach of this Agreement, damages shall be an inadequate remedy to the
other party and
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that specific performance, injunction or other equitable relief are
therefore appropriate remedies to prevent or restrain a breach or
possible breach.
(B) In the event of any one or more of the provisions contained in this
Agreement being invalid, illegal or unenforceable in any respect under
any law, the validity, legality and enforceability of the remaining
provisions herein contained shall not be in any way affected or
impaired thereby.
9. COUNTERPARTS
This Agreement may be executed by one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
IN WITNESS whereof the parties hereto have executed and delivered this Agreement
the day and year first above written.
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SIGNED by:- ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇ )
for and on behalf of )
MOURANT & CO. TRUSTEES LIMITED )
in the presence of:- )
▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
SIGNED by:- ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
for and on behalf of )
JURIS LIMITED )
in the presence of:- )
SIGNED by:- ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
for and on behalf of )
LIVELY LIMITED )
in the presence of:- )
SIGNED by:- ▇▇▇▇ ▇▇▇▇▇▇▇ )
for and on behalf of )
GPA GROUP PLC )
in the presence of:- )
SIGNED by:- ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. )
for and on behalf of )
AERCO LIMITED )
in the presence of:- )
SIGNED by:- ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ )
for and on behalf of )
BANKERS TRUST COMPANY )
in the presence of:- )
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SIGNED by:- ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇ )
for and on behalf of )
MOURANT & CO. TRUSTEES LIMITED )
in the presence of:- )
▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
SIGNED by:- ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
for and on behalf of )
JURIS LIMITED )
in the presence of:- )
SIGNED by:- ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
for and on behalf of )
LIVELY LIMITED )
in the presence of:- )
SIGNED by:- ▇▇▇▇ ▇▇▇▇▇▇▇ )
for and on behalf of )
GPA GROUP PLC )
in the presence of:- )
SIGNED by:- ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. )
for and on behalf of )
AERCO LIMITED )
in the presence of:- )
SIGNED by:- ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ )
for and on behalf of )
BANKERS TRUST COMPANY )
in the presence of:- )
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