Exhibit 99 (m)
AMENDED AND RESTATED
SECURED LOAN AGREEMENT
dated as of February 3, 2000
amended and restated as of June 10, 2002
between
U.S. Bank National Association,
not in its individual capacity except as expressly set forth in
this Secured Loan Agreement but as owner trustee,
Borrower
The Financial Institutions Signatory to this Secured Loan Agreement,
Lenders
- and -
The United Bank of Kuwait PLC,
Agent
One XxXxxxxxx Xxxxxxx Model DC-8-73F Aircraft
Manufacturer's Serial No. 46133
U.S. Registration Xxxx N961R
to be changed to
Spanish Registration Xxxx EC-IGZ
Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP
000 Xxxxxxxx
Xxx Xxxx, XX 00000
TABLE OF CONTENTS
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Section 1. Definitions; Interpretation 2
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1.1 Definitions. 2
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1.2 Security Agreement Definitions. 9
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1.3 Interpretation. 9
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Section 2. Original Commitment 10
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2.1 Original Commitment. 10
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2.2 Advances. 10
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2.3 No Obligation. 10
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2.4 Conditions Precedent to Advances. 10
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2.5 Agent's Discretion. 11
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2.6 Notes. 11
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2.7 Security Documents. 11
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2.8 Deposit/Maintenance Reserves. 11
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2.9 Engine Replacement. 12
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Section 3. Conditions Precedent to Amendment Date 12
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3.1 No Change in Applicable Law. 12
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3.2 No Default; No Event of Loss. 12
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3.3 Representations and Warranties. 13
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3.4 Financing Documents. 13
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3.5 Transaction Documents. 13
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3.6 Filings and Recordings. 13
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3.7 Borrower's Organization and Authorization. 13
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3.8 Trust Company's Organization and Authorization. 14
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3.9 Beneficiary's Organization and Authorization. 14
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3.10 Opinions of Counsel. 14
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3.11 Title; Registration; Airworthiness. 14
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3.12 Lessee's Financial Condition. 15
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3.13 Additional Documents. 15
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Section 4. Conditions Precedent to Third Party Advances 15
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4.1 No Change in Applicable Law. 16
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4.2 No Default; No Event of Loss. 16
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4.3 Representations and Warranties. 16
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4.4 Lessee's Financial Condition. 16
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4.5 Conditions Subsequent. 16
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4.6 Advances Made to TTS. 16
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4.7 Advances Made to AAC. 16
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4.8 Advances Made to Other Service Providers. 17
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4.9 Advances Made to Legal Counsel. 17
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Section 5. Repayment and Prepayment 17
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5.1 Principal. 17
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5.2 Interest. 17
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5.3 Mandatory Prepayments. 18
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5.4 Voluntary Prepayments. 18
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5.5 Application of Payments. 19
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5.6 Amortization Schedule. 19
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Section 6. Payments 20
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6.1 Place and Manner of Payment. 20
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6.2 Payments on Banking Day. 20
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6.3 No Offset. 20
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Section 7. Compensation for Additional Costs; Indemnities 21
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7.1 Compensation for Re-employment of Funds. 21
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7.2 Force Majeure. 21
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7.3 Illegality. 21
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7.4 Additional Funding Costs. 22
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7.5 General Tax Indemnity. 22
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7.6 Mitigation. 24
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7.7 General Indemnity. 24
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Section 8. Borrower's Representations and Warranties 25
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8.1 Organization; Power. 25
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8.2 Citizenship. 25
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8.3 Trust Authority. 25
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8.4 Consents. 26
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8.5 Enforceable Agreement. 26
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8.6 Compliance with Applicable Law. 26
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8.7 Litigation. 26
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8.8 No Taxes. 26
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8.9 No Stamp Taxes. 26
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8.10 Title to Collateral. 26
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8.11 No Liens. 27
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8.12 No Default. 27
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8.13 Material Disclosure. 27
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8.14 Principal Place of Business. 27
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8.15 Trade Names. 27
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8.16 No Duty to Investigate. 27
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8.17 Trust Agreement. 28
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8.18 Transaction Documents. 28
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Section 9. Trust Company's Representations and Warranties 28
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9.1 Organization; Power. 28
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9.2 Citizenship; Permits. 28
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9.3 Corporate Authority. 29
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9.4 Consents. 29
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9.5 Enforceable Agreement. 29
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9.6 Compliance with Applicable Law. 29
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9.7 Principal Place of Business. 29
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9.8 No Duty to Investigate. 29
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9.9 Trust Agreement. 30
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Section 10. General Covenants of Borrower 30
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10.1 Notice of Default. 30
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10.2 Preservation of Trust Existence. 30
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10.3 Obtain Approvals. 30
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10.4 Inspections. 31
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10.5 Taxes. 31
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10.6 Notice of Litigation. 31
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10.7 Further Assurances. 31
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10.8 Special Purpose Covenants; Negative Pledges. 31
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10.9 Transaction Documents. 32
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10.10 Liens 32
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10.11 Conditions Subsequent/Lease Signing Date. 32
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10.12 Conditions Subsequent/Delivery Date. 32
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Section 11. Covenants Relating to Equipment 33
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11.1 Registration of Airframe; No Sale. 33
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11.2 Recording. 33
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11.3 Information. 34
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11.4 Operation of Equipment. 35
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11.5 Inspection. 35
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11.6 Records. 36
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11.7 Storage of Equipment. 36
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11.8 Transfers of Possession. 36
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11.9 Insurances. 36
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11.10 Insignia. 38
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11.11 Remarketing Before Lease Expiration. 39
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Section 12. Events of Default 39
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12.1 Events of Default. 39
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12.2 Acceleration. 41
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12.3 Effect of Bankruptcy Stay. 42
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Section 13. Fees And Expenses 42
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13.1 Transaction Expenses. 42
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13.2 Fees. 42
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13.3 Contingent Interest. 42
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Section 14. The Agent 44
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14.1 Appointment, Powers and Immunities. 44
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14.2 Actions by Agent; Reliance. 44
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14.3 Events of Default. 45
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14.4 Indemnification of Agent. 45
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14.5 Non-Reliance on Agent and other Lenders. 45
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14.6 Failure to Act. 46
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14.7 Resignation or Removal of Agent. 46
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14.8 Disbursements of Payments. 46
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14.9 Sharing of Collateral and Payments. 47
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Section 15. Certain Matters Concerning the Lenders 47
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15.1 Pro Rata Treatment Among Lenders. 47
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15.2 Sharing of Payments and Set-Off Among Lenders. 47
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15.3 Several Obligations. 48
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Section 16. Registration and Transfer of Notes 48
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16.1 Registration, Transfer and Exchange of Notes. 48
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16.2 Mutilated, Destroyed, Lost or Stolen Notes. 48
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16.3 Transferability of Note. 49
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16.4 Validity of Substituted Note. 49
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16.5 Cancellation of Notes. 49
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Section 17. Miscellaneous Provisions 49
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17.1 Modifications, Consents and Waivers; Entire Agreement. 49
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17.2 Notices. 50
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17.3 Entire Agreement; No Oral Change. 52
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17.4 Governing Law; Jurisdiction and Venue. 52
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17.5 Usury. 52
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17.6 No Broker. 53
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17.7 Survival. 53
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17.8 Waiver of Jury. 53
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17.9 Assignment, Successors and Assigns. 53
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17.10 No Third Party Beneficiaries. 54
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17.11 Captions and Section Headings; Construction. 54
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17.12 Severability. 54
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17.13 Time of the Essence. 54
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17.14 Counterparts. 54
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17.15 Waiver of Relief from Bankruptcy Code Stay. 54
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17.16 Representations by Borrower in Trust Capacity. 55
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17.17 No Recourse to Beneficiary or Managing Trustee. 55
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AMENDED AND RESTATED
SECURED LOAN AGREEMENT
This AMENDED AND RESTATED SECURED LOAN AGREEMENT is made as of February 3,
2000, and amended and restated as of June 10, 2002 (this "Agreement"), between
U.S. Bank National Association, a national banking association (in its
individual capacity, the "Trust Company"), not in its individual capacity except
as the Trust Company when so expressly set forth in this Agreement, but as owner
trustee of the trust created pursuant to the Trust Agreement (in such trust
capacity, the "Borrower"), the financial institutions that have executed a
signature page to this Agreement (collectively or individually, the "Original
Lenders") and The United Bank of Kuwait PLC, as agent for the Lenders (in such
capacity, "Agent").
RECITALS:
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(1) Pursuant to the Secured Loan Agreement dated as of February 3, 2000
(the "Original Loan Agreement") between Borrower, Agent and the Lenders, the
Agent and Lenders provided financing to the Borrower with respect to the
Equipment.
(2) The Equipment was subject to a lease agreement (the "Prior Lease") with
Wilton Aircraft Corporation.
(3) Pursuant to the Early Termination Agreement, the Prior Lease has been
terminated and the Xxxxx Payments and the Final Basic Rent Payment have been
paid to Agent.
(4) Pursuant to the Administration Agreement dated April 23, 2002, Agent and
Borrower have agreed to terms pursuant to which the Xxxxx Payments may be
disbursed.
(5) Concurrent with the execution hereof, the Administration Agreement is
terminated and the Xxxxx Payments and the Final Basic Rent Payment shall be
applied as provided in this Agreement by Agent and Agent and Lenders agree to
make the Maximum Additional Advances subject to and in accordance with the terms
hereof.
(6) Beneficiary has entered into the Lease LOI with Cygnus Air S.A.
("Lessee") with respect to the lease of the Equipment by Lessee.
(7) Subject to the provisions of this Agreement, Agent and Lenders have
agreed to make the Maximum Additional Advance available to the Borrower, the
proceeds of which will be used, among other things, to prepare the Aircraft for
delivery to the Lessee, to remarket the Aircraft and to pay for certain
additional costs of the Agent and Borrower.
(8) Borrower, Agent and Lenders desire to amend and restate the Original
Loan Agreement, to provide for the Maximum Additional Advance and to amend
certain other terms of the Original Loan Agreement.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration whose receipt and sufficiency are acknowledged, Borrower,
Lenders and Agent agree as follows:
Definitions; Interpretation
Definitions.
In this Agreement the following words and expressions shall have the indicated
meanings:
"AAC" means American Aircraft Consulting.
"AAC Agreement" means the Engagement Letter dated as of April 26, 2002 between
Borrower and AAC.
"Additional Lender" means any one Lender other than the Agent.
"Administration Agreement" means the Administration Agreement dated as of
April 23, 2002 between Borrower and Agent.
"Advance" or "Advances" means any or both of the following: (i) the Third Party
Advances and (ii) Agent Advances.
"Advance Date" means any Banking Day on which an Advance is made hereunder.
"Affiliate" means with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
"Agent Advances" means the amount to be advanced by Agent and Lenders
pursuant to the terms hereof to pay for the Agent Expenses.
"Agent Expenses" means (i) Legal Expenses incurred by Agent, (ii) the Breakage
Cost and other costs permitted in this Agreement.
"Amendment Date" means the date of this Agreement, as amended and restated.
"Banking Day" means (i) in the context of the advance of the Loan on the Closing
Date or any Advance Date, a day on which foreign exchange markets in London,
England, Madrid, Spain and banking institutions in New York City, New York are
open for the transaction of the business required for the Lenders to fund and
advance the Maximum Commitment or the Advances and (ii) in any other context
under the Financing Documents, including the payment of interest or principal, a
day on which banking institutions in New York City, New York are open for the
transaction of business.
"Base Rate" means (i) for the period from the Closing Date through and
including the Break Date, 7.45% and (ii) for the period from the Break Date
through and including the Maturity Date, with respect to each Interest Period,
the USD-LIBOR-BBA rate for such Interest Period that appears on Telerate Page
3750 at or about 11:00 a.m. London time on the Interest Rate Determination Date
(as hereinafter defined). If no such quotation appears, the "Base Rate" shall
be the rate per annum determined by Agent to be the average (rounded to the
fourth decimal place) of the rates at which Dollar deposits are offered for the
relevant Interest Period by the Reference Banks to banks in the London Interbank
Market at or about 11:00 a.m. London time on the Interest Rate Determination
Date. If no such deposits are offered to Agent on such date and, as a result,
Agent is unable to determine the "Base Rate" in accordance with the foregoing
procedure set forth in subparagraph (ii), then Borrower and Agent shall in good
faith attempt to agree upon a substitute basis for determining the "Base Rate";
but in the event Borrower and Agent are unable to agree upon a substitute basis
within three Business Days, then to the extent the Advances have not been made,
no Lender shall have any obligation to advance any Advance and to the extent any
portion of the Maximum Commitment has been made, Borrower shall upon the demand
of Agent repay the full principal balance then due in respect of the Loan
together with all unpaid interest thereon and all other sums payable under the
Financing Documents. The "Interest Rate Determination Date" shall be the date
which is two (2) Banking Days prior to the Break Date and for each subsequent
Interest Period, the date which is two (2) Banking Days prior to the expiration
of the then current Interest Period.
"Beneficial Interest Security Agreement" means the Beneficial Interest
Security Agreement dated the Closing Date between Beneficiary, Borrower and
Agent.
"Beneficiary" means AFG Investment Trust D, a Delaware business trust.
"Break Date" means the earlier of (i) July 2, 2002 or (ii) the Delivery
Date.
"Breakage Cost" means the amount paid or payable by Agent as fixed rate payor
pursuant to the swap agreement entered into by Agent in respect of the Original
Commitment arising out of early termination of such swap agreement.
"Closing Date" means February 3, 2000.
"Commitment Period" means the period commencing on the Closing Date and ending
on the earliest of (i) the Maturity Date, (ii) the date on which the Loan
becomes repayable and is repaid in full together with all fees and sums which
may become payable under the Financing Documents, (iii) the date on which the
Maximum Commitment for the Loan is terminated in accordance with Section 12.2,
or (iv) the date on which the Loan is prepaid in full and the Maximum Commitment
for the Loan is terminated under the provisions of Section 5.3 or 5.4 or any
other provision of this Agreement.
"Confirmation" means the Confirmation dated the Amendment Date as to the
Beneficial Interest Security Agreement as executed by Beneficiary and Borrower
and delivered to Agent.
"Contingent Interest" shall have the meaning set forth in Section 13.3.
"Debt" means , at any date, with respect to any Person, (i) all indebtedness of
such Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services, (iv) all
obligations of such Person under leases which are capitalized for financial
reporting purposes, (v) all indebtedness secured by a Lien on any asset of such
Person, whether or not such Person has assumed or is otherwise liable for such
indebtedness, and (vi) all Debt of others guaranteed in any manner directly or
indirectly by such Person (or in effect guaranteed indirectly by such Person
through an agreement intended to have the effect of enabling an obligor other
than such Person to satisfy Debt or to assure the holder of Debt of such obligor
against loss, whether through an obligation of such Person to purchase property
or services or to maintain such obligor's financial condition or otherwise);
provided, that notwithstanding the foregoing, Debt shall not in any event
include any indebtedness or obligations which are non-recourse to such Person.
"Delivery Date" means the Delivery Date as defined in the Lease.
"Deposit" has the meaning set forth in the Lease.
"Dollars" or "$" means the legal currency at any relevant time of the United
States of America.
"Early Termination Agreement" means the Early Termination Agreement dated
as of April 16, 2002 between Borrower and Prior Lessee, as consented to by
Agent.
"Xxxxx Payments" means the amount of $1,265,000.
"Event of Default" has the meaning given such term in Section 12.1.
"Fee Letter" means the letter agreement, dated the Closing Date, between
Agent and Borrower setting forth certain fees payable by Borrower to Agent.
"Final Basic Rent Payment" means the final payment of basic rent under the
Prior Lease paid to Agent by Prior Lessee in the amount of $566,084.45.
"Financing Documents" means, collectively, the Beneficial Interest Security
Agreement, the Security Agreement, the Fee Letter, this Agreement, the Notes,
the Lease, the Lease Assignment, the Confirmation, and every other agreement,
instrument or certificate to which Borrower, Trust Company or Beneficiary is a
party or delivered by Borrower, Trust Company or Beneficiary to Agent or any
Lender in connection with the transactions contemplated by this Agreement.
"First Principal Repayment" means an amount equal to the Final Basic Rent
Payment less Outstanding Interest.
"Indemnified Taxes" has the meaning given to such term in Section 7.5(a).
"Indemnitees" means, collectively, Agent, each Lender, their respective
successors and assigns and their respective officers, directors, agents,
employees and shareholders.
"Insurances" means the insurance coverage and policies required by Section
11.9.
"Interest Period" means (i) the period from the Closing Date until the
first Payment Date, (ii) for the period of time from the first Payment Date
through and including the Break Date, each six-month Payment Period, provided
the last such period shall end on the Break Date; and (iii) for the period of
time from the Break Date until the Maturity Date, each one month period;
provided, that the last Interest Period shall not extend beyond the Maturity
Date.
"Interest Rate" means an amount equal to the Base Rate, for each applicable
Interest Period, plus for (i) the period of time from the Closing Date through
and including the Delivery Date, 2.5%, and (ii) the period of time from the
Delivery Date through and including the Maturity Date, 3.5%.
"Lease"means the lease agreement entered into or to be entered into by
Borrower, as lessor and Lessee, with the prior written consent of the Agent.
"Lease Assignment" means the Assignment, Consent and Agreement (46133), dated
the date of the Lease, among Borrower, Agent and Lessee.
"Lease Default" means a Lease Event of Default or an event that, with the giving
of notice, the passage of time or both, would constitute a Lease Event of
Default.
"Lease Event of Default" means an "Event of Default" (as such term is
defined in the Lease).
"Lease LOI" means collectively, (i) the Operating Lease Proposal dated
March 14, 2002 between Borrower and Lessee and (ii) the Agreement dated April
26, 2002 between Borrower and Lessee.
"Lease Return Fee" means the lease termination fee payable to Sigma in respect
of the Prior Lease in the amount of $50,000, payable on the Delivery Date.
"Lease Signing Date" means the date on which the Lease is executed.
"Legal Counsel" means Special FAA Counsel, Special Spanish Counsel, Xxxxxxxx
Xxxxxxxx Xxxxx & Xxxxx LLP, Xxxxxxxx Xxxx & Xxxxxxx, P.A. ("FMJ"), and Xxxxxx
and Whitney LLP.
"Legal Expenses" means the legal fees, costs and expenses incurred by Agent,
Lender and/or Borrower in connection with the negotiation of the Early
Termination Agreement, this Agreement and the Lease and all documents executed
in connection therewith or contemplated thereby and the legal costs incurred by
Agent, Lender and/or Borrower in connection with the protection, preservation
and enforcement of Agent's rights under the Original Loan Agreement and Prior
Lease and all documents executed in connection therewith or contemplated thereby
less the $15,000 reimbursement for legal fees of Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx
LLP received by Agent as part of the Xxxxx Payments.
"Lenders" means the Original Lenders as well as their successors and assigns in
accordance with Section 17.9.
"Lessee" means Cygnus Air, S.A.
"Loan" means the aggregate principal amount outstanding from time to time and
due to the Lenders under this Agreement and the Notes.
"Loan Commencement Date" means February 3, 2000.
"Maintenance Program" has the meaning set forth in the Lease.
"Maintenance Reserves" has the meaning set forth in the Lease.
"Majority Lenders" means, as of any date of determination, Lenders holding
more than 66b% of the aggregate principal amount of the Notes outstanding on
such date; provided, that (i) at any time a Default has occurred and is
continuing, for purposes of directing actions Agent shall take with respect to
such Default, "Majority Lenders" shall mean Lenders holding at least 50.0% of
the aggregate principal amount of the Notes outstanding on such date, and (ii)
for purposes of this definition, Notes held by Borrower, Beneficiary or any
Affiliate of Borrower or Beneficiary shall not be included.
"Maturity Date" means the earlier of (x) (i) 48 months from the Delivery
Date or (ii) the date on which the Lease is terminated or expires or (y) the
last day of the Commitment Period.
"Maximum Additional Advance" means an amount equal to the Maximum Commitment
less the Outstanding Principal Balance less the Outstanding Interest plus the
Final Basic Rent Payment.
"Maximum Commitment" means an amount not to exceed $5,873,586.
"New Lease Fee" means $2,400 payable per month to Sigma.
"Notes" means the Amended and Restated Promissory Note dated the Amendment Date
in the principal amount of the Maximum Commitment, subject to adjustment as
provided therein.
"Original Commitment" means the sum of $6,091,738.41
"Original Loan Agreement" means the Secured Loan Agreement dated as of February
3, 2000 between Agent, Lenders and Borrower.
"Outstanding Interest" means the amount of interest due and payable with respect
to the Outstanding Principal Balance for the period of time from January 2, 2002
through and including the Break Date.
"Outstanding Principal Balance" means $4,914,670.34.
"Overdue Rate" means at any time an annual rate of interest equal to the "prime
rate" as then announced by Chase Manhattan Bank N.A. at its principal lending
office in New York, New York plus 4.50%.
"Payment Date" means (i) for the period of time from the Closing Date until
the Delivery Date, the second day of each January and July occurring during the
Commitment Period, provided, however, the last Payment Date during such period
shall be the Break Date and (ii) for the period of time from the Delivery Date
and until the Maturity Date, the Delivery Date and each consecutive monthly
anniversary of the Delivery Date thereafter; provided, that if any such day is
not a Banking Day, the "Payment Date" during such calendar month shall be on the
immediately succeeding Banking Day.
"Payment Period" means the period commencing on and including the Loan
Commencement Date or a Payment Date and ending on and including the day before
the next succeeding Payment Date.
"Prepayment Date" has the meaning given such term in Section 5.4.
"Prepayment Notice" has the meaning given such term in Section 5.4.
"Prior Lessee" means Wilton Aircraft Corporation.
"Refinancing Fee" has the meaning set forth in Section 13.2 hereof.
"Security Agreement" means the Amended and Restated Aircraft Security Agreement,
dated the Closing Date and amended and restated on the Amendment Date, between
Borrower and Agent, pursuant to which, among other things, Borrower grants to
Agent a security interest in the Equipment and Transaction Documents for the
benefit of Lenders.
"Security Documents" means the Security Agreement, the Beneficial Interest
Security Agreement and the Lease Assignment.
"Service Providers" means any third parties approved by Agent, other than
TTS, AAC or Legal Counsel, which provide services or incur costs and expenses in
connection with the transactions contemplated by this Agreement, the Lease and
the preparation of the Aircraft for delivery to Lessee.
"Sigma" means Sigma Aircraft Management, LLC.
"Special FAA Counsel" means Daugherty, Fowler, Peregrin & Xxxxxx, P.C.
"Special Spanish Counsel" means Uria & Xxxxxxxx.
"Subsidiary" means, as to Borrower, any Person in which Borrower or one or
more of its Subsidiaries own sufficient equity or voting interests to enable it
or them (as a group) ordinarily, in the absence of contingencies, to elect a
majority of the directors (or Persons performing similar functions) of such
entity, and any partnership or joint venture if more than 50% interest in the
profits or capital thereof is owned by Borrower or one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of Borrower or one or more of its
Subsidiaries).
"Taxes" means any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, restrictions or
conditions of any nature whatsoever now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Body, or any interest or penalties
incurred in connection with such assessments.
"Technical Work Costs" means the costs incurred by Borrower and third
parties in preparing the Aircraft for delivery to the Lessee.
"Third Party Advances" means the amount to be advanced by Lenders pursuant to
the terms hereof to pay for the Technical Work Costs, Legal Expenses and Lease
Return Fee.
"Transaction Documents" means, collectively, the Lease, the TTS Agreement, the
AAC Agreement, the Purchase Documents and the Lease LOI.
"Trust Estate" has the meaning given such term in the Beneficial Interest
Security Agreement.
"TTS" means Tennessee Technical Services, LLC.
"TTS Agreement" means the Aircraft Maintenance and Service Agreement dated as of
April 26, 2002 between TTS and Borrower.
Security Agreement Definitions.
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Capitalized terms used but not defined in this Agreement and defined in the
Security Agreement have the meaning given to such terms in the Security
Agreement.
Interpretation.
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(a) All terms used in Article 9 of the UCC and not specifically defined in
this Agreement are used in this Agreement as defined in Article 9 of the
UCC as in effect on the date hereof, as the same may hereafter be amended or
interpreted.
Unless otherwise indicated, any law, statute, treaty or ordinance defined
or referred to in this Agreement means or refers to such law, statute, treaty or
ordinance as amended from time to time, any successor or replacement law,
statute, treaty or ordinance as amended from time to time, and the rules and
regulations promulgated from time to time under such law, statute, treaty or
ordinance.
Unless otherwise indicated, any agreement defined or referred to in this
Agreement means or refers to such agreement as amended, modified or supplemented
from time to time or as the terms of such agreement are waived or modified,
in each case in accordance with its terms and as permitted under the Financing
Documents.
Terms defined in this Agreement in the singular include the plural of such
terms, and terms defined in this Agreement in the plural include the singular of
such terms.
The term "including", when used in this Agreement, means "including without
limitation" and "including but not limited to".
Unless otherwise indicated, any reference to a specific "section",
"clause", "schedule" or "exhibit" refers to such section, clause, schedule or
exhibit of this Agreement.
Original Commitment
Original Commitment.
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The Original Commitment was made available to Borrower on the Closing Date
subject to the terms of the Original Loan Agreement.
Advances.
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Subject always to the terms and conditions of this Agreement, Lender hereby
agrees with the Borrower that on each Advance Date, the Agent, on behalf of each
Lender, will upon written request of Borrower, Beneficiary or the applicable
third party make (i) the Third Party Advances available on behalf of Borrower
directly to such third parties, and (ii) the Agent Advances available on behalf
of Borrower, by applying such amounts so advanced to the Agent Expenses. Agent
shall provide Borrower with reasonable documentation of all Agent Expenses prior
to making any Agent Advances. Agent and Lenders shall make the Advances in
accordance with the terms hereof, by first applying the Xxxxx Payments held by
Agent to such Advances and thereafter by Lenders making and applying the Maximum
Additional Advance to such Advances. For the avoidance of doubt, the Xxxxx
Payments shall not constitute part of the Loan. In no event shall the sum of
the Third Party Advances and Agent Advances exceed the sum of the Maximum
Additional Advance and the Xxxxx Payments.
No Obligation.
--------------
The obligation of the Lenders and Agent to make the Advances available on behalf
of Borrower under this Agreement shall be expressly subject to the terms of this
Agreement in general, and in particular to the Borrower fulfilling all of the
applicable conditions set forth in Sections 3 and 4 hereof, as applicable, not
later than at the times therein specified. The Lenders and Agent shall have no
obligation to disburse the Xxxxx Payments or make the Maximum Additional Advance
except as expressly set forth in this Agreement.
Conditions Precedent to Advances.
-----------------------------------
Upon fulfillment of the requirements set forth in Sections 3 and 4 hereof, as
applicable, Agent shall disburse the Xxxxx Payments and Agent and each Lender
shall make available its portion of the Maximum Additional Advances and the
borrowing of such portion of the Maximum Additional Advances shall be deemed to
have commenced, including the obligation of Borrower to pay interest on such
portion of the Advances as are advanced as part of the Maximum Commitment, such
interest to accrue pursuant to Section 5.2, on each relevant Advance Date
without requiring any additional notice or request from Borrower.
Agent's Discretion.
-------------------
Notwithstanding anything set forth in this Agreement to the contrary, if for any
reason in the exercise of its reasonable discretion Agent determines on behalf
of Lenders, with respect to the preparation for delivery of the Aircraft to
Lessee, that it would be imprudent to continue making Advances under this
Agreement, Agent shall serve written notice on Borrower of its intention to
cease making such Advances whereupon any obligation of Agent to make any
Advances hereunder on account of any services provided or work performed by TTS,
AAC, any Service Provider, Legal Counsel or other third parties after the date
(the "Notification Date") of receipt of such notice by Borrower shall cease.
For the avoidance of doubt, Agent will continue to make Advances subject to the
provisions of Section 4 hereof and all other provisions hereof on account of
work performed by TTS, AAC, any Service Provider, Legal Counsel or other such
third parties in good faith prior to the Notification Date. Any part of the
Xxxxx Payments not disbursed as provided in this Agreement shall be held by
Agent as Cash Collateral hereunder. Any Xxxxx Payment not disbursed hereunder
shall be applied by Agent on the third Payment Date after the Delivery Date,
first to accrued and unpaid interest and then to principal.
Notes.
-----
The principal of and interest on the Loan shall be evidenced by the Notes. On
the Amendment Date, Borrower shall execute and deliver to each Lender a Note
payable to such Lender in the aggregate principal amount of such Lender's
Maximum Commitment, subject to adjustment as provided in the Note.
Security Documents.
-------------------
As collateral security for the prompt and complete payment of Borrower's
obligations under the Financing Documents and the payment of any sum advanced or
subsequently advanced or obligation incurred pursuant to any provision of the
Financing Documents, on the Amendment Date: (a) Borrower shall execute and
deliver to Agent the Security Agreement, granting to Agent on behalf of the
Lenders a first priority Lien upon and security interest in, among other things,
the Equipment and Borrower's right, title and interest in each Transaction
Document and (b) Beneficiary and Borrower shall execute and deliver to Agent the
Confirmation, confirming that the Beneficial Interest Security Agreement is in
full force and effect, and on the Lease Signing Date. Borrower shall execute
and deliver to Agent the Lease Assignment, granting to Agent on behalf of the
Lenders a first priority Lien upon and security interest in, among other things,
the Lease, on the Lease Signing Date.
Deposit/Maintenance Reserves.
-----------------------------
Agent acknowledges that it is holding the Deposit in the amount of $330,000 and
Borrower shall cause Lessee to pay all Maintenance Reserves under the Lease to
Agent. Subject in all respects to the rights of the Lessee under the Lease and
prior to execution and delivery of the Lease, the Lease LOI, Agent shall have
the right at any time and from time to time after the occurrence of an Event of
Default to draw upon and apply all or any part of the Deposit and/or Maintenance
Reserves to pay interest, principal or other sums then or that may thereafter
become due the Agent or Lenders under the Financing Documents or to reimburse
the Agent or Lenders for any sums expended or costs (including legal fees and
expenses) incurred by Agent or any Lender if the Borrower fails to pay or
perform any of its obligations under the Financing Documents. Subject only to
the foregoing, Agent may apply all or any part of the Deposit and/or Maintenance
Reserves against all or any part of the aforesaid obligations in any order of
priority that Agent in its sole discretion may elect. No such application by
Agent shall be deemed to cure any Default or Event of Default, and, promptly
upon notice to the Borrower (in all cases other than a Default or Event of
Default arising solely under Section 12.1(m)), Borrower shall restore the
Deposit and/or Maintenance Reserves to their respective original amounts prior
to such application.
Engine Replacement.
-------------------
Provided no Default or Event of Default has occurred and is continuing, in the
event that one or more Engines requires an engine overhaul during the term of
the Lease, the Borrower shall be entitled to (i) replace the Engine with any
Replacement Engine in accordance with Section 5.11.2 of the Lease, provided
Borrower meets the requirements of Section 3.4 of the Security Agreement or (ii)
lease a replacement engine from a third party (the "Engine Lease"), provided (a)
the condition of any such engine shall meet the requirements of a Replacement
Engine and (b) Borrower executes and delivers to Agent an assignment of all of
Borrower's right, title and interest in and to such Engine Lease (but none of
its obligations thereunder), any other documents and UCC Financing Statements
deemed reasonably necessary by Agent to perfect its security interest in and to
such Engine Lease and one or more opinions of counsel satisfactory to Agent and
Lenders. If Borrower elects to replace any Engine, Borrower shall be entitled
to withdraw from the Maintenance Reserves amounts to cover the cost of such
replacement engine or Engine Lease up to the maximum amount of Maintenance
Reserves held by Agent with respect to the Engine being so replaced.
Conditions Precedent to Amendment Date
The obligation of each Lender to enter into this Agreement and make its
portion of the Maximum Commitment available to Borrower, is subject to the
satisfaction (or waiver by Agent and all Lenders) of each of the following
conditions precedent, all of which shall take place, occur or be delivered to
Agent and Lenders not later than the Amendment Date or such earlier date as
provided.
No Change in Applicable Law.
-------------------------------
As of the Amendment Date, no change shall have occurred since the Closing Date
in Applicable Law that, in the reasonable judgment of Agent or any Lender, could
make it illegal for Agent or such Lender to lend all or any part of its Maximum
Commitment or could materially adversely affect, restrain or change or increase
the cost to Agent or Lender of, the transactions contemplated by the Financing
Documents and/or Transaction Documents or the operations (current or proposed),
assets or condition (financial or otherwise) of Borrower, Beneficiary or Lessee.
No Default; No Event of Loss.
---------------------------------
Borrower and Beneficiary shall have performed all of their respective agreements
to be performed and paid all sums when due under the Financing Documents and/or
Transaction Documents, including sums payable on or before the Amendment Date.
An officer of each of Borrower and Beneficiary shall certify that no Default
shall have occurred and be continuing and no Event of Loss or event that, with
the passage of time or the making of any determination, might constitute an
Event of Loss shall have occurred with respect to the Airframe or any Engine.
Representations and Warranties.
--------------------------------
The representations and warranties of Borrower, Trust Company, Lessee and
Beneficiary contained in the Financing Documents (other than the Lease
Assignment) and/or Transaction Documents (other than the Lease) shall be true
and correct as of the Amendment Date as if made on and as of the Amendment Date
and shall have been so certified by an officer of each of the foregoing.
Financing Documents.
--------------------
Borrower, Trust Company and Beneficiary shall have duly authorized, executed and
delivered to Agent the Financing Documents (other than the Lease Assignment), or
other similar documents deemed necessary by Agent to create, perfect, maintain
and preserve the Liens in and to the Equipment, the Technical Records, the Trust
Estate and such Financing Documents shall be in full force and effect.
Borrower, Trust Company and Beneficiary shall also have delivered to Agent such
documents as Agent may require in connection with the termination of any and all
Liens affecting the Collateral, other than Permitted Liens. All Financing
Documents (other than the Lease Assignment) and such financing statements,
assignments, releases or other similar documents shall be suitable for filing in
all public offices deemed reasonably necessary by Agent.
Transaction Documents.
----------------------
Prior to the Amendment Date, Borrower shall have delivered to Agent true and
complete copies of all Transaction Documents (other than the Lease), together
with a certificate of an officer of Borrower that such Transaction Documents are
in full force and effect and that no default under any thereof has occurred and
is continuing.
Filings and Recordings.
------------------------
On or before the Amendment Date, Borrower and Beneficiary shall have duly
authorized, executed and delivered to Agent: (i) all documents and instruments,
including Uniform Commercial Code financing statements, notices, assignments,
amendments and similar documents, deemed necessary by Agent to create, perfect,
maintain and preserve the Liens of the Agent in and to the Collateral and Trust
Estate and the right, title and interest of Borrower in the Transaction
Documents (other than the Lease), and (ii) such documents as Agent may require
in connection with the termination of any and all Liens affecting the Collateral
and the Trust Estate, other than Permitted Liens. All such documents and
instruments shall be suitable for filing and shall be filed in all public
offices deemed necessary by Agent, shall be in form and substance satisfactory
to Agent, and all such other actions shall have been taken that, in the opinion
of Agent, are necessary or appropriate to perfect the Lien of the Agent in and
to the Collateral and the Trust Estate and the right, title and interest of
Borrower in the Transaction Documents (other than the Lease), and Agent shall
have received satisfactory evidence of the occurrence of all such filings and
other actions.
Borrower's Organization and Authorization.
--------------------------------------------
On or before the Amendment Date, Borrower shall deliver to Agent (a) copies of
all documents evidencing all trust action taken by Borrower to authorize the
execution and delivery of the Financing Documents and Transaction Documents and
all other documents required or contemplated under the Financing Documents and
Transaction Documents to which Borrower is a party, as well as the authorization
by Borrower to borrow the Maximum Commitment, incur obligations relating to the
Maximum Commitment and perform all actions required or contemplated in
connection with the borrowing and repayment of the Maximum Commitment, and (b)
copies of all other documents that Agent may reasonably request relating to the
trust authority for the execution, delivery and performance of, and the validity
of, the Financing Documents and Transaction Documents to which Borrower is a
party, all in form and substance satisfactory to Agent.
Trust Company's Organization and Authorization.
--------------------------------------------------
On or before the Amendment Date, the Trust Company shall deliver to Agent (a)
copies of the articles of association and of the by-laws of the Trust Company,
certified as correct and complete by the Secretary or a duly authorized officer
of the Trust Company, (b) copies of all documents (including if required
resolutions of the Board of Directors of the Trust Company) evidencing all
corporate action taken by the Trust Company to authorize the execution and
delivery of the Financing Documents and Transaction Documents to which the Trust
Company is a party and all other documents required or contemplated under the
Financing Documents and Transaction Documents, and (c) copies of all other
documents that Agent may reasonably request relating to the authority for the
execution, delivery and performance of, and the validity of, the Financing
Documents and Transaction Documents to which the Trust Company is a party, all
in form and substance satisfactory to Agent.
Beneficiary's Organization and Authorization.
-----------------------------------------------
On or before the Amendment Date, Beneficiary shall deliver to Agent (a) copies
of all documents evidencing all action taken by Beneficiary to authorize the
execution and delivery of the Financing Documents and Transaction Documents to
which Beneficiary is a party and all other documents required or contemplated
under the Financing Documents and Transaction Documents, and (b) copies of all
other documents that Agent may reasonably request relating to the authority for
the execution, delivery and performance of, and the validity of, the Financing
Documents and Transaction Documents to which Beneficiary is a party, all in form
and substance satisfactory to Agent. On the Amendment Date, Agent shall have
received evidence satisfactory to it of the existence and good standing of
Beneficiary as of a date not earlier than three Banking Days before the
Amendment Date.
Opinions of Counsel.
---------------------
On the Amendment Date, Agent shall have received written opinions, dated the
Amendment Date, addressed to Agent and each Lender and in form satisfactory to
Agent and each Lender, from (a) FMJ, counsel for Beneficiary, (b) Xxxxxx &
Xxxxxxx, LLP, counsel for Borrower and Trust Company, and (c) Special FAA
Counsel. Each such opinion shall cover such matters relating to the
transactions contemplated by the Financing Documents and Transaction Documents
as Agent or any Lender may reasonably request.
Title; Registration; Airworthiness.
------------------------------------
On the Amendment Date, the following statements shall be true, and Agent shall
have received evidence satisfactory to Agent to the effect that:
Borrower has good and marketable title to the Equipment and Technical
Records free and clear of all Liens except Permitted Liens;
the Airframe is duly registered in the name of Borrower with the FAA
pursuant to the applicable Aviation Law; and
the Security Agreement has been duly filed for recordation with the FAA
pursuant to the applicable Aviation Law.
Lessee's Financial Condition.
------------------------------
No event or series of events shall have occurred that, in the reasonable opinion
of the Lenders, could be expected to have a material adverse effect on the
financial condition or operations of Lessee or any of its respective Affiliates
or on the ability of the Lessee to comply with their respective obligations
under the Transaction Documents.
Additional Documents.
---------------------
Agent shall have received copies of any additional instruments, certificates and
other evidence as Agent may reasonably request with respect to the transactions
contemplated by the Financing Documents, in form and substance satisfactory to
Agent, including the following:
a certificate from a corporate trust officer of the Trust Company
certifying as to the signing authority of the officers of Borrower and the Trust
Company that signed each Financing Document and all documents and
instruments executed in connection with the Financing Documents;
a certificate from an officer of the Trust Company certifying as to the
matters set forth in Sections 3.2 and 3.3 with respect to Borrower;
a certificate from an officer of the Trust Company certifying as to the
matters set forth in Section 3.3 with respect to the Trust Company;
a certificate from an officer of the Beneficiary certifying as to the
signing authority of the officers of the Beneficiary that signed each Financing
Document on behalf of the Beneficiary and all documents and instruments executed
in connection with the Financing Documents; and
a certificate from an officer of the Beneficiary certifying as to the
matters set forth in Section 3.3 with respect to the Beneficiary.
Conditions Precedent to Third Party Advances
The obligation of Agent to make a Third Party Advance (to the extent such
Advance is a disbursement of the Xxxxx Payments) and the obligation of each
Lender to make a Third Party Advance (to the extent such Advance is an advance
of any part of the Maximum Additional Advance) on any Advance Date is subject to
the satisfaction (or waiver by Agent) of each of the following conditions
precedent, all of which shall take place, occur or be delivered to Agent not
later than such Advance Date or such earlier date as provided, for the avoidance
of doubt a Third Party Advance may be made directly by Agent or Lender, as
applicable, to third parties on behalf of Borrower, in accordance with Sections
4.6, 4.7, 4.8 and 4.9 hereof, as applicable:
No Change in Applicable Law.
-------------------------------
As of each Advance Date, no change shall have occurred after the date of this
Agreement in Applicable Law that, in the reasonable judgment of Agent or any
Lender, could make it illegal for Agent or such Lender to lend all or any part
of its Maximum Commitment or could materially adversely affect, restrain or
change the transactions contemplated by the Financing Documents and Transaction
Documents or the operations (current or proposed), assets or condition
(financial or otherwise) of Borrower, Beneficiary, or Lessee.
No Default; No Event of Loss.
---------------------------------
Borrower, Beneficiary and Lessee shall have performed all of their respective
agreements and paid all sums when due under the Financing Documents, including
sums due and payable under Sections 13.1 and 13.2 hereof, on or before each
Advance Date. No Default shall have occurred and be continuing, and no Lease
Default shall have occurred and be continuing. No Event of Loss and no event
that, with the passage of time or the making of any determination, might
constitute an Event of Loss shall have occurred with respect to the Airframe or
any Engine.
Representations and Warranties.
--------------------------------
The representations and warranties of Borrower, Trust Company, Lessee and
Beneficiary contained in the Financing Documents and Transaction Documents shall
be true and correct as of each Advance Date as if made on and as of the Advance
Date.
Lessee's Financial Condition.
------------------------------
No event or series of events shall have occurred that, in the reasonable opinion
of the Lenders, could be expected to have a material adverse effect on the
financial condition or operations of Lessee or any of its respective Affiliates
or on the ability of the Lessee to comply with their respective obligations
under the Transaction Documents.
Conditions Subsequent.
----------------------
The covenants set forth in Section 10.11 and 10.12 shall have been performed on
or prior to the Lease Signing Date and Delivery Date, as applicable.
Advances Made to TTS.
-----------------------
With respect to any Advance to be made to TTS, the following shall be true and
correct and/or Agent shall have received the following: (a) an invoice as set
forth in paragraph G of the Workscope Authorization of the TTS Agreement; (b)
supporting or verifying documentation deemed necessary and reasonably
satisfactory to Agent evidencing the performance of such work; and (c) TTS shall
not be in default of any of its obligations under the TTS Agreement.
Advances Made to AAC.
-----------------------
With respect to any Advance to be made to AAC, the following shall be true and
correct and/or Agent shall have received the following: (a) an invoice from AAC
in form and substance acceptable to Agent, in connection with services performed
by AAC under the AAC Agreement; (b) supporting or verifying documentation deemed
necessary and reasonably satisfactory to Agent evidencing the performance of
such services; and (c) AAC shall not be in default of any of its obligations
under the AAC Agreement.
Advances Made to Other Service Providers.
---------------------------------------------
With respect to any Advance to be made to any other Service Provider, the
following shall be true and correct and/or Agent shall have received the
following: (a) an invoice from such Service Provider in form and substance
acceptable to Agent, evidencing the services provided and/or costs and expenses
incurred by such Service Provider; and (b) supporting or verifying documentation
deemed necessary and reasonably satisfactory to Agent evidencing the performance
of such services.
Advances Made to Legal Counsel.
----------------------------------
With respect to any Advance to be made to Legal Counsel, the Agent shall have
received an invoice from such Legal Counsel evidencing the services provided
and/or costs and expenses incurred by such Legal Counsel.
Repayment and Prepayment
Principal.
---------
(a) For the period of time from the Closing Date until the Break Date, Borrower
shall repay the Loan on each Payment Date in consecutive semi-annual
installments of principal, each in an amount equal to $566,084.45 less accrued
and unpaid interest due as of such Payment Date under Section 5.2 hereof,
provided the last payment during such payment period shall be made on the Break
Date and Agent shall apply the First Principal Repayment in satisfaction
thereof, and (b) for the period of time from the Break Date until the Maturity
Date, Borrower shall repay the Loan on each Payment Date in monthly installments
of principal, each in an amount equal to $120,000 less accrued and unpaid
interest due as of such Payment Date and other fees applied as set forth under
Section 5.5 hereof; provided, that without limiting any other provisions of the
Financing Documents requiring the scheduled or unscheduled repayment or
prepayment of the Loan, the principal balance of the Loan shall be repaid in
full on the Maturity Date. So long as no Default has occurred and is
continuing, any amount of Base Rent received by Agent with respect to any
Payment Date and not required for the payment of principal or interest under
Sections 5.1 and 5.2 hereof shall be paid to the account of Borrower set forth
in the Borrowing Notice (or to any other account in the continental United
States of which the Agent has received three Banking Days written notice from
Borrower) within one Banking Day after the date of receipt or such Payment Date,
whichever is later.
Interest.
--------
(a) Interest payable on the Loan during the Commitment Period shall accrue
from the Closing Date until the outstanding principal amount of the Loan
shall become due and payable (whether at the Maturity Date, on a date fixed for
repayment or prepayment, by acceleration or otherwise), shall be calculated at
the Interest Rate and shall be calculated on the basis of a year of 360 days for
the actual days elapsed. Interest on the Loan with respect to each Payment
Period shall accrue from and including the first day of such Payment Period to
and including the last day of such Payment Period and shall be payable in
arrears on the Payment Date immediately following such Payment Period, provided
the Outstanding Interest shall be payable on the Break Date and Agent shall
apply the Final Basic Rent Payment to such amount.
Interest shall accrue on any overdue principal and, to the extent permitted
by law, on any overdue interest and any other amounts owing under the
Financing Documents that are not paid when due at the Overdue Rate in effect
from time to time (computed on the basis of a year of 360 days for the actual
number of days elapsed) from the date on which such principal, interest or other
amount becomes due until paid, and overdue interest shall be payable on demand.
The rate of interest payable under the Financing Documents shall not at any
time exceed a rate that, when combined with any and all other charges
provided for in the Financing Documents (to the extent such other charges would
constitute interest for the purpose of any Applicable Law limiting interest that
may be charged) equals the maximum interest rate permitted by Applicable Law
with respect to the transactions contemplated by the Financing Documents.
Mandatory Prepayments.
----------------------
(a) If an Event of Loss occurs with respect to the Airframe, then on the
earliest to occur of (i) the date of payment of insurance proceeds as a result
of such Event of Loss of the Airframe, (ii) the date of payment by Lessee of
"Agreed Value" (as defined in the Lease), or (iii) 90 days after the date of
occurrence of the Event of Loss of the Airframe, the entire outstanding
principal amount of the Loan, all accrued and unpaid interest on the Loan and
any and all other fees and sums that are payable under the Financing Documents,
including any amounts required pursuant to Sections 7.1 and 13.1, shall be
immediately due and payable. Any payment of less than all of the amount due and
payable on such date shall be applied in accordance with Section 4.8 of the
Security Agreement.
Upon a sale of the Airframe or any Engine, the outstanding principal of and
all interest accrued and unpaid on the Loan and all other amounts then
payable by Borrower under the Financing Documents, including any amounts
required pursuant to Sections 7.1, 13.1 or 13.3, shall be immediately due and
payable and shall be paid in full by Borrower. Any payment of less than all of
the amount due and payable on such date shall be applied in accordance with
Section 4.8 of the Security Agreement.
Voluntary Prepayments.
----------------------
(a) Borrower may prepay all, but not less than all, of the Loan at any
time by giving Agent and each Lender not less than five Banking Days prior
irrevocable written notice (the "Prepayment Notice") of Borrower's intention to
prepay, which notice shall specify the date of prepayment (the "Prepayment
Date"). In the event that the Loan is not prepaid on the designated Prepayment
Date, Borrower shall be entitled to reschedule such prepayment for up to three
Banking Days from the originally scheduled Prepayment Date by at least one
Banking Day's prior telephonic or telefaxed notice to Agent and each Lender and
the Interest Rate for each such day shall equal Lender's overnight borrowing
costs for funds plus 3.5% per annum. In the event that a Payment Period ends at
any time after the receipt by Lender of the Prepayment Notice but before
the prepayment by Borrower pursuant to the Prepayment Notice, a series of
consecutive one day Payment Periods shall ensue for the Loan beginning
immediately after the end of the Payment Period during which the Prepayment
Notice was given and continuing until the earlier of the prepayment of the Loan
or the next Payment Date, and the Interest Rate for each such one-day Payment
Period shall equal each Lender's overnight borrowing costs for funds plus 3.5%
per annum.
Any prepayment of the principal of the Loan under this Section 5.4 shall be
made together with accrued and unpaid interest on the Loan through the date
of such prepayment and all fees and expenses of Agent and each Lender due and
payable pursuant to the Financing Documents, including any amounts due pursuant
to Sections 7.1, 13.1 and 13.3.
Application of Payments.
-------------------------
So long as no Event of Default has occurred and is continuing, all payments
required to be made by Borrower under the Financing Documents, when received by
the Agent, shall be applied (a) first, to pay the Refinancing Fee, (b) second,
to pay the New Lease Fee, (c) third, to pay any fees and expenses payable by
Borrower to Agent and Lenders under the Financing Documents, (d) fourth, to pay
accrued and unpaid interest with respect to the Loan, including amounts due
pursuant to Section 6.1 (if any), and (e) fifth, to pay any principal amount of
the Loan then due. Provided no Event of Default has occurred and is continuing,
all payments of the New Lease Fee shall be made promptly by Agent from such
payments by wire transfer of immediately available funds to the account of Sigma
as follows:
Bank: Northern Trust Bank, N.A., Miami, Florida
ABA #: 000000000
Account #: 1010047632
For the Account of: Sigma Aircraft Management, LLC
Reference: Cygnus
If an Event of Default has occurred and is continuing, all moneys received by
Agent or any Lender shall be applied in accordance with Section 4.8 of the
Security Agreement.
Amortization Schedule.
----------------------
On each date that an Advance (which does not constitute part of the Xxxxx
Payments) is made hereunder or as soon as practicable thereafter, Agent shall
provide Borrower with an amortization schedule setting forth the outstanding
principal balance of the Loan and accrued and unpaid interest thereon
("Amortization Schedule"). Once all Advances have been made hereunder, Agent
shall provide an Amortization Schedule to Borrower on each Payment Date
thereafter.
Payments
Place and Manner of Payment.
-------------------------------
All payments required to be made to Agent under the Financing Documents shall be
made in Dollars by wire transfer of immediately available funds to the account
of Agent as follows:
XX Xxxxxx Chase, New York
Swift Code: XXXXXX00
Fedwire Routing Number: 000000000
For the account of:
The United Bank of Kuwait PLC
Account Number: 0011951266
CHIPS UID: 037393
Reference: Cygnus
or to such other account in the continental United States of America as Agent
may designate from time to time by five Banking Days prior written notice to
Borrower. Agent shall have no property interest in any funds it receives from
Borrower for distribution to Lenders, but shall hold such funds pending
disbursement to Lenders pursuant to the terms of this Agreement. All payments
required to be made to any Lender under the Financing Documents shall be made in
Dollars by wire transfer of immediately available funds to the account of such
Lender set forth on such Lender's signature page to this Agreement or to such
other account in the continental United States of America as such Lender may
designate from time to time by five Banking Days prior written notice to Agent
and Borrower; provided, that any Lender may designate an account outside the
continental United States of America so long as such designation shall not cause
Borrower to incur any additional costs, and payments to such account shall not
be due under the Financing Documents until the next succeeding Banking Day.
Payments on Banking Day.
--------------------------
If any payment under the Financing Documents is due on a date that is not a
Banking Day, then such payment shall be due and paid on the next succeeding day
that is a Banking Day and interest (calculated at the applicable interest rate
in effect for the Payment Period during which the original payment date
occurred) shall be payable on any principal whose payment was so extended on the
next succeeding Payment Date.
No Offset.
----------
All payments by Borrower under the Financing Documents shall be made when due
without notice, demand, offset, counterclaim, deduction or defense and without
abatement, suspension, deferment, diminution or reduction, whether by virtue of
any claim that Borrower may now or hereafter have against any Person.
Compensation for Additional Costs; Indemnities
Compensation for Re-employment of Funds.
-------------------------------------------
Borrower shall compensate each Lender, upon written request by Agent or such
Lender, for all reasonable losses, expenses and liabilities (including any
losses and expenses incurred on account of funds borrowed, contracted for or
utilized for purposes relating to the Loan or in connection with the
re-employment or reinvestment of such funds or an interruption of the use of
such funds and including interest or other such costs on funds borrowed until
such funds are returned to their funding source) that such Lender sustains as a
result of (a) the repayment or prepayment of any portion of the Loan on any date
other than a Payment Date, (b) the failure of Borrower to prepay the Loan on a
Prepayment Date that is rescheduled on less than three Banking Days prior
written notice, (c) the repayment or prepayment of any portion of the Loan as a
result of the exercise by Agent or any Lender of its remedies following the
occurrence of an Event of Default, or (d) the repayment or prepayment of any
portion of the Loan as a result of this Section 7. Compensation to any Lender
under this Section 7.1 shall include an amount equal to any and all interest,
break-funding costs and other amounts payable by such Lender to providers of
funds obtained by such Lender in order to make, maintain or renew its Maximum
Commitment, Breakage Cost, if applicable, and costs incurred by such Lender in
redeploying funds that were to be used by it to make, maintain or renew its
Maximum Commitment. Agent and each Lender will use reasonable efforts to
minimize any loss, cost or expense for which it is entitled to compensation
under this Section 7.1; provided, that the foregoing undertaking shall not
obligate any Lender to take any steps adverse to its business, financial or
commercial interest as reasonably determined by such Lender. Provided no
Default or Event of Default has occurred and is continuing (other than a
Default or Event of Default arising solely under Section 12.1(m) hereof), any
gain obtained by Agent or any Lender in connection with this Section 7.1 shall
be paid to the Borrower net of any fees or expenses due to Agent or any Lender.
Force Majeure.
--------------
Neither Agent nor any Lender shall be held responsible for any loss or damage to
any Person arising out of any action taken or omitted by Agent or any Lender or
to which Agent or any Lender becomes subject resulting from a mandatory legal
enactment, any measure of a Governmental Body or public authority, whether
having the force of law or otherwise, a war or other national emergency (whether
or not declared), a war, strike, boycott or blockade or any other cause beyond
its control.
Illegality.
----------
In the event that, in the reasonable judgment of any Lender, the making or
maintaining of any portion of such Lender's Maximum Commitment or the
performance by Borrower of any obligation to be performed by Borrower under the
Financing Documents has become unlawful by reason of any change after the date
of this Agreement in any Applicable Law, then such Lender shall promptly notify
Agent and Borrower of such illegality. To the extent that the Amendment Date or
any Advance Date has not occurred at that time, the obligation of each Lender
under Section 2 to lend its Maximum Commitment shall terminate. If the
Amendment Date or any Advance Date has occurred, within 30 days after receipt of
such notice or any later date permitted by Applicable Law, Borrower shall repay
the principal amount of the Notes held by such Lender, all interest accrued on
such principal amount, all other sums then due and payable under the Financing
Documents (including amounts payable pursuant to Section 7.1) and all reasonable
out-of-pocket expenses incurred by such Lender in complying with any changed
Applicable Law.
Additional Funding Costs.
--------------------------
In the event that any Applicable Law, whether in effect on the date of this
Agreement or hereafter, any change in Applicable Law or the compliance by any
Lender with any presently effective or future request or directive (whether or
not having the force of law) from any Governmental Body:
subjects such Lender to any Tax, restriction or condition of any kind with
respect to any Financing Documents or the Loan (other than income taxes paid by
such Lender in the jurisdiction in which it is incorporated or in which the
lending office making the Loan is located), or to a change in the basis of
taxation of payments to such Lender of principal, interest, fees or any other
amount payable under the Financing Documents,
increases, imposes or makes applicable any reserve or similar requirement
against assets held by, or liabilities in or for the account of, advances or
loans by, other credit extended by or any other acquisition of funds by such
Lender, or
imposes on such Lender any other condition (other than the rates of income
taxation to which such Lender is subject),
and the result is to increase the cost to such Lender of making, renewing or
maintaining its portion of the Loan or to reduce or delay the receipt by such
Lender of any amount receivable under the Financing Documents, then, in any such
case, Borrower shall promptly pay to such Lender upon its demand such additional
amount necessary to compensate such Lender for such additional cost (net of any
Tax savings realized by such Lender) or the reduction of or delay in receiving
any amount so receivable. Upon the request of Borrower, such Lender shall
deliver to Borrower a certificate setting forth the basis for the determination
of such amount necessary to compensate such Lender.
General Tax Indemnity.
-----------------------
(a) All payments made by Borrower to Agent or any Lender under the
Financing Documents shall be made free and clear of, and without deduction for
or on account of, any Tax, other than
any Tax imposed because of a present or former connection between the
jurisdiction of the Governmental Body imposing such Tax and Agent or such Lender
other than a connection arising solely from Agent or such Lender having
executed, delivered or performed its obligations under the Financing Documents,
received a payment under the Financing Documents or enforced any Financing
Document;
Taxes imposed on or with respect to, based on or measured by the net
income, gross income, receipts, capital or net worth of Agent or such Lender by
(1) any Governmental Body in any jurisdiction in which Agent or such Lender is
incorporated, has its principal place of business or is subject to such Taxes by
reason of transactions or activities unrelated to those contemplated by the
Financing Documents and (2) any federal Government Body of the United States of
America so long as such federal U.S. income Tax does not arise from a change in
Applicable Law after the Closing Date (except there shall not be excluded any
such Taxes in the nature of or imposed in lieu of sales, use, excise, ad valorem
or similar taxes); and
any Tax that would not have been imposed but for such Lender's failure to
comply with the provisions of Section 7.5(c).
(collectively, and excluding the Taxes set forth in the preceding clauses (i)
through (iii), the "Indemnified Taxes"). If any Indemnified Taxes are required
to be withheld or deducted from any amounts payable to Agent or any Lender under
the Financing Documents, Borrower shall pay to Agent or such Lender an
additional amount that (after subtraction of all such Indemnified Taxes and any
Taxes incurred by reason of the payment or receipt of such additional amount)
will be sufficient to yield to Agent or such Lender such amounts payable.
Within 15 days after the date of each payment of Indemnified Taxes to a
Governmental Body, Borrower shall furnish to Agent and any applicable Lender the
original or a certified copy of a receipt or other evidence of the payment of
such Indemnified Taxes. If Agent or any Lender determines in good faith that
any Indemnified Taxes are payable in respect of any payments under any Financing
Document, Agent or such Lender may (but is not obligated to) pay such
Indemnified Taxes, and Borrower shall promptly pay to Agent or such Lender, on
demand, an amount that will be sufficient to yield to Agent or such Lender
(after subtraction of any Taxes incurred by reason of the receipt of such
payment) the amount of such Indemnified Taxes.
In the event any claim shall be made against Agent or any Lender for any
Indemnified Taxes for which Borrower might be liable under this Section 7.5,
Agent or such Lender shall use its best efforts to notify Borrower of such claim
and shall consult in good faith with Borrower concerning such claim. If
requested by Borrower, Agent or such Lender shall contest such claim at the sole
cost and expense of Borrower; provided, that Agent or such Lender shall have no
obligation to contest any such claim if, in its reasonable opinion, to do so
would be prejudicial to its overall tax interest. If Agent or such Lender shall
receive a refund of any Indemnified Tax that was paid or indemnified by Borrower
under this Section 7.5, then so long as no Event of Default has occurred and is
continuing, Agent or such Lender shall promptly pay to Borrower (i) the amount
of such refund, (ii) the amount of any Tax savings actually realized from such
payment (as determined by Agent or such Lender in its sole good faith
discretion, it being understood that Borrower has no right to inspect the tax
returns or records of Agent or such Lender), and (iii) any interest received in
respect of such refund.
Each Lender that is not incorporated in a jurisdiction of the United States
of America shall deliver to Borrower such certificates, documents or other
evidence as may be reasonably requested by Borrower from time to time, including
any certificate or statement of exemption required by United States Treasury
Regulation Section 1.1441-4(a) or Section 1.1441-6(c), completed and duly
executed by such Lender, to establish that payments of interest on the Loan to
such Lender and any other payment required by any Financing Document to such
Lender are exempt from or are subject to a reduced rate of withholding of Tax
imposed by any Governmental Body.
Mitigation.
----------
(a) In the event that any Lender exercises its rights pursuant to Section
7.4 to require compensation from Borrower, then provided that no Event of
Default has occurred that has not been waived in writing by such Lender, such
Lender and Borrower will attempt to restructure such Lender's portion of the
Loan to eliminate the increased costs and continue such Lender's portion of the
Loan, and Borrower shall remain liable for all increased costs during any period
of time in which such Lender and Borrower are attempting to restructure
such portion of the Loan. If such Lender and Borrower are unable to restructure
such Lender's portion of the Loan, upon five Banking Days prior written notice
to such Lender, Borrower may repay such Lender's principal portion of the Loan
together with all interest accrued on such principal and all other amounts
payable to such Lender under the Financing Documents, including any amounts
payable under Section 7.1 within 60 days from the date such Lender notified
Borrower of such increased costs.
In the event any amounts are required to be withheld or deducted from any
amounts payable to Agent or any Lender under the Financing Documents, Borrower
and Agent or such Lender shall consult in good faith and shall each use its best
efforts to restructure the transactions contemplated by the Financing
Documents in order to avoid such withholding or deduction; provided, that Agent
and such Lender shall be reimbursed by Borrower for all costs incurred in
connection with such restructuring and shall not be required to take any action
or agree to any restructuring that it determines in good faith is or may be
detrimental to it. In the event Agent or such Lender becomes liable for any
Taxes (other than Indemnified Taxes), Agent or such Lender may, at its expense,
take such action (including a transfer of its interest in the Loan or any of the
Financing Documents to one or more Affiliates) as Agent or such Lender may
determine will avoid or minimize such Taxes; provided, however, that no such
action shall materially increase the obligations or diminish the rights of
Borrower under the Financing Documents.
General Indemnity.
------------------
Borrower hereby indemnifies each Indemnitee and agrees to hold each Indemnitee
harmless against and to reimburse each Indemnitee for any and all reasonable
liabilities, damages, losses, claims, costs and expenses, and to reimburse such
Indemnitee for any reasonable legal or other fees or expenses, incurred by it in
connection with, arising out of or resulting from (a) any claim or defending or
prosecuting any action or proceeding relating to the Financing Documents or any
part of the Collateral, (b) any Default, Event of Default, breach of warranty by
Borrower, Beneficiary or Lessee, material misrepresentation by Borrower,
Beneficiary or Lessee or non-performance by Borrower, Beneficiary or Lessee of
any of their respective covenants or obligations under any Financing Document,
(c) any Lease Default, Lease Event of Default, breach of warranty by Lessee,
misrepresentation by Lessee or non-performance by Lessee of any of its covenants
or obligations under any Transaction Document, or (d) the possession, delivery,
registration, maintenance, condition, service, repair, overhaul, use or
operation of the Equipment, whether or not attributable to any defect in the
Equipment or to its design, testing, use or otherwise; provided, that Borrower
shall have no obligation to indemnify or hold harmless any Indemnitee for any
liabilities, damages, losses, claims, costs or expenses resulting from any
Indemnitee's gross negligence or willful misconduct.
Borrower's Representations and Warranties
Borrower represents, warrants and covenants to Agent and each Lender on the
Closing Date, the Amendment Date and each Advance Date and at all times during
the Commitment Period as follows (provided, however, (i) to the extent such
representations and warranties are made for the period from the Closing Date and
until the Amendment Date, the terms "Financing Documents" and "Transaction
Documents" shall have the meaning set forth in the Original Loan Agreement and
(ii) to the extent such representations and warranties are made from the period
from the Amendment Date and until the Lease Signing Date, the term "Financing
Documents" shall mean the Financing Documents other than the Lease Assignment
and the term "Transaction Documents" shall mean the Transaction Documents other
than the Lease):
Organization; Power.
--------------------
The Borrower (a) is a duly formed and validly existing trust and is qualified to
do business in all jurisdictions where it does business, (b) has full power to
carry on its business as it is now being conducted and to enter into, legally
bind itself by and perform its obligations under the Financing Documents and any
Transaction Documents to which it is a party, and (c) has complied with all
material statutory and other requirements relating to the business carried on by
it.
Citizenship.
-----------
Borrower is and will remain a "citizen of the United States" as defined in
Section 40102(a)(15) of the Aviation Law for purposes of permitting FAA
registration of the Airframe pursuant to Section 44103 of the Aviation Law.
Trust Authority.
----------------
The execution, delivery and performance by Borrower of the Financing Documents
and Transaction Documents to which it is a party, the borrowing and the giving
of security by Borrower as provided in the Financing Documents and Transaction
Documents to which it is a party, and the execution, delivery and performance by
Borrower of each other agreement or instrument contemplated by the Financing
Documents and any Transaction Documents to which it is a party have been duly
authorized by all necessary trust action on the part of Borrower, do not require
any approval from Beneficiary under the Trust Agreement or (if such approval is
required) such approval has been obtained, will not violate any provision of the
Trust Agreement or other governing documents and will not result in the breach
of, constitute a default under, contravene any provision of or result in the
creation of any Lien (other than Permitted Liens) upon the Trust Estate or any
of its other property or assets pursuant to, any agreement, indenture, mortgage,
note, lease or other agreement or instrument to which Borrower is a party or by
which Borrower or its property may be bound or affected.
Consents.
--------
All necessary consents, resolutions and authorizations for Borrower to enter
into and perform all of its obligations under the Financing Documents and
Transaction Documents to which Borrower is a party have been obtained, and no
further consents or authorizations are necessary for Borrower to enter into and
perform its obligations under the Financing Documents and Transaction Documents
including the repayment of the Loan pursuant to the provisions of this Agreement
and the Notes or for granting and perfection of the security interests under the
Security Documents.
Enforceable Agreement.
----------------------
Each of the Financing Documents and Transaction Documents to which Borrower is a
party constitutes the legal, valid and binding agreement of Borrower,
enforceable against Borrower in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency or other laws
affecting creditors' rights in general and principles of equity.
Compliance with Applicable Law.
---------------------------------
The execution, delivery and performance of the provisions of the Financing
Documents and Transaction Documents to which Borrower is a party, the
performance of its obligations thereunder and the consummation of the
transactions contemplated by the Financing Documents and Transaction Documents
by Borrower do not and will not, during the Commitment Period, contravene in any
material respect any Applicable Law.
Litigation.
----------
No judgments are outstanding against Borrower and, to the knowledge of Borrower,
no action, claim, suit or proceeding is pending or threatened (including tax
liens and tax actions) against or affecting Borrower before any court, board or
arbitration or administrative agency that will result in the inability of
Borrower to perform its obligations under the Financing Documents or the
Transaction Documents.
No Taxes.
---------
No taxes are required to be paid under the laws of the United States of America
or any other jurisdiction in which Borrower conducts business in connection with
the execution, delivery or performance by Borrower of the Financing Documents
and the Transaction Documents to which Borrower is a party, except taxes that
Borrower shall have paid on or before the Amendment Date.
No Stamp Taxes.
----------------
Neither the Financing Documents, any Transaction Documents nor any filing
required or permitted under the Financing Documents or Transaction Documents is
subject to any registration tax, any stamp duty or any similar tax.
Title to Collateral.
---------------------
On the Closing Date, the Amendment Date and throughout the Commitment Period,
Borrower will have good and marketable title to, and will be the sole owner of
and have the right to possess, the Equipment, the Technical Records and all
other Collateral, free and clear of all Liens except for Permitted Liens and the
beneficial ownership of Beneficiary under the Trust Agreement. Borrower
warrants, at its sole expense, to defend the title to and possession of the
Collateral against the claims and demands of all Persons whatsoever except
claims and demands under Permitted Liens, and to keep at all times the Lien of
the Security Agreement a first priority Lien on the Collateral as constituted
from time to time, superior to the rights of all third parties to the extent
permitted by Applicable Law except to the extent of Permitted Liens. Borrower
shall obtain any authorization, approval, license or consent of any Governmental
Body that is or may become necessary or is reasonably requested by Agent in
order to obtain the full benefits of all rights and powers granted to Agent and
any Lender in the Financing Documents.
No Liens.
---------
No security agreement, financing statement, equivalent security or lien
instrument or continuation statement or other Lien, whether voluntary or
involuntary, covering all or any part of the Collateral has been placed on file
or of record by Borrower with any Governmental Body or is otherwise in effect
with respect to the Collateral except such as will be released on the Closing
Date or may have been filed by Borrower pursuant to the Security Agreement and
except for Permitted Liens.
No Default.
-----------
The Borrower is not in default under any agreement to which it is a party or by
which it may be bound, and is not in default of any kind in respect of any
financial commitment or obligations (including obligations under guarantees)
that, in either case, could have a material adverse affect on the ability of
Borrower to perform its obligations under the Financing Documents or the
Transaction Documents.
Material Disclosure.
--------------------
No written information given by Borrower to Agent or any Lender in connection
with the transactions contemplated by the Financing Documents or the Transaction
Documents to which Borrower is a party contained any untrue statement of
material fact or omitted to state a material fact that is adverse to the
interest of Agent or any Lender or that would be necessary to make any statement
previously given by Borrower or any representation or warranty contained in the
Financing Documents or Transaction Documents not misleading.
Principal Place of Business.
------------------------------
The principal place of business and chief executive office of Borrower, and the
office where Borrower keeps its records concerning the Collateral, is located at
the address set forth in Section 17.2, and Borrower has not maintained a
principal place of business or chief executive office anywhere else in the past
five years.
Trade Names.
------------
Borrower does not transact or do business under any assumed name, trade name or
fictitious name, has not done so, and has not changed its name or been a party
to any merger in the past five years.
No Duty to Investigate.
-------------------------
The rights and remedies of Agent and Lenders under the Financing Documents in
relation to any misrepresentation or breach of warranty on the part of Borrower
under the Financing Documents or Transaction Documents shall not be prejudiced
by any lack of investigation by or on behalf of Agent or any Lender into the
affairs of Borrower, Trust Company, Beneficiary or Lessee, by the performance of
this Agreement or by any other act or thing which may be done by Agent or any
Lender in connection with the Financing Documents and Transaction Documents and
that would, apart from this Section 8.16, prejudice such rights or remedies.
Trust Agreement.
----------------
The Trust Agreement constitutes the entire agreement with respect to the
creation of the trust holding the Trust Estate and the Trust Agreement is in
full force and effect and has not been amended, modified or supplemented except
as specifically evidenced by the amendments, modifications or supplements
delivered pursuant to Section 3.
Transaction Documents.
----------------------
The Transaction Documents constitute the entire agreement with respect to the
work to be performed on the Equipment and as of the Amendment Date, the Lease
LOI constitutes the entire agreement with respect to the leasing of the
Equipment, and as of the Lease Signing Date, the Lease constitutes the entire
agreement with respect to the leasing of the Equipment and the Technical Records
by Borrower and the Transaction Documents, including in particular the Lease,
are in full force and effect and have not been amended, modified or supplemented
except as specifically evidenced by the amendments, modifications or supplements
delivered pursuant to Section 3.
Trust Company's Representations and Warranties
The Trust Company represents, warrants and covenants in its individual
capacity to Lender on the Closing Date, the Amendment Date and each Advance Date
and at all times during the Commitment Period as follows (provided, however, (i)
to the extent such representations and warranties are made for the period from
the Closing Date and until the Amendment Date, the terms "Financing Documents"
and "Transaction Documents" shall have the meaning set forth in the Original
Loan Agreement and (ii) to the extent such representations and warranties are
made for the period from the Amendment Date and until the Lease Signing Date,
the term "Financing Documents" shall mean the Financing Documents other than the
Lease Assignment and the term "Transaction Documents" shall mean the Transaction
Documents other than the Lease):
Organization; Power.
--------------------
The Trust Company (a) is duly formed, validly existing and in good standing as a
national banking association under the federal laws of the United States of
America and is qualified to do business in all jurisdictions where it does
business, (b) has full power to carry on its business as it is now being
conducted and to enter into, legally bind itself by and perform its obligations
under the Trust Agreement, the Financing Documents and the Transaction Documents
to which it is a party, and (c) has complied with all Applicable Laws relating
to the trust business carried on by it.
Citizenship; Permits.
---------------------
The Trust Company is and will remain a "citizen of the United States" as defined
in Section 40102(a)(15) of the Federal Aviation Law for purposes of permitting
FAA registration of the Airframe pursuant to Section 44103 of the Federal
Aviation Law. The Trust Company holds and will continue to hold all material
licenses, certificates, permits and franchises from Government Bodies in the
United States of America necessary to authorize the Trust Company to act as
owner trustee pursuant to the Trust Agreement and to own the Collateral.
Corporate Authority.
--------------------
The execution, delivery and performance by the Trust Company of the Trust
Agreement, the Financing Documents and Transaction Documents to which it is a
party and the execution, delivery and performance of each other agreement or
instrument contemplated by the Financing Documents and Transaction Documents of
the Trust Company have been duly authorized by all necessary action on the part
of the Trust Company, do not require any stockholder approval or approval or
consent of any trustee or holders of any Debt or obligations of the Trust
Company (or such required approvals and consents have been or before the Closing
Date will be duly obtained), will not violate any provision of the Trust
Company's governing association documents and will not result in the breach of,
constitute a default under, contravene any provision of or result in the
creation of any Lien (other than Permitted Liens) upon any of its respective
property or assets or the Trust Estate pursuant to, any agreement, indenture,
mortgage, note, lease or other agreement or instrument to which the Trust
Company is a party or by which the Trust Company or its property may be bound or
affected.
Consents.
--------
All necessary consents, resolutions and authorizations for the Trust Company to
enter into the Financing Documents and Transaction Documents to which it is a
party have been obtained, and no further consents or authorizations are
necessary for the performance by the Trust Company of its obligations pursuant
to the Financing Documents and Transaction Documents.
Enforceable Agreement.
----------------------
Each of the Financing Documents and the Transaction Documents to which it is a
party constitutes the legal, valid and binding agreement of the Trust Company,
enforceable against the Trust Company in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency or other
laws affecting creditors' rights in general and principles of equity.
Compliance with Applicable Law.
---------------------------------
The execution, delivery and performance of the provisions of the Financing
Documents and Transaction Documents to which it is a party and the consummation
of the transactions contemplated by the Financing Documents and Transaction
Documents by the Trust Company do not and will not, during the Commitment
Period, contravene in any material respect any Applicable Law.
Principal Place of Business.
------------------------------
The principal place of business and chief executive office of the Trust Company
are located at the address set forth in Section 16.2, and the Trust Company has
not maintained a principal place of business or chief executive office anywhere
else in the past five years.
No Duty to Investigate.
-------------------------
The rights and remedies of Agent and each Lender under the Financing Documents
and Transaction Documents in relation to any misrepresentation or breach of
warranty on the part of the Trust Company under the Financing Documents and
Transaction Documents shall not be prejudiced by any lack of investigation by or
on behalf of Agent or any Lender into the affairs of Borrower, Trust Company,
Beneficiary or Lessee, by the performance of this Agreement or by any other act
or thing which may be done by Lender in connection with the Financing Documents
and Transaction Documents and that would, apart from this Section 9.8, prejudice
such rights or remedies.
Trust Agreement.
----------------
The Trust Agreement constitutes the entire agreement with respect to the
creation of the trust holding the "Trust Estate" (as defined in the Trust
Agreement) and the Trust Agreement is in full force and effect and has not been
amended, modified or supplemented except as specifically evidenced by the
amendments, modifications or supplements delivered pursuant to Section 3. Trust
Company shall not resign as trustee of the trust created by the Trust Agreement
without providing Agent and each Lender with at least 30 days prior written
notice, and shall not amend, modify or terminate the Trust Agreement without
Agent's prior written consent, which consent shall not be unreasonably withheld.
General Covenants of Borrower
Borrower covenants and agrees to Agent and each Lender during the
Commitment Period as follows:
Notice of Default.
-------------------
Borrower shall inform Agent and the Lenders promptly upon becoming aware of the
occurrence of any Default, any Lease Default or of the occurrence of any event
set forth in Section 4.3 or of any occurrence of which it becomes aware that
could have a material adverse effect on its ability to perform fully its
obligations under the Financing Documents or Transaction Documents.
Preservation of Trust Existence.
----------------------------------
(a) Borrower shall preserve and maintain its trust existence and all its
rights, privileges and franchises, provided that Borrower may abandon or
terminate any right, privilege or franchise if such abandonment or termination
will not have a material adverse effect on its ability to perform its
obligations under the Financing Documents and Transaction Documents and to
maintain the value of the Collateral, and will remain a "citizen of the United
States" as defined in Section 40102(a)(15) of the Aviation Law.
Borrower shall not (i) change its principal place of business or chief
executive office, or the office where it maintains its records relating to the
Equipment, from that specified in Section 8.14 to any jurisdiction in which the
Uniform Commercial Code is not in effect in substantially the same form as the
UCC, or (ii) change its name or transact business under any trade name, assumed
name or fictitious name without giving Agent at least 30 days prior written
notice.
Obtain Approvals.
-----------------
Borrower shall keep in full force and effect all approvals required to be
obtained or maintained by Borrower in connection with the performance by
Borrower of its obligations under the Financing Documents and Transaction
Documents.
Inspections.
-----------
Borrower shall permit any duly authorized representatives of Agent or any
Lender, at all reasonable times and upon reasonable notice to Borrower, to
examine Borrower's books and records, including to take memoranda and extracts
and to make copies of such books and records, to visit and inspect any of
Borrower's properties and operations and to discuss the affairs, finances and
accounts of Borrower with any of its trustees, directors, employees or
accountants.
Taxes.
-----
Borrower shall pay when due all Taxes payable by Borrower, except for Taxes
being contested in good faith, by appropriate proceedings and for which adequate
reserves have been provided by Borrower. Borrower shall pay all Taxes required
to be paid in connection with the execution, delivery or performance of the
Financing Documents and Transaction Documents.
Notice of Litigation.
----------------------
Borrower shall give prompt written notice to Agent and Lenders, in form and
detail satisfactory to Agent and Lenders, of any material litigation or
governmental proceeding pending or, to Borrower's knowledge, threatened against
it or the Collateral that, if determined adversely, would have a material
adverse effect on the rights and interest of Agent or any Lender.
Further Assurances.
-------------------
Borrower shall promptly execute and deliver any and all further instruments and
documents as Agent may reasonably require in order to obtain the full benefits
of the Lien created or intended to be created under the Security Agreement as
well as all of the other obligations of Borrower under the Financing Documents
and Transaction Documents and the rights and powers granted to Agent and Lenders
under the Financing Documents and Transaction Documents. Upon the instructions
from time to time of Agent, Borrower shall execute and cause to be filed any
financing statements (and any continuation statement with respect to any such
financing statement) or any other similar document or security agreement
relating to the Liens of the Security Documents, or any other document or filing
presented to it in proper form for signing or filing as Agent may reasonably
deem necessary or desirable in light of Borrower's obligations under the
Financing Documents and Transaction Documents, and Borrower shall pay or cause
to be paid any filing or other fees in connection with any such filings.
Special Purpose Covenants; Negative Pledges.
-----------------------------------------------
(a) The Collateral constitutes the sole assets of the Trust Estate.
Borrower shall not create, incur, assume or suffer to exist any Lien with
respect to the Collateral, whether arising through or on account of Borrower,
Lessee or otherwise, other than Permitted Liens, and shall, at its own expense,
promptly take such action as may be necessary to duly discharge all Liens other
than Permitted Liens on any part of the Collateral, and Borrower shall indemnify
and hold harmless Agent and Lenders from and against any costs and expenses
(including reasonable attorney's fees incurred by them) in connection with any
such Lien; provided, that Borrower shall have no obligation to indemnify or hold
harmless Agent and Lenders for any such cost or expense resulting from the
Agent's or any Lender's gross negligence or willful misconduct.
Borrower shall not (i) acquire any assets other than the Collateral without
the prior written consent of Agent and Lenders, (ii) incur any additional
Debt other than the indebtedness incurred pursuant to the Financing Documents,
or (iii) engage in any business other than that required in connection with the
Equipment and the Lease.
Transaction Documents.
----------------------
Borrower shall not amend, modify or supplement any of the terms of any Financing
Document or Transaction Document without the prior written consent of Agent.
Liens.
-----
Borrower shall not create, incur, assume or suffer to exist any Lien with
respect to the Collateral, whether arising through or on account of Borrower,
Lessee or otherwise, other than Permitted Liens, and shall, at its own expense,
promptly take such action as may be necessary to duly discharge all Liens other
than Permitted Liens on any part of the Collateral, and Borrower shall indemnify
and hold harmless Agent and Lenders from and against any costs and expenses
(including reasonable attorney's fees) in connection with any such Lien or the
discharge thereof.
Conditions Subsequent/Lease Signing Date.
-------------------------------------------
Borrower shall deliver or cause to be delivered to Agent all of the following,
on the Lease Signing Date: (i) the originally executed counterpart of the Lease
that constitutes chattel paper thereof, certified by an officer of Borrower or
Beneficiary as being true, correct and complete; (ii) the Lease Assignment, as
duly authorized, executed and delivered by Borrower and Lessee; (iii) all
documents and instruments, including Uniform Commercial Code financing
statements, notices, assignments and similar documents, deemed necessary by
Agent to create, perfect, maintain and preserve the Lien of Agent in and to the
Lease and other Collateral subject to the Lease; and (iv) written opinions dated
the Lease Signing Date, addressed to Agent and each Lender from (a) FMJ, counsel
to Beneficiary, (b) Xxxxxx &Whitney LLP, counsel for Borrower and Trust Company
and (c) Special Spanish Counsel, which opinions shall cover such matters
relating to the transactions contemplated by the Financing Documents and
Transaction Documents as Agent or any Lender may reasonably request.
Conditions Subsequent/Delivery Date.
-------------------------------------
Borrower shall deliver or cause to be delivered to Agent all of the following,
on or prior to the Delivery Date: (i) copies of the organizational documents of
Lessee, certified as correct and complete by the Secretary or a duly authorized
officer of Lessee, (ii) copies of all documents evidencing action taken by
Lessee to authorize the execution and delivery of the Financing Documents and
Transaction Documents to which Lessee is a party and all other documents
required or contemplated under the Financing Documents and Transaction
Documents, (iii) copies of all other documents that Agent may reasonably request
relating to the authority for the execution, delivery and performance of, and
the validity of, the Financing Documents and Transaction Documents to which
Lessee is a party, all in form and substance satisfactory to Agent including
copies of all documents required to be delivered by Lessee to Lessor under the
Lease, (including but not limited to the Deregistration Power of Attorney in
favor of Agent) none of which may be waived without the prior written consent of
Agent; (iv) a certificate of Lessee's independent insurance broker in form
satisfactory to Agent and Lenders certifying that the insurance required to be
maintained pursuant to the Lease and this Agreement is in full force and effect
as of the Delivery Date together with a letter of undertaking from Lessee's
independent insurance broker confirming certain undertakings, also in form
satisfactory to Agent and Lenders; (v) the Lease and Lease Assignment,
translated into Spanish together with all formalities as advised by Special
Spanish Counsel; (vi) evidence satisfactory to Agent that the Equipment has been
delivered to Lessee, and as soon as practicable after the Delivery Date,
evidence satisfactory to Agent that (a) the Aircraft and Lease and any other
documentation, as advised by Special Spanish Counsel, have been registered with
the Spanish Aircraft Matriculation Registry in accordance with the applicable
Aviation Authority with the ownership of the Borrower being duly noted thereon
and (b) the Equipment has been imported into Spain; (vii) written opinions dated
the Delivery Date, addressed to Agent and each Lender of Special Spanish Counsel
and of counsel to Lessee, which opinions shall cover such matters relating to
the transactions contemplated by the Financing Documents and Transaction
Documents as Agent or any Lender may reasonably request and (viii) Borrower
shall deliver on or prior to July 15, 2002, evidence reasonably satisfactory to
Agent that Borrower and Beneficiary have obtained and delivered to Lessee a
certificate of residence and any other documentation as may be necessary to
ensure the application of the relevant double taxation convention as provided in
Section 5.5.3 of the Lease.
Covenants Relating to Equipment
Borrower covenants and agrees to Agent and each Lender during the
Commitment Period as follows:
Registration of Airframe; No Sale.
-------------------------------------
Borrower shall maintain at all times the registration of the Airframe in the
name of Borrower in accordance with the Aviation Law and the filing of the
Security Agreement with the FAA. Borrower shall not sell, convey, transfer,
encumber or otherwise dispose of any of the Equipment except as permitted in
this Section 11.
Recording.
---------
Borrower shall be responsible for and bear all out-of-pocket expenses of Agent
for the recording and re-recording, registering and re-registering and filing
and re-filing of the Security Agreement, the Lease Assignment, any Supplemental
Agreement and such other instruments as Agent may reasonably request from time
to time in all jurisdictions and offices as Agent may reasonably require from
time to time in order that (i) the Lien of the Security Agreement as a first
priority lien on the Equipment and on all of the Collateral except for Permitted
Liens, (ii) the Lien of the Lease Assignment as a first priority lien on the
Lease, (iii) the security for the Obligations, and (iv) the rights and remedies
of Agent under the Security Agreement and Lease Assignment may be established,
confirmed, maintained and protected. Borrower will furnish to Agent evidence
satisfactory to Agent of every such recording, registering and filing which is
not filed, recorded or registered by Agent. Borrower appoints Agent as its
irrevocable attorney-in-fact (said agency coupled with an interest) to take all
such action and execute all such documents in Agent's own name or in the name of
Borrower in order to carry out the intent of this Section 11.2. Notwithstanding
the foregoing, the Agent and Borrower acknowledge that the foregoing expenses
shall be paid by Agent as part of the Advances to be made hereunder pursuant to
Section 2 and the other provisions hereof. To the extent that any such expenses
are outstanding after application of the Advances hereunder or in the event the
Advances are not applied to such amount (in accordance with the terms hereof),
same shall be promptly paid by Borrower.
Information.
-----------
(a) At any time that the Equipment is subject to the Lease, Borrower shall
furnish to Agent a copy of all material notices, financial statements and
other communications received from Lessee or any other Person pursuant to the
Lease, and shall use all reasonable efforts to obtain and furnish to Agent and
Lenders the following information:
on request, the current serial numbers of the Engines and any engine
installed on the Airframe;
all information that Agent or such Lender from time to time reasonably
requests regarding the Equipment and its use, location and condition, including
the hours available on the Airframe and any Engine until the next scheduled
check, inspection, overhaul or shop visit, as the case may be;
on request, evidence reasonably satisfactory to Agent that all Taxes
incurred by Borrower with respect to the Equipment have been paid and discharged
in full;
not less than 60 days prior written notice as to the time and location of
any C-Check, phase C-Check, D-Check or equivalent heavy maintenance visit or
segment thereof on the Airframe and of any scheduled shop visit for any Engine;
notice of (1) any loss, theft, damage or destruction to the Airframe, any
Engine or any Part, or any modification to the Equipment if the potential cost
may reasonably be expected to exceed $100,000, (2) any claim or other occurrence
likely to give rise to a claim under the Insurances (but, in the case of
hull claims only, in excess of $100,000) and details of any negotiations with
the insurance brokers over any such claim, and (3) any litigation, arbitration
or administrative proceedings that are pending or, to Borrower's knowledge,
threatened against Borrower that, if adversely determined, would have a material
adverse effect upon its financial condition or business or its ability to
perform its obligations under the Financing Documents; and
any other information reasonably requested by Agent regarding the Lessee or
the Equipment and its use, location and condition.
At any time that the Equipment is in the possession of Borrower, whether
following the termination of the Lease, the repossession of such part of the
Equipment by Borrower pursuant to the Lease or otherwise, Borrower shall
immediately upon request furnish to Agent and Lenders any information reasonably
requested by Agent and Lenders regarding the Equipment and the Technical
Records.
Operation of Equipment.
------------------------
At any time that any part of the Equipment is in the possession of Borrower,
whether following the termination of the Lease, the repossession of such part of
the Equipment by Borrower pursuant to the Lease or otherwise, Borrower shall not
operate any of the Equipment or suffer any of the Equipment to be operated (i)
in violation of any provision of any insurance policy in effect with respect to
the Equipment, (ii) in violation of any law, rule, regulation or order of any
Governmental Body having jurisdiction over the use and operation of the
Equipment, (iii) contrary to any recommendation of the manufacturer of any such
part of the Equipment, or (iv) without the consent of Agent (which consent, in
the case of a test flight for marketing purposes, shall not be unreasonably
withheld). At any time that any part of the Equipment is in the possession of
Borrower, whether following the termination of the Lease, the repossession of
such part of the Equipment by Borrower pursuant to the Lease or otherwise,
Borrower shall ensure that any crew and engineers hired or otherwise employed in
connection with the operation and maintenance of the Equipment have the
qualifications and hold the licenses required by the FAA and Applicable Law.
Inspection.
----------
(a) At any time that any part of the Equipment is subject to the Lease,
Borrower shall use all reasonable efforts to cause Lessee to make the Equipment
and the Technical Records available for visit, inspection and survey by Agent
and any individual designated by Agent in accordance with the Lease. Borrower
shall bear all reasonable out-of-pocket costs and expenses of Agent and such
individuals in connection with any such visit, inspection or survey, performed
at any time that a Default or Event of Default has occurred and is continuing.
At any time that any part of the Equipment is in the possession of
Borrower, whether following the termination of the Lease, the repossession of
such part of the Equipment by Borrower pursuant to the Lease or otherwise,
Agent, an Additional Lender and any individual designated by Agent or an
Additional Lender may at any time inspect and survey the Airframe, any Engine or
any Part and for such purpose may, subject to any applicable FAA regulation
or other Applicable Law, travel on the flight deck as an observer on any flight
of the Aircraft. Borrower shall bear all reasonable out-of-pocket costs and
expenses of Agent, any such Additional Lender and such individuals in connection
with any such visit, inspection or survey, which costs and expenses shall be
paid by Borrower on demand. In connection with any such visit, inspection or
survey, Borrower shall permit Agent, an Additional Lender and their respective
representatives to inspect the Technical Records with respect to the Equipment
and to take copies and extracts from such Technical Records, and Borrower shall
furnish to Agent any and all such other information and copies of documents and
print-outs of data stored on any electronic or data processing medium as are
available to Borrower and reasonably requested by Agent with respect to the
Equipment.
Neither Agent nor any Lender shall have any duty to make any visit,
inspection or survey of the Equipment or the Technical Records.
Records.
-------
At any time that any part of the Equipment is in the possession of Borrower,
whether following the termination of the Lease, the repossession of such part of
the Equipment by Borrower pursuant to the Lease or otherwise, Borrower shall
maintain in English accurate, complete and current records of all flights made
by, and all maintenance carried out on, such part of the Equipment (including,
for each Engine and Part installed on the Airframe after the Closing Date,
records before such installation), in such manner as the FAA may from time to
time require and ensure that they comply with the recommendations of the
manufacturers of the Airframe, any Engine or any Part.
Storage of Equipment.
----------------------
(a) At any time that any part of the Equipment is in the possession of
Borrower, whether following the termination of the Lease, the repossession of
such part of the Equipment by Borrower pursuant to the Lease or otherwise,
Borrower shall, at all such times, maintain, preserve and keep, at its own cost
and expense, such part of the Equipment in good order and repair or cause such
part of the Equipment to be so maintained, preserved and kept without cost or
expense to Agent or any Lender. Borrower shall, within five Banking Days of
obtaining possession, place the Equipment on an FAA-approved storage program or,
in the event that the Equipment is being stored outside of the United
States of America, on a storage program that complies with the relevant
manufacturers' Maintenance Planning Documents and are reasonably acceptable to
Agent (the "Storage Program"), and thereupon Borrower shall store, maintain and
repair the Equipment in accordance with the Storage Program. Without the prior
written consent of Agent, Borrower shall not make any modifications or
improvements to the Equipment the cost of which exceeds $25,000 individually and
$200,000 in the aggregate, and Borrower shall notify Agent of all modifications
or improvements not requiring the prior written consent of Agent.
The Borrower will advise and send a copy to the Agent of any notice
received by Borrower from the FAA or received by Lessee under the Lease and
delivered to Borrower.
Transfers of Possession.
-------------------------
At any time that any part of the Equipment is in the possession of Borrower,
whether following the termination of the Lease, the repossession of such part of
the Equipment by Borrower pursuant to the Lease or otherwise, Borrower shall not
lease or otherwise in any manner deliver, transfer or relinquish possession or
control of, or transfer any right, title or interest in, any part of the
Equipment (other than in accordance with Section 10.7 hereof) without the prior
written consent of the Agent.
Insurances.
----------
(a) So long as the Lease is in effect, Borrower shall maintain, or cause
Lessee or any sublessee to maintain, insurance on the Equipment and the
Technical Records in compliance with the requirements of the Lease and the
Consent and Agreement at no cost to Agent or any Lender.
At any time that any part of the Equipment is in the possession of
Borrower, whether following the termination of the Lease, the repossession of
such part of the Equipment by Borrower pursuant to the Lease or otherwise,
Borrower shall:
maintain, with financially sound and reputable insurers acceptable to Agent
and Lender, ground insurance with respect to the Equipment covering airline
legal liability, all risk hull and war risk and allied perils as determined by
Agent and in accordance with standard policy terms offered in the United States
or Lloyd's London insurance market (and Borrower shall not operate or permit the
operation of any part of the Equipment except for a test flight, in which event
Borrower shall maintain full flight coverage in such amounts and in such form as
is acceptable to Agent and Lenders), including: (1) an agreed value amount of
the Equipment not less than 125% of the aggregate outstanding principal amount
of the Loan; (2) naming Agent as the sole loss payee and Agent and Lenders as
additional insureds with respect to the all risk hull and war risk and allied
perils insurance policy; (3) naming Agent and each Lender as an additional
insured with respect to the liability insurance (or as Contract Party if
Lessee's insurance carriers adopted AVN67B); (4) a standard breach of warranty
clause; (5) a waiver of each insurer's right of subrogation against Agent and
Lenders; (6) a provision that such policy or contract shall continue in force
for the benefit of Agent and each Lender for at least 30 days (seven days or
such shorter period as is provided under war risk insurance) after written
notice to Agent and each Lender of the cancellation or material modification
thereof, notwithstanding any right of cancellation reserved to the insurer; (7)
coverage with respect to losses in connection with the change of year from 1999
to 2000 and/or any other change of year, date or time to the fullest extent
available in the worldwide aviation insurance market including date recognition
limited coverage clauses AVN2001 and AVN2002; and (8) such other reasonable
terms available in the United States or Lloyd's London insurance market
requested by Agent;
promptly notify Agent and each Lender of any material change in such
insurance coverage; and
furnish, or cause to be furnished, at least annually to Agent and each
Lender from internationally recognized independent aviation insurance brokers
acceptable to Agent certificates of insurance certifying to such insurance
coverage.
So long as no Default has occurred and is continuing, as between Agent and
Borrower insurance payments received in respect of (i) an Event of Loss of the
Airframe shall be dealt with in the manner provided in Section 4.3(a), (ii) an
Event of Loss of an Engine shall be dealt with in the manner provided in Section
3.4 of the Security Agreement, and (iii) any loss or damage not
constituting an Event of Loss of the Airframe or of an Engine will be applied in
accordance with Section 3.5 of the Security Agreement. Any amount referred to
in this Section 11.9(c) that is paid or payable to or retainable by Borrower
shall not be paid to or retained by Borrower if at the time of such payment a
Default shall have occurred and be continuing or an Event of Default has
occurred that is not expressly waived, shall be paid to and held by Agent, and
may be applied at any time and from time to time in whole or in part against any
of the obligations of Borrower under the Financing Documents as Agent in its
sole discretion shall determine when and as due. At such time as no Default
shall be continuing and no Event of Default shall have occurred that shall not
have been expressly waived by Agent, such amount shall be paid to Borrower to
the extent not previously applied in accordance with this Section 11.9(c).
On the Closing Date and within 30 days before the renewal date of any
Insurance during the Commitment Period, Borrower shall cause Lessee's or its
independent insurance brokers, who shall be of recognized international standing
and acceptable to Agent and Lenders, to furnish to Agent and each Lender
(i) a certificate of insurance describing in reasonable detail the insurance
carried on or with respect to the Equipment, and (ii) a letter of undertaking
stating, inter alia, that in the opinion of such broker the Insurances comply
with the terms of this Section 11.9, confirming that all premiums due in respect
of such insurance have been paid and agreeing to notify Agent and Lenders if
such broker ceases to act as independent insurance broker for Lessee.
At any time that any part of the Equipment is in the possession of
Borrower, whether following the termination of the Lease, the repossession of
such part of the Equipment by Borrower pursuant to the Lease or otherwise,
Borrower shall also cause its independent insurance brokers to advise Agent and
each Lender in writing (i) promptly of any defaults in the payment of any
premium and of any other act or omission on the part of Borrower or of any event
of which they have knowledge that might invalidate or render unenforceable
in whole or in part any insurance on the Equipment, (ii) of any expiration or
termination of such insurance at least 30 days prior to such expiration or
termination, and (iii) if any insurer cancels or gives notice of cancellation
of such insurance. Borrower shall instruct its independent insurance brokers to
hold any binders (subject to the rights of the insurers), policies and cover
notes issued and any endorsements to the order of Agent. The reports and
certifications to be given under this Section 11.9(e) shall confirm that the
insurance extends to any Engine or Part while removed from the Airframe or any
Engine.
Insignia.
--------
At any time that any part of the Equipment is in the possession of Borrower,
whether following the termination of the Lease, the repossession of such part of
the Equipment by Borrower pursuant to the Lease or otherwise, Borrower shall
plainly, distinctly and conspicuously place and leave in the cockpit of the
Airframe and on each Engine a plate, insignia or other identification bearing
the following words in letters of a size reasonable under the circumstances and
acceptable to the Agent as follows:
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE AND OWNER
THE UNITED BANK OF KUWAIT PLC,
AS AGENT AND LENDER
The plate on the Airframe shall also state the type, manufacturer's serial
number and current registration xxxx of the Airframe. Borrower shall not place
or permit to be placed in or on the Equipment any other nameplates dealing with
the rights of any Person other than Agent.
Remarketing Before Lease Expiration.
--------------------------------------
In anticipation of the Maturity Date, Borrower shall seek to sell the Equipment
or to refinance the outstanding principal of the Loan, and for this purpose
Borrower shall at all times maintain with respect to the Equipment, either
through Beneficiary or by contract, a marketing team made up of personnel who
are capable of and available to remarket the Equipment upon termination of the
Lease or any subsequent lease. If Borrower has not entered into a binding
commitment (subject to the satisfaction of conditions precedent typically found
in such commitment letters) for the sale of the Equipment or the refinancing of
the Loan by the date 30 days before the Maturity Date, then Borrower consents
and agrees that Agent and Lenders may seek out and discuss with interested
Persons in the aviation market the sale, lease or other disposition of the
Equipment on or after the Maturity Date. The Agent and/or Lenders shall
coordinate their effort to sell, lease or dispose of the Equipment with the
Borrower. Nothing in this Section 11.11 shall (a) constitute the Agent or any
Lender as the agent of or able to bind the Borrower or Beneficiary, or (ii)
limit the rights, remedies or obligations of Agent and the Lenders under the
Financing Documents or Applicable Law upon the occurrence of an Event of
Default.
Events of Default
Events of Default.
-------------------
The occurrence of any of the following events, whether voluntary or involuntary,
arising or effected by operation of law or pursuant to or in compliance with any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body, not cured within the applicable cure
period, if any, shall constitute an "Event of Default":
the failure of Borrower to pay on the Maturity Date, on any date when due
and payable under Section 5.3 hereof or on any prepayment date all principal of
and interest on the Loan and all other amounts due Agent or any Lender under the
Financing Documents;
other than as set forth in Section 12.1(a) hereof, the failure of Borrower
to pay when due and payable any principal of and interest on the Loan, whether
by reason of due date, notice of prepayment, cancellation, acceleration or
otherwise, and such failure continues for two Banking Days after such amount
shall become due;
the failure of Borrower, Trust Company or Beneficiary to pay when due and
payable any amount, other than principal and interest on the Loan, that may
become due under any of the Financing Documents, whether by reason of stated
maturity or due date, notice of prepayment, cancellation, acceleration or
otherwise, and such failure continues for eight days after the giving of written
notice by the Agent or any Lender of such failure;
any lapse of or failure by Borrower to maintain the Insurances or perform
its obligations set forth in Section 11.9 hereof, to preserve and maintain its
trust existence as required by Section 10.2 hereof, or to procure and maintain
the registration of the Airframe in the name of the Borrower;
the failure by Borrower to perform or cause to be performed its obligations
as set forth in Section 11.2 hereof concerning the preparation or
recordation of any document or instrument required by Agent or any Lender for
the maintenance or perfection of the Lien on the Collateral within five Banking
Days after the giving of written notice thereof by Agent or any Lender;
any failure by Borrower, Trust Company or Beneficiary to fulfill any
covenant or to perform any obligation under any Financing Document or
Transaction Document other than as set forth in Sections 12.1(a) through (e)
above, and such failure is not cured within 30 days after the giving of written
notice thereof by Agent or any Lender;
if any representation or warranty made by Borrower, Trust Company or
Beneficiary in any Financing Document or Transaction Document or any financial
statement proves to have been untrue, inaccurate or incomplete in any material
respect at the time when made or when effective and Borrower, Trust Company or
Beneficiary fails to do that which shall be necessary in order that said
representation or warranty shall be true, accurate or complete within 30 days
after the earlier of actual knowledge thereof by Borrower or of the giving of
written notice thereof by Agent or any Lender; provided, however, if Borrower
does not perform the obligations set forth in Sections 10.11 and/or 10.12 hereof
within the time period provided therein, same shall constitute an Event of
Default two (2) days after the giving of written notice thereof by Agent or any
Lender;
if one or more final, uninsured nonappealable judgments or decrees (not
paid or fully covered by insurance) are entered against Borrower or Beneficiary
involving individually or in the aggregate a liability of the equivalent of
$100,000 or more and all such judgments or decrees shall remain undischarged for
a period of 30 days during which execution shall not be effectively stayed;
if Borrower or Beneficiary files a voluntary petition in bankruptcy or a
voluntary petition or an answer seeking readjustment of its debts or for any
other relief under any bankruptcy, insolvency, or other similar act or law of
any jurisdiction, domestic or foreign, now or hereafter existing, or any action
is taken by Borrower or Beneficiary indicating its consent to, approval of, or
acquiescence in, any such petition or proceeding; or if Borrower or Beneficiary
applies for, or sustains the appointment by consent or acquiescence of, a
receiver or trustee for Borrower or Beneficiary for all or a substantial part of
their respective property; or if Borrower or Beneficiary makes an
assignment for the benefit of its creditors, or if Borrower or Beneficiary fails
to pay or becomes unable to pay its debts as they mature;
if an involuntary petition is filed against Borrower or Beneficiary in
bankruptcy or seeking readjustment of its debts or for any other relief under
any bankruptcy, insolvency, or other similar act or law of any jurisdiction,
domestic or foreign, now or hereafter existing; or a receiver or trustee is
involuntarily appointed for Borrower or Beneficiary for all or a substantial
part of their respective property; or there is served on Borrower or Beneficiary
a warrant of attachment, execution or similar process against any material
property and any of such events continues for 60 days undismissed, unbonded or
undischarged;
if any Financing Document or Transaction Document shall at any time after
its respective execution and delivery and for any reason cease to be in full
force and effect, or any certificate, instrument or documents issued and
executed pursuant to the Financing Documents or Transaction Documents shall for
any reason cease to be effective to constitute a valid and perfected first
priority Lien in and to the Collateral, except for Permitted Liens;
subject to the express provisions of this Agreement or the Lease, if the
Equipment or any part of the Equipment is sold, transferred, assigned, leased,
encumbered or otherwise disposed of by Borrower without the prior consent of
Agent;
if Borrower and Lessee fail to execute and deliver the Lease on or prior to
July 2, 2002, or if the Lessee does not take delivery of the Aircraft under
the Lease or on prior to July 2, 2002; and
if a Lease Event of Default occurs and is continuing.
Acceleration.
------------
(a) Upon the occurrence of an Event of Default (other than an Event of
Default specified in Section 12.2(i) or (j) above) and upon notice to Borrower,
Agent or any Lender, acting following a determination by the Majority Lenders,
may terminate the Maximum Commitments of the Lenders and declare the entire
outstanding principal balance of, and accrued interest on, the Loan and any and
all other sums payable by Borrower under the Financing Documents, including any
overdue or default rate interest or other amounts, to be due and payable
(including sums payable pursuant to Section 7.1).
Upon the occurrence of an Event of Default specified in Section 12.1(i) or
(j) above, automatically and without any notice to Borrower the principal of and
accrued interest on the Loan and any and all other sums payable by Borrower
to the Lenders under the Financing Documents, including penalties and all other
amounts, shall accelerate and become immediately due and payable (including sums
payable pursuant to Section 7.1).
Amounts to be paid by Borrower pursuant to Section 12.2(a) and (b) above
shall be paid without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, and Agent and any Lender may exercise
any and all rights and remedies under the Security Agreement, Lease Assignment,
Beneficial Interest Security Agreement or under Applicable Law.
Effect of Bankruptcy Stay.
----------------------------
In the event Borrower becomes subject to the jurisdiction of a bankruptcy court
and Agent and the Lenders, as a result, are prevented by any order of such court
or by operation of any law from sending any notice permitted or required to
commence a period during which Borrower may cure any Event of Default, then the
period during which Borrower may cure such Event of Default shall commence to
run without notice on the first date on which Agent or any Lender would have
been entitled to give such notice but for the effectiveness of such order or
Applicable Law.
Fees And Expenses
Transaction Expenses.
---------------------
Borrower will, on the Closing Date, the Amendment Date and subsequently upon
receipt of invoices by Agent and the Lenders, pay to or reimburse Agent and each
Lender for (a) all reasonable out-of-pocket expenses incurred in connection with
the negotiation, execution and delivery of the Financing Documents, including
all filing and recordation fees incurred by Agent in connection with the
perfection of the Lien granted by Borrower pursuant to the Financing Documents,
(b) all reasonable legal fees and disbursements of Agent's counsel and other
Legal Counsel incurred in connection with all professional services rendered and
to be rendered and disbursements incurred and to be incurred by said lawyers
with respect to the negotiation, execution and delivery of the Financing
Documents, including the reasonable fees and disbursements incurred by any Legal
Counsel, (c) all reasonable out-of-pocket expenses of Agent and an Additional
Lender incurred in connection with the preservation and enforcement of any
rights granted to the Lenders and Agent under any Financing Document; and (d)
all reasonable fees and disbursements of Agent's independent insurance broker
incurred in connection with the review of the insurance certificate and broker's
letter of undertaking pursuant to Section 3.11 hereof, in an aggregate amount
not to exceed $1,500. Notwithstanding the foregoing, the Advances shall be
applied to the foregoing expenses subject to the terms and conditions herein.
To the extent any such expenses are outstanding after application of the
Advances hereunder or in the event the Advances are not applied to such amounts,
in accordance with the terms hereof same shall be promptly paid by Borrower.
Fees.
----
Borrower shall pay to Agent a fee of 0.5% of the Maximum Commitment (the
"Refinancing Fee") payable by Borrower on the Delivery Date. Notwithstanding
the foregoing, the first basic rent payment under the Lease shall be applied to
the foregoing Refinancing Fee in accordance with Section 5.5 hereof.
Contingent Interest.
--------------------
(a) The Borrower shall notify Agent in writing not less than 10 Banking
Days prior to the Borrower's consummation of any sale of the Equipment during
the Commitment Period. Any such sale shall be an arm's length transaction
between a willing buyer, under no compulsion by Seller to buy, and a willing
seller, under no compulsion by Buyer to sell. The Borrower shall deliver,
together with such notice, a copy of a signed contract of sale which shall
reflect, among other things, the gross sales prices (the "Sales Price") to be
received by the Borrower in connection with the sale of the Equipment. At the
time of the Borrower's consummation of any permitted sale of the Equipment
during the Commitment Period in addition to the payment in full of all amounts
due and owing under the Loan Documents, the Borrower shall pay to Agent on the
date of sale a contingency fee (the "Contingent Interest") in an amount equal to
40% of the sum of (x) (i) the Net Sales Price, (ii) any Maintenance
Reserves then held by Agent and (iii) any revenues obtained by Borrower or
Beneficiary during the Commitment Period relating in any way to the Equipment
and not applied to principal, interest, fees, costs or expenses hereunder less
(y) (i) $2,130,199.72 and (ii) any further investments made by Borrower or
Beneficiary in the Equipment. Borrower shall promptly notify Agent of the
amount of any such investments made in the Equipment during the Commitment
Period.
For purposes of this Section 13.3, "Net Sales Price" shall mean the Sales
Price less the then outstanding principal balance of the Loan, accrued interest
thereon and any unpaid fees and expenses hereunder and all reasonable and
documented out-of-pocket expenses incurred by the Borrower, including reasonable
legal, technical, marketing and other transaction costs (the "Capital
Transaction Costs") in connection with the sale of the Equipment excluding
interest, fees, costs and expenses to the extent attributable to an Event of
Default. For purposes of making the Contingent Interest payments on the closing
date of the sale of the Equipment, the Borrower and Lender shall estimate the
reasonable and documented out-of-pocket expenses incurred in connection with
such sale. Upon determination and payment by the Borrower of the Capital
Transaction Costs eligible to be deducted from the Sales Price, either (i)
Lender shall repay the Borrower all amounts in excess of the Contingent Interest
to which Lender is not entitled or (ii) to the extent the sum of the Sales Price
proceeds paid to Agent and Maintenance Reserves held by Lender are less than the
Contingent Interest, the Borrower shall pay to Lender the difference between
such amount so paid and the Contingent Interest.
In the event of a prepayment of the Loan before the end of the Commitment
Period not in connection with the sale of the Equipment or in the event the
Equipment is not sold prior to the last date of the Commitment Period then the
Contingent Interest shall be calculated as set forth in Sections 13.3(a) and
13.3(b) hereof except that the term "Sales Price" shall mean the fair market
value of the Equipment as reasonably agreed between Borrower and Agent. Should
Borrower and Agent not agree on a reasonable fair market value within a
reasonable period after the Commitment Period, Borrower and Agent shall appoint
a mutually acceptable third party to sell the Equipment on the best available
terms and conditions then prevailing in the market.
Nothing contained herein shall create or be construed to create a
partnership, joint venture, fiduciary relationship or other association between
Agent, Lender and borrower. The relationship between Agent and Lender, on the
one hand, and Borrower, on the other, shall be solely that of lender and
borrower.
The Agent
Appointment, Powers and Immunities.
-------------------------------------
Each Lender hereby irrevocably appoints and authorizes Agent to act as its agent
under the Financing Documents with such powers as are specifically delegated to
Agent by the terms of the Financing Documents, together with such other powers
as are reasonably incidental to such delegated powers. Agent shall have no
duties or responsibilities except those expressly set forth in the Financing
Documents and shall not be a trustee for any Lender. Agent shall not be
responsible to the Lenders (a) for any recitals, statements, representations or
warranties contained in the Financing Documents, in any certificate or other
document referred to or provided for in, or received by any of them under, the
Financing Documents, (b) for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of the Financing Documents or any other document
referred to or provided for in the Financing Documents, (c) for the
collectibility of the Loan, (d) for the validity, effectiveness or value of any
interest or security covered by the Security Agreement or the Beneficial
Interest Security Agreement, (e) for the value of the Collateral, (f) for the
validity or effectiveness of any assignment, mortgage, pledge, security
agreement, financing statement, document or instrument or for the filing,
recording, re-filing, continuing or re-recording of any thereof, or (g) for any
failure by Borrower or any other party to the Financing Documents to perform any
of its obligations under the Financing Documents, except that Agent shall
undertake to file continuation statements for the financing statements filed
naming the Agent as secured party. In all its actions and duties, the Agent may
employ agents and attorneys-in-fact and shall not be answerable, except as to
money or securities received by it or its authorized agents, for the negligence
or misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither Agent nor any of its directors, officers, employees or
agents shall be liable or responsible for any action taken or omitted to be
taken by it or them under the Financing Documents or in connection with the
Financing Documents except for its or their own gross negligence or willful
misconduct.
Actions by Agent; Reliance.
-----------------------------
(a) Agent shall not make any material determinations under, grant any
material waivers or consents to or agree to any material amendments or
modifications of the Transaction Documents or the Financing Documents without
the approval of Majority Lenders.
Agent shall be entitled to rely upon any certification, notice or other
communication (including by telephone, telex, telegram or cable) believed by it
to be genuine and correct and to have been signed or sent by or on behalf of the
proper person or persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by Agent. As to any matters
not expressly provided for by the Financing Documents, Agent shall in all cases
be fully protected in acting, or in refraining from acting, under the Financing
Documents in accordance with instructions signed by the Majority Lenders, and
such instructions of the Majority Lenders or other number of Lenders as
aforesaid and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders.
Events of Default.
-------------------
Agent shall not be deemed to have knowledge of the occurrence of a Default
unless Agent has received notice from a Lender or Borrower specifying such
Default and stating that such notice is a "Notice of Default". In the event
that Agent receives such a notice of the occurrence of a Default, Agent shall
promptly give notice of such Default to Lenders (and shall give each Lender
notice of each such non-payment). Subject to Section 13.6, Agent shall take
such action with respect to such Default as shall be directed by the Majority
Lenders.
Indemnification of Agent.
--------------------------
Lenders shall indemnify Agent (to the extent not reimbursed by Borrower, Trust
Company, Beneficiary, Lease Guarantor or Lessee pursuant to the Financing
Documents) ratably in accordance with the aggregate principal amount of the
Maximum Commitments of the Lenders for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever imposed on, incurred by or
asserted against Agent in any way relating to or arising out of (a) the
Financing Documents, (b) any other documents contemplated by or referred to in
the Financing Documents, (c) the transactions contemplated by or referred to in
the Financing Documents (including the costs and expenses that Borrower is
obligated to pay under Section 12 but excluding, unless a Default has occurred
and is continuing, normal administrative costs and expenses incident to the
performance of its agency duties under the Financing Documents), or (d) the
enforcement of any of the terms of the Financing Documents or of any other
documents, provided that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Agent.
Non-Reliance on Agent and other Lenders.
--------------------------------------------
(a) Each Lender agrees that it has, independently and without reliance on
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of Borrower and its own
decision to enter into this Agreement, and that it will, independently and
without reliance upon Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under the Financing
Documents.
Agent shall not be required to keep itself informed as to the performance
or observance by Borrower of the Financing Documents or to inspect the
properties or books of Borrower. Except for any notices, reports and other
documents and information expressly required to be furnished to Lenders by Agent
under the Financing Documents, Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of Borrower,
Beneficiary, Lease Guarantor or Lessee that may come into the possession of the
Agent.
Failure to Act.
----------------
Except for action expressly required of Agent under the Financing Documents,
Agent shall in all cases be fully justified in failing or refusing to act under
the Financing Documents unless it shall be indemnified to its satisfaction by
Lenders against any and all liabilities and expenses that may be incurred by it
by reason of taking or continuing to take any such action.
Resignation or Removal of Agent.
-----------------------------------
Subject to the appointment and acceptance of a successor Agent as provided in
this Section 14.7, Agent may resign at any time by giving not less than 10 days
prior written notice to Lenders and Borrower. Agent may be removed at any time
for cause by the Majority Lenders (disregarding the Notes held by any Lender
that is also the Agent), and may be removed at any time without cause by the
affirmative vote of the Majority Lenders. Upon any such resignation or removal,
the Majority Lenders shall unanimously appoint a successor Agent, which with the
consent of all Lenders may be a Lender. If no successor Agent is appointed by
the Lenders and accepts such appointment within 30 days after the resigning
Agent's notice of resignation or the Lenders' removal of the previous Agent,
then the resigning or removed Agent may, on behalf of the Lenders and after
consultation with Borrower, appoint a successor Agent. Upon the acceptance of
any appointment as Agent under the Financing Documents by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under the Financing
Documents. Borrower, Lenders and the retiring Agent shall, at Borrower's
expense, thereupon execute, deliver and file financing statement amendments
reflecting such change. After any retiring Agent's resignation or removal as
Agent, the provisions of this Section 14 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
Disbursements of Payments.
---------------------------
(a) Agent shall distribute promptly to each Lender the portion due such
Lender from any amounts received by Agent from Borrower.
Notwithstanding the foregoing provisions of Section 13.8(a), Agent might,
in order to make payments to the Lenders on a Payment Date and so long as Agent
is not aware of the occurrence of any Default or Event of Default, pay the
portion due such Lender from any amount received by Agent with value on such
Payment Date in anticipation of the corresponding payment of such amounts from
Borrower (which in turn is due such amounts from Lessee). If Agent fails for
any reason to receive from Borrower the full amount to be received by Agent
pursuant to the Financing Documents, then Agent shall be entitled, by notice to
each Lender, to require each such Lender to return the amount paid by Agent on
such Payment Date not received by Agent from Borrower.
Amounts distributed pursuant to this Section 14.8 shall be distributed to
each Lender's account set forth on the signature page of this Agreement, or to
such other account in the continental United States of America or Western Europe
as such Lender may designate in writing from time to time, and Agent shall
not have any obligation to account in any such payment for any withholding taxes
or other deductions that may be applicable to such payment.
Sharing of Collateral and Payments.
--------------------------------------
In the event that at any time any Lender shall obtain payment in respect of a
Note or interest on the Loan, or receive any collateral in respect of any
portion of the Loan, whether voluntarily or involuntarily, through the exercise
of a right of banker's lien, offset or counterclaim against Borrower or
otherwise, in a greater proportion than any such payment obtained by any other
Lender in respect of the corresponding Note held by it or interest thereon, then
the Lender so receiving such greater proportionate payment shall purchase for
cash from the other Lenders such portion of each such other Lender's outstanding
loan, or shall provide such other Lenders with the benefits of any such
collateral or the proceeds thereof, as shall be necessary to cause such Lender
receiving the proportionate over-payment to share the excess payment or benefits
of such collateral or proceeds ratably with each of the other Lenders, each of
which shall have a Lien on its ratable portion of the amount described
hereinafter obtained from Borrower; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from the
Lender which received the proportionate over-payment, such purchase shall be
rescinded and the purchase price and benefits returned to the extent of such
recovery, but without interest.
Certain Matters Concerning the Lenders
Pro Rata Treatment Among Lenders.
------------------------------------
Except as otherwise provided in the Financing Documents, (a) the borrowing of
the Maximum Commitment from the Lenders under Section 2.1 will be made from the
Lenders, and each payment of the fee set forth in Section 12.2 shall be made for
the account of the Lenders, pro rata according to their respective Maximum
Commitments, and (b) each payment and prepayment of principal of or interest on
the Loan will be made to the Agent for the account of the Lenders pro rata
according to their respective Maximum Commitments.
Sharing of Payments and Set-Off Among Lenders.
---------------------------------------------------
Borrower agrees that in addition to and without limiting any right of offset,
banker's lien or counterclaim a Lender may otherwise have, each Lender shall be
entitled, at its option, to offset balances held by it at any of its offices
(including under any lock-box arrangements) against any principal of or interest
on its Loan or any fee payable to it that is not paid when due (regardless of
whether such balances are then due to Borrower), in which case it shall promptly
notify Borrower and Agent of such offset although its failure to give such
notice shall not affect the validity of such offset. If a Lender shall effect
payment of any principal of or interest on its Loan through the exercise of any
right of offset, banker's lien, counterclaim or similar right, it shall promptly
purchase from the other Lenders participations in their Loan in such amounts,
and make such other adjustments from time to time as shall be equitable, to the
end that all Lenders shall share the benefit of such payment pro rata according
to their respective Maximum Commitments, and each Lender shall have a Lien on
its ratable portion of the amounts received from Borrower. To such end the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations or otherwise) if such payment is rescinded or must otherwise be
restored. Borrower agrees that any Lender so purchasing a participation in the
Loans held by the other Lenders may exercise all rights of offset, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans in the amount of such
participation. Nothing contained in this Section 15.2 shall require any Lender
to exercise any such right or shall affect the right of any Lender to exercise
and retain the benefits of exercising any such right with respect to any other
indebtedness or obligation of Borrower.
Several Obligations.
--------------------
The failure of any Lender to make any Advance to be made by it on a Borrowing
Date shall not relieve the other Lenders of their respective obligations to make
their Advances on such Borrowing Date, but no Lender shall be responsible for
the failure of the other Lenders to make Advances to be made by such other
Lenders.
Registration and Transfer of Notes
Registration, Transfer and Exchange of Notes.
-------------------------------------------------
Borrower will maintain a register for the registration and transfer of the
Notes. Subject to Section 16.9, any Lender may transfer all or any portion of
any outstanding Note to one or more Persons or exchange an outstanding Note for
one or more new Notes, in each case by surrendering such outstanding Note at the
address of Borrower set forth in Section 16.2, together with its written request
for the issuance of a new Note or Notes, specifying the authorized denomination
or denominations of the same and the name and address of the Person or Persons
in whose name or names the new Note or Notes are to be registered and payable.
Promptly upon receipt by Borrower of the foregoing, but subject to Section 16.9,
Borrower shall execute and deliver such new Note or Notes, in the aggregate
principal amount of and dated the same date as the outstanding Note surrendered,
in such denomination or denominations specified in the written request and
registered in and payable to such Person or Persons specified in such written
request. Borrower shall make a notation on each new Note of the amount of all
payments of principal theretofore made, or the date to which such payments have
been made, on the old Note or Notes in exchange for which such new Note has been
issued and the date to which interest on such old Note or Notes has been paid.
Mutilated, Destroyed, Lost or Stolen Notes.
-----------------------------------------------
If any Note shall become mutilated or shall be destroyed, lost or stolen,
Borrower shall, upon the written request of the holder of such Note, execute and
deliver in replacement a new Note, payable in the same original principal amount
and dated the same date as the Note so mutilated, destroyed, lost or stolen.
Borrower shall make a notation on each new Note of the amount of all payments of
principal and premium, if any, theretofore made, or the date to which such
payments have been made on the Note so mutilated, destroyed, lost or stolen and
the date to which interest on such old Note has been paid. If the Note being
replaced has been mutilated, such Note shall be delivered to Borrower and shall
be canceled by it. If the Note being replaced has been destroyed, lost or
stolen, the Lender holding such Note shall furnish to Borrower an indemnity
agreement reasonably satisfactory to Borrower that holds Borrower harmless from
any loss, including claims for principal of and interest on the purportedly
destroyed, lost or stolen Note, together with the written statement, signed by a
duly authorized officer of such Lender, advising as to the destruction, loss or
theft of such Note.
Transferability of Note.
-------------------------
Each Note shall be transferable by the holder of such Note upon the terms set
forth in Section 16.9 of this Agreement.
Validity of Substituted Note.
-------------------------------
All Notes executed and delivered in substitution or exchange for any Note shall
be the valid obligations of Borrower, evidencing the same debt as the Note in
exchange for which they were executed and delivered, and shall be secured by the
Lien of the Security Agreement to the same extent as though originally issued
under this Agreement.
Cancellation of Notes.
-----------------------
All Notes surrendered to Borrower for payment, prepayment in full, transfer or
exchange shall be canceled by it, and no Note shall be issued in lieu thereof
except as expressly permitted by the provisions of this Agreement.
Miscellaneous Provisions
Modifications, Consents and Waivers; Entire Agreement.
----------------------------------------------------------
(a) No modification, amendment or waiver of any provision of the Financing
Documents, any other agreement, instrument and document delivered pursuant
to the Financing Documents or consent to any departure by Borrower from any of
the terms or conditions of the Financing Documents shall be effective unless it
is in writing and signed by the parties to such Financing Document or other
agreement, instrument or document or, in the case of this Agreement by the
parties hereto, except that in respect of the requisite consent of the Agent and
Lenders, such consent must be given by the Agent and by the requisite Lenders as
set forth in Section 16.1(b). Any such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No consent
to or demand on Borrower in any case shall, of itself, entitle it to any other
or further notice or demand in similar or other circumstances.
Without limiting the provisions of the Lease Assignment, the provisions of
this Agreement may be modified, amended or waived, or a consent given with
respect to such provisions, if signed by the Agent and the Majority Lenders,
except that:
any modification, amendment, waiver or consent that has the effect of
changing or waiving the Maximum Commitment of any Lender, the principal amount
of the Loans to be borrowed or repaid, the maturity of the Loan, the dates for
and the amount of repayment of any Loan, the Interest Rate and the provisions of
this Section 17.1(b) shall require the agreement of Agent and all Lenders;
any modification or amendment that has the effect of increasing the Maximum
Commitment (but not the Maximum Commitment of any Lender) shall require the
agreement of the Agent and all Lenders;
any determinations under, grants of any waivers or consents to or
agreements to any amendments or modifications of the Transaction Documents that
would change the amount of "Basic Rent" (as defined in the Lease), "Agreed
Value" (as set forth in the Lease) and other sums payable by Lessee to Borrower
pursuant to the Lease or change the "Term" (as defined in the Lease) shall
require the agreement of Agent and all Lenders; and
any grants of any waivers or consents to or agreements to any amendments or
modifications of the Financing Documents or the Transaction Documents that
would contemplate or involve the release of any Lien of the Agent in any
Collateral, Trust Estate or Pledged Interests shall require the agreement of
Agent and all Lenders, provided that this Section 17.1(b)(iv) shall not apply to
the sale, lease or other disposition of any Collateral, Trust Estate or Pledged
Interests by Borrower or Pledgor, respectively, in accordance with the Financing
Documents or, after the occurrence and during the continuation of an Event of
Default, by Agent pursuant to the exercise of its remedies under the Financing
Documents and the Transaction documents.
Notices.
-------
(a) Every notice or demand under this Agreement shall be in writing and
may be given or made by registered mail, return receipt requested, by
internationally recognized overnight courier service or by telefax.
Every notice or demand shall be sent, in the case of overnight courier,
registered mail or telefax, to the address or telefax number of any Lender set
forth on the signature page to this Agreement of such Lender and to Agent or
Borrower at the following address or telefax number:
to Borrower: U.S. Bank National Association
X.X. Xxxx Xxxxx Xxxxxx, XXXX0000
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Finance Group
Telephone: (000) 000-0000
Telefax: (000) 000-0000
with a copy to: Equis Financial Group
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
and: Equis Financial Group
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xx. Xxx Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
and: Xxxxxxxx Xxxx & Xxxxxxx, P.A.
0000 Xxxx Xxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telefax: (000) 000-0000
to Agent The United Bank of Kuwait PLC
or Lenders: 0 Xxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
Attention: Aviation Finance
Telephone: x00-000-000-0000
Telefax: x00-000-000-0000
Every notice or demand shall be deemed to have been received (i) if sent by
registered mail or recognized overnight international courier, when
actually delivered to Agent or Borrower at their respective address as provided
in Section 16.2(b) or on the date on which receipt of such notice is refused or
the courier advises that such notice is not deliverable at the address provided
in Section 16.2(b), and (ii) if sent by telefax, at the time of receipt by the
sender of a transmission report indicating that all pages of the telefax
transmission were properly transmitted (unless the recipient notifies the sender
promptly, or if received after 5:30 p.m. local time, by no later than 10:00 a.m.
local time the following Banking Day, that the transmission was incomplete or
illegible, in which case the telefax shall be deemed to have been received at
the time of receipt by the sender of a further clear transmission report on
retransmitting the telefax), provided the relevant telefax transmission (or
retransmission, as the case may be) was transmitted to the receiver between 9:00
a.m. and 5:30 p.m. local time, and if it was transmitted later, then it shall be
deemed to have been received at 9:00 a.m. local time on the succeeding Banking
Day.
A copy of all notices sent to Agent or any Lender shall be sent to Xxxxxxxx
Xxxxxxxx Xxxxx & Xxxxx, LLP, 000 Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxx X. Xxxxx, Esq., Telefax No. x0-000-0000.
Any party hereto may change its address for the purpose of giving notice by
advising the other parties of such change of address in a notice given
pursuant to the provisions of this Section 17.2.
Entire Agreement; No Oral Change.
------------------------------------
The Financing Documents (including all schedules and exhibits to the Financing
Documents) embody the entire agreement and understanding between Borrower, Agent
and Lenders relating to the subject matter of the Financing Documents and
supersede all prior agreements and understandings relating to such subject
matter, and none of the parties to the Financing Documents shall be bound by or
charged with any oral or written agreements, representations, warranties,
statements, promises or understandings not specifically set forth in the
Financing Documents. This Agreement may not be changed and no right granted or
obligation imposed under this Agreement may be waived orally, but only by an
instrument in writing signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
Governing Law; Jurisdiction and Venue.
-----------------------------------------
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN NEGOTIATED AND MADE IN, AND SHALL BE
GOVERNED AND INTERPRETED UNDER THE LAWS OF, THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE BY RESIDENTS THEREOF TO BE WHOLLY PERFORMED THEREIN. Borrower,
Agent and Lenders each consents and submits to the exclusive jurisdiction and
venue of the United States District Court of the Southern District of New York
and the Supreme Court of the State of New York, in each case located in the
Borough of Manhattan (the "Agreed Courts") and agree that venue is proper in the
Agreed Courts and waives any right to object based upon jurisdiction (either
personal or subject matter), venue or inconvenient forum in the Agreed Courts in
connection with any action arising out of or connected in any way with the
Financing Documents. Borrower agrees that service of process or any other
papers upon it by registered air mail at its address set forth in Section 16.2
shall be deemed good, proper and effective service upon it. Nothing set forth
in this Section 17.4 shall be deemed to preclude the service of process or any
other papers upon Borrower by any other method permitted by Applicable Law.
Usury.
-----
Notwithstanding any provision to the contrary contained in this Agreement or the
Notes, neither Agent nor any Lenders shall collect a rate of interest on any
obligation owing by Borrower to such Lender in excess of the maximum rate of
interest permitted by Applicable Law. Borrower understands and believes that
the lending transaction that is the subject of this Agreement complies with all
applicable usury laws; however, if any interest or other charges in connection
with such lending transaction is ever determined to exceed the maximum amount
permitted by Applicable Law, then Borrower agrees that (a) the amount of
interest or charges payable pursuant to this Agreement and the Notes shall be
reduced to the maximum amount permitted by Applicable Law, and (b) any excess
amount previously collected from Borrower in connection with this Agreement or
the Notes that exceeds the maximum amount permitted by Applicable Law shall be
credited against the principal amount of the Loan then outstanding. If the
outstanding principal balance of the Loan has been paid in full, the excess
amount paid shall be refunded to Borrower. The "contracted for rate of
interest" of the Maximum Commitment to be advanced pursuant to the terms of this
Agreement includes the following: (i) the Interest Rate calculated and applied
to the principal balance of the Loan in accordance with the provisions of this
Agreement and the Notes; (ii) the rate of interest to be calculated and applied
with respect to the principal balance of the Loan outstanding in accordance with
the provisions of Section 4.2(c); (iii) the fees set forth in Section 12 and the
Fee Letter; and (iv) all fees, charges, goods, things in action or any sum or
things of value (collectively, "Additional Sums") paid or payable by Borrower
pursuant to any Financing Document. If any such Additional Sums may, under
Applicable Law, be deemed to be interest with respect to the lending transaction
which is the subject of this Agreement, then, for the purpose of any Applicable
Law that may limit the maximum amount of interest to be charged with respect to
the lending transaction which is the subject of this Agreement, such Additional
Sums shall be payable by Borrower as, and shall be deemed to be, additional
interest, and for such purposes only, the agreed upon and "contracted for rate
of interest" of this transaction shall be deemed to be increased by the rate of
interest resulting from the Additional Sums.
No Broker.
----------
Each of Borrower, Agent and each Lender hereby represents and warrants to the
other that no broker brought about the transactions contemplated by the
Financing Documents and each such party agrees to indemnify and hold the other
parties harmless from any and all liabilities and costs (including without
limitation, reasonable costs of counsel) to any person or entity claiming
brokerage commissions or finder's fees on account of this Agreement.
Survival.
--------
Each of the representations, warranties and covenants of Borrower contained
herein shall survive the Closing Date, Amendment Date and each Advance Date.
Waiver of Jury.
----------------
..Borrower, Agent and Lenders irrevocably waive the right to a trial by jury in
any action or proceeding brought to enforce any provision of any Financing
Document to which they are parties.
Assignment, Successors and Assigns.
-------------------------------------
(a) Borrower shall not assign any rights under the Financing Documents nor
shall any of Borrower's obligations and duties under the Financing
Documents be assigned or delegated without the prior written consent of the
Majority Lenders, which consent shall not be unreasonably withheld or delayed,
and any such assignment or delegation in violation of this Section 17.9 shall be
null and void ab initio.
Each of the Lenders or any assignee, transferee or sub-participant (a
"Transferee") may without the consent of Borrower assign all or any part of its
rights and benefits under this Agreement, and each of the Lenders or any
Transferee may without the consent of Borrower at any time participate all or
any part of its rights and benefits under this Agreement; provided, that no such
assignment or participation shall result in the obligations of Borrower
under this Agreement being greater than they would have been in the absence of
such assignment and provided further, that notice of any such assignment or
participation shall be provided to Borrower.
A Lender may disclose to a potential Transferee such information about
Borrower as shall have been made available to that Lender in connection with
this Agreement generally and additionally may disclose such information to any
affiliate of that Lender or, on being requested to provide the same, to any
Governmental Body.
Each Lender or any Transferee may at any time and from time to time change
its lending office, but such Lender shall give Borrower prior written notice of
such a change; provided, that no such change of lending office (unless made at
the request of Borrower) will result in Borrower's obligations under the
Financing Documents being greater than they would have been in the absence of
such change. Until Borrower receives such notification, it shall be entitled to
assume that such Lender or Transferee is acting through the lending office
of which it last had notice.
No Third Party Beneficiaries.
-------------------------------
No person not a party hereto shall have any right, remedy or claim under or by
reason of this Agreement, any other Financing Document or any Transaction
Document.
Captions and Section Headings; Construction.
-----------------------------------------------
Captions and section headings used in this Agreement are for convenience only
and are not a part of this Agreement and shall not be used in construing it.
This Agreement and all documents executed in connection with this Agreement
shall be construed without regard to the identity of the party that prepared
such document, and no presumption shall arise as a result of such preparation.
Severability.
------------
In the event that any one or more of the provisions of the Financing Documents
shall be invalid, illegal or unenforceable in any respect or in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions contained in the Financing Documents or of the same provisions in any
other jurisdiction shall not in any way be affected or impaired.
Time of the Essence.
----------------------
Time is of the essence with respect to all of the payment and performance
obligations of Borrower under the Financing Documents.
Counterparts.
------------
This Agreement may be executed in one or more counterparts, each of which shall
constitute an original and, when taken together, all of which shall constitute
one and the same Agreement.
Waiver of Relief from Bankruptcy Code Stay.
------------------------------------------------
Borrower agrees that, in the event that Borrower or any Affiliate of Borrower
shall (i) file with any bankruptcy court of competent jurisdiction or be the
subject of any petition under Chapter 11 of the Bankruptcy Code, (ii) be the
subject of any order for relief issued under the Bankruptcy Code, (iii) file or
be the subject of any petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future federal or state act or law relating to bankruptcy, insolvency
or other relief for debtors, (iv) have sought or consented to or acquiesced in
the appointment of any trustee, receiver, conservator or liquidator, or (v) be
the subject of any order, judgment or decree entered by any court of competent
jurisdiction approving a petition filed against such party for any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future federal or state act or law
relating to bankruptcy, insolvency or relief for debtors, Agent and Lenders
shall thereupon be entitled and the Borrower irrevocably consents to immediate
and unconditional relief from any automatic stay imposed by Section 362 of the
Bankruptcy Code, or otherwise, on or against the exercise of the rights and
remedies otherwise available to Agent or any Lender as provided for in the
Financing Documents, as otherwise provided by law, and the Borrower hereby
irrevocably waives any right to object to such relief and will not contest any
motion by Agent or any Lender, in any manner requested by Agent or any Lender in
its efforts to obtain relief from any such stay or other prohibition.
Representations by Borrower in Trust Capacity.
--------------------------------------------------
Agent and Lenders expressly agree that each of and all the representations,
warranties, undertakings and agreements made on behalf of Borrower herein, or in
the other Financing Documents, and the payment obligations incurred by the
Borrower under the Notes, are made and incurred and intended not as personal
representations, warranties, undertakings, agreements and obligations by the
Trust Company, or for the purpose or with the intention of binding the Trust
Company personally (other than the representations and warranties set forth in
Section 8 hereof), but are made and intended for the purpose of binding only the
Trust Estate; and no personal liability is assumed by or shall at any time be
asserted or enforceable against the Trust Company on account of any
representation, warranty, undertaking, agreement or obligation of Borrower, all
such personal liability, if any, being expressly waived and released by Lenders
and Agent.
No Recourse to Beneficiary or Managing Trustee.
----------------------------------------------------
Agent and Lenders expressly agree that neither Beneficiary, nor its managing
trustee, AFG XXXX Corp., a Massachusetts corporation (the "Managing Trustee"),
nor any of their respective officers, directors, shareholders, investors,
employees, agents and attorneys, nor any of the personal representatives, heirs,
successors and assigns and affiliates of any of the foregoing (the "Indirect
Parties"), shall, at any time, have any personal liability hereunder. In
furtherance of the foregoing, Agent and Lenders hereby agree not to seek a
personal judgment against Beneficiary or the Managing Trustee or any of the
Indirect Parties at any time. Agent and Lenders acknowledge and agree that (i)
their recourse to the Beneficiary and the Managing Trustee is limited to the
Trust Estate (as such term is defined in the Beneficial Interest Security
Agreement of even date herewith), (ii) they fully understand the foregoing
limitations on recourse, (iii) they have performed due diligence in respect of
the transactions contemplated hereby with such limitation in mind and (iv) the
transactions contemplated hereby reflect the risks associated with such
limitation.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, Borrower, Lenders and Agent have caused their duly
authorized officers to execute and deliver this AMENDED AND RESTATED SECURED
LOAN AGREEMENT as of the day and year first written above.
Borrower: U.S. Bank National Association, not in its individual capacity
except as specifically set forth as Trust Company in this Agreement, but as
owner trustee pursuant to the Trust Agreement
By:________________________________
Name:
Title:
Agent: The United Bank of Kuwait PLC
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
LENDER SIGNATURE PAGE
The United Bank of Kuwait PLC
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
Maximum Commitment: $5,873,586.00
Lending Office for Loan: 0 Xxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
Attention: Aviation Finance
Telephone: x00-000-000-0000
Telefax: x00-000-000-0000
Address for Notices: The United Bank of Kuwait PLC
0 Xxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
Attention: Aviation Finance
Telephone: x00-000-000-0000
Telefax: x00-000-000-0000
