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Exhibit 10.5
EXECUTION COPY
REFERENCE AGENCY AGREEMENT
dated as of May 5, 1999
between
AIRCRAFT FINANCE TRUST, a Delaware statutory business trust,
as the Issuer,
BANKERS TRUST COMPANY,
as the Reference Agent
and
RESOURCE/PHOENIX, INC.,
as the Administrative Agent
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This REFERENCE AGENCY AGREEMENT, dated as of May 5, 1999, is between
AIRCRAFT FINANCE TRUST, a business trust organized under the laws of Delaware
(the "Issuer"), BANKERS TRUST COMPANY, a New York banking corporation ("Bankers
Trust"), and RESOURCE/PHOENIX, INC., a California corporation, in its capacity
as administrative agent (the "Administrative Agent").
R E C I T A L S:
A. On the date hereof, pursuant to the terms of the Trust Indenture
dated the date hereof between Aircraft Finance Trust, Bankers Trust and
Resource/Phoenix, Inc. (the "Indenture"), the Issuer is issuing and selling,
inter alia, the Subclass A-1 Notes, the Subclass A-2 Notes and the Subclass B-1
Notes.
B. From time to time, the Issuer may issue Exchange Notes or
Refinancing Notes in replacement of the Initial Notes, and/or Additional Notes
under the Indenture;
C. The Subclass A-1 Notes, the Subclass A-2 Notes and the Subclass
B-1 Notes are, and certain subclasses of Refinancing Notes and Additional Notes
may be, entitled to receive interest at floating rates, in respect of which
LIBOR will be determined in accordance with Section 6 hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1.01. Definitions. Unless otherwise defined herein, all
capitalized terms used but not defined herein have the meanings assigned to such
terms in the Indenture.
SECTION 1.02. Construction and Usage. The conventions of
construction and usage set forth in the Indenture (including Section 1.02
thereof) are incorporated by reference herein.
SECTION 2. Appointment of Reference Agent. The Issuer hereby
appoints Bankers Trust as the Reference Agent, and Bankers Trust hereby accepts
such appointment and agrees to perform the duties and obligations of Reference
Agent set forth in Section 6 hereof.
SECTION 3. Status of Reference Agent. Any acts taken by the
Reference Agent under this Agreement or in connection with any Floating Rate
Note, including the calculation of LIBOR for any interest rate for such Floating
Rate Note, shall be deemed to have been taken by the Reference Agent solely in
its capacity as an agent acting on behalf of the Issuer and shall not create or
imply any obligation to, or any agency, fiduciary or trust relationship with,
any of the owners or holders of the Floating Rate Notes.
SECTION 4. Reference Agent Fees and Expenses. In consideration of
the Reference Agent's performance of the services provided for under this
Agreement, the Issuer shall pay to the Reference Agent an annual fee set forth
under a separate agreement between the Issuer and Bankers Trust. In addition,
the Issuer shall reimburse the Reference Agent for all reasonable out-of-pocket
expenses, disbursements and advances (including reasonable legal fees and
expenses)
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incurred or made by the Reference Agent from time to time in connection with the
services rendered by it under this Agreement, except any expenses,
disbursements, or advances attributable to its gross negligence or willful
misconduct.
SECTION 5. Rights and Liabilities of Reference Agent. In the absence
of negligence or willful misconduct on the part of the Reference Agent, its
directors, officers, employees and agents, such persons may conclusively rely,
as to the truth of the statements expressed in, and shall be fully protected and
shall incur no liability for, or in respect of, any action taken, omitted to be
taken, or suffered to be taken by it, in reliance upon, any written order,
instruction, notice, request, direction, statement, certificate, consent,
report, affidavit or other instrument, paper, document or communication,
reasonably believed by it in good faith to be genuine, from the Issuer or the
Administrative Agent on behalf of the Issuer and conforming to the requirements
of this Agreement. Any written order, instruction, notice, request, direction,
statement, certificate, consent, report, affidavit or other instrument, paper,
document or communication from the Issuer or the Administrative Agent or given
by it and sent, delivered or directed to the Reference Agent under, pursuant to,
or as permitted by, any provision of this Agreement shall be sufficient for
purposes of this Agreement if such written order, instruction, notice, request,
direction, statement, certificate, consent, report, affidavit or other
instrument, paper, document or communication is in writing and signed by the
Owner Trustee on behalf of the Issuer or by the Administrative Agent, as the
case may be. The Reference Agent may consult with counsel satisfactory to it and
the advice (to be confirmed in writing) or opinion of such counsel shall
constitute full and complete authorization and protection of the Reference Agent
with respect to any action taken, omitted to be taken, or suffered to be taken
by it hereunder in good faith and in accordance with and in reliance upon the
advice to be confirmed in writing or opinion of such counsel. The Reference
Agent shall not be liable for any error resulting from use of or reliance on a
source or publication required to be used under Section 6 to the extent such use
of or reliance on such source or publication is contemplated by Section 6. No
party shall be liable for any default resulting from force majeure.
SECTION 6. Duties of Reference Agent. (a) The duties and obligations
of the Reference Agent shall be determined solely by the express provisions of
this Agreement and no implied covenants or obligations shall be read into this
Agreement against the Reference Agent. Subject to their duty to act without
negligence, neither the Reference Agent nor its directors, officers, employees
and agents guarantee the correctness or completeness of any data or other
information furnished hereunder.
(b) For the purpose of calculating the rate of interest payable on
any subclass of Floating Rate Notes, the Reference Agent shall determine LIBOR
for each Interest Accrual Period on the Reference Date with respect to such
Interest Accrual Period and will notify the Administrative Agent of LIBOR on
such date. The Reference Agent shall determine LIBOR in accordance with the
following provisions:
(i) On each Reference Date, the Reference Agent will determine LIBOR
as the per annum offered rate for deposits in U.S. dollars for a period of one
month that appears on the display designated as page "3750" on the Telerate
Monitor (or such other page or service as may replace it for the purpose of
displaying LIBOR of major banks for U.S. dollar deposits) at approximately 11:00
a.m. (London time).
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(ii) If the offered LIBOR rate so appearing is replaced by the
corresponding rates of more than one bank, then paragraph (i) above shall be
applied, with any necessary consequential changes, to the arithmetic mean of the
rates (being at least two) which so appear, as determined by the Reference
Agent. If for any other reason such offered rate does not so appear or if the
relevant page is unavailable, the Reference Agent will request that each of the
banks whose offered rates would have been used for the purposes of the relevant
page if the event leading to the application of this sentence had not happened
or any duly appointed substitute reference bank acting in each case through its
principal London office (the "Reference Banks"), to provide the Reference Agent
with its offered quotation to prime banks for dollar deposits in London for the
next Interest Accrual Period concerned as at 11:00 a.m. (London time) on the
applicable Reference Date. LIBOR for such Interest Accrual Period with respect
to each subclass of Floating Rate Notes shall be the aggregate of the arithmetic
mean (taken to five decimal places) of such quotations (or of such of them,
being at least two, as are so provided), as determined by the Reference Agent
and notified by it to the Administrative Agent.
(iii) If, on any Reference Date, only one or none of the Reference
Banks provides such quotation, LIBOR for the next Interest Accrual Period shall
be the rate per annum that the Reference Agent determines to be the aggregate of
the arithmetic mean of the U.S. dollar lending rates that New York City banks
selected by the Reference Agent are quoting on the relevant Reference Date to
leading European banks for loans in London for the next Interest Accrual Period,
except that, if the banks so selected by the Reference Agent are not quoting as
mentioned above, LIBOR for such Interest Accrual Period with respect to each
subclass of Floating Rate Notes shall be the LIBOR in effect for the last
preceding Interest Accrual Period.
(c) Once having obtained LIBOR from the Reference Agent, as soon as
practicable after 11:00 A.M. London time on each Reference Date, the
Administrative Agent will calculate the interest rate for each subclass of
Floating Rate Notes as provided in the Indenture.
(d) If the Reference Agent does not determine the applicable LIBOR
in accordance with the provisions of Section 6(b) hereof, the Administrative
Agent will determine such applicable LIBOR in accordance with the provisions
described above.
SECTION 7. Amendment of the Floating Rate Notes. The Administrative
Agent shall deliver to the Reference Agent, at least ten Business Days prior to
the effective date of any amendment of the payment terms of the Floating Rate
Notes, Written Notice of such amendment describing the terms of such amendment
in reasonable detail, and a certification by the Issuer that such amendment is
in compliance with the terms of the Indenture.
SECTION 8. Ownership of Securities. The Reference Agent, its
officers, directors, employees and shareholders may become the owners of or
acquire any interest in any Securities, with the same rights that it or they
would have if it were not the Reference Agent, and may engage or be interested
in any financial or other transaction with the Issuer as freely as if it were
not the Reference Agent.
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SECTION 9. Term; Termination, Resignation or Removal of Reference
Agent. (a) This Agreement shall have a term commencing on May 5, 1999 and
expiring on May 15, 2024. During such term, this Agreement shall not be
terminable by any party hereto except as expressly provided in Section 9(b).
(b) The Reference Agent may at any time resign by giving Written
Notice to the Issuer, the Trustee and the Administrative Agent, specifying
therein the date on which its desired resignation shall become effective;
provided that such notice shall be given no less than 30 days prior to such
effective date unless the Reference Agent, the Issuer, the Trustee and the
Administrative Agent otherwise agree in writing. The Issuer may remove the
Reference Agent at any time by giving Written Notice to the Reference Agent and
to the holders of the Floating Rate Securities and specifying the effective date
of such removal, which shall be at least 30 days after the date of notice;
provided, however, that no resignation by or removal of the Reference Agent
shall become effective prior to the date of appointment by the Issuer, as
provided in Section 10, of a successor reference agent and the acceptance of
such appointment by such successor reference agent; and provided, further, that
in the event that an instrument of acceptance by a successor reference agent
shall not have been delivered pursuant to Section 10 within 90 days after the
giving of such notice of resignation or removal, the Reference Agent may
petition any court of competent jurisdiction for the appointment of a successor
reference agent with respect to the Floating Rate Securities. The provisions of
Sections 5, 11 and 14 hereof shall remain in effect following termination of
this Agreement or the earlier resignation or removal of the Reference Agent.
SECTION 10. Appointment of Successor Reference Agent. In the event
of the resignation by or removal of the Reference Agent pursuant to Section 9,
the Issuer shall promptly appoint a successor reference agent. Any successor
reference agent appointed by the Issuer following resignation by or removal of
the Reference Agent pursuant to the provisions of Section 9 shall execute and
deliver to the original Reference Agent, the Issuer, the Trustee and the
Administrative Agent an instrument accepting such appointment. Thereupon, such
successor reference agent shall, without any further act, deed or conveyance,
become vested with all the authority, rights, powers, immunities, duties and
obligations of the Reference Agent and with like effect as if originally named
as Reference Agent hereunder, and the original Reference Agent shall thereupon
be obligated to transfer and deliver such relevant records or copies thereof
maintained by the Reference Agent in connection with the performance of its
obligations hereunder. The Issuer shall notify the Rating Agencies of any
resignation by or removal of the Reference Agent under Section 9 and of the
appointment of and acceptance by any successor Reference Agent pursuant to this
Section 10.
SECTION 11. Indemnification. The Issuer shall indemnify and hold
harmless the Reference Agent, its directors, officers, employees and agents from
and against any and all actions, claims, damages, liabilities, judgments,
losses, costs, charges and expenses (including reasonable legal fees and
expenses) relating to or arising out of actions or omissions from actions in any
capacity hereunder, except actions, claims, damages, liabilities, judgments,
losses, costs, charges and expenses caused by the gross negligence or willful
misconduct of the Reference Agent, its directors, officers, employees or agents.
The Reference Agent shall be indemnified and held harmless by the Issuer for any
error resulting from use of or reliance on a source or publication required to
be used under Section 6. The Reference Agent shall be indemnified and held
harmless
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by the Issuer for, or in respect of, any actions taken, omitted to be taken or
suffered to be taken in good faith by the Reference Agent in reliance upon (a)
advice to be confirmed in writing or opinion of counsel or (b) a written
instruction from the Issuer or the Administrative Agent.
SECTION 12. Merger, Consolidation or Sale of Business by Reference
Agent. Any corporation into which the Reference Agent may be merged or
consolidated or any corporation resulting from any merger or consolidation to
which the Reference Agent may be a party, or any corporation to which the
Reference Agent may sell or otherwise transfer all or substantially all of its
assets and corporate trust business, shall, to the extent permitted by
applicable law, become the Reference Agent under this Agreement without the
execution or filing of any paper or any further act by the parties hereto.
SECTION 13. Restrictions on Exercise of Certain Rights. The
Reference Agent hereby agrees with the Issuer that it shall not take any steps
for the purpose of procuring the appointment of an 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 Delaware or any other jurisdiction in
respect of the Issuer or in respect of any of its properties or liabilities.
SECTION 14. Miscellaneous. (a) If there should develop any conflict
between the Reference Agent and any other Person relating to the rights or
obligations of the Reference Agent in connection with calculation of the
interest rate, or the applicable LIBOR, on any subclass of Floating Rate Notes,
the terms of this Agreement shall govern such rights and obligations.
(b) The Reference Agent agrees to cooperate with the Issuer and its
agents, including the Administrative Agent, and their respective trustees or
directors and officers, including by providing such information as may
reasonably be requested to permit the Issuer or such authorized agents to
monitor the Reference Agent's compliance with its obligations under this
Agreement.
(c) 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 Issuer. The
Issuer may assign its rights hereunder to the Security Trustee for the benefit
of the Secured Parties under the terms of the Security Trust Agreement, and the
Reference Agent and the Administrative Agent hereby consent thereto.
(d) 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.
(e) This Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been entered into on the 5th
day of May, 1999.
AIRCRAFT FINANCE TRUST, as the Issuer By
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as the Owner Trustee
By /s/ Xxxxxx X. XxxXxxxxx
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Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
BANKERS TRUST COMPANY, as the Reference Agent
By
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Name:
Title:
RESOURCE/PHOENIX, INC., as the Administrative Agent
By
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Name:
Title:
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IN WITNESS WHEREOF, this Agreement has been entered into on the 5th
day of May, 1999.
AIRCRAFT FINANCE TRUST, as the Issuer By
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as the Owner Trustee
By
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Name:
Title:
BANKERS TRUST COMPANY, as the Reference Agent
By /s/ [ILLEGIBLE]
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Name:
Title:
RESOURCE/PHOENIX, INC., as the Administrative Agent
By
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Name:
Title:
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IN WITNESS WHEREOF, this Agreement has been entered into on the 5th
day of May, 1999.
AIRCRAFT FINANCE TRUST, as the Issuer By
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as the Owner Trustee
By
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Name:
Title:
BANKERS TRUST COMPANY, as the Reference Agent
By
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Name:
Title:
RESOURCE/PHOENIX, INC., as the Administrative Agent
By /s/ Xxxxxxx X. [ILLEGIBLE]
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Name: Xxxxxxx X. [ILLEGIBLE]
Title: AVP
