Loan Agreement
Loan Agreement dated as of January 1, 1999 between Atlas Air,
Inc., a Delaware corporation (the "Borrower"), and Xxxxxxx X. Xxxxxxx, an
individual whose mailing address is 000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000
(the "Lender").
WHEREAS, the Borrower has agreed to acquire a new Boeing
Business Jet (737-700) corporate aircraft and all associated equipment and
documentation (the "BBJ"), and
WHEREAS, the Borrower has financed a portion of the
acquisition cost of the BBJ, pursuant to an Aircraft Lease Agreement dated as of
February 26, 1999 between General Electric Capital Corporation ("GECC") and the
Borrower (the "Lease"), and
WHEREAS, the Lender has agreed with the Borrower to make a
loan to Borrower in an amount described in Section 1 hereof.
NOW, THEREFORE, the Borrower and Lender hereby agree as
follows:
Section 1. The Non Recourse Loan.
The Lender, on terms and conditions hereinafter set forth,
hereby agrees to make a non-recourse loan to the Borrower, bearing a floating
rate of interest equal to the London Interbank Offered Rate for one month as
shown in The Wall Street
-2-
Journal (the "LIBOR rate") in an amount equal to 50% of the amount by which the
sum of (a) the Acquisition Cost; (b) the cost of any capital improvements to the
BBJ subject to compliance with Section 5 hereof; and (c) any financing costs,
interest and lease payments with respect to the Lease exceeds the principal
amount of the purchase price received by the Borrower from GECC for sale of the
BBJ to GECC. For purposes of this Agreement, the "Acquisition Cost" shall be an
amount equal to the sum of the purchase price actually paid initially by
Borrower to acquire the BBJ, including all modifications and the installation of
the interior made prior to the time that the BBJ is placed in service, less
$9,164,518.20. The interest rate shall change monthly, with the LIBOR rate as
shown in The Wall Street Journal on the last business day of each month applied
to the next month (or part thereof).
Section 2. Advances.
(a) Upon the terms and subject to the conditions herein set
forth the Lender shall from time to time make advances (the "Advances") to the
Borrower under this Loan Agreement during the period from the date hereof until
the date of the sale by Borrower or disposition of the BBJ (the "Termination
Date") in response to Borrower's Request Notice referred to in paragraph (b) of
this Section 2.
-3-
(b) The Borrower shall give the Lender at least three (3)
Business Days' prior written or telegraphic notice of its request for an
Advance. Each such notice shall specify the date, the amount and the purpose of
the requested Advance and shall be in the form attached hereto as Exhibit B (a
"Request Notice"). The Lender shall make each Advance in immediately available
funds by wire transfer to a deposit account designated by Borrower at its
financial institution, as soon as practicable, but in no event later than 3
Business Days following the receipt by Lender of a Request Notice. The term
"Business Days" means any day other than a Saturday or Sunday and other than a
day which is a Federal legal holiday or a legal holiday for banks in the State
of Colorado.
(c) Each Advance shall be evidenced by a notation of the
amount of Advance set forth on Schedule I to the nonrecourse note in the form of
Exhibit A hereto (the "Note") delivered to the Lender at the time of the initial
Advance payment made hereunder. (The aggregate Advances made hereunder shall
sometimes be referred to herein as the "Loan".)
Section 3. Repayment of Loan.
The Loan shall be non-recourse to the Borrower and shall be
repaid by the Borrower solely out of the Repayment Amount (as defined below).
Unless approved by Lender, Dispositions must be made for cash. Borrower shall
repay the Loan
-4-
promptly upon its receipt of the Repayment Amount, subject to the provisions of
Section 9 hereof. Lender shall have no recourse against the Borrower for
repayment of the Loan, except out of the Repayment Amount. In the event that the
Repayment Amount exceeds the aggregate Advances made by the Lender hereunder,
Lender shall be entitled to receive such excess amount.
"Repayment Amount" shall mean (i) 50% of the Net Proceeds (as
defined below) received by the Borrower with respect to the Disposition (as
defined below) of the BBJ, less (ii) the excess, if any, of $4,582,259.10 over
the present value (computed as of December 1, 1999 at a discount rate of 7.5%)
of 50% of the actual tax benefit realized by Borrower (as computed based on the
same parameters as used on Exhibit C annexed hereto and the same effective tax
rate as used in determining Net Proceeds) plus (iii) the excess, if any, of the
present value (computed as of December 1, 1999 at a discount rate of 7.5%) of
50% of the actual tax benefit realized by Borrower (as computed based on the
same parameters as used on Exhibit C annexed hereto and the same effective tax
rate as used in determining Net Proceeds) over $4,582,259.10 plus (iv) the tax
benefit, if any, realized by Borrower as a result of the payment to Lender of
the Repayment Amount.
"Net Proceeds" shall mean the aggregate cash proceeds received
by Borrower from time to time with respect to the Dispo-
-5-
sition of the BBJ, net of all of the following actually paid or, in the case of
(iv) reserved (i) commissions and other fees and expenses (including fees and
expenses of legal counsel and investment banks) paid to third parties in
connection with such Disposition, (ii) provisions for all taxes payable as a
result of the Disposition, including without limitation income taxes at the then
effective income tax rate for Borrower, (iii) payments made to terminate the
Lease and retire such other indebtedness as may have been approved in writing in
advance by the Lender, and (iv) appropriate amounts to be determined by the
Company as a reserve required in accordance with generally accepted accounting
principles ("GAAP") against liabilities associated with such Disposition;
provided that 50% of any such reserved amounts shall be paid to the Lender at
the earliest time such reserve is no longer required in accordance with GAAP.
"Disposition" shall mean the sale of the BBJ or the actual or
constructive total loss of the BBJ or requisition of title or use of such
property which results in an insurance settlement on the basis of total loss or
the seizure or condemnation of the BBJ.
Section 4. Sale of BBJ.
(a) Borrower shall have the right to sell the BBJ at any time,
subject to giving Lender written notice of its decision to sell the BBJ and
giving Lender the right of first refusal to
-6-
purchase the BBJ. Such right may be exercised by the Lender by written notice to
the Borrower given at any time within 30 days of the Lender's receipt of such
notice and by the Lender closing on such purchase at any time within 60 days of
Lender's receipt of such notice, unless closing is prevented by the action or
inaction of the Borrower. If a proposed sale as to which the right of first
refusal applies specifies: (i) a consideration in other than United States
money, Lender shall have the right to purchase the BBJ for the United States
money equivalent of the specified consideration; and (ii) a manner, time, terms
or conditions that cannot be complied with without unreasonable effect, Lender
shall have the right to purchase the BBJ by complying with the reasonable
equivalent of the specified manner, time, terms or conditions.
(b) Lender shall have the right to cause the Borrower to sell
the BBJ at any time by giving the Borrower written notice of such request,
subject to giving the Borrower the right to retain ownership of the BBJ and to
make payment to the Lender as if such sale had been made at a price determined
as provided in Section 4(c) hereof.
(c) The price to be paid to Lender if the Borrower retains
ownership of the BBJ as stated above in Section 4(b) shall be at fair market
value, as determined by a mutually agreed independent appraiser. If the Borrower
receives a notice from
-7-
the Lender in accordance with paragraph (b) hereof, Borrower shall use
commercially reasonable efforts to sell the BBJ within 270 days of receiving
such notice. Borrower shall keep the Lender reasonably informed of its sale
efforts during this period.
Section 5. Capital Improvements.
The Borrower hereby agrees that no capital improvements will
be made on the BBJ without the prior written consent of the Lender, except for
capital improvements required by (i) the Lease or (ii) FAA directives, rules or
regulations.
Notwithstanding any provisions to the contrary, the term
"capital improvements" as used in Section 1 and Section 10(b) shall: (i) include
the cost of all modifications and the installation of the interior made
subsequent to the time the BBJ is placed in service, but shall exclude (ii)
costs related to the overhaul, replacement, restoration or refurbishment of the
airframe, aircraft engines, landing gears or other parts and components of the
BBJ which overhaul, replacement, restoration, or refurbishment is caused by the
use of the aircraft.
Section 6. Covenants of Borrower.
So long as the Note shall remain outstanding, the Borrower
shall, unless the Lender shall otherwise consent in writing:
-8-
(a) Cause the BBJ to be operated and maintained in compliance
with the FAA rules and regulations and the Lease; provided that the Borrower
shall be solely responsible for the payment of all of the costs of such
operation and maintenance (including, without limitation, salaries, insurance,
fuel, and landing fees, and all other operating expenses).
(b) Not create or allow to exist any lien on the BBJ other
than (i) pursuant to the Lease, or (ii) as may be approved in writing by the
Lender in advance, and not to lease or otherwise transfer the BBJ except in
accordance with Section 4 hereof.
(c) The Borrower shall not amend, modify or grant a waiver
under any terms and conditions of the Lease without the prior consent of the
Lender.
Section 7. Representations and Warranties of Borrower.
The Borrower hereby represents and warrants to the Lender as
follows:
(a) Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The execution, delivery and performance by Borrower of the
Loan Agreement and the consummation of the transactions contemplated hereby are
within the corporate power of the Borrower, have been duly authorized by all
necessary actions on
-9-
the part of the Borrower and do not conflict with or breach any agreement or
other instrument by which the Borrower is bound.
(c) This Loan Agreement and the Note have been, or will be,
duly executed and delivered by Borrower and constitute, or will constitute,
legal, valid and binding obligations of Borrower, enforceable against Borrower
in accordance with their respective terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, or other laws of general application relating
to or affecting the enforcement of creditors' rights generally and general
principles of equity.
Section 8. Conditions Precedent.
Lender's obligation to make the initial Advance and each
subsequent Advance is subject to Borrower's prior satisfaction or Lender's
waiver of all the conditions set forth in this Section 8.
(a) Borrower shall have duly executed and delivered to Lender:
(i) the Loan Agreement; and (ii) the Note; and
(b) The representations and warranties made by Borrower in
Section 7 hereof shall be true and correct as of the date on which each Advance
is made and after giving effect to the making of the Advance. The submission by
Borrower to Lender of the Request Notice shall be deemed to be a certification
by the Borrower that as of the date of such Request Notice, the repre-
-10-
sentations and warranties made by Borrower in Section 7 hereof are true and
correct.
(c) Borrower shall not have defaulted with respect to any of
its obligations under the Lease, other than as a result of Lender's failure to
make the Advances required by this Loan Agreement.
Section 9. Right to Cure Defaults.
(a) In the event Borrower defaults under the Lease, other than
as a result of Lender's breach of this Loan Agreement, Lender shall have the
right, subject to the provisions of the Lease, to cure the default. Borrower
shall immediately provide to Lender copies of any default notices under the
Lease or any other information or document which is received by the Borrower and
pertains to any default under the Lease. Lender shall be entitled to repayment
of any payment made by Lender to cure the default pursuant to this paragraph (a)
from that portion of the Net Proceeds of a Disposition of the BBJ to which
Borrower is entitled.
(b) In the event Lender defaults in its obligations under this
Loan Agreement, Lender shall not be entitled to receipt of any portion of the
Net Proceeds from the Disposition of the BBJ until Borrower has been repaid in
full for its Acquisition Cost (and financing costs) and expenditures for capital
improvements of the BBJ (excluding items listed in Section 5 as not
-11-
capital improvements), net of Advances made by the Lender hereunder.
(c) Nothing herein shall prevent Borrower or Lender, as the
case may be, from pursuing legal remedies against the other for any defaults
occurring under this Loan Agreement.
Section 10. Notices.
Except as otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications to Lender or Borrower
under this Agreement shall be in writing and telecopied, mailed or delivered to
each party at its telecopier number or address set forth below (or to such other
telecopier number or address for any party as indicated in any notice given by
that party to the other party). All such notices and communications shall be
effective (a) when sent by Federal Express or other overnight service of
recognized standing, on the business day following the deposit with such
service; (b) when mailed by registered or certified mail, first class postage
prepaid and addressed as aforesaid through the United States Postal Service,
upon receipt; (c) when delivered by hand, upon delivery; and (d) when
telecopied, upon confirmation of receipt; provided, however, that any Request
Notice delivered to Lender under Section 2(b) hereof shall not be effective
until received by Lender.
-12-
LENDER: Xxxxxxx X. Xxxxxxx
Atlas Air, Inc.
000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Fax No.: 000-000-0000
BORROWER: Atlas Air, Inc.
000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Fax No.: 000-000-0000
Section 11. Waivers; Amendments.
Any term, covenant, agreement or condition of this Loan
Agreement may be amended or waived if such amendment or waiver is in writing and
is signed by Borrower and Lender. No failure or delay by Lender in exercising
any right hereunder shall operate as a waiver thereof or of any other right nor
shall any single or partial exercise of any such right preclude any other
further exercise thereof or of any other right. A waiver or consent given
hereunder shall be effective only if in writing and in the specific instance and
for the specific purpose for which given.
Section 12. Successors and Assigns.
This Loan Agreement shall be binding upon, and inure to the
benefit of, Borrower, Lender and their respective successors and permitted
assigns, except that neither Borrower nor Lender may assign or transfer (and any
such attempted assignment or transfer shall be void) any of their respective
rights or ob-
-13-
ligations under this Loan Agreement without the prior written consent of the
other party, which such consent shall not be unreasonably withheld.
Section 13. Governing Law.
This Loan Agreement and the Note shall be governed by, and
construed in accordance with, the laws of the State of Colorado without
reference to conflicts of law rules.
Section 14. Construction.
This Loan Agreement is the result of negotiations among, and
has been reviewed by, Borrower and Lender. Accordingly, this Loan Agreement
shall be deemed to be the product of all parties hereto, and no ambiguity shall
be construed in favor of or against Borrower or Lender.
Section 15. Entire Agreement.
This Loan Agreement and the Note, taken together, constitute
and contain the entire agreement of Borrower and Lender with respect to the
subject matter hereof and supersede any and all prior agreements, negotiations,
correspondence, understandings and communications among the parties, whether
written or oral, respecting the subject matter hereof.
-14-
IN WITNESS WHEREOF, the parties have executed this Loan
Agreement as of the date first set forth above.
BORROWER:
ATLAS AIR, INC.
By: /s/ XXXXXXX X. XXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Controller
LENDER:
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
PROMISSORY NOTE
(AND ATLAS AIR OBLIGATION)
Golden, Colorado
October 15, 1999
General
References made to the Loan Agreement dated as of January 1, 1999
between Atlas Air, Inc., a Delaware corporation ("Payee or "Atlas Air"), and
Xxxxxxx X. Xxxxxxx ("Maker" or "Xx. Xxxxxxx") relating to Atlas Air's
acquisition of a Boeing Business Jet (737-700) ("BBJ") from the Boeing Company
and Xx. Xxxxxxx'x agreement to loan Atlas Air, on a non-recourse basis, the
following: An amount (the "BBJ costs") equal to 50% of the amount by which the
sum of (a) the Acquisition Cost, (b) the cost of any capital improvements to the
BBJ (excluding costs related to the overhaul, replacement, restoration or
refurbishment of the BBJ's airframe, aircraft engines, landing gears or other
parts and components of the BBJ which overhaul, replacement, restoration or
refurbishment is caused by the use of the aircraft) and (c) any financing costs,
interest and lease payments with respect to the Aircraft Lease Agreement dated
as of February 26, 1999 between General Electric Credit Corporation ("GECC") and
Atlas Air, exceeds the principal amount of the purchase price received by Atlas
Air from GECC for the sale of the BBJ to GECC. As used above, the term
"Acquisition Cost" means an amount equal to the sum of the purchase price
actually paid initially by Atlas Air to acquire the BBJ, including all
modifications and the installation of the interior made prior to the time that
the BBJ is placed in service less $9,164,518.20.
The amount of the BBJ costs at October 15, 1999 is less than
zero.
Principal and Interest
Maker, whose address is 000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx (or
such other address as Maker may designate in writing to Payee), promises to pay
to the order of Payee, at Payee's principal place of business, 000 Xxxxxxx
Xxxxx, Xxxxxx, XX 00000 (or such other address as Payee shall designate in
writing to Maker), the following principal sum, together with interest on the
unpaid principal sum from time to time outstanding at the rate per annum stated
below: The positive amount of BBJ costs (a) which (i) are paid by Payee prior to
the principal amount of this Note becoming due and (ii) have been entered by
Payee on
- 2 -
Schedule A to this Note and (b) for which Payee has concurrently given written
notice to Maker of entering the additional amount on Schedule A.
The BBJ costs shall be deemed outstanding principal amounts on
the date on which both the amounts have been entered on Schedule A and notice of
entering them on Schedule A have been given to Maker.
The outstanding principal of this Note shall bear a floating rate
of interest equal to the London Interbank Offered Rate for one month as shown in
The Wall Street Journal (the "LIBOR rate"). The initial interest rate shall be
the LIBOR rate as shown in The Wall Street Journal published on October 15,
1999. The interest rate shall change monthly, with the LIBOR rate as shown in
The Wall Street Journal on the last business day of each month applied to the
next month (or part thereof). Interest, based on a 365-day year, shall be
accrued for the number of days the principal sum (or any portion thereof) is
actually outstanding.
The entire outstanding principal balance and all accrued but
unpaid interest shall be due and payable to Payee on the 30th day after Maker
receives written notice from Payee demanding payment of all outstanding
principal and accrued but unpaid interest (the "maturity date").
Prepayment
Principal and interest payments may be paid but are not required
to be paid prior to the maturity date. The privilege to prepay all or any part
of this Note without any penalty is reserved to Maker. However, any principal
prepayment must be accompanied by all interest on that amount then accrued, if
any.
Application of Payment
All payments on this Note shall be applied first to the payment
of accrued interest, and, after all such interest has been paid, any remainder
shall be applied to reduction of the principal balance. All amounts payable
hereunder are payable in lawful money of the United States of America.
- 3 -
Attorneys' Fees
Maker hereby agrees to pay reasonable attorneys' fees and all
other reasonable costs and expenses incurred, after a default in payment, in the
enforcement of this Note and the collection of amounts due hereunder, whether
such enforcement or collection is by court action or otherwise.
Other
This Note shall be governed as to validity, interpretation,
construction, effect and in all other respects by the laws and decisions of the
State of Colorado. Maker agrees that the federal and state courts located in the
State of Colorado shall have subject matter jurisdiction to entertain any action
brought to enforce or collect upon this Note and, by execution hereof,
voluntarily submits to personal jurisdiction of such courts; provided, however,
such jurisdiction shall not be exclusive and, at its option, Payee may commence
such action in any other court which otherwise has jurisdiction.
No delay or omission in exercising any right or power hereunder,
shall affect the liability of Maker. No delay or omission by Payee in exercising
any power or right hereunder shall impair such right or power or be construed to
be a waiver of any default, nor shall any single or partial exercise of any
power or right hereunder preclude any or full exercise thereof or the exercise
of any other right or power. Each legal holder hereof shall have and may
exercise all the rights and powers given to Payee herein.
This Note has been executed as of October 15, 1999 and actually
on the date indicated below.
/s/ XXXXXXX X. XXXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxxx
Date: 10/15/99
----------------------------
ATLAS AIR OBLIGATION
In consideration of the execution and delivery of this Note and
other good and valuable consideration, Atlas Air, Inc. ("Payee") hereby agrees
that, upon the request of Xxxxxxx X. Xxxxxxx ("Maker") prior to the Note
becoming due, Payee will
- 4 -
make a loan to Maker under the Note of the positive amount of BBJ costs (as
defined above).
ATLAS AIR, INC.
By: /s/ XXXXXXX X. XXXXX
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Controller
Date: 10/15/99
-----------------------------
