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EXHIBIT 10.104
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
(1998-lB)
Dated as of February 9, 1998
between
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent,
as agent and trustee for the
Atlas Air Pass Through Trust 1998-lB-0,
as Borrower
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERVICES, INC.,
as Liquidity Provider
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Relating to
Atlas Air Pass Through Trust 1998-lB-0
7.68% Atlas Air Pass Through Certificates,
Series 1998-lB-0
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.02. Making the Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.03. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.04. Reduction or Termination of the Maximum Commitment . . . . . . . . . . . . . . . . . . . . . 10
Section 2.05. Repayments of Interest Advances or the Final Advance . . . . . . . . . . . . . . . . . . . . 11
Section 2.06. Repayments of Provider Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor Agreement . . . . . . . . . . . . 12
Section 2.08. Book Entries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.09. Payments from Available Funds Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.10. [Intentionally omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.02. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.03. Payments Free of Deductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.04. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.05. Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.06. Payment on Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.07. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.08. Replacement of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.09. Funding Loss Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.10. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01 . . . . . . . . . . . . . . . . . . . . 19
Section 4.02. Conditions Precedent to Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.02. Negative Covenants of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 7.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.03. No Waiver: Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.04. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.05. Indemnification; Survival of Certain Provisions . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.06. Liability of the Liquidity Provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.07. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.08. Binding Effect; Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.09. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.10. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity . . . . . . . . . . . . 27
Section 7.12. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.13. Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.14. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.15. Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.16. LIQUIDITY PROVIDER's OBLIGATION TO MAKE ADVANCES . . . . . . . . . . . . . . . . . . . . . . 29
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ANNEX I Interest Advance Notice of Borrowing
ANNEX II Downgrade Advance Notice of Borrowing
ANNEX III Final Advance Notice of Borrowing
ANNEX IV Notice of Termination
ANNEX V Notice of Replacement Subordination Agent
EXHIBIT I Form of Guarantee Agreement
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT dated as of February 9, 1998,
between WILMINGTON TRUST COMPANY, a Delaware corporation ("WTC"), not in its
individual capacity but solely as Subordination Agent under the Intercreditor
Agreement (each as defined below), as agent and trustee for the Class B Trust
(as defined below) (the "Borrower"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERVICES, INC.,
a Delaware corporation ("MSCS" or the "Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class B Trust Agreement (such term
and all other capitalized terms used in these recitals having the meanings set
forth or referred to in Section 1.01), the Class B Trust is issuing the Class B
Certificates;
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class B Certificates in accordance with
their terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
Advances be made hereunder; and
WHEREAS, the Liquidity Provider has requested ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, Discover & Co. (the "Guarantor") to enter into a Guarantee
Agreement, providing for the full and unconditional guarantee of the Liquidity
Provider's obligations under this Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. (a) Definitions. As
used in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this Agreement:
"Additional Cost" has the meaning assigned to such term in
Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid Advance, as
the case may be.
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"Applicable Liquidity Rate" has the meaning assigned to such
term in Section 3.07(h).
"Applicable Margin" means (x) with respect to any Unpaid
Advance or Applied Provider Advance, 1.75% and (y) with respect to any
Unapplied Downgrade Advance, 0.40%.
"Applied Downgrade Advance" has the meaning assigned to such
term in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to such
term in Section 2.06(a).
"Assignment and Assumption Agreement" means the Assignment and
Assumption to be entered into between the Borrower and the trustee of
the Successor Trust, substantially in the form of Exhibit D to the
Class B Trust Agreement.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to (a) the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or if such rate is not so published
for any day that is a Business Day, the average of the quotations for
such day for such transactions received by the Liquidity Provider from
three Federal funds brokers of recognized standing selected by it,
plus (b) one-quarter of one percent (1/4 of 1%).
"Base Rate Advance" means an Advance that bears interest at a
rate based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery
of a Notice of Borrowing.
"Business Day" means any day other than a Saturday or Sunday
or a day on which commercial banks are required or authorized to close
in Denver, Colorado, Chicago, Illinois, New York, New York, or, so
long as any Class B Certificate is outstanding, the city and state in
which the Class B Trustee, the Borrower or any Loan Trustee maintains
its Corporate Trust Office or receives or disburses funds, and, if the
applicable Business Day relates to any Advance or other amount bearing
interest
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based on the LIBOR Rate, on which dealings are carried on in the
London interbank market.
"Certificates of Deposit" has the meaning assigned to such
term in the Deposit Agreement.
"Deposits" has the meaning assigned to such terms in the
Deposit Agreement.
"Depositary" has the meaning assigned to such term in the
Deposit Agreement.
"Deposit Agreement" means the Deposit Agreement dated February
9, 1998 between First Security Bank, National Association, as Escrow
Agent and ABN AMRO Bank N.V., acting through its Chicago Branch, as
Depositary, pertaining to the Class B Certificates, as the same may be
amended, modified or supplemented from time to time in accordance with
the terms thereof.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
"Effective Date" has the meaning specified in Section 4.01.
The delivery of the certificate of the Liquidity Provider contemplated
by Section 4.01(e) shall be conclusive evidence that the Effective
Date has occurred.
"Excluded Taxes" means (i) taxes imposed on the overall net
income of the Liquidity Provider or of its Lending Office by the
jurisdiction where such Liquidity Provider's principal office or such
Lending Office is located, and (ii) Excluded Withholding Taxes.
"Excluded Withholding Taxes" means (i) withholding Taxes
imposed by the United States except to the extent that such United
States withholding Taxes are imposed as a result of any change in
applicable law after the date hereof (excluding from change in
applicable law for this purpose a change in an applicable treaty or
other change in law affecting the applicability of a treaty), or in
the case of a successor Liquidity Provider (including a transferee of
an Advance) or Lending Office, after the date on which such successor
Liquidity Provider obtains its interest or on which the Lending Office
is changed, and (ii) any withholding Taxes imposed by the United
States which are imposed or increased as a result of the Liquidity
Provider failing to deliver to the Borrower any certificate or
document (which certificate or document in the good faith judgment of
the Liquidity Provider it is legally entitled to provide) which is
reasonably requested by the Borrower to establish that payments under
this Agreement are exempt from (or entitled to a reduced rate of)
withholding Tax.
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"Expenses" means liabilities, obligations, damages,
settlements, penalties, claims, actions, suits, costs, expenses, and
disbursements (including, without limitation, reasonable fees and
disbursements of legal counsel and costs of investigation), provided
that Expenses shall not include any Taxes.
"Expiry Date" means July 2, 2015.
"Final Advance" means an Advance made pursuant to Section
2.02(d).
"Intercreditor Agreement" means the Intercreditor Agreement
dated the date hereof, among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement) and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with its terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance,
each of the following periods:
(i) the period beginning on the third Business Day
following either (x) the Liquidity Provider's receipt
of the Notice of Borrowing for such LIBOR Advance
(or, in the case of an Unapplied Downgrade Advance,
the period beginning on the Expiry Date) or (y) the
withdrawal of funds from the Class B Cash Collateral
Account for the purpose of paying interest on the
Class B Certificates as contemplated by Section
2.06(a) hereof and, in either case, ending on the
next Regular Distribution Date (or ending, in the
case of an Interest Period applicable to any
Unapplied Provider Advance, on the numerically
corresponding day in the first or sixth calendar
month after the first day of the applicable Interest
Period and/or on the next Regular Distribution Date,
as Atlas may select by providing notice thereof to
the Borrower and the Liquidity Provider no later than
three Business Days prior to the commencement of such
Interest Period, provided that if Atlas shall not
provide such a notice at least three Business Days
prior to the commencement of such Interest Period,
then Atlas shall be deemed to have selected an
Interest Period ending on the next Regular
Distribution Date); and
(ii) each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending
on the next Regular Distribution Date (or ending, in
the case of an Interest Period applicable to any
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Unapplied Provider Advance, on the numerically
corresponding day in the first or sixth calendar
month after the first day of the applicable Interest
Period and/or on the next Regular Distribution Date,
as Atlas may select by providing notice thereof to
the Borrower and the Liquidity Provider no later than
three Business Days prior to the commencement of such
Interest Period, provided that if Atlas shall not
provide such a notice at least three Business Days
prior to the commencement of such Interest Period,
then Atlas shall be deemed to have selected an
Interest Period ending on the next Regular
Distribution Date);
provided, however, that (I) if an Unapplied Provider Advance which is a LIBOR
Advance becomes an Applied Provider Advance, the Interest Period then
applicable to such Unapplied Provider Advance shall be applicable to such
Applied Provider Advance and (II) if (x) the Final Advance shall have been
made, or (y) other outstanding Advances shall have been converted into the
Final Advance, then the Interest Periods shall be successive periods of one
month beginning on the third Business Day following the Liquidity Provider's
receipt of the Notice of Borrowing for such Final Advance (in the case of
clause (x) above) or the Regular Distribution Date following such conversion
(in the case of clause (y) above).
"Leased Aircraft Participation Agreement" means a
participation agreement substantially in the form of Exhibit A-1 to
the Note Purchase Agreement.
"Lending Office" means the lending office of the Liquidity
Provider presently located at New York, New York, or such other
lending office as the Liquidity Provider from time to time shall
notify the Borrower as its lending office hereunder; provided that the
Liquidity Provider shall not change its Lending Office to a Lending
Office outside the United States of America except in accordance with
Section 3.01, 3.02 or 3.03 hereof.
"LIBOR Advance" means an Advance bearing interest at a rate
based upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, the
average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the rates per annum at which deposits in dollars are offered to
major banks in the London interbank market at approximately 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount approximately equal to the principal amount of the
Advance to which such Interest Period is to apply and for a period of
time comparable to such Interest Period.
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"Liquidity Event of Default" means the occurrence of either
(a) the acceleration of all of the Equipment Notes or (b) an Atlas
Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii)
the directors, officers, employees and agents of the Liquidity
Provider, and (iii) the successors and permitted assigns of the
persons described in clauses (i) and (ii), inclusive.
"Liquidity Provider" has the meaning assigned to such term in
the recital of parties to this Agreement.
"Maximum Commitment" shall mean, subject to the proviso
contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Required Amount at such time less (b) the
aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the
Maximum Commitment shall be zero.
"Notice of Borrowing" has the meaning specified in Section
2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Offering Memorandum" means the Offering Memorandum dated
January 27, 1998 relating to the Certificates, as such Offering
Memorandum may be amended or supplemented.
"Owned Aircraft Participation Agreement" means a participation
agreement substantially in the form of Exhibit C-1 to the Note Purchase
Agreement.
"Participation Agreements" means, collectively, the Leased
Aircraft Participation Agreement and the Owned Aircraft Participation
Agreement.
"Performing Note Deficiency" means any time that less than 65%
of the then aggregate outstanding principal amount of all Equipment
Notes are Performing Equipment Notes.
"Provider Advance" means a Downgrade Advance.
"Regulatory Change" has the meaning assigned to such term in
section 3.01.
"Replenishment Amount" has the meaning assigned to such term
in Section 2.06(b).
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"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the
Stated Interest Rate for the Class B Certificates, that would be
payable on the Class B Certificates on each of the three successive
semiannual Regular Distribution Dates immediately following such day
or, if such day is a Regular Distribution Date, on such day and the
succeeding two semiannual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class B
Certificates on such day and without regard to expected future
payments of principal on the Class B Certificates.
"Successor Trust" means Atlas Air Pass Through Trust
1998-lB-S.
"Termination Date" means the earliest to occur of the
following: (i) the Expiry Date; (ii) the date on which the Borrower
delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying that all of the Class
B Certificates have been paid in full (or provision has been made for
such payment in accordance with the Intercreditor Agreement and the
Trust Agreements) or are otherwise no longer entitled to the benefits
of this Agreement; (iii) the date on which the Borrower delivers to
the Liquidity Provider a certificate, signed by a Responsible Officer
of the Borrower, certifying that a Replacement Liquidity Facility has
been substituted for this Agreement in full pursuant to Section 3.6(e)
of the Intercreditor Agreement; (iv) the fifth Business Day following
the receipt by the Borrower of a Termination Notice from the Liquidity
Provider pursuant to Section 6.01 hereof; and (v) the date on which no
Advance is or may (including by reason of reinstatement as herein
provided) become available for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex IV to this Agreement.
"Transferee" has the meaning assigned to such term in Section
7.08(b).
"Unapplied Downgrade Advance" means any Downgrade Advance
other than an Applied Downgrade Advance.
"Unapplied Provider Advance" means any Provider Advance other
than an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term in
Section 2.05.
(b) Terms Defined in the Intercreditor Agreement. For
all purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
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"Atlas", "Atlas Bankruptcy Event", "Certificates", "Class A
Certificates", "Class B Cash Collateral Account", "Class B
Certificates", "Class B Certificateholders", "Class B Trust", "Class B
Trust Agreement", "Class B Trustee", "Class C Certificates", "Closing
Date", "Controlling Party", "Corporate Trust Office", "Distribution
Date", "Downgraded Facility", "Equipment Notes", "Final Maturity
Date", "Financing Agreement", "Fitch", "Guarantee Event", "Guarantor",
"Indenture", "Interest Payment Date", "Investment Earnings",
"Liquidity Facility", "Liquidity Obligations", "Loan Trustee",
"▇▇▇▇▇'▇", "MSCS Fee Letter", "MSCS Liquidity Facilities", "Note
Purchase Agreement", "Operative Agreements", "Performing Equipment
Note", "Person", "Placement Agents", "Placement Agreement", "Pool
Balance", "Rating Agency", "Ratings Confirmation", "Regular
Distribution Date", "Replacement Liquidity Facility", "Responsible
Officer", "Scheduled Payment", "Special Payment", "Standard & Poor's",
"Stated Interest Rate", "Subordination Agent", "Taxes", "Threshold
Rating", "Transfer", "Trust Agreements", "Trustee" and "Written
Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until 12:00 Noon (New York City time) on the
Expiry Date (unless the obligations of the Liquidity Provider shall be earlier
terminated in accordance with the terms of Section 2.04(b)) in an aggregate
amount at any time outstanding not to exceed the Maximum Commitment.
Section 2.02. Making the Advances. (a) Interest Advances
shall be made in one or more Borrowings by delivery to the Liquidity Provider
of one or more written and completed Notices of Borrowing in substantially the
form of Annex I attached hereto, signed by a Responsible Officer of the
Borrower, in an amount not exceeding the Maximum Commitment at such time and
shall be used solely for the payment when due of the interest on the Class B
Certificates at the Stated Interest Rate therefor in accordance with Section
3.6(a) of the Intercreditor Agreement. Each Interest Advance made hereunder
shall automatically reduce the Maximum Commitment and the amount available to
be borrowed hereunder by subsequent Advances by the amount of such Interest
Advance (subject to reinstatement as provided in the next sentence). Upon
repayment to the Liquidity Provider in full of the amount of any Interest
Advance made pursuant to this Section 2.02(a), together with accrued interest
thereon (as provided herein), the Maximum Commitment shall be reinstated by the
amount of such repaid Interest Advance; provided, however, that the
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Maximum Commitment shall not be so reinstated at any time if (i) a Liquidity
Event of Default shall have occurred and be continuing and (ii) there is a
Performing Note Deficiency.
(b) [Intentionally omitted]
(c) A Downgrade Advance shall be made in a single
Borrowing, as provided for in Section 3.6(c) of the Intercreditor Agreement,
(i) upon a downgrading of the Guarantor's short-term unsecured debt rating
issued by any Rating Agency below the applicable Threshold Rating or (ii) if
the Guarantee Agreement ceases to be in full force and effect, becomes invalid
or unenforceable or the Guarantor denies its liability thereunder (any such
occurrence, a "Guarantee Event"), unless a Replacement Liquidity Facility to
replace this Agreement shall have been previously delivered to the Borrower in
accordance with said Section 3.6(c), by delivery to the Liquidity Provider of a
written and completed Notice of Borrowing in substantially the form of Annex
III attached hereto, signed by a Responsible Officer of the Borrower, in an
amount equal to the Maximum Commitment at such time, and shall be used to fund
the Class B Cash Collateral Account in accordance with said Section 3.6(c) and
Section 3.6(f) of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing
upon the receipt by the Borrower of a Termination Notice from the Liquidity
Provider pursuant to Section 6.01 hereof by delivery to the Liquidity Provider
of a written and completed Notice of Borrowing in substantially the form of
Annex IV attached hereto, signed by a Responsible Officer of the Borrower, in
an amount equal to the Maximum Commitment at such time, and shall be used to
fund the Class B Cash Collateral Account (in accordance with Section 3.6(i) of
the Intercreditor Agreement) and Section 3.6(f) of the Intercreditor Agreement.
(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section 2.02(a),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to the Liquidity
Provider. If a Notice of Borrowing is delivered by the Borrower in respect of
any Borrowing no later than 12:00 Noon (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available
to the Borrower, in accordance with its payment instructions, the amount of
such Borrowing in U.S. dollars and immediately available funds, before 12:00
Noon (New York City time) on the first Business Day next following the day of
receipt of such Notice of Borrowing or on such later Business Day specified in
such Notice of Borrowing. If a Notice of Borrowing is delivered by the
Borrower in respect of any Borrowing after 12:00 Noon (New York City time) on a
Business Day, upon satisfaction of the conditions precedent set forth in
Section 4.02 with respect to a requested Borrowing, the Liquidity Provider
shall make available to the Borrower, in accordance with its payment
instructions, the amount of such Borrowing in U.S. dollars and immediately
available funds, before 12:00 Noon (New York City time) on the second Business
Day next following the day of receipt of such Notice
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of Borrowing or on such later Business Day specified by the Borrower in such
Notice of Borrowing. Payments of proceeds of a Borrowing shall be made by wire
transfer of immediately available funds to the Borrower in accordance with such
wire transfer instructions as the Borrower shall furnish from time to time to
the Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower.
(f) Upon the making of any Advance requested pursuant to
a Notice of Borrowing, in accordance with the Borrower's payment instructions,
the Liquidity Provider shall be fully discharged of its obligation hereunder
with respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other Person. Following the
making of any Advance pursuant to Section 2.02(c) or (d) hereof to fund the
Class B Cash Collateral Account, the Liquidity Provider shall have no interest
in or rights to the Class B Cash Collateral Account, such Advance or any other
amounts from time to time on deposit in the Class B Cash Collateral Account;
provided that the foregoing shall not affect or impair the obligations of the
Subordination Agent to make the distributions contemplated by Section 3.6(e) or
(f) of the Intercreditor Agreement. By paying to the Borrower proceeds of
Advances requested by the Borrower in accordance with the provisions of this
Agreement, the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the
amount of the Advances so made and requested.
Section 2.03. Fees. The Borrower agrees to pay to the
Liquidity Provider the fees set forth in the MSCS Fee Letter.
Section 2.04. Reduction or Termination of the Maximum
Commitment. (a) Automatic Reduction. Promptly following each date on which
the Required Amount is reduced as a result of a reduction in the Pool Balance
of the Class B Certificates or otherwise, the Maximum Commitment shall
automatically be reduced to an amount equal to such reduced Required Amount (as
calculated by the Borrower). The Borrower shall give notice of any such
automatic reduction of the Maximum Commitment to the Liquidity Provider within
two Business Days thereof. The failure by the Borrower to furnish any such
notice shall not affect such automatic reduction of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance
or Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled
to request any further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final
Advance. Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby
agrees, without notice of an Advance or demand for repayment from the Liquidity
Provider (which notice and
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demand are hereby waived by the Borrower), to pay, or to cause to be paid, to
the Liquidity Provider on each date on which the Liquidity Provider shall make
an Interest Advance or the Final Advance, an amount equal to (a) the amount of
such Advance (any such Advance, until repaid, is referred to herein as an
"Unpaid Advance"), plus (b) interest on the amount of each such Unpaid Advance
as provided in Section 3.07 hereof; provided that if (i) the Liquidity Provider
shall make a Provider Advance at any time after making one or more Interest
Advances which shall not have been repaid in accordance with this Section 2.05
or (ii) this Liquidity Facility shall become a Downgraded Facility at any time
when unreimbursed Interest Advances have reduced the Maximum Commitment to
zero, then such Interest Advances shall cease to constitute Unpaid Advances and
shall be deemed to have been changed into an Applied Downgrade Advance for all
purposes of this Agreement (including, without limitation, for the purpose of
determining when such Interest Advance is required to be repaid to the
Liquidity Provider in accordance with Section 2.06 and for the purposes of
Section 2.06(b)). The Borrower and the Liquidity Provider agree that the
repayment in full of each Interest Advance and Final Advance on the date such
Advance is made is intended to be a contemporaneous exchange for new value
given to the Borrower by the Liquidity Provider.
Section 2.06. Repayments of Provider Advances. (a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
Class B Cash Collateral Account, invested and withdrawn from the Class B Cash
Collateral Account as set forth in Sections 3.6(c), (d) and (f) of the
Intercreditor Agreement. The Borrower agrees to pay to the Liquidity Provider,
on each Regular Distribution Date, commencing on the first Regular Distribution
Date after the making of a Provider Advance, interest on the principal amount
of any such Provider Advance as provided in Section 3.07; provided, however,
that amounts in respect of a Provider Advance withdrawn from the Class B Cash
Collateral Account for the purpose of paying interest on the Class B
Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement
(the amount of any such withdrawal being an "Applied Provider Advance") shall
thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under
this Agreement for purposes of determining the Applicable Liquidity Rate for
interest payable thereon; provided further, however, that if, following the
making of a Provider Advance, the Liquidity Provider delivers a Termination
Notice to the Borrower pursuant to Section 6.01 hereof, such Provider Advance
shall thereafter be treated as a Final Advance under this Agreement for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon. Subject to Sections 2.07 and 2.09 hereof, immediately upon the
withdrawal of any amounts from the Class B Cash Collateral Account on account
of a reduction in the Required Amount, the Borrower shall repay to the
Liquidity Provider a portion of the Provider Advances in a principal amount
equal to such reduction, plus interest on the principal amount prepaid as
provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the Class B Cash
Collateral Account of any
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amount pursuant to clause "third" of Section 2.4(b) of the Intercreditor
Agreement, clause "third" of Section 3.2 of the Intercreditor Agreement or
clause "fourth" of Section 3.3 of the Intercreditor Agreement (any such amount
being a "Replenishment Amount") for the purpose of replenishing or increasing
the balance thereof up to the Required Amount at such time, (i) the aggregate
outstanding principal amount of all Applied Provider Advances (and of Provider
Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances shall be
automatically increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity
Facility in replacement of this Agreement in accordance with Section 3.6(e) of
the Intercreditor Agreement, amounts remaining on deposit in the Class B Cash
Collateral Account after giving effect to any Applied Provider Advance on the
date of such replacement shall be reimbursed to the Liquidity Provider, but
only to the extent such amounts are necessary to repay in full to the Liquidity
Provider all amounts owing to it hereunder.
Section 2.07. Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to
the Liquidity Provider in accordance with the terms thereof. Amounts so paid
to the Liquidity Provider shall be applied by the Liquidity Provider to
Liquidity Obligations then due and payable in accordance with the Intercreditor
Agreement or, if not provided for in the Intercreditor Agreement, then in such
manner as the Liquidity Provider shall deem appropriate.
Section 2.08. Book Entries. The Liquidity Provider shall
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower resulting from Advances made from
time to time and the amounts of principal and interest payable hereunder and
paid from time to time in respect thereof; provided, however, that the failure
by the Liquidity Provider to maintain such account or accounts shall not affect
the obligations of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. All
payments to be made by the Borrower under this Agreement shall be made only
from the amounts that constitute Scheduled Payments, Special Payments or
payments under Section 8.1 or 9.1, as the case may be, of the Participation
Agreements and Section 6 of the Note Purchase Agreement and only to the extent
that the Borrower shall have sufficient income or proceeds therefrom to enable
the Borrower to make payments in accordance with the terms hereof
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after giving effect to the priority of payments provisions set forth in the
Intercreditor Agreement. The Liquidity Provider agrees that it will look
solely to such amounts to the extent available for distribution to it as
provided in the Intercreditor Agreement and this Agreement and that the
Borrower, in its individual capacity, is not personally liable to it for any
amounts payable or liability under this Agreement except as expressly provided
in this Agreement, the Intercreditor Agreement or any Participation Agreement.
Amounts on deposit in the Class B Cash Collateral Account shall be available to
the Borrower to make payments under this Agreement only to the extent and for
the purposes expressly contemplated in Section 3.6(f) of the Intercreditor
Agreement.
Section 2.10. [Intentionally omitted]
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. The Borrower shall pay to the
Liquidity Provider from time to time such amounts as may be necessary to
compensate the Liquidity Provider for any increased costs incurred by the
Liquidity Provider which are attributable to its making or maintaining any
LIBOR Advances hereunder or its obligation to make any such Advances hereunder,
or any reduction in any amount receivable by the Liquidity Provider under this
Agreement or the Intercreditor Agreement in respect of any such Advances or
such obligation (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any change after the
date of this Agreement in U.S. federal, state, municipal, or foreign laws or
regulations which changes the basis of taxation of any amounts payable to the
Liquidity Provider under this Agreement in respect of any such Advances (other
than Excluded Taxes). The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section that may
thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Liquidity
Provider to compensation pursuant to this Section 3.01 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the amounts owed under this Section. Determinations by the Liquidity
Provider for purposes of this Section 3.01 of the effect of any Regulatory
Change on its costs of making or maintaining Advances or on amounts receivable
by it in respect of Advances, and of the additional amounts required to
compensate the Liquidity Provider in respect of any Additional Costs, shall be
prima facie evidence of the amount owed under this Section.
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Section 3.02. Capital Adequacy. If (1) the adoption, after
the date hereof, of any applicable governmental law, rule or regulation
regarding capital adequacy, (2) any change, after the date hereof, in the
interpretation or administration of any such law, rule or regulation by any
central bank or other governmental authority charged with the interpretation or
administration thereof or (3) compliance by the Liquidity Provider or any
corporation controlling the Liquidity Provider with any applicable guideline or
request of general applicability, issued after the date hereof, by any central
bank or other governmental authority (whether or not having the force of law)
that constitutes a change of the nature described in clause (2), has the effect
of requiring an increase in the amount of capital required to be maintained by
the Liquidity Provider or any corporation controlling the Liquidity Provider,
and such increase is based upon the Liquidity Provider's obligations hereunder
and other similar obligations, the Borrower shall pay to the Liquidity Provider
from time to time such additional amount or amounts as are necessary to
compensate the Liquidity Provider for such portion of such increase as shall be
reasonably allocable to the Liquidity Provider's obligations to the Borrower
hereunder. The Liquidity Provider agrees to use reasonable efforts (consistent
with applicable legal and regulatory restrictions) to change the jurisdiction
of its Lending Office if making such change would avoid the need for, or reduce
the amount of, any amount payable under this Section that may thereafter accrue
and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise materially disadvantageous to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Liquidity
Provider to compensation pursuant to this Section 3.02 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the amounts owed under this Section. Determinations by the Liquidity
Provider for purposes of this Section 3.02 of the effect of any increase in the
amount of capital required to be maintained by the bank and of the amount
allocable to the Liquidity Provider's obligations to the Borrower hereunder
shall be prima facie evidence of the amounts owed under this Section.
Section 3.03. Payments Free of Deductions. All payments made
by the Borrower under this Agreement shall be made free and clear of, and
without reduction for or on account of, any present or future stamp or other
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
restrictions or conditions of any nature whatsoever now or hereafter imposed,
levied, collected, withheld or assessed, excluding Excluded Taxes (such
non-excluded taxes being referred to herein, collectively, as "Non-Excluded
Taxes" and, individually, as a "Non-Excluded Tax"). If any Non-Excluded Taxes
are required to be withheld from any amounts payable to the Liquidity Provider
under this Agreement, the amounts so payable to the Liquidity Provider shall be
increased to the extent necessary to yield to the Liquidity Provider (after
payment of all Non-Excluded Taxes) interest or any other such amounts payable
under this Agreement at the rates or in the amounts specified in
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this Agreement. The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would avoid
the need for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider. From time to
time upon the reasonable request of the Borrower, the Liquidity Provider agrees
to provide to the Borrower two original Internal Revenue Service Forms 1001 or
4224, as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that the Liquidity Provider is exempt from or
entitled to a reduced rate of United States withholding tax on payments
pursuant to this Agreement.
(b) All payments (including, without limitation,
Advances) made by the Liquidity Provider under this Agreement shall be made
free and clear of, and without reduction for or on account of, any Taxes. If
any Taxes are required to be withheld or deducted from any amounts payable to
the Borrower under this Agreement, the Liquidity Provider shall (i) within the
time prescribed therefor by applicable law pay to the appropriate governmental
or taxing authority the full amount of any such Taxes (and any additional Taxes
in respect of the payment required under clause (ii) hereof) and make such
reports or returns in connection therewith at the time or times and in the
manner prescribed by applicable law, and (ii) pay to the Borrower an additional
amount which (after deduction of all such Taxes) will be sufficient to yield to
the Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
Section 3.04. Payments. The Borrower shall make or cause to
be made each payment to the Liquidity Provider under this Agreement so as to
cause the same to be received by the Liquidity Provider not later than 1:00
P.M. (New York City time) on the day when due. The Borrower shall make all
such payments in lawful money of the United States of America, to the Liquidity
Provider in immediately available funds, by wire transfer to Citibank, N.A.,
New York, NY, ABA# ▇▇▇▇▇▇▇▇▇, Account Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services,
Inc., Account # 4072-4601, Reference: Atlas Air, Inc., 1998-1B.
Section 3.05. Computations. All computations of interest
based on the Base Rate shall be made on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the LIBOR Rate
shall be made on the basis of a year of 360 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.
Section 3.06. Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a day other than a
Business Day, such payment
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shall be made on the next succeeding Business Day and no additional interest
shall be due as a result (and if so made, shall be deemed to have been made
when due). If any payment in respect of interest on an Advance is so deferred
to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Section 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication, interest on
(i) the unpaid principal amount of each Advance from and including the date of
such Advance (or, in the case of an Applied Provider Advance, from and
including the date on which the amount thereof was withdrawn from the Class B
Cash Collateral Account to pay interest on the Class B Certificates) to but
excluding the date such principal amount shall be paid in full (or, in the case
of an Applied Provider Advance, the date on which the Class B Cash Collateral
Account is fully replenished in respect of such Advance) and (ii) any other
amount due hereunder (whether fees, commissions, expenses or other amounts or,
to the extent permitted by law, installments of interest on Advances or any
such other amount) which is not paid when due (whether at stated maturity, by
acceleration or otherwise) from and including the due date thereof to but
excluding the date such amount is paid in full, in each such case, at a
fluctuating interest rate per annum for each day equal to the Applicable
Liquidity Rate (as defined below) for such Advance or such other amount as in
effect for such day, but in no event at a rate per annum greater than the
maximum rate permitted by applicable law; provided, however, that, if at any
time the otherwise applicable interest rate as set forth in this Section 3.07
shall exceed the maximum rate permitted by applicable law, then any subsequent
reduction in such interest rate will not reduce the rate of interest payable
pursuant to this Section 3.07 below the maximum rate permitted by applicable
law until the total amount of interest accrued equals the amount of interest
that would have accrued if such otherwise applicable interest rate as set forth
in this Section 3.07 had at all times been in effect.
(b) Except as provided in clause (e) below, each Advance
will be either a Base Rate Advance or a LIBOR Advance as provided in this
Section. Each such Advance will be a Base Rate Advance for the period from the
date of its borrowing to (but excluding) the third Business Day following the
Liquidity Provider's receipt of the Notice of Borrowing for such Advance.
Thereafter, such Advance shall be a LIBOR Advance; provided that the Borrower
(at the direction of the Controlling Party), so long as the Liquidity Provider
is not the Controlling Party) may (x) convert the Final Advance into a Base
Rate Advance on the last day of an Interest Period for such Advance by giving
the Liquidity Provider no less than four Business Days' prior written notice of
such election or (y) elect to maintain the Final Advance as a Base Rate Advance
by not requesting a conversion of the Final Advance to a LIBOR Advance under
Clause (5) of the applicable Notice of Borrowing.
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(c) Each LIBOR Advance shall bear interest during each
Interest Period at a rate per annum equal to the LIBOR Rate for such Interest
Period plus the Applicable Margin for such LIBOR Advance, payable in arrears on
the last day of such Interest Period and, in the event of the payment of
principal of such LIBOR Advance on a day other than such last day, on the date
of such payment (to the extent of interest accrued on the amount of principal
repaid).
(d) Each Base Rate Advance shall bear interest at a rate
per annum equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the event
of the payment of principal of such Base Rate Advance on a day other than a
Regular Distribution Date, on the date of such payment (to the extent of
interest accrued on the amount of principal repaid).
(e) Each Unapplied Downgrade Advance (i) during the
period from and including the date of the making of such Unapplied Downgrade
Advance through but excluding the Expiry Date (or, if earlier, the date of
repayment thereof or of conversion thereof into a Final Advance), shall bear
interest at a rate per annum equal to the LIBOR Rate for such Interest Period
plus 0.40% on the amount of such Unapplied Downgrade Advance from time to time
during such period, payable in arrears on each Regular Distribution Date and
(ii) thereafter, shall be a LIBOR Advance and shall bear interest in accordance
with clause (c) above.
(f) [Intentionally omitted]
(g) Each amount not paid when due hereunder (whether
fees, commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances but excluding Advances)
shall bear interest at a rate per annum equal to the Base Rate plus 2.00% until
paid.
(h) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with respect
to any Advance or other amount shall be referred to as the "Applicable
Liquidity Rate".
Section 3.08. Replacement of Borrower. From time to time and
subject to the successor Borrower's meeting the eligibility requirements set
forth in Section 6.9 of the Intercreditor Agreement applicable to the
Subordination Agent, upon the effective date and time specified in a written
and completed Notice of Replacement Subordination Agent in substantially the
form of Annex V attached hereto (a "Notice of Replacement Subordination Agent")
delivered to the Liquidity Provider by the then Borrower, the successor
Borrower designated therein shall be substituted for as the Borrower for all
purposes hereunder.
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Section 3.09. Funding Loss Indemnification. The Borrower
shall pay to the Liquidity Provider, upon the request of the Liquidity
Provider, such amount or amounts as shall be sufficient (in the reasonable
opinion of the Liquidity Provider) to compensate it for any loss, cost, or
expense incurred by reason of the liquidation or redeployment of deposits or
other funds acquired by the Liquidity Provider to fund or maintain any LIBOR
Advance (but excluding loss of anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than
the last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance
on the date for borrowing specified in the relevant notice under
Section 2.02.
Section 3.10. Illegality. Notwithstanding any other
provision in this Agreement, if any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Liquidity
Provider (or its Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for the Liquidity Provider (or its
Lending Office) to maintain or fund its LIBOR Advances, then upon notice to the
Borrower by the Liquidity Provider, the outstanding principal amount of the
LIBOR Advances shall be converted to Base Rate Advances (a) immediately upon
demand of the Liquidity Provider, if such change or compliance with such
request, in the judgment of the Liquidity Provider, requires immediate
repayment; or (b) at the expiration of the last Interest Period to expire
before the effective date of any such change or request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of
Section 2.01. Section 2.01 of this Agreement shall become effective on and as
of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied or waived:
(a) The Liquidity Provider shall have received on or
before the Closing Date each of the following, and in the case of each document
delivered pursuant to paragraphs (i), (ii) and (iii), each in form and
substance satisfactory to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the
Borrower;
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(ii) The Intercreditor Agreement duly executed on behalf
of each of the parties thereto;
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing Date (other
than this Agreement and the Intercreditor Agreement);
(iv) A copy of the Offering Memorandum and specimen copies
of the Class B Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before the Closing Date
pursuant to the Class B Trust Agreement, the Intercreditor Agreement
and the other Operative Agreements (in the case of each such opinion,
other than the opinion of counsel for the Placement Agents, either
addressed to the Liquidity Provider or accompanied by a letter from
the counsel rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as of its date as if it
were addressed to the Liquidity Provider);
(vi) Evidence that there shall have been made and shall be
in full force and effect, all filings, recordings and/or
registrations, and there shall have been given or taken any notice or
other similar action as may be reasonably necessary or, to the extent
reasonably requested by the Liquidity Provider, reasonably advisable,
in order to establish, perfect, protect and preserve the right, title
and interest, remedies, powers, privileges, liens and security
interests of, or for the benefit of, the Trustees, the Borrower and
the Liquidity Provider created by the Operative Agreements executed
and delivered on or prior to the Closing Date;
(vii) An agreement from Atlas, pursuant to which (i) Atlas
agrees to provide copies of quarterly financial statements and audited
annual financial statements to the Liquidity Provider, and such other
information as the Liquidity Provider shall reasonably request with
respect to the transactions contemplated by the Operative Agreements,
in each case, only to the extent that Atlas is obligated to provide
such information pursuant to Section 8.2.1 of the Leases (related to
Leased Aircraft) or the corresponding section of the Indentures
(related to Owned Aircraft) to the parties thereto and (ii) Atlas
agrees to allow the Liquidity Provider to inspect Atlas's books and
records regarding such transactions, and to discuss such transactions
with officers and employees of Atlas; and
(viii) Such other documents, instruments, opinions and
approvals pertaining to the transactions contemplated hereby or by the
other Operative Agreements as the Liquidity Provider shall have
reasonably requested.
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(b) The following statement shall be true on and as of
the Effective Date: No event has occurred and is continuing, or would result
from the entering into of this Agreement or the making of any Advance, which
constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in
full of all fees and other sums required to be paid to or for the account of
the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied or waived,
all conditions precedent to the effectiveness of the other Liquidity Facilities
shall have been satisfied or waived, and all conditions precedent to the
purchase of the Certificates by the Placement Agents under the Placement
Agreement shall have been satisfied (unless any of such conditions precedent
shall have been waived by the Placement Agents) .
(e) The Borrower shall have received on or before the
Closing Date each of the following:
(i) The Guarantee Agreement, substantially in the form of
Exhibit I hereto, duly executed on behalf of each of the parties
thereto;
(ii) A certificate, dated the date hereof, signed by a
duly authorized representative of the Liquidity Provider, certifying
that all conditions precedent to the effectiveness of Section 2.01
have been satisfied or waived.
Section 4.02. Conditions Precedent to Borrowing. The
obligation of the Liquidity Provider to make an Advance on the occasion of each
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and, prior to the date of such Borrowing, the Borrower
shall have delivered a Notice of Borrowing which conforms to the terms and
conditions of this Agreement and has been completed as may be required by the
relevant form of the Notice of Borrowing for the type of Advances requested.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long
as any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will, unless the
Liquidity Provider shall otherwise consent in writing:
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(a) Performance of This and Other Agreements. Punctually
pay or cause to be paid all amounts payable by it under this Agreement
and the other Operative Agreements and observe and perform in all
material respects the conditions, covenants and requirements
applicable to it contained in this Agreement and the other Operative
Agreements.
(b) Reporting Requirements. Furnish to the Liquidity
Provider with reasonable promptness, such other information and data
with respect to the transactions contemplated by the Operative
Agreements as from time to time may be reasonably requested by the
Liquidity Provider; and permit the Liquidity Provider, upon reasonable
notice, to inspect the Borrower's books and records with respect to
such transactions and to meet with officers and employees of the
Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the
Liquidity Provider with reasonable promptness such Operative
Agreements entered into after the date hereof as from time to time
may be reasonably requested by the Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. So long as
any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will not appoint
or permit or suffer to be appointed any successor Borrower without the prior
written consent of the Liquidity Provider, which consent shall not be
unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any
Liquidity Event of Default has occurred and is continuing and (b) there is a
Performing Note Deficiency, the Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be to
cause (i) this Agreement to expire on the fifth Business Day after the date on
which such Termination Notice is received by the Borrower, (ii) the Borrower to
promptly request, and the Liquidity Provider to promptly make, a Final Advance
in accordance with Section 2.02(d) hereof and Section 3.6(i) of the
Intercreditor Agreement, (iii) all other outstanding Advances to be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon, and (iv) subject to
Sections 2.07 and 2.09 hereof, all Advances (including, without limitation, any
Provider Advance and Applied Provider Advance), any accrued interest thereon
and any
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22
other amounts outstanding hereunder to become immediately due and payable to
the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendments, Etc., No amendment or waiver of
any provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Liquidity Provider, and, in the case of an amendment or of a
waiver by the Borrower, the Borrower, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
Section 7.02. Notices, Etc. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including telecopier and mailed or delivered or sent by
telecopier):
Borrower: WILMINGTON TRUST COMPANY
One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity
Provider: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERVICES, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each of the foregoing, at such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when transmitted
to the telecopier number specified above, (ii) if given by mail, when deposited
in the mails addressed as specified above, and (iii) if given by other means,
when delivered at the address specified above, except that written notices to
the Liquidity Provider pursuant to the provisions of Articles II and III hereof
shall not be effective until received by the Liquidity Provider. A copy of all
notices delivered hereunder
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23
to either party shall in addition be delivered to each of the parties to the
Participation Agreements at their respective addresses set forth therein.
Section 7.03. No Waiver: Remedies. No failure on the part of
the Liquidity Provider to exercise, and no delay in exercising, any right under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.04. Further Assurances. The Borrower agrees to do
such further acts and things and to execute and deliver to the Liquidity
Provider such additional assignments, agreements, powers and instruments as the
Liquidity Provider may reasonably require or deem advisable to carry into
effect the purposes of this Agreement and the other Operative Agreements or to
better assure and confirm unto the Liquidity Provider its rights, powers and
remedies hereunder and under the other Operative Agreements.
Section 7.05. Indemnification; Survival of Certain
Provisions. The Liquidity Provider shall be indemnified hereunder to the
extent and in the manner described in Section 9.1 of the Leased Aircraft
Participation Agreement, Section 8.1 of the Owned Aircraft Participation
Agreement and Section 6 of the Note Purchase Agreement. In addition, the
Borrower agrees to indemnify, protect, defend and hold harmless the Liquidity
Provider from, against and in respect of, and shall pay on demand, all Expenses
of any kind or nature whatsoever (other than any Expenses of the nature
described in Sections 3.01, 3.02 or 7.07 hereof or in the MSCS Fee Letter
(regardless of whether indemnified against pursuant to said Sections or in such
MSCS Fee Letter)), that may be imposed, incurred by or asserted against any
Liquidity Indemnitee, in any way relating to, resulting from, or arising out of
or in connection with any action, suit or proceeding by any third party against
such Liquidity Indemnitee and relating to this Agreement, the MSCS Fee Letter,
the Intercreditor Agreement or any Financing Agreement; provided, however, that
the Borrower shall not be required to indemnify, protect, defend and hold
harmless any Liquidity Indemnitee in respect of any Expense of such Liquidity
Indemnitee (i) to the extent such Expense is attributable to the gross
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee, (ii) ordinary and usual operating overhead expense, or
(iii) attributable to the failure by such Liquidity Indemnitee or any other
Liquidity Indemnitee to perform or observe any agreement, covenant or condition
on its part to be performed or observed in this Agreement, the Intercreditor
Agreement, the MSCS Fee Letter or any other Operative Agreement to which it is
a party. The indemnities contained in Section 9.1 or 8.1, as the case may be,
of the Participation Agreements, and the provisions of Sections 3.01, 3.02,
3.03, 3.09, 7.05 and 7.07 hereof, shall survive the termination of this
Agreement.
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24
Section 7.06. Liability of the Liquidity Provider. (a)
Neither the Liquidity Provider nor any of its officers, employees, directors or
affiliates shall be liable or responsible for: (i) the use which may be made of
the Advances or any acts or omissions of the Borrower or any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; or (iii) the making of Advances by the Liquidity Provider against
delivery of a Notice of Borrowing and other documents which do not comply with
the terms hereof; provided, however, that the Borrower shall have a claim
against the Liquidity Provider, and the Liquidity Provider shall be liable to
the Borrower, to the extent of any damages suffered by the Borrower which were
the result of (A) the Liquidity Provider's willful misconduct or negligence in
determining whether documents presented hereunder comply with the terms hereof,
or (B) any breach by the Liquidity Provider of any of the terms of this
Agreement, including, but not limited to, the Liquidity Provider's failure to
make lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing strictly complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its
officers, employees, director or affiliates shall be liable or responsible in
any respect for (i) any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with this Agreement or any Notice of Borrowing delivered hereunder,
or (ii) any action, inaction or omission which may be taken by it in good
faith, absent willful misconduct or negligence (in which event the extent of
the Liquidity Provider's potential liability to the Borrower shall be limited
as set forth in the immediately preceding paragraph), in connection with this
Agreement or any Notice of Borrowing.
Section 7.07. Costs, Expenses and Taxes. The Borrower agrees
to pay, or cause to be paid (A) on the Effective Date and on such later date or
dates on which the Liquidity Provider shall make demand, all reasonable out-of-
pocket costs and expenses (including, without limitation, the reasonable fees
and expenses of outside counsel for the Liquidity Provider) of the Liquidity
Provider in connection with the preparation, negotiation, execution, delivery,
filing and recording of this Agreement, any other Operative Agreement and any
other documents which may be delivered in connection with this Agreement and
(B) on demand, all reasonable costs and expenses (including reasonable counsel
fees and expenses) of the Liquidity Provider in connection with (i) the
enforcement of this Agreement or any other Operative Agreement, (ii) the
modification or amendment of, or supplement to, this Agreement or any other
Operative Agreement or such other documents which may be delivered in
connection herewith or therewith (whether or not the same shall become
effective) or (iii) any action or proceeding relating to any order, injunction,
or other process or decree restraining or seeking to restrain the Liquidity
Provider from paying any amount under this Agreement, the Intercreditor
Agreement or any other Operative Agreement or otherwise affecting the
application of funds in the Class B Cash Collateral Account. In
29
25
addition, the Borrower shall pay any and all recording, stamp and other similar
taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of this Agreement, any other
Operative Agreement and such other documents, and agrees to save the Liquidity
Provider harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees.
Section 7.08. Binding Effect; Participations.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower and the Liquidity Provider and their respective
successors and assigns, except that neither the Liquidity Provider (except as
otherwise provided in this Section 7.08) nor (except as contemplated by Section
3.08) the Borrower shall have the right to assign its rights or obligations
hereunder or any interest herein without the prior written consent of the other
party, subject to the requirements of Section 7.08(b). The Liquidity Provider
may grant participations herein or in any of its rights hereunder (including,
without limitation, funded participations and participations in rights to
receive interest payments hereunder) and under the other Operative Agreements
to such Persons as the Liquidity Provider may in its sole discretion select,
subject to the requirements of Section 7.08(b). No such participation by the
Liquidity Provider, however, will relieve the Liquidity Provider of its
obligations hereunder. In connection with any participation or any proposed
participation, the Liquidity Provider may disclose to the participant or the
proposed participant any information that the Borrower is required to deliver
or to disclose to the Liquidity Provider pursuant to this Agreement. The
Borrower acknowledges and agrees that the Liquidity Provider's source of funds
may derive in part from its participants (other than Atlas). Accordingly,
references in this Agreement and the other Operative Agreements to
determinations, reserve and capital adequacy requirements, increased costs,
reduced receipts, additional amounts due pursuant to Section 3.03(a) and the
like as they pertain to the Liquidity Provider shall be deemed also to include
those of each of its participants (subject, in each case, to the maximum amount
that would have been incurred by or attributable to the Liquidity Provider
directly if the Liquidity Provider, rather than the participant, had held the
interest participated).
(b) If, pursuant to subsection (a) above, the Liquidity
Provider sells any participation in this Agreement to any bank or other entity
(each, a "Transferee"), then, concurrently with the effectiveness of such
participation, the Transferee shall (i) represent to the Liquidity Provider
(for the benefit of the Liquidity Provider and the Borrower) either (A) that it
is incorporated under the laws of the United States or a state thereof or (B)
that under applicable law and treaties, no taxes will be required to be
withheld with respect to any payments to be made to such Transferee in respect
of this Agreement, (ii) furnish to the Liquidity Provider and the Borrower
either (x) a statement that it is incorporated under the laws of the United
States or a state thereof or (y) if it is not so incorporated, two copies of a
properly completed United States Internal Revenue Service Form 4224 or Form
1001, as appropriate, or other applicable form, certificate or document
prescribed by the Internal
30
26
Revenue Service certifying, in each case, such Transferee's entitlement to a
complete exemption from United States federal withholding tax in respect to any
and all payments to be made hereunder, and (iii) agree (for the benefit of the
Liquidity Provider and the Borrower) to provide the Liquidity Provider and the
Borrower a new Form 4224 or Form 1001, as appropriate, (A) on or before the
date that any such form expires or becomes obsolete or (B) after the occurrence
of any event requiring a change in the most recent form previously delivered by
it and prior to the immediately following due date of any payment by the
Borrower hereunder, certifying in the case of a Form 1001 or Form 4224 that
such Transferee is entitled to a complete exemption from United States federal
withholding tax on payments under this Agreement. Unless the Borrower has
received forms or other documents reasonably satisfactory to it (and required
by applicable law) indicating that payments hereunder are not subject to United
States federal withholding tax, the Borrower will withhold taxes as required by
law from such payments at the applicable statutory rate.
Section 7.09. Severability. Any provision of this Agreement
which is prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 7.10. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
Section 7.11. Submission to Jurisdiction; Waiver of Jury
Trial; Waiver of Immunity. (a) Each of the parties hereto hereby irrevocably
and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Operative
Agreement, or for recognition and enforcement of any judgment
in respect hereof or thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern
District of New York, and the appellate courts from any
thereof;
(ii) consents that any such action or proceeding may be brought in
such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was
brought in an inconvenient court and agrees not to plead or
claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially
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27
similar form and mail), postage prepaid, to each party hereto
at its address set forth in Section 7.02 hereof, or at such
other address of which the Liquidity Provider shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or
shall limit the right to ▇▇▇ in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. The
Borrower and the Liquidity Provider each warrant and represent that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with such legal
counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 7.12. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13. Entirety. This Agreement, the Intercreditor
Agreement and the other Operative Agreements to which the Liquidity Provider is
a party constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior understandings and
agreements of such parties.
Section 7.14. Headings. Section headings in this Agreement
are included herein for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose.
Section 7.15. Transfer. The Liquidity Provider hereby
acknowledges and consents to the Transfer contemplated by the Assignment and
Assumption Agreement.
Section 7.16. LIQUIDITY PROVIDER's OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF
THE LIQUIDITY PROVIDER TO MAKE ADVANCES
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28
HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER NOTICES OF BORROWING REQUESTING
THE MAKING OF ADVANCES HEREUNDER, SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND
SHALL BE PAID OR PERFORMED, IN EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS
OF THIS AGREEMENT.
33
29
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely
as Subordination Agent, as agent and
trustee for the Class B Trust,
as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL
SERVICES, INC.,
as Liquidity Provider
By: /s/
---------------------------------
Name:
Title:
34
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services, Inc. (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (1998-lB) dated as of February 9, 1998, between the
Borrower and the Liquidity Provider (the "Liquidity Agreement"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of an Interest Advance by the Liquidity Provider to be
used, subject to clause (3)(v) below, for the payment of the interest
on the Class B Certificates which was payable on
_______________________ ________ (the "Distribution Date") in
accordance with the terms and provisions of the Class B Trust
Agreement and the Class B Certificates which Advance is requested to
be made on __________, ____.
(3) The amount of the Interest Advance requested hereby
(i) is $ _______, to be applied in respect of the payment of the
interest which was due and payable on the Class B Certificates on the
Distribution Date, (ii) does not include any amount with respect to
the payment of principal of, or premium on, the Class A Certificates,
the Class B Certificates or the Class C Certificates, or interest on
the Class A Certificates or the Class C Certificates, (iii) was
computed in accordance with the provisions of the Class B
Certificates, the Class B Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), (iv) does not exceed the Maximum Commitment on the date hereof,
(v) does not include any amount of interest which was due and payable
on the Class B Certificates on such Distribution Date but which
remains unpaid due to the failure of the Depositary to pay any amount
of accrued interest on the Certificates of Deposit on such
Distribution Date and (vi) has not been and is not the subject of a
prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will apply the same in
accordance with the terms of Section 3.6(b) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount until
so applied shall be commingled with other funds held by the Borrower.
35
I-2
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by this
Notice of Borrowing shall automatically reduce, subject to reinstatement in
accordance with the terms of the Liquidity Agreement, the Maximum Commitment by
an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Certificate and such
reduction shall automatically result in corresponding reductions in the amounts
available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the __ day of ________________, _____.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely
as Subordination Agent, as Borrower
By:
---------------------------------
Name:
Title:
36
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest
Advance Notice of Borrowing]
37
Annex II to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital Services, Inc. (the "Liquidity Provider"), with reference to
the Revolving Credit Agreement (1998-lB) dated as of February 9, 1998, between
the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Downgrade Advance by the Liquidity Provider to
be used for the funding of the Class B Cash Collateral Account in
accordance with Section 3.6(c) of the Intercreditor Agreement by
reason of (i) the downgrading of the short-term unsecured debt rating
of the Guarantor issued by any Rating Agency below the Threshold
Rating or (ii) the occurrence of a Guarantee Event, which Advance is
requested to be made on __________, ____.
(3) The amount of the Downgrade Advance requested
hereby (i) is $________.____, which equals the Maximum Commitment on
the date hereof and is to be applied in respect of the funding of the
Class B Cash Collateral Account in accordance with Section 3.6(c) of
the Intercreditor Agreement, (ii) does not include any amount with
respect to the payment of the principal of, or premium on, the Class B
Certificates, or principal of, or interest or premium on, the Class A
Certificates or the Class C Certificates, (iii) was computed in
accordance with the provisions of the Class B Certificates, the Class
B Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been
and is not the subject of a prior or contemporaneous Notice of
Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the Class B Cash Collateral Account and apply the same in accordance
with the terms of Section 3.6(c) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied shall
be commingled with other funds held by the Borrower.
38
II-2
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Downgrade Advance as requested by
this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of
the Downgrade Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ___ day of _________________,____.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely
as Subordination Agent, as Borrower
By:
---------------------------------
Name:
Title:
39
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
40
Annex III to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services, Inc. (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (1998-lB) dated as of February 9, 1998, between the
Borrower and the Liquidity Provider (the "Liquidity Agreement"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Final Advance by the Liquidity Provider to be
used for the funding of the Class B Cash Collateral Account in
accordance with Section 3.6(i) of the Intercreditor Agreement by
reason of the receipt by the Borrower of a Termination Notice from the
Liquidity Provider with respect to the Liquidity Agreement, which
Advance is requested to be made on
(3) The amount of the Final Advance requested hereby (i) is
$__________.__, which equals the Maximum Commitment on the date
hereof and is to be applied in respect of the funding of the Class B
Cash Collateral Account in accordance with Section 3.6(i) of the
Intercreditor Agreement, (ii) does not include any amount with respect
to the payment of principal of, or premium on, the Class B
Certificates, or principal of, or interest or premium on, the Class A
Certificates or the Class C Certificates, (iii) was computed in
accordance with the provisions of the Class B Certificates, the Class
B Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been
and is not the subject of a prior or contemporaneous Notice of
Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the Class B Cash Collateral Account and apply the same in accordance
with the terms of Section 3.6(i) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied shall
be commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business Day
following your receipt of this notice.
41
IV-2
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of
the Final Advance requested by this Notice of Borrowing, the Borrower shall not
be entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ___ day of ______________, ____.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely
as Subordination Agent, as Borrower
By:
---------------------------------
Name:
Title:
42
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
43
Annex IV to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of February 9, 1998,
between Wilmington Trust Company, as Subordination Agent, as agent and trustee
for the Atlas Air, Inc. Pass Through Trust, 1998-lB-[O][S], as Borrower, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services, Inc. (the "Liquidity Agreement")
--------------------------------------------------------------------------------
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the
Liquidity Agreement, by reason of the occurrence of a Liquidity Event of
Default and the existence of a Performing Note Deficiency (each as defined
therein), we are giving this notice to you in order to cause (i) our
obligations to make Advances (as defined therein) under such Liquidity
Agreement to terminate on the fifth Business Day after the date on which you
receive this notice and (ii) you to request a Final Advance under the Liquidity
Agreement pursuant to Section 3.6(i) of the Intercreditor Agreement (as defined
in the Liquidity Agreement) as a consequence of your receipt of this notice.
44
V-2
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER
THE LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services, Inc.,
as Liquidity Provider
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
cc: Wilmington Trust Company, as Class B Trustee
45
Annex V to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of February 9, 1998,
between Wilmington Trust Company, as Subordination Agent, as agent and trustee
for the Atlas Air Pass Through Trust, 1998-lB-[O][S], as Borrower, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital Services, Inc. (the "Liquidity Agreement")
--------------------------------------------------------------------------------
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
[Name of Transferee]
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower
under the Liquidity Agreement are transferred to the transferee and the
transferee shall hereafter have the sole rights and obligations as Borrower
thereunder. The undersigned shall pay any costs and expenses of such transfer,
including, but not limited to, transfer taxes or governmental charges.
46
VI-2
We ask that this transfer be effective as of _______________,
____.
WILMINGTON TRUST COMPANY, not in its
individual capacity but
solely as Subordination
Agent, as Borrower
By
---------------------------------
Name:
Title:
47
Exhibit I to
Revolving Credit Agreement
FORM OF GUARANTEE AGREEMENT