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Exhibit 10.4
EXECUTION COPY
ADMINISTRATIVE AGENCY AGREEMENT
between
AIRCRAFT FINANCE TRUST,
as the Issuer
THE ISSUER SUBSIDIARIES IDENTIFIED HEREIN,
BANKERS TRUST COMPANY
in its capacity as the Trustee and the Security Trustee
and
RESOURCE/PHOENIX, INC.
as the Administrative Agent
Dated as of May 5, 1999
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Table of Contents
Page
ARTICLE I DEFINITIONS..........................................................1
Section 1.01 Definitions..............................................1
ARTICLE II APPOINTMENT; ADMINISTRATIVE SERVICES................................4
Section 2.01 Appointment..............................................4
Section 2.02 Limitations..............................................5
Section 2.03 Administrative Services..................................6
Section 2.04 Bank Account Management and Calculation Services........11
Section 2.05 Accounting Services.....................................14
Section 2.06 Additional Administrative Services......................16
Section 2.07 Additional Aircraft.....................................17
Section 2.08 New Subsidiaries........................................17
Section 2.09 The Issuer Group Responsibility.........................17
ARTICLE III STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY..................17
Section 3.01 Standard of Performance.................................17
Section 3.02 Liability and Indemnity.................................18
ARTICLE IV ADMINISTRATIVE AGENT UNDERTAKINGS..................................19
Section 4.01 Administrative Agent Undertakings.......................20
ARTICLE V UNDERTAKINGS OF THE ISSUER GROUP....................................22
Section 5.01 Cooperation.............................................22
Section 5.02 Information.............................................22
Section 5.03 Scope of Services.......................................22
Section 5.04 Ratification............................................23
Section 5.05 Covenants...............................................23
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Section 5.06 Ratification by Subsidiaries............................24
ARTICLE VI ADMINISTRATION FEES AND EXPENSES...................................24
Section 6.01 Administration Fees.....................................24
Section 6.02 Expenses................................................25
Section 6.03 Payment of Expenses.....................................25
ARTICLE VII TERM; REPLACEMENT OF OR RESIGNATION BY THE ADMINISTRATIVE AGENT...25
Section 7.01 Term....................................................25
Section 7.02 Replacement or Resignation..............................26
Section 7.03 Consequences of Replacement or Resignation..............27
Section 7.04 Survival................................................28
ARTICLE VIII ASSIGNMENT AND DELEGATION........................................28
Section 8.01 Assignment and Delegation...............................28
ARTICLE IX MISCELLANEOUS......................................................28
Section 9.01 Notices.................................................28
Section 9.02 Governing Law...........................................30
Section 9.03 Jurisdiction............................................30
Section 9.04 WAIVER OF JURY TRIAL....................................30
Section 9.05 Counterparts; Third Party Beneficiaries.................30
Section 9.06 Entire Agreement........................................31
Section 9.07 Table of Contents; Headings.............................31
Section 9.08 Amendments..............................................31
Section 9.09 No Partnership..........................................31
Section 9.10 Concerning the Security Trustee and the Trustee.........31
Section 9.11 Restrictions on Disclosure..............................32
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SCHEDULES
SCHEDULE 1 - Accounts
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THIS ADMINISTRATIVE AGENCY AGREEMENT (this "Agreement") dated as of
May 5, 1999, is made between AIRCRAFT FINANCE TRUST (the "Issuer"), a Delaware
business trust, each ISSUER SUBSIDIARY signatory to this Agreement or that
becomes a party under Section 5.06 hereof (collectively with the Issuer, the
"Issuer Group"), BANKERS TRUST COMPANY, a New York banking corporation, not in
its individual capacity but solely as the trustee under the Indenture and as the
security trustee under the Security Trust Agreement, and RESOURCE/PHOENIX, INC.,
a California corporation.
For the consideration set forth herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Administrative
Agent, the Trustee, the Security Trustee, the Issuer and the other Issuer Group
Members agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For purposes of this Agreement, the
following terms have the following meanings. Unless otherwise defined herein,
all capitalized terms used but not defined herein have the meanings assigned to
such terms in the Indenture.
"Administrative Agent" means the Person, at the time of
determination, appointed as the Administrative Agent under this Agreement. The
initial Administrative Agent for both the Issuer Group Services and the Bank
Account Management Services is ReSource/Phoenix, Inc. If at any time a different
person is appointed as the Administrative Agent for the Issuer Group Services
and as the Administrative Agent for the Bank Account Management Services, the
term "Administrative Agent" shall apply to both or one such Person as
applicable.
"Administrative Fee" has the meaning assigned to such term in
Section 6.01 hereof.
"Administrative Services" has the meaning assigned to such terms in
Section 2.01 hereof.
"Affiliate" means a Person that directly, or indirectly through one
or more intermediaries, controls or is controlled by, or is under common control
with, the Person specified; provided, however, that the Issuer, the other Issuer
Group Members, the Trustee, the Security Trustee and the Administrative Agent
shall not be considered to be Affiliates of each other.
"After-Tax Basis" means on a basis such that any payment received,
deemed to have been received or receivable by any Person shall, if necessary, be
supplemented by a further payment to that Person so that the sum of the two
payments shall, after deduction of all U.S. federal, state, local and foreign
Taxes, penalties, fines, interest, additions to Tax and other charges resulting
from the receipt (actual or constructive) or accrual of such payments imposed by
or under any U.S. federal, state, local or foreign law or Governmental Authority
(after taking into account any current deduction to which such Person shall be
entitled with respect to the amount that gave rise to the underlying payment) be
equal to the payment received, deemed to have been received or receivable.
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"Aircraft Asset Expenses Budget" has the meaning assigned to such
term in Section 7.03(a)(i) of the Servicing Agreement.
"Aircraft Assets" has the meaning assigned to such term in the
Servicing Agreement.
"Annual Appraised Value" means initially the average Base Value of
an Aircraft at the time acquired by an Issuer Group Member and thereafter as
determined annually by the Appraisers.
"Approved Budget" has the meaning assigned to such term in Section
7.03(d) of the Servicing Agreement.
"Bank Account Management Services" has the meaning assigned to such
term in Section 2.01 hereof.
"Capital Markets Advisor" means ▇▇▇▇▇▇ Brothers Inc.
"Concentration Thresholds" has the meaning assigned to such term in
Section 2.2(a) of Schedule 2.02(a) of the Servicing Agreement.
"Conflicts Standard" has the meaning assigned to such term in
Section 3.02(b) of the Servicing Agreement.
"Consolidated Quarterly Draft Accounts" has the meaning assigned to
such term in Section 2.04(b)(ii) hereof.
"Consolidating Quarterly Draft Accounts" has the meaning assigned to
such term in Section 2.04(b)(iii) hereof.
"Dollars" or "$" means the lawful currency of the United States of
America.
"Draft Accounts" has the meaning assigned to such term in Section
2.05(b)(iii) hereof.
"EU" means the European Union.
"Fee Period" has the meaning assigned to such term in Section 6.01
hereof.
"Governmental Authority" means any court, administrative agency or
commission or other governmental agency or instrumentality (or any Responsible
Officer thereof), domestic, foreign or international, of competent jurisdiction
including, without limitation, the EU.
"Indenture" means the Trust Indenture dated as of May 5, 1999,
between the Issuer, the Administrative Agent and the Trustee.
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"Issuer Group Services" has the meaning assigned to such term in
Section 2.01 hereof.
"Lease" means any lease or other agreement or arrangement pursuant
to which any Person (other than an Issuer Group Member) has the right to
possession and use of any Aircraft.
"Lease Operating Budget" has the meaning assigned to such term in
Section 7.03(a)(i) of the Servicing Agreement.
"Ledgers" has the meaning assigned to such term in Section
2.04(b)(i) hereof.
"Maintenance Reserves" has the meaning assigned to such term in the
Asset Purchase Agreement.
"Owner Trustee" means the Wilmington Trust Company, as owner trustee
of the Issuer.
"Quarter" means the fiscal quarter of each Issuer Group Member, as
applicable.
"Ratings" means the ratings assigned to the Securities by the Rating
Agencies.
"Reimbursable Expenses" has the meaning assigned to such term in
Section 6.02(b) hereof.
"Schedule 2.02(a)" has the meaning assigned to such term in Section
2.03(k)(viii) hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Service Providers" means the Persons providing services to the
Issuer Group, including, without limitation, where the context admits, the
Servicer, the Financial Advisor, the Capital Markets Advisor and other Persons
performing similar services or advising the Issuer Group.
"Standard of Care" has the meaning assigned to such term in Section
3.01 of the Servicing Agreement.
"Standard of Performance" has the meaning assigned to such term in
Section 3.01 hereof.
"Subsidiary" means, with respect to any Person, a corporation,
company or other entity (i) more than 50% of whose outstanding shares or
securities (representing the right to vote for the election of directors or
other managing authority) are, or (ii) which does not have outstanding shares or
securities (as may be the case in a partnership, joint venture or unincorporated
association), but more than 50% of whose ownership interest representing the
right to make decisions for such other entity is, now or hereafter owned or
controlled, directly or
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indirectly, by such Person, but such corporation, company or other entity shall
be deemed to be a Subsidiary only so long as such ownership or control exists.
"U.S. Bankruptcy Code" has the meaning assigned to such term in
Section 7.02(b)(iii) hereof.
"Year" has the meaning assigned to such term in the Servicing
Agreement.
ARTICLE II
APPOINTMENT; ADMINISTRATIVE SERVICES
Section 2.01 Appoinment. Each Issuer Group Member hereby appoints the
Administrative Agent as the provider of the administrative and related services
set forth in Section 2.03 hereof, the accounting services set forth in Section
2.05 hereof and the additional administrative services set forth in Sections
2.06, 2.07 and 2.08 hereof (collectively, the "Issuer Group Services") to each
Issuer Group Member on the terms and subject to the conditions set forth in this
Agreement. Each Issuer Group Member acknowledges that it has assigned its
rights, among other things, to administer the Non-Trustee Accounts and it rights
and draw upon any Credit Facility to the Security Trustee pursuant to the
Security Trust Agreement and that pursuant to this Agreement the Security
Trustee has appointed the Administrative Agent its agent to administer the
Non-Trustee Accounts and to administer and draw upon any Credit Facility. In the
event the Trustee or the Security Trustee receives any notice or instruction
from the Administrative Agent with regard to any Issuer Group Services, the
Trustee or the Security Trustee, as applicable, may regard such notice or
instruction as given by the Issuer or any other Issuer Group Member unless
previously notified otherwise in writing by the Issuer.
(b) The Trustee and the Security Trustee hereby appoint the
Administrative Agent as their agent for the purposes of providing the bank
account management, calculation and other services set forth in Section 2.04
hereof and in the Indenture and performing the other activities (excluding those
under Section 2.03(j) hereof and the provisions of the Indenture referenced in
Section 2.03(k)(ii) hereof, the performance of which constitute Issuer Group
Services) to be performed by the Administrative Agent under the Indenture
(collectively, the "Bank Account Management Services" and, together with the
Issuer Group Services, the "Administrative Services") and delegate to the
Administrative Agent (except as otherwise specified in the Indenture or the
Security Trust Agreement) their respective authority to administer the Accounts
and to otherwise perform the Bank Account Management Services on the terms and
subject to the conditions set forth in this Agreement. Each of the Trustee and
the Security Trustee hereby directs the Administrative Agent, in its capacity as
such, to enter into and to perform its obligations under the Indenture.
(c) The Administrative Agent hereby accepts such appointments and
agrees to perform the Issuer Group Services on behalf of the Issuer Group
Members and the Bank Account Management Services on behalf of the Trustee and
the Security Trustee, in each case on the terms and subject to the conditions
set forth in this Agreement. Each party agrees that the Administrative Agent, in
performing the Bank Account Management Services, is acting exclusively as the
agent of the Trustee and the Security Trustee and not in any agency or other
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capacity on behalf of any Issuer Group Member and that no Issuer Group Member
has any right to direct the Administrative Agent with respect to all or any
aspect of the Bank Account Management Services.
(d) The Issuer Group Services do not include any service or matter
that is the responsibility of the Servicer under the Servicing Agreement, the
Financial Advisor under the Financial Advisory Agreement, the Capital Markets
Advisor under the Capital Markets Advisory Letter, the Reference Agent under the
Reference Agency Agreement or the company secretaries of any Issuer Group
Member.
(e) The Issuer Group Services do not include any service or matter
that falls under the categories of "investment business services" or "investment
advice" under the Investment Intermediaries Act, 1995 or any other applicable
provision of Irish law that would require such services to be performed by an
entity that has obtained prior authorization from the Central Bank of Ireland.
Section 2.02 Limitations. (a) The Administrative Agent agrees (with
respect to the Issuer Group Services) to comply with the terms of the articles
of incorporation, by-laws, trust agreements or similar constituting documents of
each Issuer Group Member and all agreements to which any Issuer Group Member is
a party (including all Related Documents), provided that copies of such
documents and agreements have been delivered to the Administrative Agent and,
without prejudice to the foregoing, not to enter into, on behalf of any Issuer
Group Member, any commitments, loans or obligations or charge, mortgage, pledge,
encumber or otherwise restrict or dispose of the property or assets or expend
any funds of any Issuer Group Member save (i) as expressly permitted by the
terms of this Agreement or (ii) upon a Controlling Trustees' Resolution. The
Administrative Agent (in performing the Bank Account Management Services) agrees
to comply with the terms of the Indenture, the Security Trust Agreement and the
terms of each relevant Credit Facility).
(b) In connection with the performance of (i) the Issuer Group
Services, the Administrative Agent shall (A) have no responsibility for the
failure of any other Person (other than any Person acting as a delegate of the
Administrative Agent under this Agreement pursuant to Section 8.01 hereof)
providing services directly to the Issuer Group to perform its obligations to
the Issuer Group and (B) in all cases be entitled to rely upon the instructions
of the Issuer Group with respect to any Issuer Group Services and upon notices,
reports or other communications made by any Person providing services to the
Issuer Group (other than any Affiliate of the Administrative Agent) and shall
not be responsible for the accuracy or completeness of any such notices, reports
or other communications except to the extent that the Administrative Agent has
actual notice of any matter to the contrary, (ii) the Bank Account Management
Services, the Administrative Agent shall not be responsible for acting upon the
instructions of the Trustee or the Security Trustee (as applicable) and (iii)
the Administrative Services, the Administrative Agent shall not be obligated to
act in any manner that is reasonably likely to (A) violate any Applicable Law,
(B) lead to an investigation by any Governmental Authority or (C) expose the
Administrative Agent to any liabilities for which, in the Administrative Agent's
good faith opinion, adequate bond or indemnity has not been provided.
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(c) Subject to the limitations set forth in Section 2.02(a), in
connection with the performance of the Issuer Group Services, the Administrative
Agent is expressly authorized by the Issuer and each other Issuer Group Member,
(i) to engage in and conclude commercial negotiations with the Persons providing
services to the Issuer Group, including, without limitation, where the context
admits, the Servicer, the Additional Servicer, the Capital Markets Advisor, the
Financial Advisor, the Reference Agent and other Persons performing similar
services or advising the Issuer Group (the "Service Providers") and with their
Responsible Officers, and (ii) after such consultation, if any, as the
Administrative Agent deems necessary under the circumstances, to act on such
Issuer Group Member's behalf with regard to any and all matters requiring any
action on the part of the Administrative Agent under the Servicing Agreement.
The Issuer agrees that it will give the Administrative Agent and the Servicer 60
days prior Written Notice of any limitation or modification of the authority set
forth in this Section 2.02(c).
(d) The Administrative Agent may rely on the advice of any law firm,
accounting firm, risk management adviser, tax adviser, insurance adviser,
technical adviser, aircraft appraiser or other professional adviser appointed by
the Issuer and any Person appointed in good faith by the Administrative Agent
and shall not be liable for any claim by any Issuer Group Member to the extent
that it was acting in good faith upon the advice of any such persons.
(e) Notwithstanding the appointment of, and the delegation of
authority and responsibility to, the Administrative Agent with respect to the
Issuer Group Services, the Issuer and each other Issuer Group Member shall
continue to have and exercise through its respective controlling trustees or
board real and effective central control and management of all matters related
to its ongoing business, operations, assets and liabilities, subject to matters
that are expressly the responsibility of the Administrative Agent in accordance
with the terms of this Agreement, and each Issuer Group Member shall at all
times conduct its separate ongoing business in such a manner as the same shall
at all times be readily identifiable from the separate business of the
Administrative Agent, and none of the Issuer Group Members is merely lending its
name to decisions taken by others.
Section 2.03 Administrative Services. The Administrative Agent hereby
agrees to perform and provide the following services for each Issuer Group
Member and its respective governing bodies:
(a) administrative services:
(i) except in such instances in which such preparation and
distribution is required to be done by another party by Applicable Law,
preparation and distribution, at such time as shall be agreed with the
Administrative Agent, of draft trustees or board meeting agendas and any other
papers required in connection with such meetings;
(ii) maintaining, or monitoring the maintenance of, the books,
records, registers and associated filings of each Issuer Group Member, other
than those required to be maintained by the Owner Trustee;
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(iii) providing any administrative assistance reasonably
necessary to assist any Issuer Group Member in carrying out its obligations,
including providing timely notice of decisions to be made, or actions to be
taken, under any of the Related Documents; provided, that if the obligations of
any Issuer Group Member under any of the Related Documents are only required
upon receipt of notice to such Issuer Group Member or the Administrative Agent,
then the Administrative Agent shall provide such administrative assistance only
to the extent it has received such notice or is otherwise aware of such
obligations;
(iv) assisting the Issuer in arranging for directors and
officers liability insurance for and on behalf of the Issuer and each other
Issuer Group Member;
(v) procuring, at the direction of the Controlling Trustees,
and coordinating the advice of, legal counsel, accounting, tax and other
professional advisers at the expense of the relevant Issuer Group Member, to
assist such Issuer Group Member in carrying out its obligations, and
supervising, in accordance with instructions from such Issuer Group Member, such
legal counsel, accounting, tax and other advisers;
(vi) as frequently as is necessary for each Issuer Group
Member to comply with its obligations under the Related Documents, arranging for
the Appraisals to be made and providing the Appraisals to the relevant Service
Providers; and
(vii) providing assistance to the Servicer with respect to
matters for which such assistance is contemplated by the Servicing Agreement or
is reasonably necessary in order for the Servicer or the Additional Servicer to
perform its duties in accordance with the Servicing Agreement or the Additional
Servicing Agreement;
(b) to monitor the performance of the Service Providers and to
report on such performance to the Controlling Trustees on a quarterly basis,
including:
(i) with respect to the Servicer:
(A) monitoring and reviewing the information and other reports
provided by the Servicer pursuant to the Servicing Agreement or the Additional
Servicer pursuant to the Additional Servicing Agreement, including with respect
to the status of Lease payments, Lessee receivables, Maintenance Reserves,
security deposits, adjustments of rentals and claims against Maintenance
Reserves in accordance with Lease terms (to the extent provided to the
Administrative Agent);
(B) assisting the Issuer in evaluating the Servicer's
performance relative to the Standard of Care and the Conflicts Standard; and
(C) monitoring the compliance of the Servicer with its
obligations under the Servicing Agreement;
(ii) with respect to the other Service Providers, assisting in
evaluating the performance and compliance of each Service Provider against its
obligations under the relevant agreement;
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(c) to the extent that (i) the following services are not provided
by the other Service Providers, and (ii) the relevant information is provided to
the Administrative Agent by the Issuer Group or the Service Providers, to act as
liaison with the Rating Agencies with respect to the rating impact of any
decisions on behalf of the Issuer Group, including, without limitation:
(i) informing the Rating Agencies from time to time of any
material changes in the Portfolio, coordinating with the Issuer Group and the
Service Providers and providing the Rating Agencies with such statistical and
other information as they may from time to time request (such information to be
provided at the Issuer Group's expense to the extent that providing such
information requires services that are materially greater in scope than those
being provided pursuant to the express terms of this Agreement);
(ii) providing the Rating Agencies with the Outstanding
Principal Balances of each class or subclass of Notes and loan-to-value ratios
(i.e., ratio of debt to Annual Appraised Value of the Issuer Group's assets) or
any other financial information the Rating Agencies shall request; and
(iii) coordinating among the Issuer Group, the Servicer and
the Appraisers to ensure that the Appraisals are received as required;
(d) to provide assistance to the Issuer Group in procuring Lessee
consents, novations and other documentation and in taking all other actions
necessary in connection with the reissue or amendment of letters of credit;
(e) to provide assistance to the Issuer Group in the execution of
(1) the acquisition of Pledged Stock and/or Aircraft under the Asset Purchase
Agreement, (2) the re-lease and/or sale of the Aircraft, (3) the acquisition of
Additional Aircraft and (4) financing transactions relating to the Issuer Group
after the Initial Closing Date, including:
(i) coordinating with the Service Providers, legal and other
professional advisers to monitor the protection of the Issuer Group's interests
and rights and coordinating the execution of documentation required at closings;
(ii) providing qualified personnel to attend and provide
administrative support (including the preparation of any certificates required
pursuant to the Servicing Agreement, the Additional Servicing Agreement and the
Indenture) at the closings in connection with the acquisition of Pledged Stock
and/or Aircraft under the Asset Purchase Agreement, sales or re-leases of the
Aircraft and the acquisition of any Additional Aircraft, if required (it being
understood that the Administrative Agent will not be obligated to provide legal
counsel or legal or technical services to the Issuer Group);
(iii) coordinating with the Issuer Group and the Service
Providers and assisting in the management of the closing process so that
closings will occur on a timely basis;
(iv) providing all necessary administrative support to
complete any documentation and other related matters; and
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(v) appointing counsel and other appropriate professional
advisers to represent the Issuer Group in connection with any such closings;
(f) to coordinate with the Capital Markets Advisor, including
reviewing the effect on the cash flows required for payment of the Notes of
investments and reinvestments of cash pursuant to this Agreement;
(g) based on information produced or provided to it, to prepare,
file and/or distribute, with the assistance of outside counsel and auditors, if
appropriate, all reports to be prepared, filed and/or distributed by any Issuer
Group Member or its governing bodies, subject to the approval of the Controlling
Trustees in the case of any exchange offer documents filed by the Issuer under
the Securities Act and the Exchange Act, and any reports filed by the Issuer on
Form 10-K and 10-Q and, if such form is being filed with any information other
than the Monthly Report to Holders, any Form 8-K under the Exchange Act,
including:
(i) filings (including, without limitation, Uniform Commercial
Code filings) any Issuer Group Member is required to make in various
jurisdictions and preparing such filings or monitoring counsel and advisers in
connection with the preparation and filing of such materials;
(ii) filings the Issuer is required to make under the
Securities Act and the Exchange Act in connection with the preparation and
filing of any exchange offer documents;
(iii) compliance by the Issuer with applicable periodic
reporting requirements of the Exchange Act, in particular, working with
necessary professional advisers to the Issuer and the Service Providers, as
appropriate, to prepare on behalf of the Issuer and to arrange for the filing
and distribution of an annual report on Form 10-K in respect of the Issuer and,
as periodic reporting requirements of the Exchange Act, quarterly reports on
Form 10-Q and any required reports on Form 8-K in respect of the Issuer;
(iv) reports required or recommended to be distributed to
investors (including press releases), and managing investor relations on behalf
of the Issuer Group, and preparing or arranging for the preparation and
distribution of such reports at the Issuer Group's expense; and
(v) reports required to be filed with any Governmental
Authorities, and preparing on behalf of any Issuer Group Member or arranging for
the preparation of and arranging for the filing of any reports required to be
filed with any other entity in order for such Issuer Group Member not to be in
violation of Applicable Law or any applicable covenants;
(h) with respect to amendments:
(i) to report on the substance of any proposed amendments to
any Related Documents; and
(ii) to the extent requested by the Issuer Group or by the
parties to Related Documents and subject to approval by the appropriate
controlling trustees or board, to coordinate
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with the Issuer Group's legal counsel, the other parties thereto and their
counsel the preparation and execution of any amendments to the Related Documents
(other than amendments relating to the Aircraft or the Leases), and to provide
assistance in the implementation of such amendments;
(i) to the extent reasonably requested by the Servicer, to
coordinate and provide assistance on behalf of the Issuer Group with the
Servicer in the performance of the Servicer's obligations under the Servicing
Agreement;
(j) to authorize payment of certain bills and expenses (i) payable
to legal and professional advisers authorized to be engaged or consulted
pursuant to this Agreement, (ii) to the extent required by the terms of the
Servicing Agreement or the Indenture or (iii) approved by the Controlling
Trustees and to determine the Required Expense Amount and the amount of
Permitted Accruals determined in accordance with the Indenture;
(k) providing assistance to the Issuer with respect to matters for
which action by the Issuer is required under the Servicing Agreement or the
Indenture, including such assistance that may be necessary for the Issuer to:
(i) comply with Sections 6.08, 7.03(a)(i) and 7.04 of the
Servicing Agreement;
(ii) comply with Sections 5.02, 5.03, 6.12 and 6.13 of the
Indenture;
(iii) provide such instructions to the Servicer as the
Servicer may require in interpreting the Indenture, the Concentration Thresholds
and Annex 2 to the Servicing Agreement;
(iv) direct the Servicer to amend the minimum hull and
liability insurance coverage amounts set forth in Annex 1 to the Servicing
Agreement;
(v) direct the Servicer as to whether settlement offers
received by the Servicer with respect to claims for damage or loss in excess of
$10,000,000 with respect to an Aircraft Asset are acceptable;
(vi) review and request such periodic and other reports as the
Servicer is obligated to provide under the Servicing Agreement;
(vii) provide the Servicer with such information as the
Servicer may reasonably request in connection with the Concentration Thresholds
and certify to the Servicer whenever the proposed Aircraft-related transactions
will result in the violation of such Concentration Thresholds;
(viii) advise the Servicer as required by Section 3(c) of
Schedule 2.02(a) of the Servicing Agreement ("Schedule 2.02(a)"); and
(ix) request market research industry information from the
Servicer in regard to valuations of Aircraft Assets in accordance with Section
6.1 of Schedule 2.02(a);
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(l) to inform the Controlling Trustees as soon as is reasonably
practicable if the Administrative Agent believes that (i) net revenues generated
by the Leases will be insufficient to satisfy the payment obligations of the
Issuer Group and (ii) an Event of Default will result from such insufficiency,
and to advise the Controlling Trustees as to any appropriate action to be taken
(subject to the provisions of the Related Documents) with respect to such
insufficiency and to cause the actions directed by the Controlling Trustees to
be implemented so as to avoid an Event of Default, if it is possible to do so;
(m) to advise the Controlling Trustees as to the appropriate levels
of Reserved Cash;
(n) to oversee the general operation of any credit or liquidity
enhancement facility provided for the benefit of the Issuer, including without
limitation each Credit Facility (including without limitation monitoring the
amounts committed and available for drawing, and outstanding and required to be
repaid, under each such facility);
(o) to determine whether it is necessary or appropriate at any time
that the Issuer make a drawing under any back-up letter of credit of which the
Issuer is the beneficiary and, if so, to administer such drawing on the Issuer's
behalf;
(p) to provide such assistance and financial information to the
Capital Markets Advisor as the Capital Markets Advisor may so reasonably request
to enable the Capital Markets Advisor to perform its obligations under its
Capital Markets Advisory Letter with the Issuer and, consistent with the
interest rate hedging policy adopted by the Issuer on the Initial Closing Date
(as the same may be amended or otherwise modified from time to time;
(q) to assure compliance by each Issuer Group Member with its
obligations under Section 2.07 of the Security Trust Agreement with respect to
the Non-Trustee Accounts, including notifying and instructing each Obligor (as
defined in the Security Trust Agreement) to make payments directly to a
Non-Trustee Account; and
(r) to provide all necessary assistance and information to legal and
other professional advisers to the Issuer Group in connection with any claim,
action, proceeding or petition brought against any Issuer Group Member.
Section 2.04 Bank Account Management and Calculation Services. The
Administrative Agent hereby agrees for the benefit of the Trustee and the
Security Trustee to perform and provide the following bank account management
calculation and other services:
(a) Indenture Obligations. The Administrative Agent shall, in its
capacity as such hereunder, execute and deliver, and perform the obligations of
the Administrative Agent under the Indenture in accordance with the terms
thereof. In particular and without limiting the foregoing:
(i) The Accounts
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(A) Establishment and Operations of Accounts. The
Administrative Agent shall cause the Operating Bank to establish and maintain
(in accordance with Section 3.01(a) of the Indenture and as provided in the
Security Trust Agreement) (1) on the Initial Closing Date (t) the Collections
Account, (u) the Lessee Funded Accounts consisting of the separate accounts so
designated on Schedule 1 hereto, (v) the Rental Accounts designated on Schedule
1 hereto, (w) the Expense Account, (x) a Note Account for each subclass of
Initial Notes, (y) the Varig Reserve Accounts and (z) the Owner Trustee Account
and (2) thereafter, as and when required by the Indenture or as specified in a
Controlling Trustees' Resolution delivered to the Administrative Agent, the
Trustee and the Security Trustee or, in the case of any Rental Account or any
Lessee Funded Account, as requested by the Servicer under the Servicing
Agreement, any Account referred to in Section 3.01(a)(ii) of the Indenture. Each
such Account shall, when established, be operated in accordance with the
applicable provisions of Section 3.01 of the Indenture and Section 2.06 of the
Security Trust Agreement.
(B) Replacement Account. If at any time the Security Trustee
Accounts are no longer to be maintained by the then Operating Bank under the
Security Trust Agreement, the Administrative Agent shall cause the successor
Operating Bank to establish and maintain the Accounts previously maintained by
its predecessor (in each case with the same name and purposes as it had so been
maintained) and those to be established and maintained thereafter. In addition,
if, at any time, any Account ceases to be an Eligible Account, the
Administrative Agent shall, within 10 Business Days after notice thereof, cause
the Operating Bank to establish and maintain as an Eligible Account a new
Account having the same name and purpose in accordance with the requirements of
the Indenture.
(C) Rental Account. With respect to any Rental Account, the
Administrative Agent shall determine, as provided in Section 3.01(f) of the
Indenture, whether or not such Account is required to be established and
maintained as a Non-Trustee Account.
(D) Lessee Payment Instructions. The Administrative Agent
shall take all necessary steps to ensure that all funds on deposit in each
Rental Account (including any Non-Trustee Account) are, to the extent required
by the Indenture, transferred from such Rental Account to the Collections
Account within one Business Day of receipt thereof (other than certain limited
amounts, if any, required to be left on deposit for local, legal or regulatory
reasons).
(E) Bank Account Statements. The Administrative Agent shall
take all necessary steps to ensure that the Operating Bank and each other bank
at which a Non-Trustee Account is located shall furnish as of the close of
business on each Calculation Date a statement providing the then current balance
of each applicable Account to it as well as the Security Trustee, the Issuer,
the Trustee, and the Servicer.
(F) Maintaining the Non-Trustee Accounts. The Administrative
Agent shall exercise all rights of the Issuer Group Members to instruct or
otherwise communicate with the Eligible Institutions at which the Non-Trustee
Accounts are maintained and otherwise to administer the Non-Trustee Accounts.
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(ii) Calculations. Pursuant to Section 3.06 of the Indenture,
the Administrative Agent shall, at the times and in the manner set forth
therein, determine or calculate each of the amounts and provide the reports
required to be determined, calculated or prepared by it pursuant to Sections
3.06(a) through (e) of the Indenture.
(iii) Withdrawals and Transfers. The Administrative Agent
shall direct the Operating Bank to make the following withdrawals and transfers
in accordance with the terms of the Indenture:
(A) Closing Date Deposits, Withdrawals and Transfers. On each
Closing Date, the Administrative Agent shall direct each of the transfers
described in Section 3.03 of the Indenture in accordance with such Section.
(B) Interim Deposits and Withdrawals. From time to time, the
Administrative Agent shall direct the Operating Bank to make the withdrawals and
transfers, and the Administrative Agent shall give the notices, provided for in
Section 3.04 of the Indenture in accordance with such Section.
(C) Interim Deposits and Withdrawals for Modification Payments
or Dispositions of Aircraft. From time to time, the Administrative Agent shall
direct the Operating Bank to make the withdrawals and transfers provided for in
Section 3.05 of the Indenture in accordance with such Section.
(D) Payment Date First Step Withdrawals and Transfers. On each
Payment Date, the Administrative Agent shall direct the Operating Bank to make
the withdrawals and transfers provided for in Section 3.07 of the Indenture in
accordance with such Section.
(E) Payment Date Second Step Withdrawals. On each Payment
Date, after the withdrawals and transfers provided for in Section 3.07 of the
Indenture have been made at the direction of the Administrative Agent (except as
permitted in clause (F) below) the Administrative Agent shall direct the
Operating Bank to distribute funds on deposit in the Collections Account as
provided in Section 3.08(a) of the Indenture and shall make such certifications
to the Trustee as may be required hereunder in connection therewith.
(F) Event of Default and Default Notice Withdrawals and
Transfers. Notwithstanding anything to the contrary contained in Section 3.07 or
3.08(a) of the Indenture, following the delivery of a Default Notice to the
Administrative Agent or the Issuer pursuant to the Indenture or during the
continuance of an Acceleration Default, after the withdrawals and transfers
provided for in Section 3.07 of the Indenture have been made, the Administrative
Agent shall direct the Operating Bank to distribute funds on deposit in the
Collections Account and the Expense Account in the amounts and in the order of
priority provided for in Section 3.08(b) of the Indenture.
(G) Defeasance/Redemption and Refinancing Transfers. The
Administrative Agent shall direct the Operating Bank to transfer from time to
time amounts on
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deposit in the Defeasance/Redemption Account or, in the case of a Refinancing,
the Refinancing Account to the applicable Note Account in connection with either
the redemption of any class or subclass of Notes in accordance with Section 3.10
of the Indenture or the exercise of the defeasance provisions set forth in
Article XI of the Indenture and shall give the notices provided for in Section
3.10 of the Indenture.
(H) Currency Conversions. If and to the extent that the Issuer
incurs any payment obligation or other cost in a currency other than U.S.
dollars, the Administrative Agent shall, to the extent practicable, convert U.S.
dollars into such other currency at the then prevailing market rate as necessary
to discharge such payment obligations or costs, at the expense of the Issuer in
accordance with Section 12.07 of the Indenture.
(I) Investments of Cash. The Administrative Agent shall at the
direction of the Controlling Trustees (or, following the giving of a Default
Notice or during the continuance of an Acceleration Default at the direction of
the Security Trustee) invest and reinvest the funds on deposit in the Accounts
as permitted by and in accordance with Section 3.02 of the Indenture.
(b) Reports. The Administrative Agent shall timely prepare the
reports required by Section 2.15 of the Indenture and provide such reports to
the Trustee and the other Persons indicated in that section.
(c) Records. The Administrative Agent shall provide such information
relating to the Accounts to the Security Trustee, the Trustee, the Capital
Markets Advisor or the Rating Agencies as any of them may reasonably request
from time to time and as required under the Indenture.
Section 2.05 Accounting Services. The Administrative Agent hereby agrees
to perform and provide the following accounting services:
(a) Budgeting Process. The Administrative Agent shall, in accordance
with the procedures, policies and guidelines described below and on the basis of
information generated by the Administrative Agent and information provided by
the Service Providers and the Issuer Group:
(i) in respect of each Year during the term of the Servicing
Agreement (other than with respect to the fiscal year commencing on the Initial
Closing Date), and on behalf of the Issuer Group, prepare and deliver to the
Servicer, no later than the September 30 immediately preceding the commencement
of such Year a proposed Lease Operating Budget and a proposed Aircraft Asset
Expenses Budget for such Year together with reasonably detailed supporting
information and the assumptions underlying such proposed Lease Operating Budget
and Aircraft Asset Expenses Budget, such proposed Lease Operating Budget and
Aircraft Asset Expenses Budget to be based, in part, on the information provided
by the Servicer pursuant to Section 7.03(c) of the Servicing Agreement;
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(ii) on behalf of the Issuer Group, review, discuss and
negotiate with the Servicer such proposed Lease Operating Budgets and Aircraft
Asset Expenses Budgets, and make such adjustments proposed by the Servicer as
the Administrative Agent, in consultation with the Controlling Trustees and with
due regard for current market conditions, may deem appropriate; and
(iii) submit to the Servicer no later than the November 10
immediately preceding the commencement of such Year the Approved Budgets
together with reasonably detailed information regarding the Issuer's underlying
assumptions.
(b) Management Accounts and Financial Statements. The Administrative
Agent shall, in accordance with the procedures, policies and guidelines
described below and on the basis of information generated by the Administrative
Agent and information provided by the Service Providers and the Issuer Group:
(i) establish an accounting system and maintain the accounting
ledgers of and for each Issuer Group Member in accordance with U.S. GAAP unless
otherwise required by Applicable Law and specified by the Controlling Trustees
(collectively, the "Ledgers");
(ii) prepare and deliver (within 40 days after the end of the
relevant Quarter or, if the end of such Quarter coincides with the end of a
Year, within 75 days after the end of such Year), with respect to the Issuer
Group, on a consolidated basis, a draft balance sheet and draft statement of
changes in shareholders' equity or residual trust interest as of the end of each
Quarter and Year, as applicable, and draft statements of income and cash flows
for each Quarter and Year, as applicable (the "Consolidated Quarterly Draft
Accounts");
(iii) to the extent required by Applicable Law, prepare and
deliver (within 40 days after the end of the relevant Quarter or, if the end of
such Quarter coincides with the end of a Year, within 90 days after the end of
such Year), with respect to the Issuer Group on a combined basis and such of the
Issuer and the other Issuer Group Members as specified by the Controlling
Trustees in a written schedule provided to the Administrative Agent (which
schedule may be updated by the Controlling Trustees to the Administrative Agent
delivered at least 30 days prior to the commencement of the relevant Quarter),
on a consolidating company-by-company basis, a draft balance sheet and statement
of changes in shareholders' equity or residual trust interest as of the end of
each Quarter and Year, as applicable, with respect to such Issuer Group Member
and draft statements of income and cash flows for such Quarter and Year, as
applicable (the "Consolidating Quarterly Draft Accounts" and, together with the
Consolidated Quarterly Draft Accounts the "Draft Accounts"). The Controlling
Trustees shall specify the applicable legal requirements mandating the
preparation of such Consolidating Quarterly Draft Accounts in the written
schedule provided to the Administrative Agent pursuant to this section;
(iv) as required by the Controlling Trustees, arrange and
manage the quarterly review of the Draft Accounts by the Issuer Group's
auditors;
(v) arrange for, coordinate with and assist the Issuer Group's
auditors in preparing annual audits;
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(vi) prepare or arrange for the preparation of and arrange for
the filing of the Issuer Group's tax returns in conjunction with the Issuer
Group's tax advisers after submission to the Controlling Trustees to the extent
required by the Controlling Trustees or Applicable Law;
(vii) liaise with the Servicer for the purpose of preparing
the monthly and quarterly reports in accordance with Section 9 of Schedule
2.02(a); and
(viii) compare the expected cash flows of the Issuer Group and
the budgets to actual results.
(c) Other Reports. The Administrative Agent shall prepare the Draft
Accounts in accordance with U.S. GAAP unless otherwise required by Applicable
Law and specified by the Controlling Trustees. In connection with the
preparation of the Consolidated Quarterly Draft Accounts, the Administrative
Agent will, provide to the Controlling Trustees, at such times as the
Controlling Trustees may require, a review report (as defined by the Statements
on Standards for Accounting and Review Services issued by the American Institute
of Certified Public Accountants) of the Issuer Group's independent public
accountants with respect to the financial statements of such Issuer Group
Members for, or as of the end of, such Quarter, including in such report such
accountants' statement that, based on its review of such financial statements,
it is not aware of any material modifications that should be made to such
financial statements in order for them to be in conformity with U.S. GAAP or
other applicable accounting principles; provided, however, that, with respect to
such financial statements for, or as of the end of, any Quarter (other than the
last Quarter of any Year), in the event that the Issuer Group does not include
(or cause to be included) any material disclosure required by U.S. GAAP or other
applicable accounting principles to be included within footnotes to such
financial statements, such review report may be qualified solely by stating that
the only modification that should be made to such financial statements in order
for them to be in conformity with U.S. GAAP or other applicable accounting
principles is the inclusion of such disclosure; provided further, however, that
such qualification may not relate to any footnote to such financial statements.
(d) Instructions. The Administrative Agent shall be entitled to
request instructions from the Controlling Trustees as to general guidelines or
principles to be followed in preparing Draft Accounts and as to amending or
supplementing any such guidelines or principles.
Section 2.06 Additional Administrative Services. The Administrative Agent
will provide additional Administrative Services, including (a) providing
assistance to the Capital Markets Advisor in (i) arranging one or more
Refinancings of all or a portion of the Notes, and (ii) arranging for the
payment of any purchase price adjustment necessary to be paid pursuant to the
Asset Purchase Agreement and (b) undertaking efforts to avoid any adverse change
in the tax status of any Issuer Group Member. In addition, upon a request by any
Issuer Group Member, the Administrative Agent will take such other actions as
may be appropriate to facilitate such Issuer Group Member's business operations
and assist the Controlling Trustees in carrying out their obligations; provided,
however, that the Administrative Agent will not be obligated or permitted to
take any action that might reasonably be expected to result in the business of
such
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Issuer Group Member ceasing to be separate and readily identifiable from, and
independent of, the Administrative Agent, and any of its Affiliates.
Section 2.07 Additional Aircraft. In the event that the Issuer Group shall
acquire any Additional Aircraft, the Administrative Agent hereby agrees to
provide the same Administrative Services with respect to all such Additional
Aircraft.
Section 2.08 New Subsidiaries. The Administrative Agent shall be
responsible for coordinating with outside legal counsel, auditors, tax advisers
and other professional advisers with respect to all corporate and administrative
matters relating to the formation, operation, corporate affairs and related
matters with respect to all Subsidiaries which are or may become members of the
Issuer Group, including identifying such outside advisers, a potential company
secretary and candidates for trustee to the extent necessary, and shall be
permitted to incur expenses in respect of such Subsidiaries without the Issuer
Group's consent up to such aggregate amount as shall be authorized from time to
time. To the extent that the Administrative Agent shall deem it necessary or
desirable in order for the Issuer Group to carry on its business, the
Administrative Agent shall have the authority to assist in the formation of new
Subsidiaries of the Issuer and to appoint any director to any such Subsidiary
without the consent of the Issuer Group; provided, that such directors are the
same directors of the Issuer then in office unless otherwise required by
applicable local law mandating a particular citizenship for directors. The
Administrative Agent and its personnel may act as company secretary for any
Subsidiary.
Section 2.09 The Issuer Group Responsibility. (a) The obligations of the
Administrative Agent hereunder are limited to those matters that are expressly
the responsibility of the Administrative Agent in accordance with the terms of
this Agreement. Notwithstanding the appointment of the Administrative Agent to
perform the Administrative Services, each Issuer Group Member shall remain
responsible for all matters and decisions related to its business, operations,
assets and liabilities.
(b) Without derogating from the authority and responsibility of the
Administrative Agent with respect to the performance of certain of the
Administrative Services as set forth in this Agreement, it is hereby expressly
agreed and acknowledged that the Administrative Agent is not authorized or
empowered to make or enter into any agreement, contract or other legally binding
arrangement, in respect of or relating to the business or affairs of any Issuer
Group Member, or pledge the credit of, incur any indebtedness on behalf of or
expend any funds of any Issuer Group Member other than as expressly permitted in
accordance with the terms of this Agreement, all such authority and power being
reserved to the appropriate Issuer Group Member or the Security Trustee, as the
case may be.
ARTICLE III
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
Section 3.01 Standard of Performance. The Administrative Agent will devote
the same amount of time and attention to and will be required to exercise the
same level of skill, care and
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diligence in the performance of its services as it would if it were
administering such services on its own behalf (the "Standard of Performance").
Section 3.02 Liability and Indemnity. (a) The Administrative Agent shall
not be liable for any Losses or Taxes to or of, or payable by any Issuer Group
Member at any time from any cause whatsoever or any Losses or Taxes directly or
indirectly arising out of or in connection with or related to the performance by
the Administrative Agent of this Agreement unless such Losses or Taxes are the
result of the Administrative Agent's own gross negligence, willful misconduct,
deceit or fraud or that of any of its directors, officers, agents or employees,
as the case may be.
(b) Notwithstanding anything to the contrary set forth in any other
agreement to which any Issuer Group Member is a party, the Issuer and the other
Issuer Group Members, do hereby assume liability for and do hereby jointly and
severally agree to indemnify, reimburse and hold harmless on an After-Tax Basis
the Administrative Agent, its directors, officers, employees and agents and each
of them from any and all Losses or Taxes that may be imposed on, incurred by or
asserted against any of them arising out of, in connection with or related to
the Administrative Agent's performance under this Agreement (including any
Losses or Taxes incurred by the Administrative Agent as a result of indemnifying
any Person to whom it shall have delegated its obligations hereunder in
accordance with Section 8.01 hereof, but only to the extent the Administrative
Agent would have been indemnified had it performed such obligations), except as
a result of the gross negligence, willful misconduct, deceit or fraud of the
Administrative Agent or any of its directors, officers, employees or agents.
This indemnity shall not apply to:
(i) Taxes imposed on net income by the revenue authorities of
the State of California or the United States of America in respect of any
payment by any Issuer Group Member to the Administrative Agent due to the
performance of the Administrative Services; and
(ii) Taxes imposed on net income of the Administrative Agent
by any Government Authority other than the revenue authorities of the State of
California or the United States of America to the extent such Taxes would not
have been imposed in the absence of any connection of the Administrative Agent
with such jurisdiction imposing such Taxes other than any connection that
results from the performance by the Administrative Agent of its obligations
under this Agreement. This indemnity shall expressly inure to the benefit of any
director, officer, agent or employee of the Administrative Agent now existing or
in the future and to the benefit of any successor of the Administrative Agent
and shall survive the expiration of this Agreement.
(c) The Administrative Agent agrees to indemnify, reimburse and hold
harmless on an After-Tax Basis each Issuer Group Member and its respective
trustees, directors and agents for any Losses whatsoever which they or any of
them may incur or be subject to in consequence of the performance of the
Administrative Services or any breach of the terms of this Agreement by the
Administrative Agent, but only to the extent such Losses arise due to the
willful misconduct, gross negligence, deceit or fraud of the Administrative
Agent or any of its
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directors, officers or employees, as the case may be; provided, however, that
this indemnity shall not apply and the Administrative Agent shall have no
liability in respect of Losses to the extent that they arise from (i) the
willful misconduct, deceit or fraud of any Issuer Group Members or their
respective directors, trustees or agents, (ii) any breach by the Administrative
Agent of its obligations under this Agreement to the extent such breach is a
result of a Service Provider's failure to perform its obligations to the Issuer
Group or a failure by the Issuer Group to comply with its obligations under this
Agreement, (iii) any action that the Issuer Group requires the Administrative
Agent to take pursuant to a direction but only to the extent that the
Administrative Agent takes such action in accordance with such direction and in
accordance with the provisions hereof or (iv) a refusal by the Issuer Group to
take action upon a recommendation made in good faith by the Administrative Agent
in accordance with the terms hereof.
(d) The Administrative Agent agrees to indemnify, reimburse and hold
harmless on an After-Tax Basis each of the Trustee, the Security Trustee and the
Operating Bank and their respective trustees, directors and agents for any
Losses whatsoever which they or any of them may incur or be subject to in
consequence of the performance of the Bank Account Management Services or any
breach of the terms of this Agreement by the Administrative Agent, but only to
the extent such Losses arise due to the willful misconduct, gross negligence,
deceit or fraud of the Administrative Agent or any of its directors, officers or
employees, as the case may be; provided, however, that this indemnity shall not
apply and the Administrative Agent shall have no liability in respect of Losses
to the extent that they arise from (i) the willful misconduct, deceit or fraud
of the Trustee or Security Trustee, or their respective directors, trustees or
agents, (ii) any breach by the Administrative Agent of its obligations under
this Agreement to the extent such breach is solely a result of a Service
Provider's failure to perform its obligations to the Issuer Group or a failure
solely by the Issuer Group to comply with its obligations under this Agreement,
(iii) any action that the Trustee or the Security Trustee requires the
Administrative Agent to take pursuant to a direction but only to the extent that
the Administrative Agent takes such action in accordance with such direction and
in accordance with the provisions hereof or (iv) a refusal by the Trustee or the
Security Trustee to take action upon a recommendation made in good faith and
consistent with the provisions relating to the Trustee or the Security Trustee
under the Related Documents by the Administrative Agent in accordance with the
terms hereof.
(e) The Administrative Agent, the Issuer and the other Issuer Group
Members, the Trustee and the Security Trustee acknowledge and agree that the
terms of this Agreement contemplate that the Administrative Agent shall receive
the Relevant Information in order for the Administrative Agent to make required
credit and debit entries and to make the calculations and supply the information
and reports required herein, and that the Administrative Agent will do the
foregoing to the extent such information is so provided by such relevant parties
and on the basis of such information, without undertaking any independent
verification or recalculation of such information.
ARTICLE IV
ADMINISTRATIVE AGENT UNDERTAKINGS
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Section 4.01 Administrative Agent Undertakings. The Administrative Agent
hereby covenants with the Issuer Group that it will conduct its business such
that it is a separate and readily identifiable business from, and independent
of, each Issuer Group Member and further covenants as follows:
(a) if the Administrative Agent receives any money whatsoever, which
money belongs to any Issuer Group Member, the Trustee or the Security Trustee or
is to be paid to any Issuer Group Member, the Trustee or the Security Trustee or
into any account pursuant to any Related Document or otherwise, it will hold
such money in trust for such Issuer Group Member, the Trustee or the Security
Trustee, as the case may be, and shall keep such money separate from all other
money belonging to the Administrative Agent and shall as promptly as practicable
thereafter pay the same into the relevant account in accordance with the terms
thereof without exercising any right of setoff it may have;
(b) it will comply with any proper directions, orders and
instructions which any Issuer Group Member (with respect to the Issuer Group
Services) or the Security Trustee or the Trustee (with respect to the Bank
Account Management Services) may from time to time give to it in accordance with
the provisions of this Agreement and the Indenture; provided, that during the
continuance of any Event of Default, the Administrative Agent shall comply only
with the instructions of the Security Trustee as to all Administrative Services;
(c) it will not knowingly fail to comply with any legal requirements
in the performance of the Administrative Services;
(d) it will make all payments required to be made by it at any time
and from time to time pursuant to this Agreement on the required date for
payment thereof and shall turn over any amounts owed to the Security Trustee,
the Issuer, any other Issuer Group Member or the Trustee without set-off or
counterclaim;
(e) it will not take any steps for the purpose of procuring the
appointment of any administrative receiver or the making of an administrative
order or for instituting any bankruptcy, reorganization, arrangement,
insolvency, winding up, liquidation, composition or any like proceedings under
the laws of any jurisdiction in respect of any Issuer Group Member or in respect
of any of their respective liabilities, including, without limitation, as a
result of any claim or interest of the Administrative Agent or any of its
Affiliates;
(f) it will cooperate with each Issuer Group Member and its
respective trustees, directors and agents (with respect to the Issuer Group
Services when no Event of Default has occurred and is continuing) and the
Security Trustee and the Trustee (with respect to the Bank Account Management
Services, or, following the giving of a Default Notice or during the continuance
of an Acceleration, all Administrative Services), including by providing such
information as may reasonably be requested, to permit such Persons to monitor
the Administrative Agent's compliance with its obligations under this Agreement;
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(g) during the term of this Agreement, it will observe all corporate
formalities necessary to remain a legal entity separate and distinct from, and
independent of, each Issuer Group Member;
(h) during the term of this Agreement, it will maintain its assets
and liabilities separate and distinct from each Issuer Group Member;
(i) during the term of this Agreement, it will maintain records,
books, accounts and minutes separate from those of each Issuer Group Member;
(j) during the term of this Agreement, it will pay its obligations
in the ordinary course of its business as a legal entity separate from each
Issuer Group Member;
(k) during the term of this Agreement, it will keep its funds
separate and distinct from the funds of each Issuer Group Member, and it will
receive, deposit, withdraw and disburse such funds separately from the funds of
each Issuer Group Member;
(l) during the term of this Agreement, it will conduct its business
in its own name, and not in the name of any Issuer Group Member;
(m) during the term of this Agreement, it will not pay or become
liable for any debt of any Issuer Group Member, other than to make payments in
the form of indemnity as required by the express terms of this Agreement;
(n) during the term of this Agreement, it will not hold out that it
is a division of any Issuer Group Member or that any Issuer Group Member is a
division of it;
(o) during the term of this Agreement, it will not induce any third
party to rely on the creditworthiness of any Issuer Group Member in order that
such third party will be induced to contract with it;
(p) during the term of this Agreement, it will not enter into any
agreements between it and any Issuer Group Member that are more favorable to
either party than agreements that the parties would have been able to enter into
at such time on an arm's-length basis with a non-affiliated third party, other
than any Related Documents in effect on the date hereof (it being understood
that the parties hereto do not intend by this covenant to ratify any
self-dealing transactions); and
(q) during the term of this Agreement, it will (i) forward promptly
to the Servicer and the Additional Servicer a copy of any material communication
received from any Person in relation to any Lease or Aircraft; (ii) grant such
access to the Servicer to its books of account, documents and other records and
to its employees as may be reasonably necessary for the Servicer or the
Additional Servicer to perform its obligations in respect of any Lease or
Aircraft under the Servicing Agreement or the Additional Servicing Agreement, as
applicable; provided, however, that the Servicer shall not have access to the
minutes of the Administrative Agent's board meetings and other confidential
business information; and (iii) execute and deliver such
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documents and do such acts and things as the Servicer or the Additional
Servicing may reasonably request in order to effect the purposes of the
Servicing Agreement.
ARTICLE V
UNDERTAKINGS OF THE ISSUER GROUP
Section 5.01 Cooperation. The Issuer and the other Issuer Group Members
shall use commercially reasonable efforts to cause any Service Provider to at
all times cooperate with the Administrative Agent to enable the Administrative
Agent to provide the Issuer Group Services, including providing the
Administrative Agent with all powers of attorney as may be reasonably necessary
or appropriate for the Administrative Agent to perform the Issuer Group Services
in accordance with this Agreement. In addition, as and to the extent requested
by the Administrative Agent, the Trustee and the Security Trustee, the Issuer
and the other Issuer Group Members shall use commercially reasonable efforts to
cause any Service Provider to at all times cooperate with the Administrative
Agent to enable the Administrative Agent to provide the Bank Account Management
Services. The Trustee and the Security Trustee shall provide the Administrative
Agent with such powers of attorney as may be reasonably necessary or appropriate
for the Administrative Agent to perform the Bank Account Management Services in
accordance with this Agreement.
Section 5.02 Information. The Issuer will provide the Administrative Agent
with the following information in respect of itself and each other Issuer Group
Member:
(a) copies of all Related Documents, including the articles of
incorporation, by-laws, trust agreements (or equivalent documents) of each
Issuer Group Member, and copies of all books and records maintained on behalf of
each such Issuer Group Member;
(b) details of all bank accounts and bank mandates maintained by any
Issuer Group Member;
(c) names of and contact information with respect to the Controlling
Trustees or board for each Issuer Group Member;
(d) such other information as is necessary to the Administrative
Agent's performance of the Administrative Services; and
(e) a copy of any information provided to the Issuer Group pursuant
to the Servicing Agreement; provided, that such information as is referred to in
this Section 5.02 (with the exception of paragraphs (d) and (e)) shall be
provided to the Administrative Agent after the execution of this Agreement and,
in respect of any amendment or changes to the information provided to the
Administrative Agent after the execution of this Agreement, promptly following
the effectiveness of such amendments or changes.
Section 5.03 Scope of Services. (a) In the event that any Issuer Group
Member shall enter into any agreement, amendment or other modification of any
Lease or shall take any other action that has the effect of increasing in any
material respect the scope, nature or level of the
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Issuer Group Services to be provided under this Agreement without the
Administrative Agent's express prior written consent, the Issuer Group shall so
notify the Administrative Agent and the Administrative Agent shall not be
obligated to perform the affected Administrative Service to the extent of such
increase unless and until the Administrative Agent and the Issuer Group shall
agree on the terms of such increased Administrative Service (it being understood
that (i) the Administrative Agent shall have no liability to any Issuer Group
Member directly or indirectly arising out of, in connection with or related to
the Administrative Agent's failure to perform such increased Administrative
Service prior to any such agreement and (ii) the Issuer Group shall not be
permitted to engage another Person to perform the affected Administrative
Service without the prior written consent of the Administrative Agent unless the
Administrative Agent has indicated it is unable or unwilling to act in respect
of the affected Administrative Service or the Administrative Agent requires
payment of more than reasonable additional compensation for such additional
Administrative Service).
(b) In the event that the Issuer Group shall acquire Additional
Aircraft, the Issuer Group shall so notify the Administrative Agent and the
Administrative Agent shall be obligated to provide the Issuer Group Services
with respect to such Additional Aircraft in accordance with Section 2.07 hereof.
Section 5.04 Ratification. The Issuer and the other Issuer Group Members
hereby ratify and confirm and agree to ratify and confirm (and shall furnish
written evidence thereof upon request of the Administrative Agent) any act or
omission by the Administrative Agent with respect to any Issuer Group Services
in accordance with this Agreement in the exercise of any of the powers or
authorities conferred upon the Administrative Agent under the terms of this
Agreement, it being expressly understood and agreed that none of the foregoing
shall have any obligation to ratify and confirm, and expressly does not ratify
and confirm, any act or omission of the Administrative Agent in violation of
this Agreement, the Standard of Performance or for which the Administrative
Agent is obligated to indemnify any Issuer Group Member under Article III
hereof.
Section 5.05 Covenants. Each of the Issuer and the other Issuer Group
Members covenants with the Administrative Agent that it will conduct its
business such that it is a separate and readily identifiable business from, and
independent of, the Administrative Agent and any of its Affiliates and further
covenants as follows:
(a) during the term of this Agreement, it will observe all corporate
formalities necessary to remain legal entities separate and distinct from, and
independent of, the Administrative Agent, and any of its Affiliates;
(b) during the term of this Agreement, it will maintain its assets
and liabilities separate and distinct from those of the Administrative Agent;
(c) during the term of this Agreement, it will maintain records,
books, accounts, and minutes separate from those of the Administrative Agent;
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(d) during the term of this Agreement, it will pay its obligations
in the ordinary course of business as a legal entity separate from the
Administrative Agent;
(e) during the term of this Agreement, it will keep its funds
separate and distinct from any funds of the Administrative Agent, and will
receive, deposit, withdraw and disburse such funds separately from any funds of
the Administrative Agent;
(f) during the term of this Agreement, it will conduct its business
in its own name, and not in the name of the Administrative Agent;
(g) during the term of this Agreement, it will not agree to pay or
become liable for any debt of the Administrative Agent, other than to make
payments in the form of indemnity as required by the express terms of this
Agreement;
(h) during the term of this Agreement, it will not hold out that it
is a division of the Administrative Agent, or that the Administrative Agent is a
division of it;
(i) during the term of this Agreement, it will not induce any third
party to rely on the creditworthiness of the Administrative Agent in order that
such third party will be induced to contract with it;
(j) during the term of this Agreement, it will not enter into any
transaction between it and the Administrative Agent that are more favorable to
either party than transactions that the parties would have been able to enter
into at such time on an arm's-length basis with a non-affiliated third party,
other than any agreements in effect on the date hereof (it being understood that
the parties hereto do not intend by this covenant to ratify any self-dealing
transactions); and
(k) during the term of this Agreement, it will observe all material
corporate or other procedures required under Applicable Law and under its
constitutive documents.
Section 5.06 Ratification by Subsidiaries. The Issuer hereby undertakes to
procure that, if so requested by the Administrative Agent, any subsidiary of the
Issuer formed or acquired after the date hereof, shall execute an agreement with
the Administrative Agent adopting and confirming, as regards such subsidiary,
the terms of this Agreement, and agreeing to ratify anything done by the
Administrative Agent in connection herewith on the terms of Section 5.04.
ARTICLE VI
ADMINISTRATION FEES AND EXPENSES
Section 6.01 Administration Fees. In consideration of the Administrative
Agent's performance of the Administrative Services, the Issuer agrees to pay to
the Administrative Agent a per annum amount equal to $475,000 plus $11,000 for
each Aircraft in excess of 34 owned by the Issuer Group (the "Administrative
Fee") payable in arrears in equal monthly installments (each monthly payment, an
"Administrative Fee") on each Payment Date (until the resignation or removal of
the Administrative Agent) for each period commencing on and including the
Initial
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Closing Date (or, thereafter, the last of day of the immediately preceding
period) and ending on but excluding the Calculation Date immediately preceding
such Payment Date (each such period, a "Fee Period").
Section 6.02 Expenses. (a) The Administrative Agent shall be responsible
for (i) all telephone, facsimile and communications costs and expenses directly
relating to or associated with the Administrative Agent's performance of its
duties as set forth in this Agreement up to an annual amount of $20,000 and (ii)
all fees and expenses owed to aviation consultants hired to assist the
Administrative Agent with the Administrative Services up to an annual amount of
$25,000.
(b) Subject to the provisions of Section 6.02(a), the Issuer Group
shall be responsible for the following expenses incurred by the Administrative
Agent in the performance of its obligations ("Reimbursable Expenses"):
(i) reasonable out of pocket expenses, including travel,
accommodation and subsistence and approved expenditures in respect of insurance
coverage for the Administrative Agent;
(ii) annual telephone, fax and communication costs and
expenses necessarily and directly incurred in connection with the performance of
the Administrative Services in excess of $20,000 and annual fees and expenses to
aviation consultants hired to assist the Administrative Agent with the
Administrative Services in excess of $25,000;
(iii) expenses expressly authorized by (i) the Controlling
Trustees or (ii) any Person to whom such authority has been delegated, other
than the Administrative Agent or its Affiliates; and
(iv) expenses expressly authorized pursuant to other
provisions of this Agreement.
Section 6.03 Payment of Expenses. No later than each Calculation Date, the
Administrative Agent shall deliver a notice to the Issuer Group, setting forth
the amounts of Reimbursable Expenses owed to the Administrative Agent pursuant
to Section 6.02 of this Agreement through and including such Calculation Date
(it being understood that if there are no such expenses the Administrative Agent
will be under no obligation to provide such notice). The Issuer Group agrees to
pay to the Administrative Agent an amount equal to all such Reimbursable
Expenses on the next Payment Date following such Calculation Date.
ARTICLE VII
TERM; REPLACEMENT OF OR RESIGNATION BY THE ADMINISTRATIVE AGENT
Section 7.01 Term. This Agreement shall have a term commencing on the
Initial Closing Date and expiring on the date of payment in full of all amounts
outstanding to be paid on the Securities.
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Section 7.02 Replacement or Resignation. (a) At any time during the term
of this Agreement (i) the Issuer Group by a Controlling Trustees' Resolution,
shall be entitled to replace the then existing Administrative Agent performing
the Issuer Group Services with a new Administrative Agent appointed by it (with
the prior written consent of the Servicer, such consent not to be unreasonably
withheld or delayed (it being understood that the Servicer may consider, among
other factors, whether the proposed Administrative Agent is a "Competitor" as
defined in the Servicing Agreement)) on 120 days' Written Notice to the
Administrative Agent, the Trustee and the Security Trustee, except following the
delivery of a Default Notice or during the continuance of an Acceleration
Default (in which case all such powers shall be vested in the Security Trustee
as provided in clause (ii) below) and (ii) the Security Trustee shall be
entitled to replace the then existing Administrative Agent performing the Bank
Account Management Services and, following the delivery of a Default Notice or
during the continuance of an Acceleration Default, all of the Administrative
Services with a new Administrative Agent appointed by it on 120 days' written
notice.
(b) At any time during the term of this Agreement, the Administrative
Agent shall be entitled to resign as the Administrative Agent performing the
Issuer Group Services, the Bank Account Management Services or both such
Administrative Services on 120 days' Written Notice to the Issuer, the Security
Trustee and the Trustee if:
(i) any Issuer Group Member shall fail to pay in full when due (A)
any Administrative Fee or any Reimbursable Expenses in an aggregate amount in
excess of $50,000 and such failure continues for a period of 30 days, in either
case, after the effectiveness of Written Notice from the Administrative Agent of
such failure or (B) any other amount payable to the Administrative Agent
hereunder, and such failure continues for a period of 60 days after Written
Notice from the Administrative Agent of such failure;
(ii) any Issuer Group Member shall fail to perform or observe or
shall violate in any material respect any material term, covenant, condition or
agreement to be performed or observed by it in respect of this Agreement and
such failure continues for a period of 30 days after the Issuer Group shall have
received notice of such failure (other than with respect to payment obligations
referred to in clause (b)(i) of this Section 7.02);
(iii) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking relief in
respect of the Issuer or any Issuer Group Member, or of a substantial part of
the property or assets of the Issuer or any other Issuer Group Member, under
Title 11 of the United States Code, as now constituted or hereafter amended (the
"U.S. Bankruptcy Code"), or any other U.S. federal or state or foreign
bankruptcy, insolvency, receivership or similar law, and such proceeding or
petition shall continue undismissed for 120 days or an order or decree approving
or ordering any of the foregoing shall be entered or the Issuer or any other
Issuer Group Member shall go into liquidation, suffer a receiver or mortgagee to
take possession of all or substantially all of its assets or have an examiner
appointed over it or if a petition or proceeding is presented for any of the
foregoing and not discharged within 120 days; or
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(iv) the Issuer or any other Issuer Group Member shall (A)
voluntarily commence any proceeding or file any petition seeking relief under
the U.S. Bankruptcy Code, or any other U.S. federal or state or foreign
bankruptcy, insolvency, receivership or similar law, (B) consent to the
institution of, or fail to contest the filing of, any petition described in
clause (b)(iii) of this Section 7.02, (C) file an answer admitting the material
allegations of a petition filed against it in any such proceeding or (D) make a
general assignment for the benefit of its creditors.
(c) No replacement of the Administrative Agent pursuant to Section 7.02(a)
and no resignation by the Administrative Agent pursuant to Section 7.02(b) shall
become effective prior to the date on which a successor Administrative Agent
shall have become a party to this Agreement and accepted appointment as such
successor Administrative Agent; provided, however, that in the event that a
successor Administrative Agent shall not have been appointed within 90 days
after such resignation, the Administrative Agent may petition any court of
competent jurisdiction for the appointment of a successor Administrative Agent.
Upon any such replacement or resignation, the Administrative Agent shall be
entitled to the payment of any compensation owed to it hereunder and to the
reimbursement of all Reimbursable Expenses incurred in connection with all
services rendered by it hereunder, as provided in Section 6 hereof, and for so
long as the Administrative Agent is continuing to perform any of the
Administrative Services, the Administrative Agent shall be entitled to continue
to be paid all amounts due to it hereunder, net of any amounts that shall have
been finally adjudicated by a court of competent jurisdiction to be owed by the
Administrative Agent to the Issuer Group or not to be due to the Administrative
Agent, until a successor Administrative Agent shall have been appointed and
shall have accepted such appointment.
Section 7.03 Consequences of Replacement or Resignation. (a) Notices. (i)
Following the replacement or resignation of the Administrative Agent pursuant to
Section 7.01 or 7.02, the Administrative Agent will promptly forward to the
Issuer Group any notices in respect of the Issuer Group Services and to the
Trustee and the Security Trustee any notices in respect of the Bank Account
Management Services received by it during the year immediately following the
replacement and resignation of the Administrative Agent pursuant to this
Agreement.
(ii) The Issuer Group will notify promptly any relevant third
party, including each Rating Agency, the Security Trustee, the Trustee, and the
Servicer, of the replacement and resignation of the Administrative Agent
pursuant to the Agreement and will request that any such notices and accounting
reports and communications thereafter be made or given directly to the entity
engaged to serve as Administrative Agent, and to the other parties hereto.
(b) Accrued Rights. The replacement and resignation of the
Administrative Agent pursuant to this Agreement shall not affect the respective
rights and liabilities of any party accrued prior to such termination in respect
of any prior breaches hereof or otherwise.
(c) Replacement. If the Administrative Agent is replaced or resigns,
the Administrative Agent will cooperate with any person appointed to perform the
relevant
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Administrative Services, including providing such person with all information
and documents reasonably requested.
Section 7.04 Survival. Notwithstanding any replacement or resignation of
the Administrative Agent or the expiration of this Agreement, the obligations of
the Issuer Group and the Administrative Agent under Section 3.02 shall survive
such replacement or resignation of the Administrative Agent or expiration, as
the case may be.
ARTICLE VIII
ASSIGNMENT AND DELEGATION
Section 8.01 Assignment and Delegation. (a) Except as provided in
subsection (b) below, no party to this Agreement shall assign or delegate or
otherwise subcontract this Agreement or all or any part of its rights or
obligations hereunder to any Person without the prior written consent of the
other parties (such consent not to be unreasonably withheld) and, except with
respect to the Bank Account Management Services, assign or delegate or otherwise
subcontract to a "Competitor" of the Servicer (as defined in the Servicing
Agreement), without the prior written consent of the Servicer; provided that the
Issuer Group Members may assign their rights hereunder to the Security Trustee
for the benefit of the Secured Parties under the terms of the Security Trust
Agreement
(b) The Administrative Agent may assign its right to receive
compensation for the performance of all or any part of the services set forth in
Article II, including without limitation, the establishment and maintenance of
the Ledgers and the preparation of the Draft Accounts.
(c) Without limiting the foregoing, any Person who shall become a
successor by assignment or otherwise of any party hereto shall be required as a
condition to the effectiveness of any such assignment or other arrangement to
become a party to this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices. All notices, consents, directions, approvals,
instructions, requests and other communications required or permitted by this
Agreement to be given to any Person shall be in writing, and any such notice
shall become effective ten (10) days after being deposited in the mails,
certified or registered, return receipt requested, with appropriate postage
prepaid for first class mail, or if delivered by hand or courier service or in
the form of a facsimile, when received (and, in the case of a facsimile, receipt
of such facsimile is confirmed to the sender), and shall be directed to the
address or facsimile number of such Person set forth below:
If to the Issuer and the other Issuer Group Members, to:
Aircraft Finance Trust
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c/o Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administrator
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
ReSource/Phoenix, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Financial Services Division
and
UniCapital Air Group, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Simat, Helliesen & ▇▇▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
The Conference Board, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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if to the Administrative Agent, to:
ReSource/Phoenix, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Financial Services Division
if to the Trustee or the Security Trustee, to:
Bankers Trust Company
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Services-Structured Finance
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
From time to time any party to such agreement may designate a new
address or number for purposes of notice thereunder by notice to each of the
other parties thereto.
Section 9.02 Governing Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
Section 9.03 Jurisdiction. Except as otherwise expressly provided in this
Agreement, the parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in the United States District Court for the Southern District of New
York or any other New York State court sitting in New York City, and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9.01 shall be deemed
effective service of process on such party.
Section 9.04 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 9.05 Counterparts; Third Party Beneficiaries. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the
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signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received a counterpart
hereof signed by the other party hereto. No provision of this Agreement is
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.
Section 9.06 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
Section 9.07 Table of Contents; Headings. The table of contents and
headings of the various articles, sections and other subdivisions of such
agreement are for convenience of reference only and shall not modify, define or
limit any of the terms or provisions of such agreement.
Section 9.08 Amendments. This Agreement may not be amended, supplemented
of otherwise modified except in a writing executed by all parties hereto,
provided that the Administrative Agent, the Security Trustee and the Trustee may
amend, supplement of otherwise modify this Agreement to alter the Bank Account
Management Services without the consent of, or the execution of any writing by,
the Issuer or any other Issuer Group Member. To the extent that so doing would,
directly or indirectly, affect the Servicer's rights, obligations or liabilities
(or potential liabilities) under the Servicing Agreement, this Agreement may not
be amended to alter the scope of Issuer Group Services in any material respect
without the consent of the Servicer (such consent not to be unreasonably
withheld or delayed). Prior to the execution of any such amendment, supplement
or modification, the Security Trustee and the Trustee shall be entitled to
receive an Officer's Certificate to the effect that all conditions precedent to
such amendment, modification or supplement, if any, have been satisfied.
Section 9.09 No Partnership. (a) It is expressly recognized and
acknowledged that this Agreement is not intended to create a partnership, joint
venture or other similar arrangement between any Issuer Group Member or Members
on the one part and the Administrative Agent on the other part. It is also
expressly understood that any actions taken on behalf of any Issuer Group Member
by the Administrative Agent shall be taken as agent for such Issuer Group
Member, either naming the relevant Issuer Group Member, or naming the
Administrative Agent as agent for an undisclosed principal. No Issuer Group
Member shall hold itself out as a partner of the Administrative Agent, and the
Administrative Agent will not hold itself out as a partner of any Issuer Group
Member.
(b) The Administrative Agent shall not have any fiduciary duty or
other implied obligations or duties to any Issuer Group Member, any Lessee or
any other Person arising out of this Agreement.
Section 9.10 Concerning the Security Trustee and the Trustee. In respect
of the Security Trustee's and Trustee's performance of appointing the
Administrative Agent to provide the Bank Account Management Services, the
Security Trustee and the Trustee shall be afforded all of the rights,
protections, immunities and indemnities contained in the Security Trust
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Agreement and the Indenture, respectively, as if such rights, protections,
immunities and indemnities were specifically set forth herein. It is expressly
understood and agreed that neither the Security Trustee nor the Trustee shall
have any liability in respect of the appointment, performance or nonperformance
of the Administrative Agent, all such liability, if any, being expressly waived
by the parties hereto and by any Person claiming by, through or under such
parties.
Section 9.11 Restrictions on Disclosure. The Administrative Agent agrees
that it shall not, prior to the termination or expiration of this Agreement or
within the three (3) years after such termination or expiration, disclose to any
Person any information stated in writing by an Issuer Group Member or the
Servicer to be confidential or proprietary, whether of a technical, financial,
commercial or other nature, received directly or indirectly from the Issuer
Group or the Servicer regarding the Issuer Group or the Servicer or their
respective businesses or the Aircraft.
Notwithstanding anything herein to the contrary, the foregoing
shall not be construed to prohibit (i) disclosure of any and all information
that is or becomes publicly known, or information obtained by the Administrative
Agent from sources other than an Issuer Group Member or the Servicer, (ii)
disclosure of any and all information (A) if required to do so by any Applicable
Law, (B) to any government agency or regulatory body having or claiming
authority to regulate or oversee any respects of the Administrative Agent's
business or that of its affiliates, (C) pursuant to any subpoena, civil
investigative demand or similar demand or request of any court, regulatory
authority, arbitrator or arbitration to which the Administrative Agent or an
affiliate or an officer, director, employer or shareholder thereof is a party,
(D) in any preliminary or final offering circular, registration statement or
contract or other document pertaining to the transactions contemplated by this
Agreement approved in advance by any Issuer Group Member or (E) to any
affiliate, independent or internal auditor, agent, employee or attorney of the
Administrative Agent having a need to know the same, provided that the
Administrative Agent advises such recipient of the confidential nature of the
information being disclosed, or (iii) any other disclosure authorized by any
Issuer Group Member or the Servicer.
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IN WITNESS WHEREOF, this Agreement has been duly executed on the
date first written above.
AIRCRAFT FINANCE TRUST,
By Wilmington Trust Company,
not in its individual capacity but
solely as the Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. Neeci
----------------------------
Name: ▇▇▇▇▇ ▇. Neeci
Title: Authorized Signer
AFT TRUST - SUB I,
By Wilmington Trust Company,
not in its individual capacity but
solely as the owner trustee
By: /s/ ▇▇▇▇▇ ▇. Neeci
----------------------------
Name: ▇▇▇▇▇ ▇. Neeci
Title: Authorized Signer
Given under the Common Seal of
AIRCRAFT FINANCE TRUST
IRELAND LIMITED in the presence of:
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as the Security Trustee
and the Trustee
By: /s/ [ILLEGIBLE]
----------------------------
Name:
Title:
38
IN WITNESS WHEREOF, this Agreement has been duly executed on the
date first written above.
AIRCRAFT FINANCE TRUST,
By Wilmington Trust Company,
not in its individual capacity but
solely as the Owner Trustee
By:____________________________
Name:
Title:
AFT TRUST - SUB I,
By Wilmington Trust Company,
not in its individual capacity but
solely as the owner trustee
By:____________________________
Name:
Title:
Given under the Common Seal of
AIRCRAFT FINANCE TRUST
IRELAND LIMITED in the presence of:
/s/ [ILLEGIBLE]
/s/ [ILLEGIBLE]
DIRECTOR
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as the Security Trustee
and the Trustee
By:____________________________
Name:
Title:
39
RESOURCE/PHOENIX, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Vice President and
Chief Operating Officer