===============================================================================
EXECUTION COPY
AMENDED AND RESTATED ADMINISTRATIVE AGENCY
AGREEMENT
among
MORGAN STANLEY AIRCRAFT FINANCE,
CABOT AIRCRAFT SERVICES LIMITED,
BANKERS TRUST COMPANY
and
THE ENTITIES LISTED ON APPENDIX A HERETO
Dated as of March 15, 2000
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions....................................................2
ARTICLE 2
APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION 2.01. Appointment....................................................6
SECTION 2.02. Limitations....................................................6
SECTION 2.03. Administrative Services........................................8
SECTION 2.04. Bank Account Management and Calculation Services...............15
SECTION 2.05. Accounting Services...........................................19
SECTION 2.06. Additional Administrative Services............................22
SECTION 2.07. Additional Aircraft...........................................22
SECTION 2.08. New Subsidiaries..............................................22
SECTION 2.09. MSAF Group Responsibility.....................................23
ARTICLE 3
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
SECTION 3.01. Standard of Performance.......................................23
SECTION 3.02. Liability and Indemnity.......................................23
ARTICLE 4
ADMINISTRATIVE AGENT UNDERTAKINGS
SECTION 4.01. Administrative Agent Undertakings.............................25
ARTICLE 5
UNDERTAKINGS OF MSAF GROUP
SECTION 5.01. Cooperation...................................................28
SECTION 5.02. Information...................................................28
SECTION 5.03. Scope of Services.............................................28
SECTION 5.04. Ratification..................................................29
SECTION 5.05. Covenants.....................................................29
SECTION 5.06. Ratification by Subsidiaries..................................30
ARTICLE 6
ADMINISTRATION FEES, EXPENSES AND SUBORDINATION
SECTION 6.01. Administration Fees...........................................31
SECTION 6.02. Expenses......................................................31
SECTION 6.03. Taxes.........................................................32
SECTION 6.04. Payment of Expenses...........................................32
ARTICLE 7
TERM; REMOVAL OF OR TERMINATION BY THE ADMINISTRATIVE AGENT
SECTION 7.01. Term...........................................................32
SECTION 7.02. Right to Terminate............................................32
SECTION 7.03. Consequences of Termination...................................34
SECTION 7.04. Survival......................................................35
ARTICLE 8
ASSIGNMENT AND DELEGATION
SECTION 8.01. Assignment and Delegation.....................................35
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices.......................................................35
SECTION 9.02. Governing Law.................................................37
SECTION 9.03. Jurisdiction..................................................37
SECTION 9.04. WAIVER OF JURY TRIAL..........................................37
SECTION 9.05. Counterparts; Third Party Beneficiaries.......................37
SECTION 9.06. Entire Agreement..............................................37
SECTION 9.07. Power of Attorney.............................................38
SECTION 9.08. Table of Contents; Headings...................................38
SECTION 9.09. Restrictions on Disclosure....................................38
SECTION 9.10. No Partnership................................................39
SECTION 9.11. Concerning the Security Trustee...............................40
SCHEDULES
APPENDIX A........................................................ Subsidiaries
SCHEDULE 1........................................................ Accounts
EXHIBIT A......................................................... Certificates
ii
AMENDED AND RESTATED ADMINISTRATIVE AGENCY AGREEMENT dated as of March 15,
2000, among Morgan Stanley Aircraft Finance ("MSAF"), a statutory trust
established under the laws of the State of Delaware, Cabot Aircraft Services
Limited, a company incorporated under the laws of Ireland (the "Administrative
Agent"), Bankers Trust Company, a New York banking corporation, not in its
individual capacity but solely as trustee under the Security Trust Agreement
(the "Security Trustee") and the subsidiaries of MSAF, each listed on Appendix
A hereto (collectively with MSAF, the "MSAF Group").
For the consideration set forth herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Administrative
Agent, MSAF and the other MSAF Group Members agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have the
following meanings. Unless otherwise defined herein, all capitalized terms used
but not defined herein have the meanings assigned to such terms in the
Indenture.
"1997 Asset Purchase Agreement" means the Asset Purchase Agreement dated
as of November 10, 1997 between International Lease Finance Corporation and
MASF.
"1999 Asset Purchase Agreements" means the Asset Purchase Agreement dated
as of August 6, 1999 among International Lease Finance Corporation, MSA IV and
MSA V and the Asset Purchase Agreement dated as of March 19, 1999 between MSA
II and GE Capital Mietfinanz GmbH & Co. kG.
"Administrative Fee" has the meaning assigned to such term in Section 6.01
hereof.
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control
with, the Person specified; provided, however, that MSAF and the other MSAF
Group Members, on the one part, and the Administrative Agent and its
subsidiaries on the other part, shall not be considered to be Affiliates of
each other.
"After-Tax Basis" means on a basis such that any payment received, deemed
to have been received or receivable by any Person shall, if necessary, be
supplemented by a further payment to that Person so that the sum of the two
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payments shall, after deduction of all U.S. federal, state, local and foreign
Taxes, penalties, fines, interest, additions to Tax and other charges resulting
from the receipt (actual or constructive) or accrual of such payments imposed
by or under any U.S. federal, state, local or foreign law or Governmental
Authority (after taking into account any current deduction to which such Person
shall be entitled with respect to the amount that gave rise to the underlying
payment) be equal to the payment received, deemed to have been received or
receivable.
"Aircraft" has the meaning assigned to such term in the Asset Purchase
Agreement.
"Aircraft Assets" has the meaning assigned to such term in the Servicing
Agreement.
"Annual Appraised Value" means initially the average Base Value of an
Aircraft at the time acquired by an MSAF Group Member and thereafter as
determined annually by the Appraisers.
"Asset Expenses Budget" has the meaning assigned to such term in Section
7.05(a)(i) of the Servicing Agreement.
"Asset Purchase Agreement" means the 1997 Asset Purchase Agreement and the
1999 Asset Purchase Agreements.
"Approved Budget" has the meaning assigned to such term in Section 7.05(c)
of the Servicing Agreement.
"Closing Date" means March 15, 2000.
"Concentration Thresholds" has the meaning assigned to such term in
Section 2.02(a) of Schedule 2.02(a) of the Servicing Agreement.
"Conflicts Standard" has the meaning assigned to such term in Section
3.02(b) of the Servicing Agreement.
"Consolidated Quarterly Draft Accounts" has the meaning assigned to such
term in Section 2.05(b)(ii) hereof.
"Consolidating Quarterly Draft Accounts" has the meaning assigned to such
term in Section 2.05(b)(iii) hereof.
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"Custody and Loan Agreement: means the Amended and Restated Custody and
Loan Agreement dated as of August 6, 1999 among MSAF, the other MSAF Lessors
(as defined therein) and ILFC.
"Delaware Trustee" means the Wilmington Trust Company, as Delaware trustee
of MSAF.
"Dollars" or "$" means the lawful money of the United States of America.
"Draft Accounts" has the meaning assigned to such term in Section
2.05(b)(iii) hereof.
"EU" means the European Union.
"Fee Period" has the meaning assigned to such term in Section 6.01(a)
hereof.
"Governmental Authority" means any court, administrative agency or
commission or other governmental agency or instrumentality (or any officer or
representative thereof) domestic, foreign or international, of competent
jurisdiction including, without limitation, the EU.
"Indenture" means the Indenture dated as of March 3, 1998, between MSAF
and the Trustee.
"Initial Periods" has the meaning assigned to such term in Section
7.05(a)(i) of the Servicing Agreement.
"Lease" means any lease or other agreement or arrangement pursuant to
which any Person (other than a MSAF Group Member) has the right to possession
and use of any Aircraft.
"Ledgers" has the meaning assigned to such term in Section 2.05(b)(i)
hereof.
"Maintenance Reserves" has the meaning assigned to such term in the Asset
Purchase Agreement.
"MSDW Loan Agreement" means the Amended and Restated Loan Agreement dated
as of March 15, 2000 among MSAF and Morgan Stanley Dean Witter & Co.
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"One Year Period" has the meaning assigned to such term in Section
7.05(a)(i) of the Servicing Agreement.
"Operating Budget" has the meaning assigned to such term in Section
7.05(a)(i) of the Servicing Agreement.
"Quarter" means the fiscal quarter of each MSAF Group Member, as
applicable.
"Ratings" means the ratings assigned to the Notes by the Rating Agencies.
"Reimbursable Expenses" has the meaning assigned to such term in Section
6.02(b) hereof.
"Representatives" with respect to any Person means the officers,
directors, employees, advisors and agents of such Person.
"Schedule 2.02 (a)" has the meaning assigned to such term in Section
2.03(k)(ii) hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Service Providers" has the meaning assigned to such term in Section
2.02(c) hereof.
"Servicing Agreement" means the Amended and Restated Servicing Agreement
dated as of August 6, 1999 among International Lease Finance Corporation, MSAF,
the Administrative Agent and the other parties named therein.
"Standard of Care" has the meaning assigned to such term in Section 3.01
of the Servicing Agreement.
"Standard of Performance" has the meaning assigned to such term in Section
3.01 hereof.
"Subsidiary" of any Person means a corporation, company or other entity
(i) more than 50% of whose outstanding shares or securities (representing the
right to vote for the election of directors or other managing authority) are,
or (ii) which does not have outstanding shares or securities (as may be the
case in a partnership, joint venture or unincorporated association), but more
than 50% of whose ownership interest representing the right to make decisions
for such other entity is, now or hereafter owned or controlled, directly or
indirectly, by such Person, but such corporation, company or other entity shall
be deemed to be a Subsidiary only so long as such ownership or control exists.
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"Three Year Period" has the meaning assigned to such term in Section
7.05(a) of the Servicing Agreement.
"U.S. Bankruptcy Code" has the meaning assigned to such term in Section
7.02 hereof.
"U.S. GAAP" means generally accepted accounting principles and practices
in United States as in effect from time to time and applied consistently
throughout the periods involved.
"Year" has the meaning assigned to such term in the Servicing Agreement.
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ARTICLE 2
APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION 2.01. Appointment. (a) Each of MSAF and the other MSAF Group
Members hereby appoints the Administrative Agent as the provider of the
administrative and related services set forth in Section 2.03, the accounting
services set forth in Section 2.05 and the additional administrative services
set forth in Section 2.06 (together with the Bank Account Management Services
referred to in subsection (b) below, collectively referred to herein as the
"Administrative Services") to each MSAF Group Member on the terms and subject
to the conditions set forth in this Agreement.
(b) The Security Trustee, on behalf of the Secured Parties, having been
duly authorized by MSAF, hereby appoints the Administrative Agent as the
provider of the bank account management and calculation services set forth in
Section 2.04 and in the Indenture (the "Bank Account Management Services") and
delegates to the Administrative Agent its authority to administer the Accounts
and to otherwise perform the Bank Account Management Services on behalf of each
MSAF Group Member on the terms and subject to the conditions set forth in this
Agreement.
(c) The Administrative Agent hereby accepts such appointments and agrees
to perform the Administrative Services on the terms and subject to the
conditions set forth in this Agreement.
(d) The Administrative Services do not include any service or matter which
is the responsibility of the Servicer under the Servicing Agreement, the Cash
Manager under the Cash Management Agreement, the Financial Advisor under the
Financial Advisory Agreement or the company secretaries of any MSAF Group
Member.
(d) The Administrative Services do not include any service or matter that
falls under the categories of "investment business services" or "investment
advice" under the Investment Intermediaries Act, 1995 or any other applicable
provision of Irish law that would require such services to be performed by an
entity that has obtained prior authorization from the Central Bank of Ireland.
SECTION 2.02. Limitations. (a) The Administrative Agent agrees (with
respect to the Administrative Services agreed by it to be carried out
hereunder) to comply with the terms of the articles of incorporation, by-laws,
trust agreements or similar constituting documents of each MSAF Group Member
and all agreements to which any MSAF Group Member is a party (including all
Relevant Documents), provided that copies of such documents and agreements have
been delivered to the Administrative Agent and, without prejudice to the
foregoing, not to enter into, on behalf of any MSAF Group Member, any
commitments, loans or obligations or
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charge, mortgage, pledge, encumber or otherwise restrict or dispose of the
property or assets or expend any funds of any MSAF Group Member save (i) as
expressly permitted by the terms of this Agreement or (ii) upon the express
direction of the Controlling Trustees.
(b) In connection with the performance of the Administrative Services, the
Administrative Agent shall (i) have no responsibility for the failure of any
other Person (other than any Person acting as a delegate of the Administrative
Agent under this Agreement pursuant to Section 8.01 hereof) providing services
directly to MSAF Group to perform its obligations to MSAF Group, (ii) in all
cases be entitled to rely upon the instructions of MSAF Group with respect to
any Administrative Services other than the Bank Account Management Services or
the Security Trustee on behalf of MSAF Group with respect to any Bank Account
Management Services, and upon notices, reports or other communications made by
any Person providing services to MSAF Group (other than any Affiliate of the
Administrative Agent) and shall not be responsible for the accuracy or
completeness of any such notices, reports or other communications except to the
extent that the Administrative Agent has actual notice of any matter to the
contrary and (iii) not be obligated to act in any manner which is reasonably
likely to (A) violate any Applicable Law, (B) lead to an investigation by any
Governmental Authority or (C) expose the Administrative Agent to any
liabilities for which, in the Administrative Agent's good faith opinion,
adequate bond or indemnity has not been provided.
(c) Subject to the limitations set forth in Section 2.02(a), in connection
with the performance of the Administrative Services, the Administrative Agent
is expressly authorized by MSAF and each other MSAF Group Member, (i) to engage
in and conclude commercial negotiations with the Persons providing services to
MSAF Group, including, without limitation, where the context admits, the
Servicer, the Cash Manager, the Financial Advisor and other Persons performing
similar services or advising MSAF Group (the "Service Providers") and with
their Representatives, and (ii) after such consultation, if any, as the
Administrative Agent deems necessary under the circumstances, to act on such
MSAF Group Member's behalf with regard to any and all matters requiring any
action on the part of the Administrative Agent under the Servicing Agreement.
MSAF Group agrees that it will give the Administrative Agent and the Servicer
60 days prior written notice of any limitation or modification of the authority
set forth in this Section 2.02(c).
(d) The Administrative Agent may rely on the advice of any law firm,
accounting firm, risk management adviser, tax adviser, insurance adviser,
technical adviser, aircraft appraiser or other professional adviser appointed
by MSAF and any Person appointed in good faith by the Administrative Agent and
shall not be liable for any claim by any MSAF Group Member to the extent that
it was acting in good faith upon the advice of any such persons.
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(e) Notwithstanding the appointment of, and the delegation of authority
and responsibility to, the Administrative Agent hereunder, MSAF and each other
MSAF Group Member shall continue to have and exercise through its respective
controlling trustees or board real and effective central control and management
of all matters related to its ongoing business, operations, assets and
liabilities, subject to matters that are expressly the responsibility of the
Administrative Agent in accordance with the terms of this Agreement, and each
MSAF Group Member shall at all times conduct its separate ongoing business in
such a manner as the same shall at all times be readily identifiable from the
separate business of the Administrative Agent, and none of the MSAF Group
Members is merely lending its name to decisions taken by others.
SECTION 2.03. Administrative Services. The Administrative Agent hereby
agrees to perform and provide the following services for each MSAF Group Member
and its respective governing bodies:
(a) administrative services:
(i) except in such instances in which such preparation and
distribution is required to be done by another party by Applicable Law,
preparation and distribution, at such time as shall be agreed with the
Administrative Agent, of draft trustees or board meeting agendas and any
other papers required in connection with such meetings;
(ii) maintaining, or monitoring the maintenance of, the books,
records, registers and associated filings of each MSAF Group Member, other
than those required to be maintained by the Delaware Trustee;
(iii) providing any administrative assistance reasonably necessary to
assist any MSAF Group Member in carrying out its obligations, including
providing timely notice of decisions to be made, or actions to be taken,
under any of the Relevant Documents; provided, that if the obligations of
any MSAF Group Member under any of the Relevant Documents are only
required upon receipt of notice to such MSAF Group Member or the
Administrative Agent, then the Administrative Agent shall provide such
administrative assistance only to the extent it has received such notice
or is otherwise aware of such obligations;
(iv) assisting MSAF Group in: making its aircraft lease, sale and
capital investment decisions including to the extent (i) such assistance
is not contemplated to be provided by the Servicer pursuant to the
Servicing Agreement and (ii) such decisions are not required to be made by
the Controlling Trustees;
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(v) procuring, when the Administrative Agent considers in good faith
that it is appropriate or necessary to do so, and coordinating the advice
of, legal counsel, accounting, tax and other professional advisers at the
expense of the relevant MSAF Group Member, to assist such MSAF Group
Member in carrying out its obligations, and supervising, in accordance
with instructions from such MSAF Group Member, such legal counsel and
other advisers;
(vi) as frequently as is necessary for each MSAF Group Member to
comply with its obligations under the Relevant Documents, arranging for
the Appraisals to be made and providing the Appraisals to the relevant
Service Providers; and
(vii) providing assistance to the Servicer with respect to matters
for which such assistance is contemplated by the Servicing Agreement or is
reasonably necessary in order for the Servicer to perform its duties in
accordance with the Servicing Agreement.
(b) to monitor the performance of the Service Providers and to report on
such performance to the Controlling Trustees on a quarterly basis, including:
(i) with respect to the Servicer:
(A) monitoring and reviewing the information and other reports
provided by the Servicer pursuant to the Servicing Agreement,
including with respect to the status of Lease payments, Lessee
receivables, Maintenance Reserves, security deposits, adjustments of
rentals and claims against Maintenance Reserves in accordance with
Lease terms (to the extent provided to the Administrative Agent);
(B) assisting in evaluating the Servicer's performance relative
to the Standard of Care and the Conflicts Standard;
(C) assisting in establishing standards for evaluating the
Servicer's performance relative to the terms of the Servicing
Agreement generally, assisting in evaluating such performance against
such standards and recommending action with respect thereto;
(D) reviewing and providing advice with respect to
recommendations made by the Servicer for approval by any MSAF Group
Member; and
10
(E) monitoring the compliance of the Servicer with its
obligations under the Servicing Agreement;
(ii) with respect to the other Service Providers:
(A) to the extent not provided for in the relevant agreement,
assisting in establishing standards for performance evaluation and
compliance with the terms of such agreement;
(B) assisting in evaluating the performance and compliance of
each Service Provider against its obligations under the relevant
agreement or such standards as are established pursuant to subsection
2.03(b)(ii)(A) above;
(C) monitoring and reviewing the information and reports
provided by the Cash Manager to the Administrative Agent and the
relevant MSAF Group Member and reviewing and providing advice with
respect to such reports; and
(D) implementing any other request by MSAF Group to evaluate the
performance of the Service Providers under the relevant agreements
with MSAF Group, which shall be at the expense of MSAF Group, to the
extent services are required that are materially greater in scope
than those being provided pursuant to the express terms of this
Agreement;
(c) to the extent that (i) the following services are not provided by the
other Service Providers, and (ii) the relevant information is provided to the
Administrative Agent by MSAF Group or the Service Providers, to act as liaison
with the Rating Agencies with respect to the rating impact of any decisions on
behalf of MSAF Group, including:
(i) advising the Rating Agencies from time to time of any
material changes in the Portfolio, coordinating with MSAF Group and
the Service Providers and providing the Rating Agencies with such
statistical and other information as they may from time to time
request (such information to be provided at MSAF Group's expense to
the extent that providing such information requires services that are
materially greater in scope than those being provided pursuant to the
express terms of this Agreement);
(ii) providing the Rating Agencies with the Outstanding
Principal Balances of each class or subclass of Notes and
loan-to-value ratios (i.e., ratio of debt to Annual Appraised Value
of MSAF Group's assets); and
11
(iii) coordinating among MSAF Group, the Servicer and the
Appraisers to ensure that the Appraisals are received as required;
(d) to provide assistance to MSAF Group in procuring lessee consents,
novations and other documentation and in taking all other actions necessary in
connection with the reissue or amendment of letters of credit;
(e) to provide assistance to MSAF Group in the structuring, negotiation
and execution of (1) the re-lease and/or sale of the Aircraft, (2) the
acquisition of Additional Aircraft and (3) financing transactions relating to
MSAF Group after the Closing Date, including:
(i) coordinating with the Service Providers, legal and other
professional advisers to monitor the protection of MSAF Group's interests
and rights and coordinating the execution of documentation required at
closings;
(ii) providing qualified personnel to attend and provide
administrative support (including the preparation of any certificates
required pursuant to the Servicing Agreement) at the closings in
connection with sales or re-leases of the Aircraft and the acquisition of
any Additional Aircraft, if required (it being understood that the
Administrative Agent will not be obligated to provide legal counsel or
legal or technical services to MSAF Group);
(iii) coordinating with MSAF Group and the Service Providers and
assisting in the management of the closing process so that closings will
occur on a timely basis;
(iv) providing all necessary administrative support to complete any
documentation and other related matters; and
(v) appointing counsel and other appropriate professional advisers to
represent MSAF Group in connection with any such closings;
(f) to coordinate with the Cash Manager, including reviewing the effect on
the cash flows required for payment of the Notes of investments and
reinvestments of cash by the Cash Manager pursuant to the Cash Management
Agreement;
(g) based on information produced or provided to it, to prepare, file
and/or distribute, with the assistance of outside counsel and auditors, if
appropriate, all reports to be prepared, filed and/or distributed by any MSAF
Group Member or its governing bodies, subject to the approval of the
Controlling Trustees in the case of any exchange offer documents filed by MSAF
under the Securities Act and the
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Exchange Act, and any reports filed by MSAF on Form 10-K and 10-Q and, if such
form is being filed with any information other than the monthly report to
noteholders, any Form 8-K under the Exchange Act, including:
(i) filings any MSAF Group Member is required to make in various
jurisdictions and preparing such filings or monitoring counsel and
advisers in connection with the preparation and filing of such materials;
(ii) filings MSAF is required to make under the Securities Act and
the Exchange Act in connection with the preparation and filing of any
exchange offer documents;
(iii) compliance by MSAF with applicable periodic reporting
requirements of the Exchange Act, in particular, working with necessary
professional advisers to MSAF and the Service Providers, as appropriate,
to prepare on behalf of MSAF and to arrange for the filing and
distribution of an annual report on Form 10-K in respect of MSAF and, as
periodic reporting requirements of the Exchange Act, quarterly reports on
Form 10-Q and any required reports on Form 8-K in respect of MSAF;
(iv) reports required or recommended to be distributed to investors
(including press releases), and managing investor relations on behalf of
MSAF Group, and preparing or arranging for the preparation and
distribution of such reports at MSAF Group's expense; and
(v) reports required to be filed with any Governmental Authorities,
and preparing on behalf of any MSAF Group Member or arranging for the
preparation of and arranging for the filing of any reports required to be
filed with any other entity in order for such MSAF Group Member not to be
in violation of Applicable Law or any applicable covenants;
(h) with respect to amendments,
(i) to report on the substance of any proposed amendments to any
Relevant Documents;
(ii) to the extent requested by any MSAF Group Member or by the
parties to Relevant Documents and subject to approval by the appropriate
controlling trustees or board, to coordinate with MSAF Group's legal
counsel, the other parties thereto and their counsel the preparation and
execution of any amendments to the Relevant Documents (other than
amendments relating to the Aircraft or the Leases), and to provide
assistance in the implementation of such amendments; and
13
(iii) to the extent reasonably requested by the Servicer, to
coordinate and provide assistance on behalf of MSAF Group with the
Servicer and seek to obtain appropriate approvals to take any action which
may be required to amend the terms of the Leases;
(i) to the extent reasonably requested by the Servicer, to coordinate and
provide assistance on behalf of MSAF Group with the Servicer and outside
counsel in a Lessee default or repossession situation;
(j) to authorize payment of certain bills and expenses (i) payable to
legal and professional advisers authorized to be engaged or consulted pursuant
to this Agreement or (ii) approved by the Controlling Trustees;
(k) providing assistance to MSAF with respect to matters for which action
by MSAF is required under the Servicing Agreement or the Indenture, including
such assistance that may be necessary for MSAF to:
(i) comply with Sections 6.07, 7.05(a)(i) and 7.06 of the Servicing
Agreement;
(ii) provide such instructions to the Servicer as the Servicer may
require in interpreting the Indenture, the Concentration Thresholds and
Annex 1 to Schedule 2.02(a) to the Servicing Agreement ("Schedule
2.02(a)");
(iii) direct the Servicer to amend the minimum hull and liability
insurance coverage amounts set forth in Schedule 1.03(a) to Schedule
2.02(a);
(iv) direct the Servicer that settlement offers received by the
Servicer with respect to claims for damage or loss in excess of $2,000,000
with respect to an Aircraft Asset are acceptable;
(v) request periodic reports from the Servicer regarding insurance
matters;
(vi) grant approvals when such approvals are required by Section
7.06(a) and Schedule 2.02(a) of the Servicing Agreement;
(vii) provide the Servicer with such information as the Servicer may
reasonably request in connection with the Concentration Thresholds and
certify to the Servicer that proposed Aircraft-related transactions will
not result in the violation of such Concentration Thresholds;
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(viii) advise the Servicer as required by Section 3(c) of Schedule
2.02(a);
(ix) direct the Servicer to arrange for the sale of an Aircraft Asset
and certify to the Servicer that such sale complies with the terms of the
Indenture;
(x) make any discretionary decisions, judgments or assumptions
necessary in connection with the preparation of any projections, and
provide the Servicer with any written policies and guidelines that the
Servicer shall require in connection with such preparation; and
(xi) request information and assistance from the Servicer in regard
to valuations of Aircraft Assets in accordance with Section 5.01 of
Schedule 2.02(a).
(l) to inform the Controlling Trustees as soon as is reasonably
practicable if the Administrative Agent believes that (i) net revenues
generated by the Leases will be insufficient to satisfy the payment obligations
of MSAF Group and (ii) an Event of Default will result from such insufficiency,
and to advise the Controlling Trustees as to any appropriate action to be taken
(subject to the provisions of the Relevant Documents) with respect to such
insufficiency and to cause the actions directed by the Controlling Trustees to
be implemented so as to avoid an Event of Default, if it is possible to do so;
(m) to advise the Controlling Trustees as to the appropriate levels of the
Liquidity Reserve Amount;
(n) to oversee the general operation of any credit or liquidity
enhancement facility provided for the benefit of MSAF, including without
limitation the MSDW Loan Agreement and the Custody and Loan Agreement
(including without limitation monitoring the amounts committed and available
for drawing, and outstanding and required to be repaid, under each such
facility);
(o) to determine whether it is necessary or appropriate at any time that
MSAF make a drawing under any back-up letter of credit of which MSAF is the
beneficiary and, if so, to administer such drawing on MSAF's behalf; and
(p) any additional services that the Administrative Agent deems necessary
and appropriate in furtherance of the services list in (a) through (o) above.
SECTION 2.04. Bank Account Management and Calculation Services. The
Administrative Agent hereby agrees to perform and provide the following bank
account management and calculation services:
15
(a) Establishment of Accounts. (i) Operating Bank. The Operating Bank
shall be the Senior Trustee, initially Bankers Trust Company.
(ii) Establishment of Accounts. The Administrative Agent shall
establish and maintain each of the Accounts set forth on Schedule 1
hereto, in each case in the manner described herein and in Section 3.01 of
the Indenture. The Administrative Agent shall take all actions necessary
to establish, and shall establish, additional or replacement Accounts from
time to time as required by and in accordance with the terms of Section
3.01 of the Indenture. In addition, the Administrative Agent shall take
all actions necessary to cause the Security Trustee to be granted, to the
extent possible, a security interest pursuant to Section 2.08 of the
Security Trust Agreement in the interest of each MSAF Group Member in the
cash balances from time to time deposited in the Accounts.
(iii) Successor Operating Bank. If the Operating Bank should change
as a result of (A) the resignation of the Senior Trustee or replacement of
the Senior Trustee by an Eligible Institution pursuant to the terms of the
Indenture, (B) the repayment in full of the Senior Class of Notes or (C)
such Operating Bank's failure to meet the criteria necessary to qualify as
an Eligible Institution, then the Administrative Agent, acting on behalf
of the Security Trustee, shall thereupon promptly establish replacement
accounts as necessary at the successor Operating Bank and transfer the
balance of funds in each Account then maintained at the former Operating
Bank to such successor Operating Bank.
(b) Description of Accounts. (i) Collection Account. The Administrative
Agent shall establish and maintain the Collection Account in accordance with
Section 3.01(b) of the Indenture.
(ii) The Lessee Funded Account. The Administrative Agent shall
establish and maintain the Lessee Funded Account in accordance with
Section 3.01(c) of the Indenture.
(iii) Expense Account. The Administrative Agent shall establish and
maintain the Expense Account in accordance with Section 3.01(c) of the
Indenture.
(iv) Rental Accounts. The Administrative Agent shall establish and
maintain the Rental Accounts, and from time to time shall establish and
maintain one or more additional Rental Accounts (including one or more
Non-Trustee Accounts that, for tax or other regulatory or legal purposes,
cannot be established in the name of the Security Trustee), each in
accordance with Section 3.01(e) of the Indenture.
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(v) Refinancing Account. The Administrative Agent shall establish and
maintain a Refinancing Account with respect to each class or subclass of
Notes in accordance with Section 3.01(f) of the Indenture.
(vi) Defeasance/Redemption Account. The Administrative Agent shall
establish and maintain the Defeasance/Redemption Account in accordance
with Section 3.01(g) and Article XI of the Indenture.
(vii) Remaining Aircraft Deposit Account. The Administrative Agent
shall establish and maintain the Remaining Aircraft Deposit Account in
accordance with Section 3.01(h) of the Indenture.
(viii) Lessee Payment Instructions. The Administrative Agent shall
take all necessary steps to ensure that all funds on deposit in each
Rental Account are transferred from such Rental Account to the Collection
Account within one Business Day of receipt thereof.
(ix) Bank Account Statements. The Administrative Agent shall take all
necessary steps to ensure that the Operating Bank and each other bank at
which a Rental Account is located shall furnish as of the close of
business on each Calculation Date a statement providing the then current
balance of each applicable Account to the Security Trustee, MSAF, the
Trustee, the Servicer and the Cash Manager.
(x) Maintaining the Non-Trustee Accounts. So long as any Secured
Obligations remain Outstanding:
(A) The Administrative Agent shall maintain, or cause to be
maintained, each Non-Trustee Account in the name of the related
Grantor (as defined in the Security Trust Agreement) only with a bank
(an "Account Bank") that has entered into a letter agreement in
substantially the form of Exhibit B to the Security Trust Agreement
(or made such other arrangements as are acceptable to the
Administrative Agent and the Security Trustee) with such Grantor and
the Security Trustee (an "Account Letter").
(B) The Administrative Agent (x) shall promptly instruct each
Person obligated at any time to make any payment to any Grantor for
any reason (an "Obligor") to make such payment to a Non-Trustee
Account meeting the requirements of clause 2.04(b)(x)(A) above, (y)
shall instruct each such Account Bank to transfer to the Collection
Account, in immediately available funds, within one Business Day of
receipt thereof, an amount equal to the credit balance of the
Non-Trustee Account in such Account Bank (other than any amount
required to be left on deposit in such
17
Account Bank for local tax or other regulatory or legal purposes),
and (z) shall transfer or cause each such Account Bank to transfer to
the Security Trustee for deposit in the Collection Account, within
one Business Day of receipt thereof, all other Cash Collateral and
any proceeds of any of the Collateral.
(C) Upon the termination of any Account Letter or other
arrangement with respect to the maintenance of a Non-Trustee Account
by any Grantor or any Account Bank, the Administrative Agent shall
immediately notify all Obligors that were making payments to such
Non-Trustee Account to make all future payments to another
Non-Trustee Account meeting the requirements of clause (i) above or,
if practicable at such time, to an Account in the name of the
Security Trustee.
(c) Calculations. Pursuant to Section 3.06 of the Indenture, the
Administrative Agent shall, at the times and in the manner set forth therein,
determine or calculate each of the amounts required to be determined or
calculated by it pursuant to Sections 3.06(a) through (f) of the Indenture.
(d) Withdrawals and Transfers. The Administrative Agent shall make the
following withdrawals and transfers in accordance with the terms of the
Indenture:
(i) Closing Date Deposits, Withdrawals and Transfers. On the
Closing Date, the Administrative Agent shall make each of the
transfers described in Section 3.03 of the Indenture.
(ii) Interim Withdrawals and Transfers for Expenses, Certain
Lease Obligations and Other Obligations. From time to time, the
Administrative Agent shall make the withdrawals and transfers
provided for in Section 3.04 of the Indenture in accordance with such
Section.
(iii) Interim Deposits and Withdrawals for Modification Payments
or Dispositions of Aircraft. From time to time, the Administrative
Agent shall make the withdrawals and transfers provided for in
Section 3.05 of the Indenture in accordance with such Section.
(iv) Payment Date First Step Withdrawals and Transfers. On each
Payment Date, the Administrative Agent shall make the withdrawals and
transfers provided for in Section 3.07 of the Indenture in accordance
with such Section.
(v) Payment Date Second Step Withdrawals. Subject to Section
2.04(d)(vi) hereof, on each Payment Date, after the withdrawals and
transfers provided for in Section 2.04(d)(iv) hereof have been made,
the
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Administrative Agent shall distribute funds on deposit in the
Collections Account and the Expense Account as provided in Section
3.08(a) of the Indenture; provided, that any such direct funds
transfer shall have been authorized on or prior to the date thereof
by the Administrative Agent in the form of a certificate,
substantially in the form of Exhibit A hereto, delivered to and
acknowledged by the Trustee.
(vi) Event of Default and Default Notice Withdrawals and
Transfers. Notwithstanding anything to the contrary contained in
Section 2.04(d)(iv) or (v) hereof, following the delivery of a
Default Notice to the Administrative Agent or MSAF pursuant to the
Indenture, after the withdrawals and transfers provided for in
Section 2.04(d)(iv) hereof have been made, the Administrative Agent
shall distribute funds on deposit in the Collection Account and the
Expense Account in the amounts and in the order of priority provided
for in Section 3.08(b) of the Indenture.
(vii) Defeasance/Redemption Transfers. The Administrative Agent
shall transfer from time to time amounts on deposit in the
Defeasance/Redemption Account to the applicable Note Account in
connection with either the redemption of any class or subclass of
Notes in accordance with Section 3.10 of the Indenture or the
exercise of the defeasance provisions set forth in Article XI of the
Indenture.
(viii) Refinancing Transfers. The Administrative Agent shall
transfer from time to time amounts on deposit in the Refinancing
Account to the Note Accounts in connection with any Refinancing in
accordance with Section 2.10 of the Indenture.
(ix) Currency Conversions. If and to the extent that MSAF incurs
any payment obligation or other cost in a currency other than U.S.
dollars, the Administrative Agent shall, to the extent practicable,
convert U.S. dollars into such other currency at the then prevailing
market rate as necessary to discharge such payment obligations or
costs, at the expense of MSAF in accordance with Section 13.07 of the
Indenture.
(e) Ratings and the Accounts. Each Account shall at all times be
maintained at the Operating Bank or another Eligible Institution selected by
the Administrative Agent in accordance with the Security Trust Agreement and
the Indenture; provided that one or more Rental Accounts may be maintained at
any other reputable and responsible bank in accordance with Section 3.01 of the
Indenture.
(f) Records. The Administrative Agent shall provide such information
relating to the Accounts to the Security Trustee, the Trustee, the Cash Manager
or the Rating Agencies as any of them may reasonably request from time to time.
19
(g) Reports. The Administrative Agent shall provide the reports and other
information required to be provided by it pursuant to Section 3.06(g) of the
Indenture, together with copies of such additional reports or other information
as the Security Trustee or the Trustee may reasonably request, all in
accordance with the terms of the Indenture.
SECTION 2.05. Accounting Services. The Administrative Agent hereby agrees
to perform and provide the following accounting services:
(a) Budgeting Process. The Administrative Agent shall, in accordance with
the procedures, policies and guidelines described below and on the basis of
information generated by the Administrative Agent and information provided by
the Service Providers and MSAF Group:
(i) in respect of each One Year Period and Three Year Period
after the Initial Periods during the term of the Servicing Agreement,
and on behalf of MSAF Group, prepare and deliver to the Servicer, no
later than the September 30 immediately preceding the commencement of
each Year proposed One Year and Three Year Operating Budgets and One
Year and Three Year Asset Expenses Budgets for each such period
together with reasonably detailed supporting information and the
assumptions underlying such proposed Operating Budgets or Asset
Expenses Budgets, such proposed Operating Budgets and Asset Expenses
Budgets to be based, in part, on the information provided by the
Servicer pursuant to Section 7.05(c) of the Servicing Agreement;
(ii) on behalf of MSAF Group, review, discuss and negotiate with
the Servicer such proposed Operating Budgets and Asset Expenses
Budgets, and make such adjustments proposed by the Servicer as the
Administrative Agent shall deem appropriate; and
(iii) submit to the Servicer no later than the November 10
immediately preceding the commencement of such Year the Approved
Budgets together with reasonably detailed information regarding
MSAF's underlying assumptions.
(b) Management Accounts and Financial Statements. The Administrative Agent
shall, in accordance with the procedures, policies and guidelines described
below and on the basis of information generated by the Administrative Agent and
information provided by the Service Providers and MSAF Group:
(i) establish an accounting system and maintain the accounting
ledgers of and for each MSAF Group Member in accordance with
20
accounting principles generally accepted in the United States, unless
otherwise required by Applicable Law and specified by the Controlling
Trustees (collectively, the "Ledgers");
(ii) prepare and deliver (within [40] days after the end of the
relevant Quarter or, if the end of such Quarter coincides with the
end of a Year, within [75] days after the end of such Year), with
respect to MSAF Group, on a consolidated basis, a draft balance sheet
and draft statement of changes in shareholders' equity or residual
trust interest as of the end of each Quarter and Year, as applicable,
and draft statements of income and cash flows for each Quarter and
Year, as applicable (the "Consolidated Quarterly Draft Accounts");
(iii) to the extent required by Applicable Law, prepare and
deliver (within 40 days after the end of the relevant Quarter or, if
the end of such Quarter coincides with the end of a Year, within 90
days after the end of such Year), with respect to MSAF Group on a
combined basis and such of MSAF and the other MSAF Group Members as
specified by the Controlling Trustees in a written schedule provided
to the Administrative Agent (which schedule may be updated by the
Controlling Trustees to the Administrative Agent delivered at least
30 days prior to the commencement of the relevant Quarter), on a
consolidating company-by-company basis, a draft balance sheet and
statement of changes in shareholders' equity or residual trust
interest as of the end of each Quarter and Year, as applicable, with
respect to such MSAF Group Member and draft statements of income and
cash flows for such Quarter and Year, as applicable (the
"Consolidating Quarterly Draft Accounts" and, together with the
Consolidated Quarterly Draft Accounts the "Draft Accounts"). The
Controlling Trustees shall specify the applicable legal requirements
mandating the preparation of such Consolidating Quarterly Draft
Accounts in the written schedule provided to the Administrative Agent
pursuant to this section;
(iv) as required by the Controlling Trustees, arrange and manage
the quarterly review of the Draft Accounts by MSAF Group's auditors;
(v) arrange for, coordinate with and assist MSAF Group's
auditors in preparing annual audits;
(vi) prepare or arrange for the preparation of and arrange for
the filing of MSAF Group's tax returns in conjunction with MSAF
Group's tax advisers after submission to the Controlling Trustees to
the extent required by the Controlling Trustees or Applicable Law;
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(vii) liaise with the Servicer for the purpose of preparing the
weekly and monthly reports in accordance with Sections 8.01 and 8.02
of Schedule 2.02(a); and
(viii) compare the expected cash flows of MSAF Group and the
budgets to actual results.
(c) The Administrative Agent shall prepare the Draft Accounts in
accordance with U.S. GAAP unless otherwise required by Applicable Law and
specified by the Controlling Trustees. In connection with the preparation of
the Consolidated Quarterly Draft Accounts, the Controlling Trustees will,
provide to the Administrative Agent, at such times as the Administrative Agent
may require, a review report (as defined by the Statements on Standards for
Accounting and Review Services issued by the American Institute of Certified
Public Accountants) of MSAF Group's independent public accountants with respect
to the financial statements of such MSAF Group Members for, or as of the end
of, such Quarter, including in such report such accountants' statement that,
based on its review of such financial statements, it is not aware of any
material modifications that should be made to such financial statements in
order for them to be in conformity with U.S. GAAP or other applicable
accounting principles; provided, however, that, with respect to such financial
statements for, or as of the end of, any Quarter (other than the last Quarter
of any Year), in the event that MSAF Group does not include (or cause to be
included) any material disclosure required by U.S. GAAP or other applicable
accounting principles to be included within footnotes to such financial
statements, such review report may be qualified solely by stating that the only
modification that should be made to such financial statements in order for them
to be in conformity with U.S. GAAP or other applicable accounting principles is
the inclusion of such disclosure; provided further, however, that such
qualification may not relate to any footnote to such financial statements.
(d) The Administrative Agent shall be entitled to request instructions
from the Controlling Trustees as to general guidelines or principles to be
followed in preparing Draft Accounts and as to amending or supplementing any
such guidelines or principles.
SECTION 2.06. Additional Administrative Services. The Administrative Agent
will provide additional Administrative Services, including (a) providing
assistance in (i) arranging one or more Refinancings of all or a portion of the
Notes, and (ii) arranging for the payment of any purchase price adjustment
necessary to be paid pursuant to the Asset Purchase Agreement and (b)
undertaking efforts to avoid any adverse change in the tax status of any MSAF
Group Member. In addition, upon a request by any MSAF Group Member, the
Administrative Agent will take such other actions as may be appropriate to
facilitate such MSAF Group Member's business operations and assist the
Controlling Trustees in carrying out their obligations; provided, however, that
the Administrative Agent
22
will not be obligated or permitted to take any action that might reasonably be
expected to result in the business of such MSAF Group Member ceasing to be
separate and readily identifiable from, and independent of, the Administrative
Agent, and any of its Affiliates.
SECTION 2.07. Additional Aircraft. In the event that MSAF Group shall
acquire any Additional Aircraft and notwithstanding that MSAF Group may retain
different service providers for such Additional Aircraft, the Administrative
Agent hereby agrees to provide the same Administrative Services with respect to
all such Additional Aircraft.
SECTION 2.08. New Subsidiaries. The Administrative Agent shall be
responsible for coordinating with outside legal counsel, auditors, tax advisers
and other professional advisers with respect to all corporate and
administrative matters relating to the formation, operation, corporate affairs
and related matters with respect to all Subsidiaries which are or may become
members of MSAF Group, including identifying such outside advisers, a potential
company secretary and candidates for trustee to the extent necessary, and shall
be permitted to incur expenses in respect of such Subsidiaries without MSAF
Group's consent up to such aggregate amount as shall be authorized from time to
time. To the extent that the Administrative Agent shall deem it necessary or
desirable in order for MSAF Group to carry on its business, the Administrative
Agent shall have the authority to assist in the formation of new Subsidiaries
of MSAF and to appoint any director to any such Subsidiary without the consent
of MSAF Group; provided, that such directors are the same directors of MSAF
then in office unless otherwise required by applicable local law mandating a
particular citizenship for directors. The Administrative Agent and its
personnel may act as company secretary for any Subsidiary.
SECTION 2.09. MSAF Group Responsibility. (a) The obligations of the
Administrative Agent hereunder are limited to those matters that are expressly
the responsibility of the Administrative Agent in accordance with the terms of
this Agreement. Notwithstanding the appointment of the Administrative Agent to
perform the Administrative Services, each MSAF Group Member shall remain
responsible for all matters and decisions related to its business, operations,
assets and liabilities.
(b) Without derogating from the authority and responsibility of the
Administrative Agent with respect to the performance of certain of the
Administrative Services as set forth in this Agreement, it is hereby expressly
agreed and acknowledged that the Administrative Agent is not authorized or
empowered to make or enter into any agreement, contract or other legally
binding arrangement, in respect of or relating to the business or affairs of
any MSAF Group Member, or pledge the credit of, incur any indebtedness on
behalf of or expend any funds of any MSAF Group Member other than as expressly
permitted in
23
accordance with the terms of this Agreement, all such authority and power being
reserved to the appropriate MSAF Group Member or the Security Trustee, as the
case may be.
ARTICLE 3
STANDARD OF PERFORMANCE; LIABILITY AND INDEMNITY
SECTION 3.01. Standard of Performance. The Administrative Agent will
devote the same amount of time and attention to and will be required to
exercise the same level of skill, care and diligence in the performance of its
services as it would if it were administering such services on its own behalf
(the "Standard of Performance").
SECTION 3.02. Liability and Indemnity. (a) The Administrative Agent shall
not be liable for any Losses or Taxes to or of, or payable by any MSAF Group
Member at any time from any cause whatsoever or any Losses or Taxes directly or
indirectly arising out of or in connection with or related to the performance
by the Administrative Agent of this Agreement unless such Losses or Taxes are
the result of the Administrative Agent's own wilful misconduct, deceit or fraud
or that of any of its directors, officers, agents or employees, as the case may
be.
(b) Notwithstanding anything to the contrary set forth in any other
agreement to which any MSAF Group Member is a party, MSAF and the other MSAF
Group Members, do hereby assume liability for and do hereby jointly and
severally agree to indemnify, reimburse and hold harmless on an After-Tax Basis
the Administrative Agent, its directors, officers, employees and agents and
each of them from any and all Losses or Taxes that may be imposed on, incurred
by or asserted against any of them arising out of, in connection with or
related to the Administrative Agent's performance under this Agreement
(including any Losses or Taxes incurred by the Administrative Agent as a result
of indemnifying any Person to whom it shall have delegated its obligations
hereunder in accordance with Section 8.01, but only to the extent the
Administrative Agent would have been indemnified had it performed such
obligations), except as a result of the wilful misconduct, deceit or fraud of
the Administrative Agent or any of its directors, officers, employees or
agents. This indemnity shall not apply to:
(i) Taxes imposed on net income by the revenue authorities of Ireland
in respect of any payment by any MSAF Group Member to the Administrative
Agent due to the performance of the Administrative Services; and
(ii) Taxes imposed on net income of the Administrative Agent by any
Government Authority other than the revenue authorities of Ireland to
24
the extent such Taxes would not have been imposed in the absence of any
connection of the Administrative Agent with such jurisdiction imposing
such Taxes other than any connection that results from the performance by
the Administrative Agent of its obligations under this Agreement.
This indemnity shall expressly inure to the benefit of any director,
officer, agent or employee of the Administrative Agent now existing or in the
future and to the benefit of any successor of the Administrative Agent and
shall survive the expiration of this Agreement.
(c) The Administrative Agent agrees to indemnify, reimburse and hold
harmless on an After-Tax Basis each MSAF Group Member and its respective
trustees, directors and agents for any Losses whatsoever which they or any of
them may incur or be subject to in consequence of the performance of the
Administrative Services or any breach of the terms of this Agreement by the
Administrative Agent, but only to the extent such Losses arise due to the
wilful misconduct, deceit or fraud of the Administrative Agent or any of its
directors, officers or employees, as the case may be; provided, however, that
this indemnity shall not apply and the Administrative Agent shall have no
liability in respect of Losses to the extent that they arise from (i) the
wilful misconduct, deceit or fraud of any MSAF Group Members or their
respective directors, trustees or agents, (ii) any breach by the Administrative
Agent of its obligations under this Agreement to the extent such breach is a
result of a Service Provider's failure to perform its obligations to MSAF Group
or a failure by MSAF Group to comply with its obligations under this Agreement,
(iii) any action that MSAF Group requires the Administrative Agent to take
pursuant to a direction but only to the extent that the Administrative Agent
takes such action in accordance with such direction and in accordance with the
provisions hereof or (iv) a refusal by MSAF Group to take action upon a
recommendation made in good faith by the Administrative Agent in accordance
with the terms hereof.
(d) The Administrative Agent, MSAF and the other MSAF Group Members and
the Security Trustee acknowledge and agree that the terms of this Agreement
contemplate that the Administrative Agent shall receive the Relevant
Information in order for the Administrative Agent to make required credit and
debit entries and to make the calculations and supply the information and
reports required herein, and that the Administrative Agent will do the
foregoing to the extent such information is so provided by such relevant
parties and on the basis of such information, without undertaking any
independent verification or recalculation of such information.
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ARTICLE 4
ADMINISTRATIVE AGENT UNDERTAKINGS
SECTION 4.01. Administrative Agent Undertakings. The Administrative Agent
hereby covenants with MSAF Group that it will conduct its business such that it
is a separate and readily identifiable business from, and independent of, each
MSAF Group Member and further covenants as follows (it being understood that
these covenants shall not prevent any Affiliate of the Administrative Agent
from publishing financial statements that are consolidated with those of the
MSAF Group, if to do so is required by Applicable Law or accounting principles
from time to time in effect, and that Affiliates of the Administrative Agent
and certain MSAF Group Members may file a consolidated tax return for United
States federal, state and local income tax purposes):
(a) if the Administrative Agent receives any money whatsoever, which money
belongs to any MSAF Group Member, the Trustee or the Security Trustee or is to
be paid to any MSAF Group Member, the Trustee or the Security Trustee or into
any account pursuant to any Relevant Document or otherwise, it will hold such
money in trust for such MSAF Group Member, the Trustee or the Security Trustee,
as the case may be, and shall keep such money separate from all other money
belonging to the Administrative Agent and shall as promptly as practicable
thereafter pay the same into the relevant account in accordance with the terms
thereof without exercising any right of setoff;
(b) it will comply with any proper directions, orders and instructions
which any MSAF Group Member or the Security Trustee may from time to time give
to it in accordance with the provisions of this Agreement and the Indenture;
provided, that to the extent any conflicts arise between instructions received
from a MSAF Group Member and the Security Trustee, the Administrative Agent
shall comply with such MSAF Group Member's instructions, unless such
instructions relate to the Bank Account Management and Calculation Services
described in Section 2.04 and then in such case the Administrative Agent shall
comply only with the instructions of the Security Trustee.
(c) it will not knowingly fail to comply with any legal requirements in
the performance of the Administrative Services;
(d) it will make all payments required to be made by it at any time and
from time to time pursuant to this Agreement on the required date for payment
thereof and shall turn over any amounts owed to the Security Trustee, MSAF or
the Trustee without set-off or counterclaim;
(e) it will not take any steps for the purpose of procuring the
appointment of any administrative receiver or the making of an administrative
order or for instituting any bankruptcy, reorganization, arrangement,
insolvency, winding up,
26
liquidation, composition or any like proceedings under the laws of any
jurisdiction in respect of any MSAF Group Member or in respect of any of their
respective liabilities, including, without limitation, as a result of any claim
or interest of the Administrative Agent or any of its Affiliates;
(f) it will cooperate with each MSAF Group Member and its respective
trustees, directors and agents and the Security Trustee and the Trustee,
including by providing such information as may reasonably be requested, to
permit MSAF Group or its authorized agents to monitor the Administrative
Agent's compliance with its obligations under this Agreement;
(g) during the term of this Agreement, it will observe all corporate
formalities necessary to remain a legal entity separate and distinct from, and
independent of, each MSAF Group Member;
(h) during the term of this Agreement, it will maintain its assets and
liabilities separate and distinct from each MSAF Group Member;
(i) during the term of this Agreement, it will maintain records, books,
accounts and minutes separate from those of each MSAF Group Member;
(j) during the term of this Agreement, it will pay its obligations in the
ordinary course of its business as a legal entity separate from each MSAF Group
Member;
(k) during the term of this Agreement, it will keep its funds separate and
distinct from the funds of each MSAF Group Member, and it will receive,
deposit, withdraw and disburse such funds separately from the funds of each
MSAF Group Member;
(l) during the term of this Agreement, it will conduct its business in its
own name, and not in the name of any MSAF Group Member;
(m) during the term of this Agreement, it will not pay or become liable
for any debt of any MSAF Group Member, other than to make payments in the form
of indemnity as required by the express terms of this Agreement;
(n) during the term of this Agreement, it will not hold out that it is a
division of any MSAF Group Member or that any MSAF Group Member is a division
of it;
(o) during the term of this Agreement, it will not induce any third party
to rely on the creditworthiness of any MSAF Group Member in order that such
third party will be induced to contract with it;
27
(p) during the term of this Agreement, it will not enter into any
agreements between it and any MSAF Group Member that are more favorable to
either party than agreements that the parties would have been able to enter
into at such time on an arm's-length basis with a non-affiliated third party,
other than any Relevant Documents in effect on the date hereof (it being
understood that the parties hereto do not intend by this covenant to ratify any
self-dealing transactions); and
(q) during the term of this Agreement, it will (i) forward promptly to the
Servicer a copy of any material communication received from any Person in
relation to any Lease or Aircraft; (ii) grant such access to the Servicer to
its books of account, documents and other records and to its employees as may
be reasonably necessary for the Servicer to perform its obligations in respect
of any Lease or Aircraft under the Servicing Agreement; provided, however, that
the Servicer shall not have access to the minutes of the Administrative Agent's
board meetings and other confidential business information; and (iii) execute
and deliver such documents and do such acts and things as the Servicer may
reasonably request in order to effect the purposes of the Servicing Agreement.
ARTICLE 5
UNDERTAKINGS OF MSAF GROUP
SECTION 5.01. Cooperation. MSAF and the other MSAF Group Members shall use
commercially reasonable efforts to cause any Service Provider to, at all times
cooperate with the Administrative Agent to enable the Administrative Agent to
provide the Administrative Services, including providing the Administrative
Agent with all powers of attorney as may be reasonably necessary or appropriate
for the Administrative Agent to perform the Administrative Services in
accordance with this Agreement.
SECTION 5.02. Information. MSAF will provide the Administrative Agent with
the following information in respect of itself and each other MSAF Group
Member:
(a) copies of all Relevant Documents, including the articles of
incorporation, by-laws, trust agreements (or equivalent documents) of each MSAF
Group Member, and copies of all books and records maintained on behalf of each
such MSAF Group Member;
(b) details of all bank accounts and bank mandates maintained by any MSAF
Group Member;
28
(c) names of and contact information with respect to the controlling
trustees or board for each MSAF Group Member;
(d) such other information as is necessary to the Administrative Agent's
performance of the Administrative Services; and
(e) a copy of any information provided to MSAF Group pursuant to the
Servicing Agreement;
provided, that such information as is referred to in this Section 5.02
(with the exception of paragraphs (d) and (e)) shall be provided to the
Administrative Agent upon execution of this Agreement and, in respect of any
amendment or changes to the information provided to the Administrative Agent
upon execution of this Agreement, promptly following the effectiveness of such
amendments or changes.
SECTION 5.03. Scope of Services.
(a) In the event that any MSAF Group Member shall enter into any
agreement, amendment or other modification of any Lease or shall take any other
action that has the effect of increasing in any material respect the scope,
nature or level of the Administrative Services to be provided under this
Agreement without the Administrative Agent's express prior written consent,
MSAF Group shall so notify the Administrative Agent and the Administrative
Agent shall not be obligated to perform the affected Administrative Service to
the extent of such increase unless and until the Administrative Agent and MSAF
Group shall agree on the terms of such increased Administrative Service (it
being understood that (i) the Administrative Agent shall have no liability to
any MSAF Group Member directly or indirectly arising out of, in connection with
or related to the Administrative Agent's failure to perform such increased
Administrative Service prior to any such agreement and (ii) MSAF Group shall
not be permitted to engage another Person to perform the affected
Administrative Service without the prior written consent of the Administrative
Agent unless the Administrative Agent has indicated it is unable or unwilling
to act in respect of the affected Administrative Service or the Administrative
Agent requires payment of more than reasonable additional compensation for such
additional Administrative Service).
(b) In the event that MSAF Group shall acquire Additional Aircraft, MSAF
Group shall so notify the Administrative Agent and the Administrative Agent
shall be obligated to provide the Administrative Services with respect to such
Additional Aircraft in accordance with Section 2.07 hereof.
SECTION 5.04. Ratification. MSAF and the other MSAF Group Members hereby
ratify and confirm and agree to ratify and confirm (and shall furnish written
evidence thereof upon request of the Administrative Agent) any act or omission
by
29
the Administrative Agent in accordance with this Agreement in the exercise of
any of the powers or authorities conferred upon the Administrative Agent under
the terms of this Agreement, it being expressly understood and agreed that none
of the foregoing shall have any obligation to ratify and confirm, and expressly
does not ratify and confirm, any act or omission of the Administrative Agent in
violation of this Agreement, the Standard of Performance or for which the
Administrative Agent is obligated to indemnify any MSAF Group Member under
Article III hereof.
SECTION 5.05. Covenants. Each of MSAF and the other MSAF Group Members
covenants with the Administrative Agent that it will conduct its business such
that it is a separate and readily identifiable business from, and independent
of, the Administrative Agent and any of its Affiliates and further covenants as
follows:
(a) during the term of this Agreement, it will observe all corporate
formalities necessary to remain legal entities separate and distinct from, and
independent of, the Administrative Agent, and any of its subsidiaries;
(b) during the term of this Agreement, it will maintain its assets and
liabilities separate and distinct from those of the Administrative Agent;
(c) during the term of this Agreement, it will maintain records, books,
accounts, and minutes separate from those of the Administrative Agent;
(d) during the term of this Agreement, it will pay its obligations in the
ordinary course of business as a legal entity separate from the Administrative
Agent;
(e) during the term of this Agreement, it will keep its funds separate and
distinct from any funds of the Administrative Agent, and will receive, deposit,
withdraw and disburse such funds separately from any funds of the
Administrative Agent;
(f) during the term of this Agreement, it will conduct its business in its
own name, and not in the name of the Administrative Agent;
(g) during the term of this Agreement, it will not agree to pay or become
liable for any debt of the Administrative Agent, other than to make payments in
the form of indemnity as required by the express terms of this Agreement;
(h) during the term of this Agreement, it will not hold out that it is a
division of the Administrative Agent, or that the Administrative Agent is a
division of it;
30
(i) during the term of this Agreement, it will not induce any third party
to rely on the creditworthiness of the Administrative Agent in order that such
third party will be induced to contract with it;
(j) during the term of this Agreement, it will not enter into any
transaction between it and the Administrative Agent that are more favorable to
either party than transactions that the parties would have been able to enter
into at such time on an arm's-length basis with a non-affiliated third party,
other than any agreements in effect on the date hereof (it being understood
that the parties hereto do not intend by this covenant to ratify any
self-dealing transactions); and
(k) during the term of this Agreement, it will observe all material
corporate or other procedures required under Applicable Law and under its
constitutive documents.
SECTION 5.06. Ratification by Subsidiaries. MSAF hereby undertakes to
procure that, if so requested by the Administrative Agent, any subsidiary of
MSAF formed or acquired after the date hereof, shall execute an agreement with
the Administrative Agent adopting and confirming, as regards such subsidiary,
the terms of this Agreement, and agreeing to ratify anything done by the
Administrative Agent in connection herewith on the terms of Section 5.04.
ARTICLE 6
ADMINISTRATION FEES, EXPENSES AND SUBORDINATION
SECTION 6.01. Administration Fees. (a) In consideration of the
Administrative Agent's performance of the Administrative Services, MSAF agrees
to pay to the Administrative Agent a monthly fee (an "Administrative Fee")
equal to 0.5% of the aggregate amount of the rent (as defined in each Lease,
but for the avoidance of doubt, not including any amounts reimbursable to
Lessees) actually paid by each Lessee for each Fee Period or portion of a Fee
Period in which the related Aircraft (and Additional Aircraft, if any) is owned
by MSAF Group; provided, that the aggregate of the fees actually received by
the Administrative Agent shall be at least $500,000 per annum.
The Administrative Fee shall be payable monthly in arrears for each period
commencing on the most recent Calculation Date) and ending on but excluding the
first and each succeeding Calculation Date during the term of this Agreement
(each such period, a "Fee Period"), such payment to be made no later than the
Payment Date immediately following the end of each such Fee Period.
31
SECTION 6.02. Expenses. (a) The Administrative Agent shall be responsible
for all telephone, facsimile and communications costs and expenses directly
relating to or associated with the Administrative Agent's performance of its
duties as set forth in this Agreement up to an annual amount of $125,000.
(b) Subject to the provisions of Section 6.02(a), MSAF Group shall be
responsible for the following expenses incurred by the Administrative Agent in
the performance of its obligations ("Reimbursable Expenses"):
(i) reasonable out of pocket expenses, including travel,
accommodation and subsistence and approved expenditures in respect of
insurance coverage for the Administrative Agent;
(ii) annual telephone, fax and communication costs and expenses
necessarily and directly incurred in connection with the performance of
the Administrative Services in excess of $125,000;
(iii) expenses expressly authorized by (i) the Controlling Trustees
or (ii) any Person to whom such authority has been delegated, other than
the Administrative Agent or its Affiliates; and
(iv) expenses expressly authorized pursuant to other provisions of
this Agreement.
SECTION 6.03. Taxes. The fees specified in Section 6.01 are net of any
value added tax required to be accounted for by the Administrative Agent. Where
the Administrative Agent is required to account for value added tax in respect
of any amounts payable by or on behalf of MSAF Group to the Administrative
Agent, MSAF Group, shall cause to be paid to the Administrative Agent such
additional amounts as are necessary to discharge such value added tax upon
production of a valid value added tax invoice.
SECTION 6.04. Payment of Expenses. No later than each Calculation Date,
the Administrative Agent shall deliver a notice to the MSAF Group, setting
forth the amounts of expenses paid by the Administrative Agent pursuant to
Section 6.02 of this Agreement through and including such Calculation Date (it
being understood that if there are no such expenses the Administrative Agent
will be under no obligation to provide such notice). On the next Payment Date
following such Calculation Date, MSAF Group agrees to pay to the Administrative
Agent all such amounts.
32
ARTICLE 7
TERM; REMOVAL OF OR TERMINATION BY THE ADMINISTRATIVE AGENT
SECTION 7.01. Term. This Agreement shall expire on the date of payment in
full of all amounts outstanding to be paid on the MSAF Group Notes.
SECTION 7.02. Right to Terminate. (a) At any time during the term of this
Agreement, MSAF Group shall be entitled to terminate this Agreement on 120 days
written notice.
(b) Following the delivery of a Default Notice or during the continuance
of an Acceleration Default, the Security Trustee, on behalf of the Secured
Parties, shall be entitled to terminate on 5 days' written notice the authority
granted to the Administrative Agent to perform the Bank Account Management
Services set forth in Section 2.04 and in the Indenture.
(c) At any time during the term of this Agreement the Administrative Agent
shall be entitled to terminate this Agreement on 120 days' written notice if:
(i) any MSAF Group Member shall fail to pay in full when due (A) any
Administrative Fee or any Reimbursable Expenses in an aggregate amount in
excess of $50,000 and such failure continues for a period of 30 days, in
either case, after the effectiveness of written notice from the
Administrative Agent of such failure or (B) any other amount payable to
the Administrative Agent hereunder, and such failure continues for a
period of 60 days after written notice from the Administrative Agent of
such failure.
(ii) any MSAF Group Member shall fail to perform or observe or shall
violate in any material respect any material term, covenant, condition or
agreement to be performed or observed by it in respect of this Agreement
and such failure continues for a period of 30 days after MSAF Group shall
have received notice of such failure (other than with respect to payment
obligations referred to in clause (b)(i) of this Section 7.02);
(iii) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking
relief in respect of MSAF or any Guarantor, or of a substantial part of
the property or assets of MSAF or any Guarantor, under Title 11 of the
United States Code, as now constituted or hereafter amended (the "U.S.
Bankruptcy Code"), or any other U.S. federal or state or foreign
bankruptcy, insolvency, receivership or similar law, and such proceeding
or petition shall continue undismissed for 120 days or an order or decree
approving or ordering any of the foregoing shall be entered or MSAF or any
Guarantor shall go into liquidation, suffer a receiver or mortgagee to
take possession of all or substantially all of its assets or have an
examiner
33
appointed over it or if a petition or proceeding is presented for any of
the foregoing and not discharged within 120 days; or
(iv) MSAF or any Guarantor shall (A) voluntarily commence any
proceeding or file any petition seeking relief under the U.S. Bankruptcy
Code, or any other U.S. federal or state or foreign bankruptcy,
insolvency, receivership or similar law, (B) consent to the institution
of, or fail to contest the filing of, any petition described in clause
(b)(iii) above, (C) file an answer admitting the material allegations of a
petition filed against it in any such proceeding or (D) make a general
assignment for the benefit of its creditors.
(d) No termination of this Agreement by MSAF Group pursuant to Section
7.02(a) and no termination by the Administrative Agent pursuant to Section
7.02(c) shall become effective prior to the date of appointment by MSAF Group
of a successor Administrative Agent and the acceptance of such appointment by
such successor Administrative Agent; provided, however, that in the event that
a successor Administrative Agent shall not have been appointed within 90 days
after such termination, the Administrative Agent may petition any court of
competent jurisdiction for the appointment of a successor Administrative Agent.
Upon action by either party pursuant to the provisions of this Section 7.02(d),
the Administrative Agent shall be entitled to the payment of any compensation
owed to it hereunder and to the reimbursement of all Reimbursable Expenses
incurred in connection with all services rendered by it hereunder, as provided
in Section 8 hereof, and for so long as the Administrative Agent is continuing
to perform any of the Administrative Services for any MSAF Group Member, the
Administrative Agent shall be entitled to continue to be paid all amounts due
to it hereunder, net of any amounts that shall have been finally adjudicated by
a court of competent jurisdiction to be owed by the Administrative Agent to
MSAF Group or not to be due to the Administrative Agent, until a successor
Administrative Agent shall have been appointed and shall have accepted such
appointment in accordance with the provisions of Section 7.03(c).
SECTION 7.03. Consequences of Termination. (a) Notices. (i) Following the
termination of this Agreement by MSAF Group or by the Administrative Agent
pursuant to Section 7.02, the Administrative Agent will promptly forward to
MSAF Group any notices received by it during the year immediately after
termination.
(ii) MSAF Group will notify promptly any relevant third party,
including each Rating Agency, the Trustee, and the Servicer, of the
termination of this Agreement by MSAF Group or by the Administrative Agent
and will request that any such notices and accounting reports and
communications thereafter be made or given directly to the entity engaged
to serve as Administrative Agent, and to MSAF Group.
34
(b) Accrued Rights. A termination of this Agreement by MSAF Group or by
the Administrative Agent hereunder shall not affect the respective rights and
liabilities of any party accrued prior to such termination in respect of any
prior breaches hereof or otherwise.
(c) Replacement. If this Agreement is terminated by MSAF Group or by the
Administrative Agent under Section 7.02, the Administrative Agent will
cooperate with any person appointed to perform the Administrative Services,
including providing such person with all information and documents reasonably
requested.
SECTION 7.04. Survival. Notwithstanding any termination or the expiration
of this Agreement, the obligations of MSAF Group and the Administrative Agent
under Section 3.02 shall survive such termination or expiration, as the case
may be.
ARTICLE 8
ASSIGNMENT AND DELEGATION
SECTION 8.01. Assignment and Delegation. (a) Except as provided in
subsection (b) below, no party to this Agreement shall assign or delegate or
otherwise subcontract this Agreement or all or any part of its rights or
obligations hereunder to any Person without the prior written consent of the
other parties, such consent not to be unreasonably withheld.
(b) The Administrative Agent may assign its right to receive compensation
for the performance of all or any part of the services set forth in Article 2,
including without limitation, the establishment and maintenance of the Ledgers
and the preparation of the Draft Accounts.
(c) Without limiting the foregoing, any Person who shall become a
successor by assignment or otherwise of any party hereto shall be required as a
condition to the effectiveness of any such assignment or other arrangement to
become a party to this Agreement.
35
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices. All notices, consents, directions, approvals,
instructions, requests and other communications required or permitted by such
agreement to be given to any Person shall be in writing, and any such notice
shall become effective ten days after being deposited in the mails, certified
or registered, return receipt requested, with appropriate postage prepaid for
first class mail, or if delivered by hand or courier service or in the form of
a facsimile, when received (and, in the case of a facsimile, receipt of such
facsimile is confirmed to the sender), and shall be directed to the address or
facsimile number of such Person set forth below:
If to MSAF and the other MSAF Group Members, to:
Morgan Stanley Aircraft Finance
c/o Wilmington Trust Company
Attention: Corporate Trust Administration
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
Fax: (302) 651-8882
With a copy to:
Davis Polk & Wardwell
99 Gresham Street
London EC2V 7NG
Attention: Mr. Keith Kearney
Fax: + 44-171-418 1400
and
Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
Attention: Mr. Scott Peterson
Fax: + 44-171-415 4328
If to the Administrative Agent, to it at:
Cabot Aircraft Services Limited
Attention: Mr. Kieran O'Keefe
Regus House
36
Harcourt Road
Dublin 2
Ireland
Tel: +353 1 402 9478
If to the Security Trustee, to it at:
Bankers Trust Company
Attention: Corporate Trust and Agency Services Structured Finance
Four Albany Street, 10th Floor
New York, NY 10006
Fax: +1 212 250 6439
From time to time any party to such agreement may designate a new address
or number for purposes of notice thereunder by notice to each of the other
parties thereto.
SECTION 9.02. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9.03. Jurisdiction. Except as otherwise expressly provided in this
Agreement, the parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in the United States District Court for the Southern District of New
York or any other New York State court sitting in New York City, and each of
the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 9.01 shall
be deemed effective service of process on such party.
SECTION 9.04. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 9.05. Counterparts; Third Party Beneficiaries. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
37
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement is intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder.
SECTION 9.06. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
SECTION 9.07. Power of Attorney. Each of MSAF and the other MSAF Group
Members shall appoint the Administrative Agent and its successors, and its
permitted designees, as their true and lawful attorney-in-fact. All services to
be performed and actions to be taken by pursuant to this Agreement shall be
performed to and on behalf of each of MSAF and the other MSAF Group Members.
The Administrative Agent shall be entitled to seek and obtain from each of MSAF
and the other MSAF Group Members a power of attorney in respect of the
execution of any specific action as the Administrative Agent deems appropriate.
SECTION 9.08. Table of Contents; Headings. The table of contents and
headings of the various articles, sections and other subdivisions of such
agreement are for convenience of reference only and shall not modify, define or
limit any of the terms or provisions of such agreement.
SECTION 9.09. Restrictions on Disclosure. The Administrative Agent agrees
that it shall not, prior to the termination or expiration of this Agreement or
within the three years after such termination or expiration, disclose to any
Person any confidential or proprietary information, whether of a technical,
financial, commercial or other nature, received directly or indirectly from
MSAF Group regarding MSAF Group or its business or the Aircraft, except as
authorized in writing by MSAF Group or otherwise permitted by this Agreement,
and except:
(a) to Representatives of the Administrative Agent and any of its
Affiliates in furtherance of the purposes of this Agreement, provided that any
such Representatives shall have agreed to be bound by the restrictions on
disclosure set forth in this Section 9.09;
(b) to the extent (i) required by Applicable Law or by judicial or
administrative process or (ii) reasonably necessary in order to enable the
Administrative Agent to perform the Administrative Services, but in the case of
clause (i) above, in the event of proposed disclosure, the Administrative Agent
shall use reasonable efforts to protect information in which MSAF Group has an
interest to the maximum extent achievable; and
39
(c) to the extent that the information:
(i) was generally available in the public domain;
(ii) was lawfully obtained from a source under no obligation of
confidentiality, directly or indirectly, to MSAF Group;
(iii) was disclosed to the general public with the approval of MSAF
Group;
(iv) was in the files, records or knowledge of the Administrative
Agent or any Affiliates of the Administrative Agent prior to initial
disclosure thereof to the Administrative Agent or any Affiliates of the
Administrative Agent by MSAF Group;
(v) was provided by a member of a governing body of any MSAF Group
Member to the Administrative Agent or any Affiliates of the Administrative
Agent without any express written (or, to the extent such information was
provided in an oral communication, oral) restriction on use of or access
to such information, and such information would not reasonably be expected
to be confidential, proprietary or otherwise privileged; or
(vi) was developed independently by the Administrative Agent or any
Affiliates of the Administrative Agent; and
(vii) to the extent the Administrative Agent reasonably deems
necessary to protect and enforce its rights and remedies under this
Agreement; provided, however, that in such an event the Administrative
Agent shall act in a manner reasonably designed to prevent disclosure of
such confidential information; and provided further, that prior to
disclosure of such information the Administrative Agent shall inform MSAF
Group of such disclosure.
SECTION 9.10. No Partnership. (a) It is expressly recognized and
acknowledged that this Agreement is not intended to create a partnership, joint
venture or other similar arrangement between any MSAF Group Member or Members
on the one part and the Administrative Agent on the other part. It is also
expressly understood that any actions taken on behalf of any MSAF Group Member
by the Administrative Agent shall be taken as agent for such MSAF Group Member,
either naming the relevant MSAF Group Member, or naming the Administrative
Agent as agent for an undisclosed principal. No MSAF Group Member shall hold
itself out as a partner of the Administrative Agent, and the
39
Administrative Agent will not hold itself out as a partner of any MSAF Group
Member.
(b) The Administrative Agent shall not have any fiduciary duty or other
implied obligations or duties to any MSAF Group Member, any Lessee or any other
Person arising out of this Agreement.
SECTION 9.11. Concerning the Security Trustee. In respect of the Security
Trustee's performance of appointing the Administrative Agent to provide the
Bank Account Management Services set forth in Section 2.04 and in the
Indenture, the Security Trustee shall be afforded all of the rights,
protections, immunities and indemnities contained in the Security Trust
Agreement as if such rights, protections, immunities and indemnities were
specifically set forth herein.
40
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
first written above.
MORGAN STANLEY AIRCRAFT FINANCE
By: /s/ Brian J. Gill
---------------------------------------
Name:
Title:
------------------------------------------
SIGNED SEALED AND DELIVERED for and on
behalf of CABOT AIRCRAFT SERVICES LIMITED,
as Administrative Agent by /s/ Kieran O'Keefe
-------------------
its duly authorized attorney in fact in the
presence of: /s/ Jacqueline Kelly
BANKERS TRUST COMPANY, not in its individual
capacity but solely as Security Trustee
By: /s/ Jenna Kaufman
---------------------------------------
Name: Jenna Kaufman
Title: Vice President
MSA I
By: /s/ Brian J. Gill
---------------------------------------
Name:
Title:
MSA II
By: /s/ Brian J. Gill
---------------------------------------
Name:
Title:
41
MSA III
By: /s/ Brian J. Gill
---------------------------------------
Name:
Title:
MSA IV
By: /s/ Brian J. Gill
---------------------------------------
Name:
Title:
MSA V
By: /s/ Brian J. Gill
---------------------------------------
Name:
Title:
MSA VI
By: /s/ Brian J. Gill
---------------------------------------
Name:
Title:
MSA VII
By: /s/ Brian J. Gill
---------------------------------------
Name:
Title:
REDFLY (UK) LIMITED
By: /s/ Kieran O'Keefe
---------------------------------------
Name:
Title:
42
------------------------------------------
SIGNED SEALED AND DELIVERED for and on
behalf of GREENFLY (IRELAND) LIMITED, by
/s/ Kieran O'Keefe its duly authorized
------------------
attorney in fact in the presence of:
/s/ Jacqueline Kelly
AIRCRAFT SPC-5, INC.
By: /s/ Kieran O'Keefe
---------------------------------------
Name:
Title:
43
Appendix A
MSA I
MSA II
MSA III
MSA IV
MSA V
MSA VI
MSA VII
Aircraft SPC-5, Inc.,
Greenfly (Ireland) Limited
Redfly (UK) Limited
A-1
SCHEDULE 1
ACCOUNTS
Bankers Trust Accounts Trustee Account Number
- ---------------------- ----------------------
1. Collection Account 25254
2. Rental Account 00365296
3. Expense Account 25257
4. Aircraft Purchase Account 25256
1
EXHIBIT A
FORM OF CERTIFICATE REQUESTING DIRECT
FUNDS TRANSFER
[Date]
Bankers Trust Company, as
trustee under the Indenture
Four Albany Street
New York, New York 10006
Attention: Corporate Trust and Agency Group
Structured Finance Team
Re: Administrative Agency Agreement:
Request for Direct Funds Transfer
Sirs:
The undersigned hereby requests that all amounts distributable to the
Expense payee named below pursuant to Section 2.04(d)(v) of the Amended and
Restated Administrative Agency Agreement dated as of March 15, 2000 (the
"Administrative Agency Agreement"; terms used herein but not otherwise defined
herein being used herein as therein defined), among Cabot Aircraft Services
Limited, as administrative agent, Morgan Stanley Aircraft Finance, Bankers
Trust Company, as security trustee and certain other entities named therein, be
transferred on each Payment Date to the following account:
[Name of Expense payee]
[Name of Bank]
Account No:____________________
[Location]
Attention:_______________
Please acknowledge your approval of the foregoing payment instructions by
executing a copy of this letter and returning it to __________ at
______________.
CABOT AIRCRAFT SERVICES LIMITED
By:
------------------------------------
Name:
Title:
A-1
Acknowledged and Approved:
BANKERS TRUST COMPANY, not in its individual
capacity, but solely as trustee under the Indenture
By:
--------------------------------
Name:
Title:
A-2